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STANDARD CONDITIONS / JURISDICTION AND LAW CLAUSE
The contract evidenced by or contained in this Bill of Lading is governed by the law of the country in which this Bill of Lading is issued. Any claim or dispute arising hereunder or in connection herewith shall be determined by the courts in the country in which this Bill of Lading is issued, and no other court.
‘Carrier’ means the Company stated on the front of this Bill of Lading as being the Carrier and on whose behalf this Bill of Lading has been signed. Carrier is an NVOCC.
‘Merchant’ includes the shipper, the consignee, the receiver of the goods, the holder of this Bill of Lading, any person owning or entitled to the possession of the goods or this Bill of Lading, any person having a present or future interest in the goods or any person acting on behalf of any of the above mentioned persons.
‘Container’ includes any container, trailer, transportable tank, lift van, flat, pallet or any similar article of transport used to consolidate goods.
‘Package’ means any preparation for transportation whether or not that preparation conceals the goods. ‘Combined Transport’ arises where the Carriage called for by this Bill of Lading is not Port to Port.
‘Port to Port Shipment’ arises where the Place of Receipt and the Place of Delivery are not indicated on the front of this Bill of Lading or if both the Place of Receipt and the Place of Delivery indicated are ports and the Bill of Lading does not in the nomination of the Place of Receipt or the Place of Delivery on the front hereof specify any place or spot within the area of the port so nominated.
‘Shipping Unit’ includes (customary) freight unit and the term ‘unit’ as used in the Hague Rules or where the Visby Amendments apply compulsorily, in the Hague Visby Rules.
An endorsement on this Bill of Lading that the goods are ‘On Board’ shall mean, that the goods are loaded on board the ocean vessel named in this Bill of Lading, or loaded on board rail cars, trucks, lorries, feeder ships, barges or other means of transportation and are in the custody of an Inland or ocean Carrier for Through Transportation in accordance with the terms of this Bill of Lading.
2. Issuance of the Bill of Lading
By the issuance of this Bill of Lading the Carrier
a) undertakes to perform and/or in its own name to procure the performance of the entire transport, from the place at which the goods are taken in charge to the place designated for delivery in this Bill of Lading.
b) assumes liability as set out in these conditions.
3. Carrier’s Tariff
The provisions of the Carrier’s applicable Tariff, if any, are incorporated herein. Copies of such provisions are obtainable from the Carrier or its agents upon request or, where applicable, from a government body with whom the Tariff has been filed. In the case of inconsistency between this Bill of Lading and the applicable Tariff, this Bill of Lading shall prevail.
4. Negotiability and Title to the Goods
4.1 This Bill of Lading shall be non negotiable unless made out ‘to order’ in which event it shall be negotiable and shall constitute title to the goods and the holder shall be entitled to receive or to transfer the goods herein described.
4.2 This Bill of Lading shall be prima facie evidence of the taking in charge by the Carrier of the goods as herein described. However, proof to the contrary shall not be admissible when this Bill of Lading has been negotiated or transferred for valuable consideration to a third party acting in good faith.
The Merchant warrants that in agreeing to the terms hereof it is or has the authority of the person owning or entitled to the possession of the goods and this Bill of Lading.
6. Sub Contracting
6.1 In addition to the liberties given to the Carrier under the other clauses hereof it is agreed that the Carrier shall be entitled to sub contract on any terms the whole or any part of the carriage, loading, unloading, storing, warehousing, handling and any and all duties whatsoever undertaken by the Carrier in relation to the goods.
6.2 The expression sub contractor in this clause shall include direct and indirect sub contractors, including stevedores and their respective servants and agents.
6.3 Himalaya Clause: For the purposes and subject to the provisions of this Bill of Lading, the Carrier shall be responsible for the acts and omissions of any person of whose services it makes use for the performance of the contract evidenced by this Bill of Lading. The Merchant undertakes that no claim or allegation shall be made against any person or vessel whatsoever, other than the Carrier. If any claim or allegation should nevertheless be made against any person or vessel other than the Carrier, the Merchant agrees to indemnify and hold harmless the Carrier against all consequences thereof. Without prejudice to the foregoing, all defenses and limitations of the Carrier shall be available to all persons of whose services the Carrier makes use for the performance of this contract. Such persons shall include, but shall not be limited to, the Carrier’s servants or agents, independent contractors, including stevedores, terminal operators, carpenters, lashers, container repairmen, and all other persons of whose services the Carrier makes use to perform this contract. In entering into this Contract, the Carrier, to the extent of these provisions, does so not only on its own behalf, but also as agent or trustee for such persons and vessels and such persons and vessels shall to this extent be or be deemed to be parties of this Contract.
7. Methods and Routes of Transportation
The Carrier reserves to itself a reasonable liberty as to the means, routes and procedures to be followed in the handling, storage and transportation of goods. Whether expressly arranged beforehand or otherwise, the Carrier shall be at liberty to have the goods carried to the port of destination by the mentioned vessel or another.
8. Description of Goods and Merchant’s Packing
8.1 The Merchant shall be deemed to have guaranteed to the Carrier the accuracy, at the time the goods were taken in charge by the Carrier, of the description of the goods, marks, numbers, quantity and weight as furnished by it and the Merchant shall indemnify the Carrier against all loss, damage and expenses arising or resulting from inaccuracies in or inadequacy of such particulars.
8.2 The Merchant shall be liable for any loss, damage or injury caused by faulty or insufficient packing of goods or by faulty loading or packing within containers when such loading or packing has been performed by the Merchant or on behalf of the Merchant or by the defect or unsuitability of the containers, when supplied by the Merchant, and shall indemnify the Carrier against any additional expenses so caused.
9. Dangerous Goods
9.1 The Merchant shall comply with rules which are mandatory according to the national law or by reason of international Convention, relating to the carriage of goods of a dangerous nature, and shall in any case inform the Carrier in writing of the exact nature of the danger, before goods of a dangerous nature are taken in charge by the Carrier and indicate, if need be, the precautions to be taken.
9.2 If the Merchant fails to provide such information and the Carrier is unaware of the dangerous nature of the goods and the necessary precautions to be taken and if, at any time, they are deemed to be a hazard to life or property, they may at any place be unloaded, destroyed or rendered harmless, as circumstances may require, without compensation, and the Merchant shall be liable for all loss, damage, delay or expenses arising out of their being taken in charge, or their carriage, or of any service incidental thereto. The burden of proving the Carrier knew the exact nature of the danger constituted by the carriage of the said goods shall rest upon the person entitled to the goods.
9.3 If any goods shipped with the knowledge of the Carrier as to their dangerous nature shall become a danger to the vehicle or cargo, they may in like manner be unloaded or landed at any place or destroyed or rendered innocuous by the Carrier, without liability on the part of the Carrier, except to General Average, if any.
10. Inspection of Goods
The Carrier or any person authorized by the Carrier shall be entitled, but under no obligation, to open any container or package at any time and to inspect the goods.
11. Regulations Relating to Goods
The Merchant shall comply with all regulations or requirements of Customs, port and other authorities, and shall bear and pay all duties, taxes, fines, imposts, expenses or losses incurred or suffered by reason thereof or by reason of any illegal, incorrect or insufficient marking, numbering or addressing of the goods and indemnify the Carrier in respect thereof.
12. Paramount Clause
The Hague Rules contained in the International Convention for the Unification of Certain Rules relating to Bills of Lading, dated Brussels, 25th August 1924, or in those countries where they are already in force the Hague Visby Rules contained in the Protocol of Brussels, dated February 23rd, 1968, as enacted in the Country of Shipment, shall apply to all carriage of goods by sea and where no mandatory international or national law applies, to the carriage of goods by inland waterways also and such provisions shall apply to all goods whether carried on deck or under deck.
In the case of sea transport where the contract evidenced by this Bill of Lading is subject to the Carriage of Goods by Sea Act of the United States (COGSA), approved April 16th, 1936 (if the port of loading or the port of discharge is in the United States), or to the Water Carriage of Goods Act of Canada (COGWA), approved August 1st, 1936 (if the port of loading or the port of discharge is in Canada), then the provisions stated in these Acts shall govern. If and to the extent that the provisions of the Harter Act of the United States of America 1893 would otherwise be compulsorily applicable to regulate the Carrier’s responsibility for the goods during any period prior to loading on or after discharge from the vessel, the Carrier’s responsibility shall instead be determined by the provisions of 13 and 14 below, but if such provisions are found to be invalid such responsibility shall be subject to COGSA.
13. Carrier’s Liability
13.1 Port to Port Shipment
The responsibility of the Carrier is limited to that part of the carriage which commences when cargo is delivered into the custody of the Carrier and ends when the Carrier delivers the cargo from the custody and control of the Carrier to another party and the Carrier shall not be liable for any loss or damage whatsoever in respect of the goods or for any other matter arising during any other part of the carriage even though charges for the whole carriage have been charged by the Carrier.
13.2 Combined Transport
Save as otherwise provided in this Bill of Lading, the Carrier shall be liable for loss of or damage to the goods occurring between the time it takes the goods into its charge and the time of delivery of the goods from its charge. In addition to all other defenses contained in this Bill of Lading, the law incorporated into this Bill of Lading, and the law governing this Bill of Lading, the Carrier shall be relieved of liability for any loss or damage caused by:
a) an act or omission of the Merchant or person other than the Carrier acting on behalf of the Merchant or from whom the Carrier took the goods in charge;
b) insufficiency or defective conditions of the packing or marks and/or numbers;
c) handling, loading, stowage or unloading of the goods by the Merchant or any person acting on behalf of the Merchant;
d) inherent vice of the goods;
e) strike, lockout, stoppage or restraint of labour;
f) a nuclear incident if the operator of a nuclear installation or a person acting for it is liable for this damage under an applicable international Convention or national law governing liability in respect of nuclear energy;
g) any cause or event which the Carrier could not avoid or the consequences whereof it could not prevent by the exercise of reasonable diligence.
When the Carrier establishes that, in the circumstances of the case, the loss or damage could be attributed to one or more of the causes or events specified in b) to d) above, it shall be presumed that it was so caused. The claimant shall, however, be entitled to prove that the loss or damage was not, in fact, caused wholly or partly by one or more of these causes or events.
14. Amount of Compensation
14.1 When the Carrier is liable for compensation in respect of loss of or damage to the goods, such compensation shall be calculated by reference to the value of such goods at the place and time they are delivered to the Consignee in accordance with the contract or should have been so delivered.
The value of the goods shall be fixed according to the current commodity exchange price, or if there shall be no commodity exchange price or current market price, by reference to the normal value of goods of the same kind and quality.
A) Where the stage of Carriage where the loss or damage occurred can be proved, the liability of the Carrier shall be determined by the provisions contained in any international convention or national law of the country which provisions
a) cannot be departed from by private contract to the detriment of the Merchant, and
b) would have applied if the Merchant had made a separate and direct contract with the Carrier in respect of the particular stage of carriage where the loss or damage occurred and had received as evidence thereof any particular document which must be issued in order to make such international convention or national law applicable.
With respect to the transportation in the United States of America or in Canada to the Port of Loading or from the Port of Discharge, the responsibility of the Carrier shall be to procure transportation by carriers (one or more) and such transportation shall be subject to the inland carrier’s contracts of carriage and tariffs and any law compulsorily applicable as well as subject to any liability limitations contained in said inland carrier’s contracts. The Carrier guarantees the fulfillment of such inland carriers’ obligations under their contracts and tariffs and the terms and conditions contained in these contracts and tariffs shall be incorporated into this Bill of Lading. If there is no such international convention or national legislation applicable to the stage of carriage, the liability of the carrier shall be determined in accordance with the provisions of Clause 14.2 B) below.
B) Where the stage of Carriage where the loss or damage occurred cannot be proved, compensation shall not, however, exceed US$ 2.00 per kilo of gross weight of the goods lost or damaged provided that the Hague Rules or the Hague Visby Rules or any legislation applying such Rules (such as COGSA or COGWA) is not compulsorily applicable.
C) Where neither 14.2 A) nor 14.2 B) above apply, any liability of the carrier shall be determined in accordance with Clause 14.2 B).
14.3 If the Merchant, with the consent of the Carrier, has declared a higher value for the goods and such higher value has been stated in the Bill of Lading, such higher value shall be the limit.
However, the Carrier shall not, in any case, be liable for an amount greater than the actual loss to the person entitled to make the claim.
14.4 Where the Hague Rules, the Hague Visby Rules or any legislation making such Rules compulsorily applicable (such as COGSA or COGWA) to this Bill of Lading apply, the Carrier shall not, unless a declared value has been noted in accordance with sub clause 14.2, be or become liable for any loss or damage to or in connection with the goods in an amount per package or shipping unit in excess of the package or shipping unit limitation as laid down by such Rules or legislation. Such limitation amount, according to COGSA is US$ 500. per package or shipping unit and according to COGWA is Can$ 500. per package or shipping unit. If no limitation amount is applicable under such Rules or legislation, the limitation shall be US$ 500. .
Where a container is used to consolidate goods and such container is stuffed by the Carrier, the number of packages or shipping units stated on the face of this Bill of Lading in the box provided shall be deemed the number of packages or shipping units for the purpose of any limit of liability per package or shipping unit provided in any international Convention or national law relating to the carriage of goods by sea. Except as aforesaid the container shall be considered the package or shipping unit.
15. Delay, Consequential Loss, etc.
Arrival times are not guaranteed by the Carrier. The Carrier shall in no circumstances be liable for direct, indirect or consequential loss or damage caused by delay or any other cause, whatsoever and howsoever caused. Without prejudice to the foregoing, if the Carrier is found liable for delay, liability shall be limited to double the freight applicable to the relevant stage of the transport, or the value of the goods as determined in clause 14, whichever is least.
16. Notice of Loss or Damage
The Carrier shall be deemed prima facie to have delivered the goods as described in the Bill of Lading unless notice of loss of or damage to the goods, indicating the general nature of such loss or damage, shall have been given in writing to the Carrier or to its representative at the place of delivery before or at the time of removal of the goods into the custody of the person entitled to delivery thereof under this Bill of Lading or, if the loss or damage is not apparent, within three consecutive days thereafter.
If the delivery of the goods or any part thereof is not taken by the Merchant, at the time and place when and where the Carrier is entitled to call upon the Merchant to take delivery thereof, the Carrier shall be entitled to store the goods or the part hereof at the sole risk of the Merchant, whereupon the liability of the Carrier in respect of the goods or that part thereof stored as aforesaid (as the case may be) shall wholly cease and the cost of such storage (if paid or payable by the Carrier or any agent or sub contractor of the Carrier) shall forthwith upon demand be paid by the Merchant to the Carrier.
18. Non Delivery
Failure to effect delivery within 90 days after the expiry of a time limit agreed and expressed in this Bill of Lading or, where no time limit is agreed and so expressed, failure to effect delivery within 90 days after the time it would be reasonable to allow for diligent completion of the transport operation shall, in the absence of evidence to the contrary, give to the party entitled to receive delivery the right to treat the goods as lost.
19. Failure to notify
No claim shall under any circumstances whatever attach to the Carrier for failure to notify the Consignee or others concerned of the arrival of the goods.
20. Hindrances etc. Affecting Performance
20.1 The Carrier shall use reasonable endeavours to complete the transport and to deliver the goods at the place designated for delivery.
20.2 If at any time the performance of the contract as evidenced by this Bill of Lading is or will be affected by any hindrance, risk, delay, difficulty or disadvantage of whatsoever kind, and if by virtue of sub clause 20.1 or cause, the liability for which the Carrier is excused by this Bill of Lading, law, regulation or custom, the Carrier (whether or not the transport is commenced) may elect to
a) treat the performance of this contract as terminated and place the goods at the Merchant’s disposal at any place which the Carrier shall deem safe and convenient; or
b) deliver the goods at the place designated for delivery.
In any event the Carrier shall be entitled to full freight for goods received for transportation and additional compensation for extra costs resulting from the circumstances referred to above.
21. Freight and Charges
21.1 Freight shall be deemed earned on receipt of the goods by the Carrier and shall be paid in any event ship lost or not lost.
21.2 The Merchant’s attention is drawn to the stipulations concerning currency in which the freight and charges are to be paid, rate of exchange, devaluation and other contingencies relative to freight and charges in the relevant tariff conditions. If no such stipulation as to devaluation exists or is applicable the following clause shall apply: If the currency in which freight and charges are quoted is devalued between the date of the freight agreement and the date when the freight and charges are paid, then all freight and charges shall be automatically and immediately changed in proportion to the extent of the devaluation or revaluation of the said currency.
21.3 For the purpose of verifying the freight basis, the Carrier reserves the right to have the contents of containers inspected in order to ascertain the weight, measurement, value, or nature of the goods. If on such inspection it is found that the declaration is not correct, it is agreed that a sum equal either to five times the difference between the correct freight and the freight charged or double the correct freight less the freight charged, whichever sum is the smaller, shall be payable as liquidated damages to the Carrier notwithstanding any other sum having been stated on this Bill of Lading as the freight payable.
21.4 All dues, taxes and charges levied on the goods and other expenses in connection therewith shall be paid by the Merchant.
21.5 The Merchant shall reimburse the Carrier in proportion to the amount of freight for any costs for deviation or delay or any other increase of costs of whatever nature caused by war, warlike operations, epidemics, strikes, government directions or force majeure.
The Carrier shall have a general lien on any and all property (and documents relating thereto) of the Merchant, in its possession, custody or control or en route, for all claims for charges, expenses or advances incurred by the Carrier in connection with any shipments of the Merchant and if such claim remains unsatisfied for thirty (30) days after demand for its payment is made, the Carrier may sell at public auction or private sale, upon ten (10) days written notice, register mail to the Merchant, the goods, wares and/or merchandise or so much necessary to satisfy such lien, and apply the net proceeds of such sale to the payment of the amount due the Carrier. Any surplus from such sale shall be transmitted to the Merchant, and the Merchant shall be liable for any deficiency in the sales.
23. General Average
23.1 The Carrier may declare General Average which shall be adjustable according to the York/Antwerp Rules of 1974 any place at the option of the Carrier and the Amended Jason Clause as approved by BIMCO is to be considered incorporated herein and the Merchant shall provide such security as may be required by the Carrier in this connection.
23.2 Notwithstanding sub clause 23.1 above, the Merchant shall defend, indemnify and hold harmless the Carrier respect of any claim (and any expense arising therefrom) of General Average nature which may be made on the Carrier and shall provide such security as may be required by the Carrier in this connection.
23.3 The Carrier shall be under no obligation to take any steps whatsoever to collect security for General Average contributions due to the Merchant.
24. Time Bar
In any event the Carrier shall be discharged of all liability under this Bill of Lading unless suit is brought within one year after the delivery of the goods or the date when the goods should have been delivered.
25. Variation of the Contract
No servant or agent of the Carrier shall have power to waive or vary any term of this Bill of Lading unless such waiver or variation is in writing and is specifically authorized or ratified in writing by the Carrier.
26. Partial Invalidity
If any provision in this Bill of Lading is held to be invalid or unenforceable such invalidity or unenforceability shall attach only to such provision. The validity of the remaining provisions shall not be affected thereby and this Bill of Lading contract shall be carried out as if such invalid or unenforceable provision were not contained herein.