MacAndrews & Company Limited. Bill of Lading Terms & Conditions (E.F. 1 July 2016)

Transcription

1 MacAndrews & Company Limited Bill of Lading Terms & Conditions (E.F. 1 July 2016) 1 DEFINITIONS AND INTERPRETATION TERMS OF BUSINESS CARRIER S TARIFF INSURANCE WARRANTY SUB-CONTRACTING AND INDEMNITY CARRIER S RESPONSIBILITY TIME LIMITS FOR CLAIMS AND TIME BAR SUNDRY LIABILITY PROVISIONS CONTAINER PACKING INSPECTION OF GOODS AND CONTAINERS CARRIAGE AFFECTED BY CONDITION OF GOODS DESCRIPTION OF GOODS SHIPPER S / MERCHANT S RESPONSIBILITY FREIGHT LIEN OPTIONAL STOWAGE AND DECK CARGO LIVE ANIMALS METHODS AND ROUTES OF CARRIAGE MATTERS AFFECTING PERFORMANCE DANGEROUS GOODS NOTIFICATION AND DELIVERY FCL MULTIPLE BILLS OF LADING PAYMENT TERMS GENERAL AVERAGE AND SALVAGE VARIATION OF THE CONTRACT LAW AND JURISDICTION VALIDITY LIMITATION OF LIABILITY USA CLAUSE PARAMOUNT (if applicable) MacAndrews & Co Ltd 6 th Floor, 75 King William Street, London EC4N 7BE tel: +44 (0) fax: +44 (0) Registered in England No VAT Reg No: Page 1 of 24

2 The Merchant is specifically referred to the provisions relating to Incorporation of these Terms and Conditions (clause 2), Limitation (clause 29) and Time Limits (clause 8) imposed by these Conditions. 1 DEFINITIONS AND INTERPRETATION 1.1 Assured means any party for whom the Carrier (or its parent, subsidiary, sister company or agent) makes insurance available. 1.2 Calendar Day shall mean a period of 24 consecutive hours ending at midnight. 1.3 Carriage means the whole or any part of the operations and Services undertaken by the Carrier in respect of the Goods covered by this Bill of Lading. 1.4 Carrier means the party named in the Signature box on the face of the relevant Bill of Lading. 1.5 Combined Transport arises if the Place of Receipt and / or the Place of Delivery are indicated on the face hereof in the relevant spaces. 1.6 Conditions means these terms and conditions. 1.7 Container includes any container, trailer, transportable tank, flat or pallet, or any similar article used to consolidate goods and any ancillary equipment. 1.8 Freight includes all charges payable to the Carrier in accordance with the applicable Tariff and this Bill of Lading. 1.9 Goods means the whole or any part of the cargo received from the Shipper and includes the packing and any equipment or Container whether supplied by or on behalf of the Carrier Hague-Visby Rules means the provisions of the International Convention for the Unification of Certain Rules relating to Bills of Lading signed at Brussels on 25th August, 1924 as amended by the Protocol to Amend the International Convention for the Unification of Certain Rules of Law Relating to Bills of Lading signed at Brussels on 23rd February, Holder means any Person for the time being in possession of (or entitled to the possession of) this Bill of Lading Indemnify includes defend, indemnify and hold harmless whether or not the obligation to indemnify arises out of negligent or non-negligent acts or omissions of the Carrier, his servants, agents or Sub-Contractors Insurance Arrangements means making available insurance between the Merchant and Underwriters; providing quotations; confirming cover; issuing insurance certificates, cover notes and/or other policy documentation; dealing with premiums and otherwise administering insurance cover; dealing with servicing, adjustment, renewal and claims Merchant includes any Person who at any time has been or becomes the Shipper, holder, consignee, receiver of the Goods, any Person who owns or is entitled to the possession of the Goods or of the relevant Bill of Lading and any Person acting on behalf of any such Person, including the Person entering into this contract. Page 2 of 24

3 1.15 Person includes an individual, group, company or other entity Place of Delivery means any place at which the Goods are delivered under the relevant Bill of Lading to the consignee or duly appointed Person Place of Receipt means any place at which the Goods are physically received for Carriage Port of Discharge means any port at which the Goods are discharged from any vessel (which may be either a feeder vessel or an ocean vessel and is not necessarily the vessel named overleaf) for Carriage under this Bill of Lading 1.19 Port of Loading means any port at which the Goods are Loaded on board any vessel (which may be either a feeder vessel or an ocean vessel and is not necessarily the vessel named overleaf) for Carriage under this Bill of Lading Port to Port arises if the Carriage is not Combined Transport Services means the services provided by the Carrier to the Merchant in connection with the relevant Bill of Lading, whether or not for reward, whether by way of charge, fee, commission or remuneration of any other kind, including for the avoidance of doubt, VGM Services SDR means Special Drawing Right as defined by the International Monetary Fund Shipped on Board relates only to the Container into which the Goods are manifested Shipper is defined under the SOLAS guidelines regarding the VGM of a container carrying cargo as meaning a legal entity or person named on the bill of lading or sea waybill or equivalent multimodal transport document (e.g. "through" bill of lading) as shipper and/or who (or in whose name or on whose behalf) a contract of carriage has been concluded with a shipping company; 1.25 Shipping Document is as defined under the SOLAS guidelines regarding the VGM of a container carrying cargo as meaning a document used by the Shipper to communicate the verified gross mass of the packed container. This document can be part of the shipping instructions to the shipping company or a separate communication (e.g. a declaration including a weight certificate produced by a weigh station) SOLAS means the International Convention for the Safety of Life at Sea (SOLAS), 1974, as amended Sub-Contractor includes (but is not limited to) owners and operators of vessels (other than the Carrier), stevedores, terminal and groupage operators, road and rail transport operators and any independent contractor employed by the Carrier in performance of the Carriage and any sub-contractors thereof Tariff means the Carrier s tariff for the time being in force, a copy of which is available from the Carrier or its agents upon request and at Underwriter or Underwriters means the insurer(s) providing open cover for cargo insurance in respect of which the Carrier (or its parent, subsidiary, sister company or agent) may make Insurance Arrangements regarding the Goods. Page 3 of 24

4 1.30 Vessel means any waterborne craft used in the Carriage under this Bill of Lading which may be a feeder vessel or an ocean vessel VGM means the verified gross mass as assessed in accordance with SOLAS Chapter VI Regulation VGM Services means the services contained in the MacAndrews VGM Policy and Charges, for the time being in force, a copy of which is available from the Carrier or its agents upon request and at The headings in the Conditions are for convenience only and shall not affect their interpretation. 2 TERMS OF BUSINESS 2.1 All dealings whether gratuitous or not entered into by the Carrier in connection with or arising out of the Carrier s business shall be subject to the Conditions unless otherwise agreed by a duly authorised manager of the Carrier in writing. 2.2 If any legislation, to include regulations and directives, is compulsorily applicable to any business undertaken, the Conditions shall, as regards such business, be read subject to such legislation, and nothing in the Conditions shall be construed as a surrender by the Carrier of any of its rights or immunities or as an increase of any of its responsibilities or liabilities under such legislation. In the event any part of the Conditions be repugnant to such legislation to any extent, such part shall as regards such business be overridden to that extent and no further. 2.3 Should any dispute arise as to the incorporation of these or alternative terms and conditions, it is agreed that these Conditions prevail. Any instructions received from the Merchant in accordance with the performance of this contract shall be deemed acceptance of the incorporation of the Conditions 3 CARRIER S TARIFF 3.1 The terms and conditions of the Carrier s current Tariff are incorporated herein. 3.2 Particular attention is drawn to the terms and conditions therein relating to container and vehicle demurrage, quay rent, VGM charges, other expenses and charges and payment terms. 3.3 In the case of inconsistency between these Conditions and the Tariff, these Conditions shall prevail. 4 INSURANCE 4.1 A Merchant may instruct the Carrier (or its parent, subsidiary, sister company or agent) to make Insurance Arrangements in respect of the Goods. 4.2 Where the Carrier (or its parent, subsidiary, sister company or agent) makes such Insurance Arrangements it does so on the terms and subject to the conditions of this clause 4 as follows: Where the Assured is not an individual, any Insurance Arrangements or insurance contracts arising from the Insurance Arrangements fall within the Financial Services and Markets Act 2000 (Exemption) (Amendment No. 2) Order 2007 (SI2007/1821) which amends the FSMA (Exemption)_Order 2001 and applies an exemption to the FSMA regulatory regime for freight forwarders. Page 4 of 24

5 4.2.2 The Carrier (or its parent, subsidiary, sister company or agent) will make the Insurance Arrangements pursuant to and under the terms of open cover for cargo insurance in place with Underwriters from time to time Any insurance made available by means of the Insurance Arrangements comprises a contract between the Assured and the Underwriters. The key terms of such insurance are as set out in the insurance certificate. Full policy terms are available on request by the Assured The parties agree that the Carrier (or its parent, subsidiary, sister company or agent) making the Insurance Arrangements is not the Assured s agent for the purposes of the Insurance Arrangements and/or any insurance provided by Underwriters The Carrier (or its parent, subsidiary, sister company or agent) making Insurance Arrangements for any Assured does so without any obligation or duty to undertake any enquiry into the Assured s needs (including, without limitation, the adequacy of the sum insured or the limits of cover). Furthermore, the Carrier (or its parent, subsidiary, sister company or agent) making Insurance Arrangements makes no representations or warranty as to the suitability or sufficiency of any such insurance for the Assured or whether the insurance is on best available terms from the perspective of the Assured. If the Assured requires advice on the suitability or sufficiency of the insurance, or whether it is on best available terms, the Assured should seek that advice from an independent insurance broker The Carrier (or its parent, subsidiary, sister company or agent) making Insurance Arrangements for any Assured (a) makes no representations about the regulatory authorisation, credit rating, solvency, or appropriateness in any other respect of the Underwriters who provide insurance to the Assured and (b) has no duty to make enquiries into the same The parties agree the Carrier (or its parent, subsidiary, sister company or agent) making the Insurance Arrangements will have no liability to the Assured (or the Assured s successors, assigns beneficiaries, transferees, representatives or agents) in the event that the Underwriters do not indemnify the Assured under any policy of insurance made available by means of the Insurance Arrangements The Carrier (or its parent, subsidiary, sister company or agent) making the Insurance Arrangements is entitled to deduct commission from any premiums paid by the Assured as agreed with Underwriters from time to time The Assured s obligations: the Assured has a duty to make a fair presentation of the risk for consideration by the Underwriters and to (a) disclose every material circumstance it knows or ought to know or (b) provide disclosure which gives Underwriters sufficient information to put a prudent insurer on notice that it needs to make further enquiries for the purpose of revealing those material circumstances. That disclosure must be made in a manner which would be reasonably clear and accessible to a prudent insurer. What the Assured ought to know is what should reasonably have been revealed by a reasonable search of information available to the Assured. Failure to comply with this duty may affect the validity of the insurance Underwriters provide and/or mean the Underwriters do not have to pay all or part of the Assured s claim The duty set out at paragraph requires the Assured to disclose, inter alia, accurate and complete information about the Goods and any associated risks. For example, the Page 5 of 24

6 Assured must provide details of the correct insured value and any specific or unusual risks such as where commodities must be temperature controlled. All disclosure (as set out at out at paragraph ) should be made to the Carrier (or its parent, subsidiary, sister company or agent) making the Insurance Arrangements before the insurance is placed The Assured must inform the Underwriters immediately about any new facts or changes which may affect the risk where these arise or occur after the insurance incepts In the event of loss or damage to the Goods or other insured peril the Assured must comply with the claims procedure set out in the Insurance Certificate. Notification to the Carrier (or its parent, subsidiary, sister company or agent) which made the Insurance Arrangements will not comply with that claims procedure. The parties agree that the Carrier (or its parent, subsidiary, sister company or agent) making the Insurance Arrangements has no duty to pass on such notifications to Underwriters Any insurance provided by Underwriters may impose limits of liability. In some cases, the insurance may apply a deductible to any indemnity, which the Assured will be obliged to pay Any insurance provided by Underwriters may contain exclusions including, without limitation, in relation to the following: rejection, confiscation, sequestration, requisition and block running; smuggling, arrest or seizure; wilful misconduct or gross negligence of the Assured; inherent vice of the Goods, wear and tear, ageing, gradual deterioration; delay in forwarding or arrival of the Goods unless resulting from sinking, capsizing or standing or grounding of the vessel or craft, fire or explosion, collision or contact of the vessel or craft with a fixed movable or floating object including ice, falling aircraft, entry of water causing the vessel or craft to enter a port of refuge and the discharge of all or part of its cargo; damage due to operation of transformation, modification, test, use, assembly or disassembly; simple or unexplained disappearance; leakage of liquids; scratches, flaking, burns; electrical phenomena suffered by electric or electronic apparatus; or Fire or explosion occurring inside electric or electronic apparatus Any insurance provided by Underwriters may be deemed not to provide any cover or benefit, or liability to pay any indemnity if this might expose Underwriters to any sanction, prohibition or restriction resulting Page 6 of 24

7 from a resolution of the United Nations and/or economic or trade sanctions imposed by national law or by regulations Any insurance provided by Underwriters may impose geographical restrictions upon cover The Assured should direct all communications regarding insurance provided by Underwriters to Underwriters. 5 WARRANTY 5.1 The Merchant warrants that in agreeing to these Conditions he 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 AND INDEMNITY 6.1 The Carrier shall be entitled to Sub-contract the Carriage and / or the Services on any terms whatsoever. 6.2 The Merchant undertakes that no claim or allegation shall be made against any Person who performs or undertakes the Carriage or Services (including all Sub-Contractors of the Carrier), other than by the Carrier, which imposes or attempts to impose upon any such Person, or any vessel owned by any such Person, any liability whatsoever in connection with the Goods, the Carriage of the Goods or the provision of the Services, whether or not arising out of negligence on the part of such Person. 6.3 In the event that any such claim or allegation should nevertheless be made, the Merchant will indemnify the Carrier against all consequences thereof. 6.4 Without prejudice to the foregoing every such Person or vessel shall have the benefit of every right, defence, limitation and liberty of whatsoever nature herein contained or otherwise available to the Carrier as if such provisions were expressly for his benefit; and in entering into this contract, the Carrier, to the extent of these provisions, does so not only on his own behalf but also as agent and trustee for such Persons or vessel. 6.5 The provisions of Clause 6.2 to 6.4, including but not limited to the undertakings of the Merchant contained therein, shall extend to claims or allegations of whatsoever nature against other Persons chartering space on the carrying vessel. 6.6 The Merchant further undertakes that no claim or allegation in respect of the Goods shall be made against the Carrier by any Person other than in accordance with the terms and conditions of this Bill of Lading which imposes or attempts to impose upon the Carrier any liability whatsoever in connection with the Goods or the Carriage of the Goods, whether or not arising out of negligence on the part of the Carrier. In the event such claim or allegation should nevertheless be made, the Merchant undertakes to indemnify the Carrier against all consequences thereof. 7 CARRIER S RESPONSIBILITY 7.1 Port-to-Port Shipment If Carriage is Port-to-Port the liability (if any) of the Carrier for loss of or damage to the Goods occurring from and during loading onto any seagoing vessel up to and during discharge from that vessel or from another seagoing vessel into which the Goods have been transhipped shall be determined in accordance Page 7 of 24

8 with any national law making the Hague-Visby Rules compulsorily applicable to this Bill of Lading, or in any other case in accordance with the Hague-Visby Rules, Articles 1-8 inclusive only The Carrier shall be under no liability whatsoever for loss of or damage to the Goods, howsoever occurring, if such loss or damage arises prior to loading onto or subsequent to discharge from the vessel. Notwithstanding the above, in case and to the extent that any applicable compulsory law provides for any additional period of responsibility, the Carrier shall have the benefit of every right, defence, limitation and liberty in the Hague-Visby Rules as applied by this clause during that period, notwithstanding that the loss or damage did not occur at sea In the event of the Goods being discharged at a port other than the Port of Discharge nominated in this Bill of Lading and forwarded to the nominated Port of Discharge by whatever means, the Hague rules as referred to in paragraph 1 of this clause shall continue to apply until delivery at the nominated Port of Discharge, notwithstanding that carriage may not be by sea For the avoidance of doubt, it is agreed that loading and discharge occurs at the point the Goods pass the Ship s rail. Any and all Services arranged by the Carrier prior to loading or after discharge are provided strictly as agent or representative of the Shipper or Merchant. 7.2 Combined Transport If Carriage is Combined Transport, the Carrier undertakes to perform and / or to procure performance in his own name of the Carriage from the Place of Receipt or the Port of Loading, whichever is applicable, to the Port of Discharge or the Place of Delivery, whichever is applicable, and save as is otherwise provided for in this Bill of Lading, the Carrier shall be liable for loss or damage occurring during the Carriage only to the extent set out below. 7.3 Exclusions If the stage of the Carriage during which the loss or damage occurred is not known, the Carrier shall be relieved of liability for any loss or damage if such loss or damage was caused by: an act or omission of the Merchant insufficiency of or defective condition of packing or marking handling, loading, stowage or unloading of the Goods by or on behalf of the Merchant inherent vice of the Goods strike, lock-out, stoppage or restraint of labour, from whatever cause, whether partial or general a nuclear incident any cause or event which the Carrier could not avoid and the consequences whereof he could not prevent by the exercise of reasonable diligence any act or omission of the Carrier the consequences of which he could not reasonably have foreseen compliance with instructions of any Person entitled to give them. Page 8 of 24

9 7.4 Burden of Proof: The burden of proof that the loss or damage was due to one or more of the causes or events specified in Clauses 7.3, 7.4 or 7.5 shall rest upon the Carrier. Save that if 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 Clauses , or , it shall be presumed that it was so caused. The Merchant shall, however, be entitled to prove that the loss or damage was not, in fact, caused either wholly or partly by one or more of these causes or events. 7.5 Limitations of Liability: Except as provided in Clauses 9.3 or 9.4, if Clause 7.3 operates total compensation shall in no circumstances whatsoever and howsoever arising exceed the agreed value of any loss or damage; or SDRs per kilo of the gross weight of the Goods lost or damaged, whichever shall be the lower If the stage of the Carriage during which the loss or damage occurred is known, notwithstanding anything provided for in Clause 7.3 and subject to Clauses 17 and 18, if it is known during which stage of the Carriage the loss or damage occurred the liability of the Carrier in respect of such loss or damage shall be determined: by the provisions contained in any international convention or national law, which provisions cannot be departed from by private contract to the detriment of the Merchant, and would have applied if the Merchant had made a separate and direct contract with the Carrier in respect of the particular stage of the Carriage during which the loss or damage occurred and received as evidence thereof any particular document which must be issued in order to make such international convention or national law applicable, or if no international convention or national law would apply by virtue of Clause , by the Hague-Visby Rules, Articles 1-8 inclusive only if the loss or damage is known to have occurred during waterborne Carriage; or by the provisions of Clause 7.3 if the provisions of Clauses and above do not apply For the purposes of Clause 7.5.2, references in the Hague-Visby Rules to carriage by sea shall be deemed to include references to all waterborne Carriage and the Hague-Visby Rules shall be construed accordingly If the Place of Receipt or Place of Delivery is not named on the face hereof, but subject to Clause 7.1; If the Place of Receipt is not named on the face hereof the Carrier shall be under no liability whatsoever for loss of or damage to the Goods, howsoever occurring, if such loss or damage arises prior to loading onto the vessel. Page 9 of 24

10 If the Place of Delivery is not named on the face hereof the Carrier shall be under no liability whatsoever for loss of or damage to the Goods, howsoever occurring, if such loss or damage arises subsequent to discharge from the vessel The Carrier s liability for loss or damage as a result of failure to deliver, or arrange delivery of goods, in a reasonable time, or (where there is a special arrangement agreed in writing by an authorised officer of the Carrier) to adhere to agreed departure or arrival dates and times, shall not in any circumstances whatever exceed a sum equal to twice the amount of the Carrier s freight and / or haulage charges in respect of the relevant contract For the avoidance of doubt, save in respect of such loss or damage as is referred to herein, the Carrier shall not in any circumstances whatsoever be liable for indirect or consequential loss such as (but not limited to) loss of profit, loss of market, or the consequences of delay or deviation, however caused On express instructions in writing declaring the commodity and its value, received from the Merchant and accepted by the Carrier, the Carrier may accept liability in excess of the limits set out in these Conditions upon the Merchant agreeing to pay the Carrier s additional charges for accepting such increased liability. Details of the Carrier s additional charges will be provided upon request 7.6 Notice of Loss or Damage: Unless Clause 28 applies, the Carrier shall be deemed prima facie to have delivered the Goods as described in this 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 his representative at the Place of Delivery (or the Port of Discharge if no Place of Delivery is named on the face hereof) 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 3 (three) Calendar Days thereafter. 8 TIME LIMITS FOR CLAIMS AND TIME BAR 8.1 The Carrier shall not be liable for loss of or damage to Goods unless; it is advised thereof in writing within 3 (three) days after the completion of provision of the Services; and a detailed claim is made in writing within 42 (forty-two) days, such claim to include all supporting vouchers and surveyors reports; provided always that these limits shall not apply if the Merchant can establish that it was not reasonably possible for him to make a claim in writing within the time limit and notice was given within a reasonable time. 8.2 Notwithstanding the above provisions, but subject to Clause 28, the Carrier shall in any event be discharged from all liability whatsoever and howsoever arising in connection with the Goods or Services unless suit is brought and notice thereof given to the Carrier within: (nine) months after delivery of the Goods; or (nine) months after the date the Goods should have been delivered; [or (nine) months after completion of the provision of Services; or Page 10 of 24

11 8.2.4 if the Goods are not delivered, 10 (ten) months after the date of issue of the relevant Bill of Lading, whichever shall be the later. 9 SUNDRY LIABILITY PROVISIONS 9.1 Basis of Compensation: Unless Clause 28 applies, compensation shall be calculated by reference to the value of the Goods at the place and time they are delivered to the Merchant, or at the place and time they should have been delivered, at the Carrier s discretion For the purpose of determining the extent of the Carriers liability for loss of or damage to the Goods, the sound value of the Goods is agreed to be the FOB / FCA invoice value but specifically excluding freight and insurance if paid. 9.2 If the Goods are not subject to an invoice value, the value of the Goods shall be determined according to the current commodity exchange price or if there is no such price, according to the current market price, or, if there is no commodity exchange price or current market price, by reference to the normal value of goods of the same kind and quality. 9.3 Hague-Visby Rules Limitation: If the Hague-Visby Rules are applicable by national law, the liability of the Carrier shall in no event exceed the limit provided in the applicable national law If the Hague-Visby Rules are applicable otherwise than by national law, in determining the liability of the Carrier the liability shall in no event exceed 100 sterling per package or unit. 9.4 Ad Valorem The Merchant agrees and acknowledges that the Carrier has no knowledge of the value of the Goods, and that higher compensation than that provided for in this Bill of Lading may not be claimed unless, with the consent of the Carrier, the value of the Goods declared by the Shipper prior to the commencement of the Carriage is stated in this Bill of Lading and extra Freight paid, if required In the absence of such consent, declaration or payment of extra freight if required, the declared value shall be substituted for the limits laid down in this Bill of Lading Any partial loss or damage shall be adjusted pro rata on the basis of such declared value. 9.5 Delay: The Carrier does not undertake that the Goods shall arrive at the Port of Loading, Port of Discharge or Place of Delivery at any particular time or to meet any particular market or use, and the Carrier shall in no circumstances whatsoever and however arising be liable for direct, indirect or consequential loss or damage caused by delay. 9.6 Scope of Application: Page 11 of 24

12 9.6.1 The Conditions shall at all times govern all responsibilities of the Carrier in connection with or arising out of the supply of a Container to the Merchant, not only during the Carriage but also during the periods prior to and / or subsequent to the Carriage The rights, defences, limitations and liberties of whatsoever nature provided for in the Conditions shall apply in any action against the Carrier for loss or damage or delay, howsoever occurring and whether the action be founded in contract or in tort, and even if the loss, damage or delay arose as a result of unseaworthiness, negligence or fundamental breach of contract Save as is otherwise provided for in the Conditions, the Carrier shall in no circumstances whatsoever and howsoever arising be liable for direct or indirect or consequential loss or damage or loss of profits. 9.7 Inspection by Authorities If by order of the authorities at any place documents provided by the Merchant are inspected and found to be wanting, a Container has to be weighed or opened for the Goods to be weighed or inspected, the Carrier will not be liable for any loss or damage incurred as a result of any weighing, opening, unpacking, inspection or repacking The Carrier shall be entitled to recover the cost of such weighing, opening, unpacking, inspection and repacking from the Merchant. 9.8 Liability of directors, servants, employees or agents of the Carrier It is hereby expressly agreed that no director, servant, employee or agent of the Carrier (which for the purpose of this Clause includes every independent contractor from time to time employed by the Carrier) shall in any circumstances whatsoever be under any liability whatsoever under these Conditions for any loss, damage or delay of whatsoever kind arising or resulting directly or indirectly from any act, neglect or default on his part while acting in the course of or in connection with his employment Without prejudice to the generality of the foregoing provisions, every exemption from liability, limitation, condition and liberty herein contained and every right, defence and immunity of whatsoever nature applicable to the Carrier or to which the Carrier is entitled, shall also be available and shall extend to protect every such director, servant, employee and agent of the Carrier acting as aforesaid In the event that a claim is made against a director, servant, employee or agent, the Merchant shall indemnify the Carrier against any consequences thereof. 10 CONTAINER PACKING 10.1 Save where containers are packed by the Carrier and no issues noted: The Carrier shall not be liable for loss of or damage to the Goods caused by matters beyond his control, including, inter alia, without prejudice to the generality of this exclusion: the manner in which the Container has been packed, or the unsuitability of the Goods for Carriage in the Container supplied, or Page 12 of 24

13 the unsuitability or defective condition of the Container, or the incorrect setting of any temperature controls thereof, provided that, if the Container has been supplied by or on behalf of the Carrier, this unsuitability, defective condition or incorrect setting could have been apparent upon inspection by the Merchant at or prior to the time when the Container was packed, or packing temperature controlled Goods that are not at the correct temperature for Carriage The Shipper is responsible for the packing and sealing of all Shipper-packed containers and, if a Shipperpacked container is delivered by the Carrier with its original seal as affixed by the Shipper intact, the Carrier shall not be liable for any shortage of Goods ascertained at delivery The Merchant shall indemnify the Carrier against any loss, damage, liability or expense whatsoever and howsoever arising caused by one or more of the matters referred to in Clause , save that, if the loss, damage, liability or expense was caused by a matter referred to in Clause the Merchant shall not be liable to indemnify the Carrier in respect thereof unless the proviso referred to therein applies. 11 INSPECTION OF GOODS AND CONTAINERS 11.1 The Carrier or any Person to whom the Carrier has sub-contracted the Carriage or any Person authorised by the Carrier shall be entitled, but under no obligation, to open any Container or package at any time and to inspect, weigh and / or measure the Goods or associated Shipping Document The Carrier, and any of the Carrier s sub-contractors or Person acting on the Carrier s behalf, may weigh the Container and Goods, either together or separately, for the purpose of obtaining the VGM or for any other purpose whatsoever The Carrier, and any Person acting on his behalf, is specifically authorised by the Shipper to: sign a shipping document strictly on behalf of the Shipper stating the VGM of the Container and Goods where such VGM has been obtained by the Carrier or any Person acting on his behalf; and submit to any third party a shipping document stating the VGM of the Container and Goods whether signed by the Carrier, by any Person acting on the Carrier s behalf or any other Person Except where the Carrier expressly agrees in writing to obtain the VGM on behalf of the Shipper as the Shipper s Representative, the Carrier accepts no liability whatsoever in respect of any losses, fines, penalties or costs incurred by the Merchant or any other Person in connection with the Carrier communicating the VGM of the Container and Goods, including but not limited to any losses, fines, penalties or costs arising as a result of any inaccuracy of the VGM, late communication of VGM to any Person or failure to obtain or communicate the VGM Where the Carrier expressly agrees to obtain the VGM on behalf of the Shipper as the Shipper s Representative, and the VGM is ultimately found to be inaccurate, any liability for such losses, fines, penalties arising as a direct result shall be limited in accordance with the limitation of liability provisions at paragraph 9 above The Merchant shall indemnify and keep indemnified the Carrier against any expenses incurred as a result of any inspection, weighing or measuring of the Container or the Goods. Page 13 of 24

14 12 CARRIAGE AFFECTED BY CONDITION OF GOODS 12.1 If it appears at any time that, due to their condition, the Goods cannot safely or properly be carried or carried further, either at all or without incurring any additional expense or taking any measure(s) in relation to the Container or the Goods the Carrier may without notice to the Merchant (but as his agent only) take any measure(s) and / or incur any additional expense to carry or to continue the Carriage thereof, and / or sell or dispose of the Goods, and / or abandon the Carriage and / or store them ashore or afloat, under cover or in the open, at any place, whichever the Carrier, in his absolute discretion, considers most appropriate, which abandonment, storage, sale or disposal shall be deemed to constitute due delivery under this Bill of Lading The Merchant shall indemnify the Carrier against any additional expense so incurred. 13 DESCRIPTION OF GOODS 13.1 This Bill of Lading shall be prima facie evidence of the receipt by the Carrier from the Shipper in apparent good order and condition, except as otherwise noted, of the total number of Containers or other packages or units indicated in the box on the face hereof entitled * Total No of Containers / Packages received by the Carrier Except as provided in Clause 13.1, no representation is made by the Carrier as to the weight, contents, measure, quantity, quality, description, condition, marks, numbers or value of the Goods, and the Carrier shall be under no responsibility whatsoever in respect of such description or particulars If any particulars of any Letter of Credit and / or Import Licence and / or Sale Contract and / or Invoice or Order number and / or details of any contract to which the Carrier is not a party are shown on the face of this Bill of Lading, such particulars are included solely at the request of the Merchant for his convenience. The Merchant agrees that the inclusion of such particulars shall not be regarded as a declaration of value and in no way increases the Carrier s liability under this Bill of Lading The Merchant further agrees to indemnify the Carrier for all charges arising under these Conditions and against all consequences of including such particulars in this Bill of Lading The Merchant acknowledges that, except when the provisions of Clause 9.4 apply, the value of the Goods is unknown to the Carrier. 14 SHIPPER S / MERCHANT S RESPONSIBILITY 14.1 All of the Persons coming within the definition of Merchant in Clause 1 shall be jointly and severally liable to the Carrier for the due fulfilment of all obligations undertaken by the Merchant in this Bill of Lading, and remain so liable throughout Carriage notwithstanding their having transferred this Bill of Lading and / or title to the Goods to another party The Shipper warrants to the Carrier that the particulars relating to the Goods as set out overleaf have been checked by the Shipper on receipt of this Bill of Lading and that such particulars, and any other particulars furnished by or on behalf of the Shipper, including but not limited to the Shipping Documents, are adequate and correct. Page 14 of 24

15 14.3 The Shipper also warrants that the Goods are lawful Goods and contain no contraband. If the Container is not supplied by or on behalf of the Carrier, the Shipper further warrants that the Container meets all ISO and / or other international safety standards and is fit in all respects for Carriage by the Carrier The Shipper also warrants that it has complied with its obligations under SOLAS Chapter VI, Regulation The Merchant shall indemnify the Carrier against all claims, losses, damages, fines and expenses arising or resulting from any breach of any of the warranties in Clauses 14.2, 14.3 and 14.4 hereof or from any other cause in connection with the Goods or Shipping Documents for which the Carrier is not responsible 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 (including, without prejudice to the generality of the foregoing, Freight for any additional Carriage undertaken) incurred or suffered in respect of the Goods, and shall indemnify the Carrier in respect thereof If Containers supplied by or on behalf of the Carrier are unpacked at the Merchant s premises, the Merchant is responsible for returning the empty Containers free from labels, with interiors brushed clean, odour free and in every respect fit for immediate reuse, to the point or place designated by the Carrier, his servants or agents, within the time prescribed Should a Container not be returned as required above within the time prescribed, the Carrier is entitled to take such steps as he considers appropriate for the account of the Merchant and the Merchant shall be liable for any detention, loss or expense incurred as a result thereof Containers released into the care of the Merchant for packing, unpacking or any other purpose whatsoever are at the sole risk of the Merchant until redelivered to the Carrier. The Merchant shall indemnify the Carrier for all loss and / or damage to such Containers occurring during such period. The Merchant shall also indemnify the Carrier for any loss, damage, injury, fines or expenses caused or incurred by such Containers whilst in his control. 15 FREIGHT 15.1 Freight shall be deemed fully earned on receipt of the Goods by the Carrier and shall be paid and nonreturnable in any event The Merchant s attention is drawn to the stipulations concerning currency in which the Freight is to be paid, rate of exchange, devaluation and other contingencies relative to Freight in the applicable Tariff Freight has been calculated on the basis of particulars furnished by or on behalf of the Shipper. If the particulars furnished by or on behalf of the Shipper are incorrect, it is agreed that a sum equal to double the correct Freight less the Freight charged shall be payable as liquidated damages to the Carrier Freight has been calculated on the basis of the Carrier s costs as known at the time the contract of Carriage is made. Should there be any subsequent change in these costs, the Carrier may recover additional Freight from the Merchant, whether or not Freight is prepaid or collect and whether or not Carriage has commenced All Freight shall be paid without any set-off, counter-claim, deduction or stay of execution before delivery of the Goods. Page 15 of 24

16 15.6 Any Person engaged by the Merchant to perform forwarding services in respect of the Goods shall be considered to be the exclusive agent of the Merchant for all purposes and any payment of Freight to such Person shall not be considered payment to the Carrier in any event. Failure of such Person to pay any part of the Freight to the Carrier shall be considered a default by the Merchant in the payment of Freight. 16 LIEN 16.1 The Carrier shall have a general lien on the Goods and any documents related thereto for all sums payable to the Carrier under this contract The Carrier shall also have a lien against the Merchant on the Goods and any documents related thereto for all sums due from him to the Carrier under any other contract The Carrier may exercise his lien at any time and at any place at his sole discretion, whether the contractual Carriage is completed or not For the avoidance of doubt all charges (including but not limited to container demurrage and quay rent) shall continue to accrue notwithstanding the Carrier exercising a lien In any event any lien shall extend to cover the cost of all charges including the management and legal costs of recovering the sums due If in the opinion of the Carrier the Goods under lien are likely to deteriorate, decay, become worthless or incur charges whether for storage or otherwise in excess of their value, the Carrier may, without prejudice to any other rights which he may have against the Merchant, without notice and without any responsibility whatsoever attaching to him, sell the Goods by public auction or private treaty, destroy or dispose of the Goods at any time and at any place at the sole discretion of the Carrier and apply any proceeds of sale in reduction of the sums due to the Carrier from the Merchant. 17 OPTIONAL STOWAGE AND DECK CARGO 17.1 The Goods may be packed by the Carrier in Containers and consolidated with other goods in Containers Goods, whether or not packed in Containers, may be carried on deck or under deck, in poop, forecastle, deck house, shelter deck, passenger space, bunker space or any covered-in space commonly used in the trade for the carriage of goods, without notice to the Merchant. All such Goods whether carried on deck or under deck, shall participate in general average and shall be deemed to be within the definition of goods for the purpose of the Hague-Visby Rules and shall be carried subject to those Rules Notwithstanding Clause 17.2, in the case of Goods which are stated on the face hereof as being carried on deck and which are so carried the Hague-Visby Rules shall not apply and the Carrier shall be under no liability whatsoever for loss, damage or delay, howsoever arising. 18 LIVE ANIMALS 18.1 The Hague-Visby Rules shall not apply to the Carriage of live animals, which are carried at the sole risk of the Merchant. Page 16 of 24

17 18.2 The Carrier shall be under no liability whatsoever for any injury, illness, death, delay or destruction to such live animals howsoever arising Should the Master in his sole discretion consider that any live animal is likely to be injurious to any other live animal or any person or property on board, or to cause the vessel to be delayed or impeded in the prosecution of its voyage, such live animal may be destroyed and thrown overboard without any liability attaching to the Carrier The Merchant shall indemnify the Carrier against all or any extra costs incurred for any reason whatsoever in connection with the Carriage of any live animal. 19 METHODS AND ROUTES OF CARRIAGE 19.1 The Carrier may at any time and without notice to the Merchant: Use any means of carriage whatsoever, Transfer the Goods from one conveyance to another, including but not limited to transhipping or carrying them on another vessel than that named on the face hereof, Unpack and remove the Goods which have been packed into a Container and forward them in a Container or otherwise, Proceed by any route in his discretion (whether or not the nearest or most direct or customary or advertised route), at any speed, and proceed to or stay at any place or port whatsoever, once or more often and in any order, Load or unload the Goods at any place or port (whether or not such port is named overleaf as the Port of Loading or Port of Discharge) and store the Goods at any such place or port, Comply with any orders or recommendations given by any government or authority, or any Person acting or purporting to act as or on behalf of such government or authority, or having under the terms of any insurance on any conveyance employed by the Carrier the right to give orders or directions, Permit the vessel to proceed with or without pilots, to tow or be towed, or to be dry-docked The liberties set out in Clause 19.1 may be invoked by the Carrier for any purpose whatsoever, whether or not connected with the Carriage of the Goods, including but not limited to loading or unloading other goods, bunkering, undergoing repairs, adjusting instruments, picking up or landing any persons, including but not limited to persons involved with the operation or maintenance of the vessel and assisting vessels in all situations Anything done in accordance with Clause 19.1 or any delay arising therefrom shall be deemed to be within the contractual Carriage and shall not be a deviation By tendering the Goods for Carriage without any written request for Carriage in a specialised Container, or within a specific temperature range, or subject to any particular attention, or for Carriage otherwise than in a Container, the Merchant accepts that the Carriage may properly be undertaken in a general purpose container. Page 17 of 24

18 20 MATTERS AFFECTING PERFORMANCE 20.1 If at any time the Carriage, the vessel or other Goods on board the vessel are or are likely to be affected by any hindrance, risk, delay, difficulty or disadvantage of any kind (other than the inability of the Goods, due to their condition, safely or properly to be carried or carried further) and howsoever arising (even though the circumstances giving rise to such hindrance, risk, delay, difficulty or disadvantage existed at the time this contract was entered into or the Goods were received for Carriage), the Carrier (whether or not the Carriage is commenced) may, without prior notice to the Merchant and at the sole discretion of the Carrier, either: Carry the Goods to the contracted Port of Discharge or Place of Delivery, whichever is applicable, by an alternative route to that indicated in this Bill of Lading or that which is usual for goods consigned to that Port of Discharge or Place of Delivery. If the Carrier elects to invoke the terms of this Clause then, notwithstanding the provisions of Clause 19 hereof, he shall be entitled to charge such additional Freight as the Carrier may determine; or Suspend the Carriage of the Goods and store them ashore or afloat upon the terms of this Bill of Lading and endeavour to forward them as soon as possible, but the Carrier makes no representations as to the maximum period of such suspension of Carriage. If the Carrier elects to invoke the terms of this Clause then, notwithstanding the provisions of Clause 19 hereof, he shall be entitled to charge such additional freight as the Carrier may determine; or Abandon the Carriage of the Goods and place them at the Merchant s disposal at any place or port which the Carrier may deem safe and convenient, whereupon the responsibility of the Carrier in respect of such Goods shall cease. The Carrier shall nevertheless be entitled to full Freight on the Goods received for Carriage, and the Merchant shall pay any additional costs of the Carriage to, and delivery and storage at, such place or port If the Carrier elects to use an alternative route under Clause or to suspend the Carriage under Clause this shall not prejudice his right subsequently to abandon the Carriage. 21 DANGEROUS GOODS 21.1 No Goods which are or may become dangerous, inflammable, damaging or injurious (including radio-active materials), or which are or may become liable to damage any property whatsoever, or injure any person whomsoever, shall be tendered to the Carrier for Carriage without his express consent in writing, and without the Container or other covering in which the Goods are to be carried as well as the Goods themselves being distinctly marked on the outside so as to indicate the nature and character of any such Goods and so as to comply with any applicable laws, regulations or requirements. If any such Goods are delivered to the Carrier without such written consent and / or marking, or if in the opinion of the Carrier the Goods are or are liable to become of a dangerous, inflammable, damaging or injurious nature, they may at any time be destroyed, disposed of, abandoned or rendered harmless without compensation to the Merchant and without prejudice to the Carrier s right to Freight The Merchant undertakes that such Goods are packed in a manner adequate to withstand the risks of Carriage having regard to their nature and in compliance with all laws or regulations which may be applicable during the Carriage. In particular, but without prejudice to the generality of this Clause, if the Goods are not packed into the Container by or on behalf of the Carrier, the Merchant undertakes that incompatible Goods are not packed in the same Container. Page 18 of 24