In trades where the International Brussels Convention 1924 as amended by the Protocol signed at Brussels on February 23rd 1968 - the Hague-Visby Rules - apply compulsorily, the provisions of the respective legislation shall be considered incorporated in this Bill of Lading. The Carrier takes all reservations possible under such applicable legislation, relating to the period before loading and after discharging and while the goods are in the charge of another Carrier, and to deck cargo and live animals.
General average shall be ajusted, stated and settled according to York-Antwerp Rules 1974, in London unless another place is agreed in the Charter.
Cargo’s contribution to General Average shall be paid to the Carrier even when such average is the result of a fault, neglect or error of the Master, Pilot or Crew. The Charterers, Shippers and Consignees expressly renounce the Netherlands Commercial Code, Art. 700, and the Belgian Commercial Code, Part II, Art. 148.
(4) NEW JASON CLAUSE.
In the event of eccident, danger, damage or disaster before or after the commencement of the voyage, resulting from any cause whatsoever, whether due to negligence or not, for which, or for the consequences of which, the Carrier is not responsible, by statute, contract or otherwise, the goods, Shippers, Consignees or owners of the goods shall contribute with the Carrier in general average to the payment of any sacrifices, losses or expenses of a general average nature that may be made or incurred and shall pay salvage and special charges incurred in respect of the goods.
If a salving ship is owned or operated by the Carrier, salvage shall be paid for as fully as if the said salving ship or ships belonged to strangers. Such deposit as the Carrier or his agents may deem sufficient to cover the estimated contribution of the goods and any salvage and special charges thereon shall, if required, be made by the goods, Shippers, Consignees or owners of the goods to the Carrier before delivery.
(5)BOTH-TO-BLAME COLLISION CLAUSE.
If the Vessel comes into collision with another ship as a result of the negligence of the other ship and any act, neglect or default of the Master, Mariner, Pilot or the servants of the Carrier in the navigation or in the management of the Vessel, the owners of the cargo carried hereunder will indemnify the Carrier against all loss or liability to the other or non-carrying ship or her Owners in so far as such loss or liability represents loss of, or damage to, or any claim whatsoever of the owners of said cargo, paid or payable by the other or non-carrying ship or her Owners to the owners of said cargo and set-off, recouped or recovered by the other or non-carrying ship or her Owners as part of their claim against the carrying Vessel or Carrier. The foregoing provisions shall also apply where the Owners, operators or those in charge of any ship or ships or objects other than, or in addition to, the colliding ships or objects are at fault in respect of a collision or contact.
For particulars of cargo, freight,
destination, etc., see overleaf.
TERMS AND CONDITIONS OF BILL OF LADING of ZIM Lines
1. CONTAINER CARRIAGE:
The Carrier is entitled to carry goods in containers under this Bill of Lading by Zim or any other Zim Lines or otherwise in accordance with Zim’s container relay system which system is comprised of container terminals main container vessels, and feeder vessels and to relay the goods between them. Such relay and/or transshipment from one vessel to another and/or to any other means of transportation shall in no way constitute a deviation from the contracted voyage and the Carrier continues to be responsible for the transportation of the goods from the port of loading and/or the place of receipt of goods, whichever is the case, until the port of destination or final destination as contracted for. The contract of carriage evidenced by this Bill of Lading, the route, the carrying vessels, the means of transportation, the ports of call as well as the ports of loading, discharge and transshipment are always subject to, and in accordance with, the relay system as published from time to time in Carrier’s sailing schedules and tariffs. The Carrier reserves the right to make changes and alterations in the service, line and the relay system and to change and/or replace and/or substitute any of the vessels and/or ports and/or terminals as it may deem fit from time to time before or after the commencement of this contract of carriage without notice to the Merchant.
2. DEFINITIONS: in this Bill of Lading:
Zim – means Zim Integrated Shipping Services Ltd.
Merchant – means jointly and severally the shipper, the consignee, the holder and any assignee of this Bill of Lading.
The words Vessel and/or Ship shall include the loading vessel and any substitute ship and any craft, lighter or other means of marine conveyance, owned, chartered, operated or employed by the Carrier used in the performance of the contract of carriage.
Carrier – is the issuer of this Bill of Lading.
Goods – means the cargo accepted from the shipper and includes any container, transportable tank, flat or pallet not supplied by or on behalf of the Carrier.
Place of Receipt of Goods – the place at which the goods are received by the Carrier for carriage, when such place is other than the port at which the goods are loaded on the loading vessel.
Port of Loading – the port at which the goods are loaded on the loading vessel.
Port of Destination – the final port to which the goods are destined.
Final Destination – the place to which the Carrier has contracted to deliver the goods, when such place is other that the port of destination, as defined herein.
Loading Vessel – the vessel on which the goods are to be first loaded. In this respect see also Clause 1 above.
HOUSE TO HOUSE (H/H or CY/CY) Container Carriage – means that the container has been inspected, stuffed and sealed by Merchant, or his Agents, and the unsealing and unstuffing of such container shall also be performed by Merchant or his Agents, all at Merchant’s sole responsibility. Carrier’s responsibility with regard to such goods shall commence and terminate only in accordance with combined transshipment terms, see Clause 4 below and the asterisk marked boxes on the face of this B/L.
3. CONTRACTING PARTIES:
The contract evidenced by this Bill of Lading is between the Carrier and the Merchant. The shipper, the consignee, the holder and any assignee of this Bill of Lading are jointly and severally liable towards the Carrier for all the various undertakings, responsibilities and liabilities of the Merchant hereunder or in connection herewith.
I. The Carrier shall be liable for the goods from the time they are received in the Carrier’s sole custody until delivered from the Carrier’s sole custody, as follows:
(a) Port to Port Carriage – from the time of receipt at Port of Lading (but in no event prior to discharge from Merchant’s means of transportation or the disconnection of merchant’s truck from the Carrier’s supplied chassis, whichever is relevant) until such time as discharge of goods from the vessel is completed (but in no event after commencement of lifting onto Merchant’s means of transportation or the connection of Carrier’s chassis to Merchant’s truck, whichever is relevant).
(b) Combined Transport of Containers – from the time of receipt at the Place of Receipt of the goods to the Port of Destination or Final Destination, or from the time of receipt of the goods at the Port of Loading to the Final Destination.
(a) During the period of carriage, the Carrier’s liability and responsibility shall be in accordance with the terms of this Bill of Lading and the Carrier’s tariffs, and except for shipments carried to or from the U.S.A., shall be subject to the rules contained in the International Convention for Unification of Certain Rules Relating to Bills of Lading dated 25th August 1924 as amended in the Protocol to Amend the International Convention of the Unification of Certain Rules of Law Relating to Bills of Lading, Brussels, February 23, 1968 and in the Brussels Protocol, 1979 (hereinafter referred to as the Hague Rules) which are hereby fully incorporated in this Bill of Lading, along with any legislation making the Hague Rules or any amendment thereto compulsorily applicable to this Bill of Lading.
(b) For shipments to or from the U.S.A., this bill of lading shall be only subject to the U.S. Carriage of Goods By Sea Act, 46 U.S.C. 1300 et seq. (U.S. COGSA) which Act shall by this contract also apply before loading and after discharging as long as the goods remain in the Carrier’s custody or control.
III. When the place of receipt of goods or final destination set forth herein, if contracted by the Carrier, is an inland point, the liability and responsibility of the Carrier with respect to transportation to and from the sea terminals or ports will be as follows:
(a) Between points in Europe – to transport the goods:
(1) If by road – in accordance with the Convention on the Contract for the International Carriage of Goods by Road, dated 19th May 1956 as amended (hereinafter called CMR).
(2) If by rail – in accordance with the International Agreement on Railway Transport dated 25th February 1951 as amended (hereinafter called CIM).
(3) If by air – in accordance with the Convention for the Unification of Certain Rules Relating to International Carriage by Air, signed Warsaw 12th October 1929, as amended (hereinafter the Warsaw Convention).
(b) Between points in the U.S.A. – to procure transportation by carriers (one or more) authorized by competent authority to engage in transportation between such points and such transportation shall be subject to the inland carriers’ contracts of carriage and tariffs even though the terms may be less favourable than the terms of this Bill of Lading. The Carrier guarantees the fulfillment of such inland carriers’ obligations under their contracts and tariffs. Copies of inland carriers contracts will be made available to the Merchant by the Carrier upon written request.
(c) Between points in countries other than the U.S. and other than Europe – in accordance with the prevailing compulsory regulations or legislation applicable to carriage by road, carriage by rail and carriage by air (accordingly) and in the absence of any local applicable compulsory regulations or legislation applicable or evidence thereof, in accordance with the Hague Rules referred to above.
However, the Carrier’s liability for loss of or damage to the goods shall in any event not exceed 666.67 SDR units per package or unit or 2 SDR units per kilogram of gross weight of the goods lost or damaged, whichever is the higher, or where, by the consent of the Carrier, the value of the goods has been declared in the Bill of Lading, the amount so declared. SDR units shall be defined and determined according to the Brussels Protocol – 1979 (SDR Protocol).
IV. It is hereby expressly agreed that no servant or agent of the Carrier (including any stevedore, terminal operator, sub-carrier or independent contractor employed by the Carrier) shall in any circumstances whatsoever be under any liability whatsoever to the Merchant 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 of this Clause, every right, including the right to litigate in the agreed jurisdiction as mentioned in Clause 24 hereof, every exemption, limitation, condition and liberty herein contained and every right, exemption from liability, defence and immunity of whatsoever nature applicable to the Carrier or to which the Carrier is entitled hereunder shall also be available and shall extend to every such servant or agent of the Carrier (including any stevedore, terminal operator, subcarrier or independent contractor) acting as aforesaid and for the purpose of all the foregoing provisions of this Clause the carrier, if necessary, is or shall be deemed to be acting as agent or trustee on behalf of and for the benefit of all persons as aforesaid, and all such persons shall to this extent be or deemed to be parties to this contract. In any event whatsoever the aggregate of the amounts recoverable from the Carrier and his servants or agents, sub-carriers or independent contractors, including any stevedore or terminal operator, shall in no case exceed the limits provided for in this Bill of Lading.
V. The defences, limits of liability, rights, including the right to litigate in the agreed jurisdiction as mentioned in Clause 24 hereof, exemptions, limitations, conditions and liberties as provided in this Bill of Lading shall apply in any action against the Carrier and his servants, agents or independent contractors, sub-carriers terminal operators or stevedores for loss or damage to the goods or for delay in their delivery, whether the action be founded in contract or in tort or in whatever other manner.
VI. Limit of responsibility – In no event, including in carriage effected or performed under H/H or CY/CY carriage terms, will the Carrier be responsible after discharge of goods in port of destination or, if contracted for, after the commencement of lifting of the goods at final destination onto the Merchant ’s means of transportation. Whenever any details are entered on the face of this Bill of Lading on the space marked Further Routing”such details are inserted for information only, at the Merchant’s request, and have no contractual or any other legal significance whatsoever.
VII. In the event that it is proved that the goods were lost or damaged whilst in the actual and legal custody and care of the Carrier and in circumstances which impose responsibility on the Carrier, then, in the absence of evidence to the contrary, the damage or loss shall be deemed to have occurred during the sea voyage and the Hague Rules shall apply.
5. DELAY AND CONSEQUENTIAL DAMAGES:
Arrival times are not guaranteed by the Carrier. The Carrier shall not be liable for any direct or indirect loss or damage sustained by the Merchant through delay. However if it shall be adjudged that the Carrier is liable then subject to the terms and conditions of this Bill of Lading, it shall be liable only for actual physical loss or damage, but not for any consequential damages due to delay or any other cause.
6. NOTIFY CLAUSE:
It shall be the responsibility of the Merchant to contact the Carrier regarding time of arrival of the goods. The Carrier is not obliged to give notice of the arrival of the goods and no responsibility whatsoever shall attach to the Carrier or his agents for not giving such notice of the arrival of the goods.
During the voyage to Port of Destination, the vessel shall call usual, customary, or advertised ports of call whether named in this contract or not.
8. SUBSTITUTION OF VESSEL AND TRANSHIPMENT:
Whether expressly arranged beforehand or otherwise the Carrier shall be at liberty to carry the goods to their port of destination by the said or other vessel or vessels whether belonging to the Carrier or others, or by other means of transport by land/or water and/or air proceeding either directly or indirectly to such port and to carry the goods or part of them beyond their port of destination and to transship and store the goods either on shore or afloat and reship and forward the same. Any discharge, transshipment, landing, delivery forwarding or otherwise dealing with the goods, under the provisions of this Clause, shall constitute due performance by the Carrier of all its obligations hereunder, and in any such event, the Carrier shall be entitled to full freight.
9. ON-DECK CARRIAGE:
The Carrier or his agents or servants are entitled to stow the goods in containers, and to carry any containers on deck and if they are so carried, the Hague Rules or U.S. COGSA as incorporated herein shall be applicable notwithstanding carriage on deck, and all goods and/or containers shall contribute to General Average whether carried on or under deck. If the Bill of Lading is stamped ON DECK, carriage on deck shall be solely at Merchant’s risk.
10. CARRIAGE AND DELIVERY OF CONTAINERISED GOODS:
Unless otherwise specifically endorsed on the face of this Bill of Lading, container(s) is (are) and shall remain the sole property of the Carrier, without the Merchant having any rights or interest therein. Containers will be put at the disposal of Merchant subject to appropriate Interchange Form being entered into in respect of such containers. Container demurrage and pier/quay rent to be based on charges published by the Carrier and/or any Conference of which the Carrier is a member, whichever is applicable, and are payable by the Merchant. If the goods are not taken by the Merchant within a reasonable time but in any event not exceeding thirty (30) days, or even seven (7) days in the case of special containers as described in Clause 11 hereunder, after the Carrier or his agent has called upon him to take delivery, the Carrier or his agent shall be at liberty to break the seal, strip the container and stow the cargo contents at the sole risk, expense and responsibility of the Merchant. Where containers owned or leased by the Carrier are stripped by the Merchant, the Merchant is responsible for returning at his risk and expense the empty containers in sound conditions with interiors brushed and clean to the port of destination, or final destination, if contracted for, or to any other point or place designated by the Carrier, his servants or agents, within the time prescribed to him. Should a container not be returned within the prescribed time and/or in sound condition and/or with the interior brushed and clean, the Merchant shall be liable for all losses and/or damage resulting therefrom.
11. SPECIAL CONTAINERS:
(a) The Carrier shall not undertake to carry the goods in refrigerated, heated, insulated, ventilated or any other special container(s), nor to carry special container(s) packed by or on behalf of the Merchant as such, but the Carrier will treat such goods or container(s) only as ordinary goods or dry container(s) respectively, unless special arrangements for the carriage of such goods or containers(s) have been agreed to in writing between the Carrier and the Merchant and are noted on the face of this Bill of Lading and unless special freight as required has been paid as agreed upon. The Carrier shall not accept responsibility for the function of special container(s) supplied by or on behalf of the Merchant.
(b) As regards the goods which have been agreed to be carried in special containers the Carrier shall exercise due diligence to maintain the facilities of the special container(s) while they are in his actual custody and control and shall not be liable for any kind of loss of or damage to the goods caused by latent defects, derangement or mechanical breakdown occurring without the fault of the Carrier.
(c) If the cargo is received by the Carrier in refrigerated container(s) into which the contents have been packed by or on behalf of the Merchant, it is the obligation of the Merchant to stow the contents properly and set the thermostatic controls exactly as required. The Carrier shall not be liable for any loss of or damage to the goods arising out of or resulting from the Merchant’s failure in such obligation and further does not guarantee the maintenance of the intended temperature inside the container(s).
(d) The Merchant is fully aware that a refrigerated container does not have the capacity to freeze the contents or otherwise to significantly alter the temperature of the contents, but only to maintain the temperature set. The Carrier will exercise reasonable care to maintain temperature level at plus or minus 5-C of the temperature noted herein.
(e) In the event of any claim in which the temperature of goods in a refrigerated container is a relevant fact, it is hereby agreed and stipulated that the temperature reflected in Carrier’s records, to wit: the temperature recording device and/or log book reports maintained by the Carrier, shall be prima facie evidence of the temperature at which the goods are maintained at all time while under Carrier’s responsibility.
12. CONTAINERS STUFFED BY MERCHANT:
The Carrier shall not be responsible for the safe and proper packing and stowing of goods in containers if such containers are not stowed or packed by the Carrier. Containers packed with goods by the Merchant shall be properly sealed and the seal identification reference, as well as the container reference, shall be shown herein. The Merchant shall carefully inspect containers for soundness and suitability before packing them with goods and such packing of the containers shall be prima facie evidence that the containers were sound and suitable for use. The Carrier will not be liable in any event for the particulars furnished by the Merchant as shown on the face of this Bill of Lading. The Merchant by accepting this Bill of Lading confirms that he is fully acquainted with the containers and the operation and use thereof and that the containers are completely suitable for his purposes. The Merchant further guarantees that he has secured and stuffed the goods in a safe and adequate manner having regard to the requirements of and for the containers. The Merchant assumes all and any responsibility for damage to the goods, the containers, any other goods or containers carried by the vessel and the vessel in which the containers shall be carried, if such damage or any personal injury is caused by improper stowage in and stuffing of the containers. Without prejudice to any of Carrier ’s rights and/or defences and/or exceptions from liability herein, in no event will Carrier be responsible for any shortage and/or damage to the containerized goods stuffed by the Merchant unless such shortage and/or damage was caused by unseaworthiness of the containers if supplied by the Carrier and/or by damage to the container itself whilst in the custody of the Carrier. The Merchant further warrants that whilst stuffing the containers he had complied with all the regulations, requirements and conventions of the Customs and other Authorities under whose control the containers will be from the time of their stuffing until the time they are delivered at their final destination(s). The Merchant agrees to be liable and shall indemnify the Carrier for any injury, loss or damage, including fines, and any kind of damage or expenses caused to the Carrier or any third party from the Merchant’s failure to execute or fulfill any of his obligations under this Clause.
13. LOADING AND DISCHARGING:
(a) If goods contracted for carriage are not tendered when the vessel is ready to load, the Carrier is relieved of any obligation to load such cargo and vessel may leave port without further notice and deadfreight is to be paid;
(b) Notwithstanding any custom of the port to the contrary, the Merchant shall take delivery of the goods immediately upon discharge from the vessel and shall continue to receive the goods as tendered by day and night whatever the weather, including Saturdays, Sundays and Holidays, failing which the Carrier is at liberty to discharge the goods and put them into lighters, warehouses or the like, all at the risk and expense of the Merchant, such discharge to constitute a true fulfillment of the contract.
14. DANGEROUS OR HAZARDOUS GOODS:
(a) When the Merchant delivers goods of a dangerous or hazardous nature to the Carrier, he shall inform him in writing of the exact nature of the danger and indicate, if necessary, the precautions to be taken. Such goods shall be distinctly marked on the outside so as to indicate the nature thereof and so as to comply with any requirements of any applicable regulations, including regulations contained in any relevant applicable international treaty or convention.
(b) The Merchant only shall be liable and shall indemnify the Carrier and any other party or legal body for all expenses, loss or damage caused to the vessel, to a cargo, whether on board or ashore, to the Carrier and to any other(s) as a result of his failure to comply with the terms set for the in paragraph (a) of this Clause.
(c) When the expressions dangerous goods or goods of dangerous nature appear in this Bill of Lading these expressions shall include explosives or other dangerous articles or substances and combustible liquids as defined in the INTERNATIONAL MARITIME DANGEROUS GOODS CODE by the INTERNATIONAL MARITIME ORGANIZATION (IMO) and in Title 46 of the USA Code of FEDERAL REGULATIONS both as amended from time to time. In the event that IMO permits the Carrier to stow dangerous goods or goods of a dangerous nature either on or under deck, and the Carrier stows such goods on deck, such on-deck stowage will be at the Merchant’s risk and liability. The Carrier shall have the right to jettison and destroy any such goods if their condition presents risk or peril to life or property at any time.
15. GOVERNMENT CLASS/UNDERWRITERS DIRECTIONS:
The Carrier, the Master and any contractor, subcontractor or agent of the Carrier (including but not limited to any land-carrier or sub-carrier), shall have liberty to comply with any orders, directors or recommendations as to loading, departure, routes in transit (including inland routes) ports of call, roads, stoppages, destination, arrival, discharge, delivery or in any other way whatsoever given by any Government or Authority or any other person or body acting or purporting to act with the authority of such Government or Authority or by any committee or person having, under the terms of the insurance of the vessel or land transport vehicle, the right to give any orders, directions or recommendations.
16. OPTIONS OF THE CARRIER:
Should it appear at any time that the performance or continued performance of the transport would or is likely to expose the vessel, her crew or any goods on board to the risk of capture, seizure, detention, damage, delay, hindrance, difficulty or disadvantage of whatever kind, or that the vessel is or is likely to be prevented from reaching or entering the port of loading or there loading in the usual manner and leaving again or reaching or entering the port of destination or there discharging in the usual manner and leaving again, all of which safely and without delay, or should the Master, in his absolute discretion, consider impossible, unsafe or inconvenient to discharge the cargo, the subject of this Bill of Lading, or any part thereof at port of destination, all of which resulting from any cause whatsoever and in particular, but not exclusively, from any war, warlike operations, blockade, riots, civil commotion or
piracy, insufficient depth of water, conditions of tide, weather conditions, epidemic, quarantine, ice, labour troubles, labour obstructions, strikes, lockouts, any of which on board or on shore, congestion in the port or at quays or berths, insufficiency of lighters, actual or threatened blockade, interdict, impracticability of entering into the said port, and unfavourable conditions at the said port, prior to or upon or subsequent to the vessel’s arrival, the Carrier shall be entitled, whether or not the events or state of affairs in question existed or were anticipated at the time of entering into this contract, if the carriage has not already commenced, to cancel this contract or, in any event, to wait at or near the said port for such time as the Master, in his absolute discretion, may deem reasonable until the discharge of the said cargo can be effected there, or to discharge transship , land or deliver the goods at any convenient port or place, including the port of loading, or to forward them at the sole risk and expense of the Merchant or otherwise to deal with the goods as the Carrier or the Master may think advisable under the particular circumstances. The discharge of any cargo under the provisions of this Clause shall be deemed due fulfillment of the contract and if in connection with the exercise of any liberty under this Clause any extra expenses are incurred they shall be paid by the Merchant in addition to the freight together with return freight, if any, and reasonable compensation for any extra service rendered to the goods.
17. SHIPPERS DECLARATIONS:
(a) The Merchant warrants the correctness of the declaration of contents, quantity, nature, definition, weight, measurement or value of the goods, whether containerized or not, but the Carrier reserves the right but is not obliged to have the contents inspected in order to ascertain same, and freight shall be paid on the proper classification or the excess weight or measurement or value (if any), as the case may be, so ascertained. The expenses of and incidental to the aforesaid inspection shall be borne by the Carrier if the Merchant’s declarations are found to be correct, but otherwise such expenses shall be added to the freight, shall be borne and paid by the Merchant and shall not be considered as “double freight”. The Merchant shall, if required by the Carrier so to do, furnish forthwith on demand to the Carrier the invoice or a true copy relating to the goods. The Merchant shall be responsible for all consequences of incorrect declarations as aforesaid including fines that may be imposed as a result thereof, irrespective of whether or not inspection as aforesaid has taken place. Merchant warrants that the subject cargo is being shipped in compliance with every applicable law, regulation or directive. In the event any Government or authority whatsoever shall claim that the contents of the cargo are illegal, illicit, etc., Merchant alone shall bear each and every consequence of such claim and shall, further indemnify Carrier, its agents and employees from any and all consequences of such claim, including but not limited to legal fees.
(b) If, en route to final destination, the cargo must pass through any port or cross any border, either as part of the anticipated routing or as the result of the exercise of any option or right granted to the Carrier by this contract or by law, shipper shall bear all related costs, including but not limited to port fees, customs, fines or taxes. Further, Merchant hereby undertakes to furnish Carrier with all permits and any other documentation required by the applicable government or authority in order to complete the carriage to final destination, including but not limited to evidence of payment of any fees, customs, fine and taxes. Merchant hereby agrees that in the event of any failure to supply all such documentation and pay all such sums to the complete satisfaction of any Government or authority as foresaid, Carrier shall take any steps deemed as necessary at Carrier’s sole discretion and Merchant shall bear all consequences thereof.
18. FREIGHT AND CHARGES:
The Merchant is obliged to pay freight.
Freight to be paid in cash without discount and whether prepayable or payable at destination to be considered as earned and due on receipt of the goods by the Carrier and non-returnable in any event, ship and/or goods lost or not lost. Freight and all other amounts mentioned in this Bill of Lading are, at the option of the Carrier, to be paid in the currency named in this Bill of Lading or in the currency of the country of the port of loading or in the currency of the country of the port of destination, as contracted for, at the highest selling rate of exchange for banker ’s sight drafts current on the date of this Bill of Lading or, for prepayable freight, on the day of loading or date of payment whichever higher or for freight payable at destination, on the day of payment.
All dues, taxes or charges or other expenses in connection with the goods shall be paid by the Merchant on demand. The Merchant shall be liable for all fines, damages, losses, expenses which the Carrier, vessel or cargo may incur or suffer through non-observance of or a non-compliance with or nonfulfillment of formalities, wrong declarations, etc., required by any regulations, including import, export or transit regulations of any Government or authority, including customs or port authorities.
19. CARRIER’S FREIGHT TARIFF RULES & REGULATIONS:
Any bookings, freight engagements, dock receipts, boat notes, interchanges or other agreements relating to the shipment previously made are superseded by this Bill of Lading and by the Carrier’s Freight Tariff Rules and Regulations, which shall be deemed incorporated herein as if set forth at length.
The Carrier’s relevant Freight Tariff Rules and Regulations are filed with the Maritime Commission, Washington, D.C. and are also available at any of the Carrier’s offices. No term of this contract shall be changed without the written consent of the Carrier.
The Carrier, his servants or agents, shall have a lien on the goods or any part thereof and right to sell such goods whether privately or by public auction for all freight (including additional freight payable as is herein stipulated) primage, deadfreight, demurrage, detention, container demurrage, charges, salvage, average of any kind whatsoever, stamps, duties, fines or penalties, C.O.D. charges to be collected as per Merchant’s request prior to delivery of the goods, and for all other charges and expenses whatsoever which are for the account of the goods, or of the Merchant, and for the costs and expenses of exercising such lien, and of such sale and also for all previously unsatisfied debts whatsoever due to the Carrier, his servants or agents, by the Merchant. The lien hereby accorded may be exercised by the Carrier, his servants or agents notwithstanding that he or they may have parted with possession of the goods; and the Carrier, his servants or agents, shall at all times stand authorized by the Merchant to give all such notices to any person or persons for the time being in possession of the goods as may be required for the purpose of giving effect to the provisions of this Clause. Nothing in this Clause shall prevent the Carrier from recovering from the Merchant the difference between the amount due from them or any of them to him and the amount realized by the exercise of the rights given to the Carrier under this Clause.
General Average to be adjusted at any port or place at the Carrier’s or the vessel’s owner’s option, and to be settled according to the York-Antwerp Rules 1994 and any amendments thereof or any substitute internationally recognized rules. In the event of accident, danger, damage or disaster before or after commencement of the voyage resulting from any cause whatsoever, whether due to negligence or not, for which or for the consequence of which the Carrier is not responsible by statute, contract or otherwise, the Merchant shall contribute with the Carrier or vessel’s owner in General Average to the payment of any sacrifice, losses or expenses of a General Average nature that may be made or incurred, and shall pay salvage and special charges incurred in respect of the goods. If a salving vessel is owned or operated by the Carrier or vessel’s owner, salvage shall be paid for as fully as if the salving vessel or vessels belonged to strangers. Such deposit as the Carrier or vessel’s owner, or its agents without prejudice may deem sufficient to cover the estimated contribution of the goods and any salvage and special charges thereon shall, if required, be paid to the Carrier or vessel’s owner or its agents in cash prior to the delivery into a special account in accordance with the provisions of the said Rules. The Merchant hereby waives his right, if any, to declare General Average and to a general average adjustment, unless the General Average sacrifices and expenditure made or incurred by the Merchant exceed US$250,000.-.
22. BOTH-TO-BLAME COLLISION CLAUSE:
If the vessel comes into collision with another vessel as a result of the negligence of the other vessel and any act, neglect or default of the Master, mariner, pilot or the servants of the Carrier or vessel’s owner in the navigation or in the management of the vessel, the owner of the goods carried hereunder will indemnify the Carrier or vessel’s owner against all loss or liability to the other or non-carrying vessel or her owners insofar as such loss or liability represents a loss of, or damage to, or any claim whatsoever of the owners of said goods, paid or payable by the other or non-carrying vessel or her owners to the owners of the said goods and setoff, recouped or recovered by the other or non-carrying vessel or her owners as part of their claim against the vessel or Carrier. The foregoing provisions shall also apply where the owners, operators or those in charge of any ship or ships or object other than, or in addition to, the colliding vessel or objects are at fault in respect of a collision, contact or other accident.
23. PACKAGE LIMITATION AND DECLARATION OF VALUE:
The Carrier shall in no event be or become liable for any loss or damage to the goods or in connection therewith in an amount exceeding the per package limitation contained in any legislation making the Hague Rules or U.S. COGSA, as the case may be, compulsorily applicable to this Bill of Lading or, where no such legislation is applicable, in an amount not exceeding US$500.- lawful money of the United States per package or unit. In the event of bulk cargo each ton of 1,000 kilos shall, as a rule, be deemed to be the customary freight unit, and the Carrier’s liability for this unit shall not exceed the said per package limitation. If according to the custom of the trade, or according to special agreement the freight charged for any bulk cargo should be based upon a higher weight-unit, the limitation of liability to US$500.- shall apply to the weight-unit in question. Furthermore, Carrier’s liability if he is responsible at all, shall not exceed the market value of the goods at the time and place of shipment. Should, however, the invoice value of the goods be lower than the market value at the time and place of delivery, the Carrier will only pay the invoice value. The limitation of liability mentioned above shall not apply in the event that the nature of the goods and valuation higher than the applicable limitation, shall have been declared in writing by the Merchant upon delivery to the Carrier and inserted in this Bill of Lading and extra freight paid if required, and in such case if the actual value of the goods per package or per customary freight unit shall exceed such declared value, the value shall nevertheless be deemed to be the declared value and the Carrier’s liability, if any, shall not exceed the declared value and any partial loss or damage shall be adjusted pro rata on the basis of such declared value.
24. LAW AND JURISDICTION:
All and any claims and/or disputes arising under this Bill of Lading or in connection therewith shall be brought before and determined by the courts and in accordance with the law at:
(a) the place where the Carrier has its Head Office, namely Haifa, Israel
(b) if the cargo originates in or is destined for the U.S.A., by the United States District Court for the
Southern District of New York, N.Y., U.S.A.
Each of the above courts, respectively, shall have exclusive jurisdiction and, therefore, no proceedings
shall be brought before any other court.
HEAD OFFICE ZIM INTEGRATED SHIPPING SERVICES LTD.;9 ANDREI SAKHAROV ST., MATAM
P.O.B.1723, HAIFA 31016 ISRAEL
PHONE: (972) 4-8652111; FAX: (972) 4-8652956,
MSC - Mediterranean Shipping Company. Standard Terms and Conditions of the Contract of Carriage.
RECEIVED by the Carrier in apparent good order and condition (unless otherwise stated herein) the total number or quantity of Containers or other packages or units indicated in the box entitled Carriers Receipt for carriage subject to all the terms and conditions hereof from the Place of Receipt or Port of Loading to the Port of Discharge or Place of Delivery, whichever is applicable.
IN ACCEPTING THIS BILL OF LADING THE MERCHANT EXPRESSLY ACCEPTS AND AGREES TO ALL THE TERMS AND CONDITIONS, WHETHER PRINTED, STAMPED OR OTHERWISE INCORPORATED ON THIS SIDE AND ON THE REVERSE SIDE OF THIS BILL OF LADING AND THE TERMS AND CONDITIONS OF THE CARRIERS APPLICABLE TARIFF AS IF THEY WERE ALL SIGNED BY THE MERCHANT.
If this is a negotiable (To Order / of) Bill of Lading, one original Bill of Lading, duly endorsed must be surrendered by the Merchant to the Carrier (together with outstanding Freight) in exchange for the Goods or a Delivery Order. If this is a non-negotiable (straight) Bill of Lading, the Carrier shall deliver the Goods or issue a Delivery Order (after payment of outstanding Freight) against the surrender of one original Bill of Lading or in accordance with the national law at the Port of Discharge or Place of Delivery whichever is applicable. IN WITNESS WHEREOF the Carrier or their Agent has signed the number of Bills of Lading stated at the top, all of this tenor and date, and wherever one original Bill of Lading has been surrendered all other Bills of Lading shall be void.
Terms and conditions of MSC Mediterranean Shipping Company S.A.
Contract of Carriage continued from the reverse.
CONTRACTING PARTIES AND WARRANTY
SUBCONTRACTING AND INDEMNITY
U.S. TRADE CLAUSE
COMPENSATION AND LIABILITY PROVISIONS
SCOPE OF VOYAGE, DELAY, CONSEQUENTIAL DAMAGES
METHODS AND ROUTES OF CARRIAGE
NOTICE OF CLAIMS, TIME BAR AND JURISDICTION
REFRIGERATION, HEATING, INSULATION
INSPECTION OF GOODS AND SPECIAL CIRCUMSTANCES
DESCRIPTION OF GOODS AND MERCHANTS RESPONSIBILITY
DANGEROUS OR HAZARDOUS GOODS
FREIGHT AND CHARGES
OPTIONAL STOWAGE, DECK CARGO AND LIVESTOCK
MATTERS ADVERSELY AFFECTING CARRIERS PERFORMANCE
NOTIFICATION AND DELIVERY
BOTH TO BLAME COLLISION CLAUSE
GENERAL AVERAGE AND SALVAGE
SEPARABILITY AND VARIATION OF TERMS, FINAL CONTRACT
The following definitions shall apply in this Bill of Lading:
Carrier: means MSC Mediterranean Shipping Company S.A..
COGSA: means the U.S. Carriage of Goods by Sea Act, 1936.
Combined Transport: arises if the Carrier has indicated a Place of Receipt and/or a Place of Delivery on the front hereof in the relevant spaces. Combined Transport consists of a Port-to-Port carriage and Inland Transport.
Container: includes any container, trailer, transportable tank, flat or pallet, or any similar article used to consolidate Goods and any connected or accessory equipment.
Freight: includes the freight and all charges, costs and expenses whatsoever payable to the Carrier in accordance with the applicable Tariff and this Bill of Lading, including storage, per diem and demurrage.
Goods: includes the whole or any part of the cargo carried under this Bill of Lading, including any packing or packaging materials and Merchant owned or leased Containers.
Hague Rules: means the provisions of the International Convention for the Unification of Certain Rules relating to Bills of Lading signed at Brussels on 25 August 1924 with the express exclusion of Article 9.
Hague–Visby Rules: means the provisions of The Hague Rules 1924 as Amended by the Protocol adopted at Brussels on 23 February 1968, and 21st December 1979 (SDR Protocol) where applicable. Notwithstanding anything to the contrary herein it is expressly agreed that nothing herein shall contractually apply the Hague-Visby Rules to this Bill of Lading and they shall apply only when compulsorily applicable by the law governing this Bill of Lading.
Inland Transport: means carriage during Combined Transport other than between the Port of Loading and the Port of Discharge.
Merchant: includes the Shipper, Consignee, holder of this Bill of Lading, the receiver of the Goods and any Person owning, entitled to or claiming the possession of the Goods or of this Bill of Lading or anyone acting on behalf of this Person.
Person: includes an individual, corporation, company or any other legal entity.
Place of Delivery: means the place at which the Carrier has contracted to deliver the Goods, when such place is other than the Port of Discharge.
Place of Receipt: means the place at which the Carrier has contracted to receive the Goods, when such place is other than the Port of Loading.
Pomerene Act: means the United States Federal Bill of Lading Act, 1916 49 U.S.C. 801 or any amendments thereto.
Port-to-Port carriage: means carriage between the Port of Loading and the Port
Subcontractor: includes but is not limited to the owners, charterers and operators of the Vessel(s) other than the Carrier, as well as stevedores, terminals and groupage operators, road and rail transport operators, warehousemen and any independent contractors employed by the Carrier performing the carriage and any direct or indirect Subcontractors, servants and agents
thereof whether in direct contractual privity or not.
Vessel: includes the vessel named herein or any substituted vessel, feeder vessel, lighter or other watercraft utilized by the Carrier for carriage by sea.
2. CONTRACTING PARTIES AND WARRANTY
The contract evidenced by this Bill of Lading is between the Carrier and the Merchant. Every Person defined as Merchant is jointly and severally liable towards the Carrier for all the various undertakings, responsibilities and liabilities of the Merchant under or in connection with this Bill of Lading and to pay the Freight due under it without deduction or set-off. The Merchant warrants that in agreeing to the terms and conditions in this Bill of Lading, he is the owner of the Goods or he does so with the authority of the owner of the Goods or of the Person entitled to the possession of the Goods or of this Bill of Lading.
3. CARRIERS TARIFF
The terms and conditions of the Carriers applicable Tariff are incorporated into this Bill of lading. Particular attention is drawn to terms and conditions concerning additional charges including demurrage, per diem, storage expenses and legal fees, etc. A copy of the applicable Tariff can be obtained from the Carrier or its agent upon request and the Merchant is deemed to know and accept such Tariff. In the case of any conflict or inconsistency between this Bill of Lading and the applicable Tariff, it is agreed that this Bill of Lading shall prevail.
4. SUBCONTRACTING AND INDEMNITY
4.1 The Carrier shall be entitled to sub-contract on any terms whatsoever the whole or any part of the carriage, including liberty to further sub-contract.
4.2 The Merchant undertakes that no claim or allegation whether arising in contract, bailment, tort or otherwise shall be made against any servant, agent, or Subcontractor of the Carrier which imposes or attempts to impose upon any of them or any Vessel owned or chartered by any of them 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 such Person. If any such claim or allegation should nevertheless be made, the Merchant agrees to indemnify the Carrier against all consequences thereof. Without prejudice to the foregoing, every such servant, agent and Subcontractor shall have the benefit of all terms and conditions of whatsoever nature contained herein or otherwise benefiting the Carrier under this Bill of Lading, as if such terms and conditions were expressly for their benefit. In entering into this contract, the Carrier, to the extent of such terms and conditions, does so on its own behalf and also as agent and trustee for such servants, agents and Subcontractors.
4.3 The provisions of clause 4.2, including but not limited to the undertaking of the Merchant contained therein, shall extend to all claims or allegations of whatsoever nature against other Persons chartering space on the Vessel.
4.4 The Merchant further undertakes that no claim or allegation in respect of the Goods shall be made against the Carrier by any Person which imposes or attempts to impose upon the Carrier any liability whatsoever in connection with the Goods or the carriage of the Goods other than in accordance with the terms and conditions of this Bill of Lading, whether or not arising out of negligence or misdelivery on the part of the Carrier, and if any such claim or allegation should nevertheless be made, to indemnify the Carrier against all consequences thereof.
5. CARRIERS RESPONSIBILITY
5.1 Port-to-Port carriage – If carriage under this Bill of Lading is Port-to-Port:
(a) The period of responsibility of the Carrier for any loss of or damage to the Goods shall commence only at the moment that the Goods are loaded on board the Vessel and shall end when the Goods have been discharged from the Vessel.
(b) This Bill of Lading shall be subject to the Hague Rules unless the governing law makes the Hague or the Hague-Visby Rules compulsorily applicable in which case the said Hague or Hague-Visby Rules will apply to this Bill of Lading only to the extent that they are compulsorily applicable.
(c) Notwithstanding the above, in case and to the extent that the governing law, or a contractual arrangement, or custom and practice, or any court or tribunal decision extends the Carriers period of responsibility whether in contract, tort, bailment or otherwise to all or any part of the period before loading, or the period after discharge, including for misdelivery, then Carrier shall have the benefit of every right, defence, immunity, limitation and liberty provided for in the Hague Rules during such additional period of responsibility, notwithstanding that the loss, damage or misdelivery did not occur during the carriage by sea.
5.2 Combined Transport – The Carriers liability for Combined Transport shall be as follows:
5.2.1 Where the loss or damage occurred during the Port-to-Port section of the carriage, the liability of the Carrier is in accordance with clause 5.1 above.
5.2.2 Where the loss or damage occurred during Inland Transport, the liability of the Carrier shall be determined:
(a) by the provisions contained in any international convention, national law or regulation applicable to the means of transport utilized, if such convention, national law or regulation would have been compulsorily applicable in the case where a separate contract had been made in respect to the particular stage of transport concerned, or
(b) where no international convention, national law or regulation would have been compulsorily applicable, by the contract of carriage issued by the Subcontractor carrier for that stage of transport, including any limitations and exceptions contained therein, which contract the Merchant and the Carrier adopt and incorporate by reference, it being agreed that the Carriers rights and liabilities shall be the same as those of the Subcontractor carrier, but in no event whatsoever shall the Carriers liability exceed GBP 100 sterling legal tender per package, or
(c) if any court shall determine that no international convention, national law or regulation would have been compulsorily applicable and that the Carrier may not determine its liability, if any, by reference to the applicable Subcontractors contract of carriage or where said Subcontractor carrier does not have a contract of carriage, then it is contractually agreed as between the Merchant and the Carrier that the Carriers liability shall be determined as if the loss and/or damage complained of occurred during the Port-to-Port section of carriage as provided at 5.1 above, but in no event whatsoever shall the Carriers liability exceed GBP 100 sterling legal tender per package.
(d) If the place of loss or damage cannot be established by the Merchant, then the loss or damage shall be presumed to have occurred during the Port-to-Port section of carriage and the Carriers liability shall be determined as provided at 5.1 above.
5.2.3 Any transport that the Carrier arranges for the Merchant which is not part of the carriage under this Bill of Lading is done under the Merchants own responsibility, time, risk and expense and the Carrier acts as agent only for the Merchant.
5.3 Delivery to Customs or Port Authorities – Where any law or regulation applicable at the Port of Discharge or Place of Delivery provides that delivery of the Goods to the Merchant shall or may be effected by the customs or port authorities at the Port of Discharge or Place of Delivery, notwithstanding anything to the contrary herein, delivery of the Goods by the Carrier to such customs or port authorities shall be deemed to be lawful delivery of the Goods by the Carrier to the Merchant and the Carrier shall not be liable for any loss of or damage to the Goods which occurs for any reason whatsoever after delivery of the Goods by the Carrier to the customs or port authorities.
6. U.S. TRADE CLAUSE
6.1 Notwithstanding the provisions of clause 5, for carriage to or from any port of the United States, its territories or possessions, or if suit is brought in the United States, this Bill of Lading shall have effect subject to the provisions of the COGSA and to the provisions of the Pomerene Act regardless of whether said Act would apply of its own force. The provisions of the COGSA are incorporated herein and save as otherwise provided herein shall apply throughout the entire time the Goods are in the Carriers custody, including before loading and after discharge as long as the Goods remain in the custody of the Carrier or its Subcontractors, including cargo carried on deck. Nothing contained herein is to be deemed a surrender by the Carrier of its rights, immunities, exemptions or limitations or an increase of any of its responsibilities or liabilities under the COGSA. Except for clause 5, every other term, condition, limitation, defence and liberty whatsoever contained in this Bill of Lading shall apply to carriage in the US Trades.
6.2 For limitation purposes under the GOGSA, it is agreed that the meaning of the word package shall be any palletised and/or unitised assemblage of cartons which has been palletised and/or unitised for the convenience of the Merchant, regardless of whether said pallet or unit is disclosed on the front hereof.
7. COMPENSATION AND LIABILITY PROVISIONS
7.1 Subject always to the Carriers right to limit liability as provided for herein, if 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 invoice value of the Goods, plus Freight and insurance if paid. If there is no invoice value of the Goods or if any such invoice is not bona fide, such compensation shall be calculated by reference to the market value of such Goods at the place and time they are delivered or should have been delivered to the Merchant. The market value of the Goods shall be fixed according to the current market price, by reference to the normal value of goods of the same kind and/or quality.
7.2 Save as is provided in clause 7.3:
7.2.1 (a) If and to the extent the Hague Rules or Hague-Visby Rules are compulsorily applicable to this Bill of Lading by virtue of clauses 5.1, 5.2.1 or 5.2.2 (c) or (d) or otherwise, the Carriers liability for breaches or wrongs occurring during such period of compulsory application shall in no event whatsoever exceed the amounts provided in the Hague Rules or Hague-Visby Rules, whichever are compulsorily applicable.
(b) If and to the extent the Hague Rules apply only contractually pursuant to clause 5, the Carriers maximum liability shall in no event whatsoever exceed GBP 100 sterling lawful currency per package or unit.
7.2.2 Where COGSA applies by virtue of clause 6, neither the Carrier nor the Vessel shall in any event be or become liable in an amount exceeding US$500 per package or per customary freight unit.
7.3 The Merchant agrees and acknowledges that the Carrier has no knowledge of the value of the Goods. Higher compensation than that provided for in this Bill of Lading may be claimed only when, with the written confirmation of the Carrier, the value of the Goods declared by the Shipper upon delivery to the Carrier has been stated by the Carrier in the box marked Declared Value on the front of this Bill of Lading and ad valorem charges paid. In that case, the amount of the Declared Value shall be substituted for the limits provided in this Bill of Lading. Any partial loss or damage shall be adjusted pro rata on the basis of such Declared Value.
7.4 Nothing in this Bill of Lading shall operate to limit or deprive the Carrier of any statutory protection, defence, exemption or limitation of liability authorised by any applicable laws, statutes or regulations of any country or which would have been applicable in the absence of any of the terms set out in this Bill of Lading. The Carrier shall have the benefit of the said laws, statutes or regulations as if it were the owner of the Vessel.
7.5 When any claim is paid by the Carrier to the Merchant, the Carrier shall be automatically subrogated to all rights of the Merchant against any third party. The Merchant shall sign a subrogation receipt, release and indemnity immediately when requested by the Carrier.
8. SCOPE OF VOYAGE, DELAY, CONSEQUENTIAL DAMAGES
The scope of voyage herein contracted for may or may not include usual or customary or advertised ports of call whether named in this Bill of Lading contract or not and may include transport of the Goods to or from any facilities used by the Carrier as part of the carriage, including but not limited to off-dock storage. The Carrier does not promise or undertake to load, carry or discharge the Goods on or by any particular Vessel, date or time. Advertised sailings and arrivals are only estimated times, and such schedules may be advanced, delayed or cancelled without notice. In no event shall the Carrier be liable for consequential damages or for any delay in scheduled departures or arrivals of any Vessel or other conveyances used to transport the Goods by sea or otherwise. If the Carrier should nevertheless be held legally liable for any such direct or indirect or consequential loss or damage caused by such alleged delay, such liability shall in no event exceed the Freight paid for the carriage.
9. METHODS AND ROUTES OF CARRIAGE
9.1 The Carrier may at any time and without notice to the Merchant:
(a) use any means of transport or storage whatsoever;
(b) transfer the Goods from one conveyance to another including transhipping or carrying the Goods on a Vessel other than the Vessel named on the front hereof or by any other means of transport whatsoever, even though transhipment or forwarding of the Goods by such means may not have been contemplated or provided for herein;
(c) sail without pilots, proceed via any route (whether or not the nearest or most direct or customary or advertised route) at any speed and proceed to, return to and stay at any port or place whatsoever (including the Port of Loading herein provided) once or more often, and in any order in or out of the route or in a contrary direction to or beyond the Port of Discharge once or more often;
(d) load and unload the Goods at any place or port (whether or not any such port is named on the front hereof as the Port of Loading or Port of Discharge) and store the Goods at any such port or place, including but not limited to the use of off-dock storage at any port;
(e) comply with any orders or recommendations given by any government or authority or any Person or body purporting to act as or on behalf of such government or authority or having under the terms of the insurance on any conveyance employed by the Carrier the right to give orders or directions.
9.2 The liberties set out in clause 9.1 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 or embarking or disembarking any Person(s), undergoing repairs and/or drydocking, towing or being towed, assisting other vessels, making trial trips and adjusting instruments. Anything done or not done in accordance with clause 9.1 or any delay arising therefrom shall be deemed to be within the contractual carriage and shall not be a deviation.
10. NOTICE OF CLAIMS, TIME BAR AND JURISDICTION
10.1 Notice - of loss or damage to Goods shall be given in writing to the Carrier or its agent at the Port of Discharge before or at the time of delivery. If the loss or damage is not apparent before or at the time of delivery, notice must be given within three (3) days of delivery to the Merchant or its agent. Claims shall be submitted in writing addressed by the Merchant to the Carriers agent at the Port of Discharge.
10.2 Time bar - In any event, the Carrier shall be discharged from all liability if suit is not commenced within one (1) year after delivery of the Goods or the date that the Goods should have been delivered for claims related to loss or damage during the Port-to-Port carriage, and for claims related to loss or damage during Inland Transport the shorter of nine (9) months or any time limit provided for by any applicable international convention, national law, regulation or contract by virtue of clauses 5.2.2 (a) or (b).
10.3 Jurisdiction - It is hereby specifically agreed that any suit by the Merchant, and save as additionally provided below any suit by the Carrier, shall be filed exclusively in the High Court of London and English Law shall exclusively apply, unless the carriage contracted for hereunder was to or from the United States of America, in which case suit shall be filed exclusively in the United States District Court, for the Southern District of New York and U.S. law shall exclusively apply. The Merchant agrees that it shall not institute suit in any other court and agrees to be responsible for the reasonable legal expenses and costs of the Carrier in removing a suit filed in another forum. The Merchant waives any objection to the personal jurisdiction over the Merchant of the above agreed fora.
In the case of any dispute relating to Freight or other sums due from the Merchant to the Carrier, the Carrier may, at its sole option, bring suit against the Merchant in the fora agreed above, or in the countries of the Port of Loading, Port of Discharge, Place of Delivery or in any jurisdiction where the Merchant has a place of business.
11. MERCHANT-PACKED CONTAINERS
If a Container has not been packed by or on behalf of the Carrier:
11.1 The Merchant shall inspect the Container for suitability for carriage of the Goods before packing it. The Merchants use of the Container shall be prima facie evidence of its being sound and suitable for use.
11.2 The Carrier shall not be liable for loss of or damage to the Goods caused by:
(a) the manner in which the Goods have been packed, stowed, stuffed or secured in the Container, or
(b) the unsuitability of the Goods for carriage in the Container supplied or for carriage by Container between the Ports or Places specified herein, or
(c) the unsuitability or defective condition of the Container or the incorrect setting of any refrigeration controls thereof, provided that, if the Container has been supplied by or on behalf of the Carrier, this unsuitability or defective condition would have been apparent upon inspection by the Merchant at or prior to the time when the Container was packed, or
(d) packing refrigerated Goods that are not properly pre-cooled to the correct temperature for carriage or before the refrigerated Container has been properly pre-cooled to the correct carrying temperature.
11.3 The Merchant is responsible for the packing and sealing of all Merchant-packed Containers and, if a Merchant-packed Container is delivered by the Carrier with an original seal as affixed by the Merchant or customs or security control intact, or the Carrier can establish bona fide circumstances in which the original seal was replaced, the Carrier shall not be liable for any shortage of Goods ascertained upon delivery.
11.4 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 11. 2, including but not limited to damage to Container, other cargo and the Vessel.
12. REFRIGERATION, HEATING, INSULATION
12.1 Special Containers with refrigeration, heating or insulation shall not be furnished unless contracted for on the front of this Bill of Lading and extra Freight paid. If a carrying temperature is noted on the front of this Bill of Lading, the Merchant shall deliver the Goods to the Carrier at plus or minus 2 degrees Celsius from the noted temperature, and the Carrier shall exercise due diligence to maintain such supply air temperature, plus or minus 2 degrees Celsius while the Goods are in its possession. IT IS THE MERCHANTS OBLIGATION TO SET AND/OR CHECK THAT THE TEMPERATURE CONTROLS ON THE CONTAINER ARE AT THE REQUIRED CARRYING TEMPERATURE AND TO PROPERLY SET THE VENTS. The Carrier does not undertake to deliver empty refrigerated Containers to the Merchant at any
specific temperature. The Carrier has the right but not the obligation to refuse to accept any Container loaded by the Merchant for shipment where the Goods are not or were not loaded into the Container within plus or minus 2 degrees Celsius of the contracted carrying temperature.
12.2 The Merchant must take note that refrigerated Containers are not designed:
(a) to cool or freeze Goods which have been loaded into a Container at a temperature higher than their designated carrying temperature. The Carrier shall not be responsible for the consequences of the Goods being loaded at a higher temperature than that required for the carriage; nor
(b) to monitor and control humidity levels, even if a setting facility exists, and because humidity is influenced by many external factors the Carrier does not guarantee and is not responsible for the maintenance of any intended level of humidity inside any Container.
12.3 The Carrier shall not be liable for any loss or damage to the Goods arising from latent defects, breakdown, defrosting, stoppage of the refrigerating or any other specialised machinery, plant, insulation and/or apparatus of the Container and any other facilities, provided that the Carrier exercised due diligence before releasing the empty Container to the Shipper.
12.4 The Carrier does not warrant refrigeration or heating machinery, but shall exercise care in its operation and maintenance while in the actual possession of the Carrier. The Carrier will not accept responsibility for the recording of temperatures in any form other than any reefer log book maintained on board the Vessel. The Carrier does not accept to comply with any governmental program or protocol unless noted on the front hereof and additional Freight is paid.
13. INSPECTION OF GOODS AND SPECIAL CIRCUMSTANCES
Inspection - The Carrier shall be entitled, but shall be under no obligation, to open and/or scan any package or Container at any time and to inspect, verify and weigh the contents without notice to the Merchant.
Special circumstances - If it appears at any time that the Goods cannot safely or properly be carried or carried further, either at all or without incurring any additional expense or taking any measures in relation to the Container or the Goods, the Carrier may without notice to the Merchant (but as his agent only) take any measures and/or incur any reasonable additional expense to carry or to continue the carriage of the Goods, and/or to sell or dispose of them and/or to abandon the carriage and/or to store them ashore or afloat, under cover or in the open, at any place, whichever the Carrier in its absolute discretion considers most appropriate, and any sale, disposal, abandonment or storage shall be deemed to constitute due delivery under this Bill of Lading. The Merchant shall indemnify the Carrier against any additional expense so incurred. The Carrier in exercising the liberties contained in this clause shall not be under any obligation to take any particular measures and shall not be liable for any loss, delay or damage howsoever arising from any action or lack of action under this clause.
14. DESCRIPTION OF GOODS AND MERCHANTS RESPONSIBILITY
14.1 This Bill of Lading shall be prima facie evidence of the receipt by the Carrier 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 entitled Carriers Receipt on the front hereof.
14.2 No representation is made by the Carrier as to the weight, contents, measure, quantity, quality, description, condition, temperature, marks, numbers or value of the Goods and the Carrier shall be under no responsibility whatsoever in respect of such description or particulars.
14.3 The Merchant warrants to the Carrier that the particulars relating to the Goods as set out on the front hereof have been checked by or on behalf of the Merchant on receipt of this Bill of Lading and that such particulars, and any other particulars furnished by or on behalf of the Merchant, are adequate and correct. The Merchant warrants that the Goods are safely and securely packed in the Container.
14.4. The Merchant also warrants that the Goods and/or Merchant-packed Containers are lawful Goods, contain no contraband, drugs, other illegal substances or stowaways, and that any hazardous or potentially dangerous characteristics of the Goods have been fully disclosed by or on behalf of the Merchant and that they will not cause loss, damage or expense to the Carrier, or
to any other cargo, Containers, Vessel or Person during the carriage.
14.5 If any particulars of any letter of credit and/or import license and/or sales 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 front hereof, such particulars are shown at the sole risk of the Merchant and for his convenience. The Merchant agrees that such particulars shall not be regarded as a declaration of value and shall in no circumstances whatsoever increase the Carriers liability under this Bill of Lading, and the Merchant agrees to indemnify the Carrier for any increased liability so caused, including reasonable legal expenses and costs.
14.6 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 by reason thereof, or by reason of any illegal, incorrect or insufficient declaration, marking, numbering or addressing of the Goods, and shall indemnify the Carrier in respect thereof, including reasonable legal expenses and costs.
14.7 If by order of the authorities at any place, Goods are detained and/or seized and/or a Container has to be opened for the Goods to be inspected for any reason whatsoever, including but not limited to for a breach or infringement of a trademark, patent or other intellectual property right, the Carrier will not be liable for any loss or damage whatsoever incurred as a result of any opening, unpacking, inspection, re-packing, detention, destruction or delay. The Carrier shall be entitled to recover from the Merchant all charges, fines, costs, losses and expenses, including reasonable legal expenses and costs resulting from such action, including but not limited to any detention, demurrage and storage charges for the Goods and/or the Container.
14.8 The Carrier allows a period of free time for the use of the Containers and other equipment in accordance with the Tariff and as advised by the local MSC agent at the Ports of Loading and Discharge. Free time commences from the day the Container and other equipment is collected by the Merchant or is discharged from the Vessel or is delivered to the Place of Delivery as the case may be. The Merchant is required and has the responsibility to return to a place nominated
by the Carrier the Container and other equipment before or at the end of the free time allowed at the Port of Discharge or the Place of Delivery. Demurrage, per diem and detention charges will be levied and payable by the Merchant thereafter in accordance with the Tariff.
14.9 The Merchant shall redeliver, to a place nominated by the Carrier, the Containers and other equipment in like good order and condition, undamaged, empty, odour free, cleaned and with all fittings installed by the Merchant removed and without any rubbish, dunnage or other debris inside. The Merchant shall be liable to indemnify the Carrier for any and all costs incurred
reinstating or replacing Containers and other equipment not returned in the condition as specified above, including the reasonable legal expenses and costs of recovering the costs incurred and interest thereon.
15. DANGEROUS OR HAZARDOUS GOODS
15.1 The Carrier will not accept any Goods of a dangerous or hazardous nature without prior written notice of their full and true particulars and the Carriers written approval to carry them.
When the Merchant delivers Goods of a dangerous or hazardous nature to the Carrier, the Merchant shall fully inform the Carrier in writing of the precise and accurate details of the Goods, and special precautions or handling required for the Goods. Such Goods shall be distinctly marked on the outside of the Container as well as on the outside of the packaging inside the Container so as to indicate the nature thereof and the marking must comply with the requirements of any applicable regulations, including regulations contained in any relevant international treaty or convention.
15.2 The Merchant shall be fully liable for and shall indemnify, hold harmless and defend the Carrier, its servants, agents and subcontractors and any third party for all loss, damage, delay, personal injury, death or expenses including fines and penalties, and all reasonable legal expenses and costs caused to the Carrier, the Vessel, any cargo, and other property, whether on board or ashore, arising from such Goods and/or from the breach of clause 15.1, whether or not the Merchant was aware of the nature of such Goods.
15.3 Nothing contained in this clause shall deprive the Carrier of any of its rights provided for elsewhere.
16. FREIGHT AND CHARGES
16.1 Freight has been calculated on the basis of the Shippers particulars and if such particulars are found to be erroneous and additional Freight is payable, the Merchant shall be liable therefor and also for any expense thereby incurred.
16.2 All Freight is earned and due upon receipt of the Goods by the Carrier, whether the Freight is prepaid or collect and the Carrier shall be entitled to all Freight due under all circumstances, ship and/or cargo lost or not lost or the voyage abandoned. All Freight shall be paid when due without any set-off, counter claim, or deduction.
16.3 Every Person defined as Merchant in clause 1 shall be jointly and severally liable to the Carrier for the payment of all Freight and charges and for the performance of the obligations of each of them hereunder. Any Person engaged by the Merchant to perform forwarding services with respect to the Goods shall be considered to be exclusively the Merchants agent for all purposes, and any payment of Freight to such Person shall not be considered payment to the Carrier in any event whatsoever. Failure of such third parties to pay any part of the Freight to the Carrier shall be considered a default by the Merchant in the payment of Freight.
17. CARRIERS LIEN
The Carrier, its servants or agents shall have a lien on the Goods and any document relating thereto for Freight and for general average contributions to whomsoever due. The Carrier, its servants or agents shall also have a lien against the Merchant on the Goods and any document relating thereto for all sums due from the Merchant to the Carrier under any other contract. The Carrier may exercise its lien at any time and any place in its sole discretion, through the action of any servant, agent or Subcontractor, whether the contractual carriage is completed or not. The Carriers lien shall also extend to cover the cost and legal expense of recovering any sums due. The Carrier shall have the right to sell any Goods liened by public auction or private treaty, without notice to the Merchant. Nothing herein shall prevent the Carrier from recovering from the
Merchant the difference between the amount due to the Carrier and the net amount realised by such sale.
18. OPTIONAL STOWAGE, DECK CARGO AND LIVESTOCK
18.1 Goods, whether packed in Containers or not, may be carried on deck or under deck without notice to the Merchant unless it is specifically stipulated on the front hereof that the Containers or Goods will be carried under deck. If carried on deck, the Carrier shall not be required to note, mark or stamp on the Bill of Lading any statement of such on-deck carriage. Save as provided in clause 18.2 such Goods (except livestock) carried on or under deck and whether or not stated to be carried on deck shall participate in general average and shall be deemed to be within the definition of Goods for the purpose of the Hague Rules or the COGSA or any compulsorily applicable legislation and shall be carried subject to such Rules or Act, whichever is applicable.
18.2. Goods which are out of gauge and/or are stowed on or in open top containers, flatracks or platforms, and which are stated on the front hereof to be carried on deck, and all livestock whether carried on deck or under deck, are carried without any responsibility whatsoever on the part of the Carrier for loss or damage of whatsoever nature or delay arising during the carriage whether caused by unseaworthiness or negligence or any other cause whatsoever and the Hague Rules or the COGSA shall not apply.
19. MATTERS ADVERSELY AFFECTING CARRIERS PERFORMANCE
19.1 If at any time the carriage is or is likely to be affected by any hindrance, risk, danger, delay, difficulty or disadvantage of whatsoever kind and howsoever arising which cannot be avoided by the Carrier by the exercise of reasonable endeavours, (even though the circumstances giving rise to such hindrance, risk, danger, delay, difficulty or disadvantage existed at the time this contract was entered into or the Goods were received for the carriage) the Carrier may at its sole discretion and without notice to the Merchant and whether or not the carriage is commenced either:
(a) 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; or (b) suspend the carriage of the Goods and store them ashore or afloat upon the terms and conditions 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 suspension; or (c) abandon the carriage of the Goods and place them at the Merchants disposal at any place or port which the Carrier may deem safe and convenient, or from which the Carrier is unable by the exercise of reasonable endeavours to continue the carriage, 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 the carriage, and the Merchant shall pay any additional costs incurred by reason of the abandonment of the Goods. If the Carrier elects to use an alternative route under clause 19.1 (a) or to suspend the carriage under clause 19.1 (b) this shall not prejudice its right subsequently to abandon the carriage.
19.2 If the Carrier elects to invoke the terms of this clause 19, then notwithstanding the provisions of clause 9, the Carrier shall be entitled to such additional Freight and costs as the Carrier may determine.
20. NOTIFICATION AND DELIVERY
20.1 Any mention in this Bill of Lading of parties to be notified of the arrival of the Goods is solely for information of the Carrier. Failure to give such notification shall not subject the Carrier to any liability nor relieve the Merchant of any obligation hereunder.
20.2 The Merchant shall take delivery of the Goods within the time provided for in the Carriers applicable Tariff or as otherwise agreed. If the Merchant fails to do so, the Carrier may without notice unpack the Goods if packed in Containers and/or store the Goods ashore, afloat, in the open or under cover at the sole risk of the Merchant. Such storage shall constitute due delivery
hereunder, and thereupon all liability whatsoever of the Carrier in respect of the Goods, including for misdelivery or non-delivery, shall cease and the costs of such storage shall forthwith upon demand be paid by the Merchant to the Carrier.
20.3 If the Goods are unclaimed within a reasonable time or whenever in the Carriers opinion the Goods are likely to deteriorate, decay or become worthless, or incur charges whether for storage or otherwise in excess of their value, the Carrier may at its discretion and without prejudice to any other rights which it may have against the Merchant, without notice and without any responsibility attaching to it, sell, abandon or otherwise dispose of the Goods at the sole risk and expense of the Merchant and apply any proceeds of sale in reduction of the sums due to the Carrier from the Merchant under or in connection with this Bill of Lading.
20.4 Refusal by the Merchant to take delivery of the Goods in accordance with the terms of this clause and/or to mitigate any loss or damage thereto shall constitute an absolute waiver and abandonment by the Merchant to the Carrier of any claim whatsoever relating to the Goods or the carriage thereof. The Carrier shall be entitled to an indemnity from the Merchant for all costs whatsoever incurred, including legal costs, for the cleaning and disposal of Goods refused and/or abandoned by the Merchant.
21. BOTH TO BLAME COLLISION CLAUSE
If the Vessel comes into collision with another ship as a result of the negligence of the other ship and any act, neglect or default of the master, mariner, pilot or the servants of the Carrier in the navigation or in the management of the Vessel, the owners of the Goods carried hereunder will indemnify the Carrier against all loss or liability to the other or non-carrying ship or her owners in so far as such loss or liability represents loss of, or damage to, or any claim whatsoever of the owners of said Goods, paid or payable by the other or non-carrying ship or her owners to the owners of said Goods and set-off, recouped or recovered by the other or non-carrying ship or her owners as part of their claim against the Vessel or Carrier. The foregoing provisions shall also apply where the owners, operators or those in charge of any ship or ships or objects other than, or in addition to, the colliding ships or objects are at fault in respect of a collision or contact.
22. GENERAL AVERAGE AND SALVAGE
General Average shall be adjusted, stated and settled at any port or place at the Carriers option according to York - Antwerp Rules 1994 except Rule XXII and, as to matters not therein provided for, according to the laws and usages at any port or place at the Carriers option. General Average on a Vessel not operated by the Carrier shall be adjusted according to the requirements of the operator of that Vessel. Average agreement or bond and such cash deposit
(payable at Carriers option in United States currency) as the Carrier may require as additional security for the contribution of the Goods and salvage and special charges thereon, shall be furnished before delivery or forwarding.
In the event of accident, danger, damage or disaster, before or after commencement of the voyage resulting from any cause whatsoever, whether due to negligence or not, for which, or for the consequence of which, the Carrier is not responsible by statute, contract, or otherwise, the Goods and the Merchant shall, jointly and severally, contribute with the Carrier in General Average to the payment of any sacrifices, losses, or expenses of a General Average nature that may be made or incurred, and shall pay salvage and special charges incurred in respect of the Goods, as determined by an independent General Average adjuster duly appointed by the Carrier, and his determination as to liability for General Average contribution and his computation for the same shall be final and binding on all parties to the venture. If a salving ship is owned or operated by the Carrier, salvage shall be paid for as fully and in the same manner as if such salvaging ship or ships belonged to strangers. Such deposit as the Carrier or its agents may deem sufficient to cover the estimated contribution of the goods and any salvage and special charges thereon shall, if required, be made by the Goods, Shippers, Consignees or owners of the Goods to the Carrier before delivery.
23. SEPARABILITY AND VARIATION OF TERMS, FINAL CONTRACT
The terms of this Bill of Lading shall be separable and, if any term or provision hereof or any part of any term or provision shall be invalid to any extent, it shall be invalid to that extent, but no further and such circumstance shall not affect the validity or enforceability of any other term or provision hereof. This Bill of Lading is the final contract between the parties which supersedes any prior agreement or understanding, whether in writing or verbal, save where this Bill of Lading has been issued pursuant to another contract between the Merchant and the Carrier, when such other contract and this Bill of Lading shall be construed together. This Bill of Lading and its terms and conditions may not be changed orally.