STANDARD BILL OF LADING TERMS AND CONDITIONS OF TRUSTFUL LOGISTICS B.V.
1. DEFINITIONS AND INTERPRETATIONS
Carriage means the whole of the operations and services undertaken or performed by or on behalf of the Carrier in respect of the Goods.
Carrier Trustful Logistics B.V. and its subsidiaries.
COGSA means the Carriage of Goods by Sea Act of the United States of America approved on 16th April 1936.
Combined Transport arises where the Carriage called for by the Bill of Lading is not a Port to Port Shipment.
Container includes any container, trailer, transportable tank, flat or pallet, or any similar article of transport used to consolidate Goods and any connected or accessory equipment.
Conveyance includes any carton, container, flexitank, trailer, transportable tank, flat rack, lift van, skid, pallet, platform or any similar article for transportation and/or storage used to carry or consolidate goods and any equipment associated or connected thereto.
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 all Goods including any packing or packaging materials and Merchant owned or leased Containers, Dangerous Goods and Perishable Goods and products of any description delivered to the Carrier for or relating to the purpose of the Services.
Hague Rules means the provisions of the International Convention for Unification of certain Rules relating to Bills of Lading signed at Brussels on 25 August 1924.
Hague-Visby Rules means the Hague Rules as amended by the Protocol signed at Brussels of 23rd February 1968.
Inland Transport carriage during Combined Transport other than between the port of loading and the port of discharge.
Merchant any person at whose request or on whose behalf the Carrier undertakes any business, or provides advice, information or services, including the party named as “shipper” or “consignee” on the front of the Shippers’ Instructions form and on the front of the Carrier’s Bill of Lading, the 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, Carrier or any other legal entity.
Place of Delivery 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 the place at which the Carrier has contracted to receive the Goods, when such place is other than the port of loading.
Pomerene Act the United States Federal Bill of Lading Act, 1916 49 U.S.C. 801 or any amendments thereto.
Port to Port Shipment arises where the Please of Receipt and the Place of Delivery are not indicated on the front of this Bill of Lading or if both the Place of Receipt and the Place of Delivery indicated are ports and the Bill of Lading does not in the nomination of the Place of Receipt or the Place of Delivery on the front hereof specify any place or spot within the area of the port so nominated.
Stuffed includes filled, consolidated, packed, loaded or secured.
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 Merchant 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 Merchant for carriage by sea.
2. CARRIER’S TARIFF
The provisions of the Carrier’s applicable Tariff, if any, are incorporated herein. Copies of such provisions are obtainable for the Carrier or his agents upon request or, where applicable, from a government body with whom the Tariff has been filed. In the case of inconsistency between this Bill of Lading and the applicable Tariff, this Bill of Lading shall prevail
3. CONTRACTUAL STATUS OF MERCHANT
3.1 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 and other costs due under it without deduction or set-off.
3.2 The Merchant entering into any transaction or business with the Carrier hereby expressly warrants to the Carrier that in agreeing to the terms and conditions in this Bill of Lading the Merchant is either the Owner of the goods or the authorised agent of the Owner of the goods or of the person entitled to the possession of the goods or of this Bill of Lading and that it is authorised to accept and is accepting these Conditions not only for itself but also for the Owner or of the person entitled to the possession of the goods or of this Bill of Lading. Where the Merchant acts as the agent of the Owner, the Merchant also accepts personal liability to the Carrier (but without prejudice to any of the rights or remedies of the Carrier against the Owner) and so that in respect of such transaction or business the Carrier is entitled to enforce its rights or remedies (including without limitation the right to recover any sum payable to the Carrier) against the Merchant and the Owner jointly and severally.
4. NEGOTIABILITY AND TITLE TO THE GOODS
(1) This Bill of Lading shall be non-negotiable unless made out “to order” in which event it shall be negotiable and shall constitute title to the Goods and the holder shall be entitled to receive or to transfer the Goods herein described.
(2) This Bill of Lading shall be prima facie evidence of the taking in charge by the Carrier of the Goods as herein described. However, proof to the contrary shall not be admissible when this Bill of Lading has been negotiated or transferred for valuable consideration to a third party acting in good faith.
5. RIGHT TO SUBCONTRACT AND INDEMNITIES
5.1 The Carrier shall be entitled to subcontract on any terms the whole or any part of the Services and any and all duties whatsoever undertaken by the Carrier.
5.2 The Merchant shall keep harmless and indemnify and keep indemnified the Carrier from and against all claims, liabilities, losses, damages, costs (including legal costs), penalties, obligations, causes of action, interest, and expenses (including without limitation all duties, taxes, imposts, levies, deposits, fines and outlays of whatsoever nature levied by any authority) arising from or connected with or out of:
(a) any claims, enforcement actions, fines, or costs which are the result of the Merchant’s controlled actions, or recalls or retrievals of the Goods;
(b) any product liabilities relating to the nature of the Goods unless caused by the Carrier’s negligence or wilful misconduct;
(c) acts, negligence or default of the Merchant;
(d) the Carrier acting in accordance with the Merchant’s instructions;
(e) a breach of warranty or obligation by the Merchant;
(f) the Merchant’s inaccurate or incomplete or ambiguous information or instructions;
(g) the fraudulent or criminal act of the Merchant; or
(h) violations by the Merchant of any applicable laws including those relating to the protection of the environment or public health.
5.3 The Merchant undertakes that no claim or allegation shall be made against any person or vessel whatsoever, other than the Carrier, including, but not limited to, the Carrier’s servants or agents, any independent contractor and his servants or agents and all others by whom the whole or any part of the Carriage, whether directly or indirectly, is procured, performed or undertaken, which imposes or attempts to impose upon any such person or vessel any liability whatsoever in connection with the Goods or the Carriage and if any claim or allegation should nevertheless be made to defend, indemnify and hold harmless the Carrier against all consequences thereof. Without prejudice to the foregoing every such person an vessel shall have the benefit of all provisions herein benefiting the Carrier and if such provisions were expressly for his benefit and in entering into this contract the carrier, to the extent of these provisions, does no not only on his own behalf but also as agent or trustee for such persons and vessels, and such persons and vessels shall to this extent be or be deemed to be parties to this contract.
5.4 The Merchant shall defend, indemnify and hold harmless the Carrier against any claim or liability (and any expense arising therefrom) arising from the Carriage of the Goods insofar as such claim or liability exceeds the Carrier’s liability under this Bill of Lading.
5.5 The defences and limits of liability provided for in this Bill of Lading shall apply in any action against the Carrier whether the action be found in Contract or in Tort.
6. CARRIER’S RESPONSIBILITY
6.1 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 Carrier’s 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 the 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.
6.2 Combined Transport – The Carrier’s liability for Combined Transport shall be as follows:
6.2.1 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 6.1 above.
6.2.2 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 subcontracted 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 Carrier’s rights and liabilities shall be the same as those of the subcontracted carrier, but in no event whatsoever shall the Company’s liability exceed SDR 100 per package or unit, 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 Subcontractor’s contract of carriage or where said Subcontractor does not have a contract of carriage, then it is contractually agreed as between the Merchant and the Carrier that the Carrier’s 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 6.1 above, but in no event whatsoever shall the Carrier’s liability exceed SDR 100 per package or unit.
(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 Carrier’s liability shall be determined as provided at 6.1 above.
6.2.3 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 Merchant’s own responsibility, time, risk and expense and the Carrier acts as agent only for the Merchant.
6.3 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.
6.4 U.S. Trade Clause Notwithstanding the provisions of Clauses 6.1 to 6.3 above, 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 Carrier’s 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 Clauses 6.1 to 6.3 above, every other term, condition, limitation, defence and liberty whatsoever contained in this Bill of Lading shall apply to carriage in the US Trades.
6.5 For limitation purposes under the COGSA, 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.
6.6 General Provisions
Subject always to the Carrier’s 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.
(B) Delay, Consequential Loss
Save as otherwise provided herein, the Carrier shall in no circumstances be liable for, direct, indirect or consequential loss of damage caused by delay or any other cause whatsoever and howsoever caused. Without prejudice to the foregoing, if the Carrier is found liable for delay, liability shall be limited to the freith applicable to the relevant stage of the transport.
(C) Package or Shipping Unit Limitation
Save as is provided in clause (D):
(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 6.1 or otherwise, the Carrier’s 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 6.1, the Carrier’s maximum liability shall in no event whatsoever exceed SDR 100 per package or unit.
(c) Where COGSA applies by virtue of clause 6.4, 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.
(D) Ad Valorem: Declared Value of Package or Shipping unit
The Merchant agrees and acknowledges that the Carrier has no knowledge of the value of the Goods. The Carrier’s liability may be increased to a higher value by a declaration in writing of the value of the Goods by the shipper upon delivery to the Carrier of the Goods for shipment, such higher value being inserted on the front of this Bill of Lading in the space provided and, if required by the Carrier, extra freight paid. In such case, if the actual value of the Goods 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.
(E) Definition of Package or Shipping Unit
Where a Container is used to consolidate Goods and such Container is stuffed by the Carrier, the number of packages or shipping units stated on the face of this Bill of Lading in the box provided shall be deemed the number of packages or shipping units for the purpose of any limit of liability per package or shipping unit provided in any international convention or national law relating to the carriage of Goods by sea. Except as aforesaid the Container shall be considered the package or shipping unit.
The words “shipping unit” shall mean each physical unit or piece of cargo not shipped in a package, including articles or things of any description whatsoever, except Goods shipped in bulk, and irrespective of the weight or measurement unit applicable thereto shall be the limitation provided in such convention or law which may be applicable, and in no event shall anything herein be construed to be a waiver of limitation as to Goods shipped in bulk.
(F) Rust, etc.
It is agreed that superficial rust, oxidation or any like condition due to moisture, is not a condition of damage but is inherent to the nature of the Goods and acknowledgement of receipt of the Goods in apparent good order and condition is not a representation that such conditions of rust, oxidation or the like did not exist on receipt.
(G) Notice of Loss or Damage
The Carrier shall be deemed prima facie to have performed the Services for the Goods, unless written notice of loss or damage and the general nature of such loss or damage has been given to or served on the Carrier or to its representative at the Place of Delivery before or at the time of removal of the Goods in the custody of the Merchant and/or Owner and/or Person entitled to delivery thereof or, if the loss or damage is not apparent before or at the time of removal of the Goods, written notice has to be given within three consecutive days of:
a. in the case of damage to goods, the date of delivery of the goods;
b. in the case of loss or non-delivery or mis-delivery or delay in delivery of goods, the date that the goods should have been delivered; and
c. in any other case, the date of the event giving rise to the claim.
No action shall lie against the Carrier if the claim is not made within the times and in the manner specified above.
(H) Time bar
Any right of action against the Carrier shall be extinguished if suit is not brought in the proper forum and written notice thereof received by the Carrier within 9 (nine) months from the date the goods have been delivered or the date the goods should have been delivered (whichever date is the earlier). In the event that such time period shall be found contrary to any convention or law compulsorily applicable, the period prescribed by such convention or law shall then apply but in that circumstance only.
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.
7. MERCHANT’S RESPONSIBILITY
7.1 Description of Goods The description and particulars of the Goods set out on the face hereof are furnished by the Merchant and the Merchant warrants to the Carrier that the description and particulars including, but not limited to, weight, content, measure, quantity, quality, condition, marks, numbers and value are correct.
7.2.1 The Merchant shall comply with all applicable laws, regulations and requirement of customs, port and other authorities and shall bear and pay all duties, taxes, fines, imposts, expenses and losses incurred or suffered by reason thereof or by reason of any illegal, incorrect or insufficient marking, declaration, numbering or addressing of the Goods and shall indemnify the Carrier in respect thereof, including reasonable legal expenses and costs, upon first written demand.
7.2.2 The Merchant undertakes that the goods have been properly and sufficiently packed and/or prepared in a manner adequate to withstand the ordinary risks of Carriage having regard to their nature and in compliance with all laws, regulations and requirements which may be applicable.
7.2.4 The consignee or other person entitled to the delivery of the goods shall take delivery of the goods upon their arrival at destination and shall pay all necessary charges, taxes and duties and shall comply with all necessary formalities and procedures.
7.5 Dangerous Goods
No goods which are or may become dangerous, inflammable or damaging or which are or may become liable to damage any property or person whatsoever shall be tendered to the Carrier for Carriage without the Carrier’s express consent in writing and with the Container or other covering in which the Goods are to be transported and the Goods being distinctly marked on the outside so as to indicate the nature and character of any such articles and so as to comply with all applicable laws, regulations and requirements. If any such articles are delivered to the Carrier without such written consent and marking or if in the opinion of the Carrier the articles are or are liable to become of a dangerous, inflammable or damaging nature, the same 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 Charges.
7.6 Damage to property of the Carrier The Merchant shall be liable for the loss, damage, contamination, soiling, detention or demurrage before, during and after the Carriage of property (including, but not limited to, Containers) of the Carrier or any person or vessel (other than the Merchant) referred to in 5(3) above caused by the Merchant or any person acting on his behalf or for which the Merchant is otherwise responsible.
7.7 The Merchant shall defend, indemnify and hold harmless the Carrier against any loss, damage, claim, liability or expense whatsoever arising from any breach of the provisions of this Clause 7 or from any cause in connection with the Goods for which the Carrier is not responsible.
8.1 Goods may be stuffed by the Carrier in or on Containers, and further, Goods may be stuffed by the Carrier with other Goods.
8.2 The terms of this Bill of Lading shall govern the responsibility of the Carrier in connection with or arising out of the supply of a Container to the Merchant, whether supplied before or after the Goods are received by the Carrier or delivered to the Merchant.
8.3 If a Container has been stuffed by or on behalf of the Merchant.
(A) the Carrier shall not be liable for loss of or damage to the Goods
(i) caused by the manner in which the Container has been stuffed;
(ii) caused by the unsuitability of the Goods for carriage in Containers;
(iii) caused by the unsuitability or defective condition of the Container or the incorrect setting of any refrigeration controls thereof, provided that where the Container has been supplied by or on behalf of the Carrier, this paragraph (iii) shall only apply if the unsuitability or defective condition arose (a) without any want of due diligence on the part of the Carrier or (b) would have been apparent upon reasonable inspection by the Merchant at or prior to the time when the Container was stuffed;
(iv) if the Container is not sealed at the commencement of the Carriage except where the Carrier has agreed to seal the Container.
(v) 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.
(B) the Merchant shall defend, indemnify and hold harmless the Carrier against any loss, damage, claim liability or expense whatsoever arising from one or more of the matters covered by (A) above except for (A)(iii)(a) above, including but not limited to damage to the Container, other cargo and the Vessel.
8.4 Where the Carrier is instructed to provide a Container, in the absence of a written request to the contrary, the Carrier is not under an obligation to provide a Container of any particular type or quality.
9. TEMPERATURE CONTROLLED CARGO
9.1 The Merchant undertakes not to tender for transportation any Goods which require temperature control without previously giving written notice (and filling in the box on the front of this Bill of Lading if this Bill of Lading has been prepared by the Merchant or a person acting on his behalf and extra Freight paid) of their nature and particular temperature range to be maintained and in the case of a temperature controlled Container stuffed by or on behalf of the Merchant further undertakes that the Container has been properly pre-cooled, that the Goods have been properly stuffed in the Container and that its thermostatic controls have been properly set by the Merchant before receipt of the Goods by the Carrier.
If the above requirements are not complied with the Carrier shall not be liable for any loss of or damage to the Goods caused by such non-compliance.
9.2 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 MERCHANT’S 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, HUMIDITY AND DRAINS. 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.
9.3 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.
10 INSPECTION OF GOODS
The Carrier 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, verify and weigh the contents without notice to the Merchant. If it thereupon appears that the contents of any part thereof cannot safely or properly be carried further, either at all or without incurring any additional expenses or taking any measures in relation to the Container or its contents of any part thereof, the Carrier may abandon the transportation thereof and/or terminate the Services and/or take any measures and/or incur any reasonable additional expense to carry or to continue or to store the same ashore or afloat under cover or in the open, at any place, where storage shall be deemed to be completion of the Services. The Merchant shall indemnify the Carrier against any reasonable additional expenses so incurred upon first written demand.
11. MATTERS AFFECTING PERFORMANCE
11.1 If at any time the carriage is or is likely to be affected by any hindrance, risk, danger, delay, difficulty or disadvantage of any kind (including the conditions of the Goods) whensoever 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 or by a route 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 in the open or under cover at the sole risk of the Merchant or the Owner, 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 Merchant’s 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 11.1 (a) or to suspend the carriage under Clause 11.1 (b) this shall not prejudice its right subsequently to abandon the carriage.
11.2 If the Carrier elects to invoke the terms of this clause 11, then notwithstanding the provisions of Clause 12, the Carrier shall be entitled to such additional Freight and costs as the Carrier may determine.
11.3 The liability of the Carrier in respect of the Goods shall cease on the delivery or other disposition of the Goods in accordance with the 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.
12. METHODS AND ROUTE OF TRANSPORTATION
12.1 The Carrier may at any time and without any notice to the Merchant use any means of transport or storage and other handling of goods whatsoever; load or carry the Goods on any vessel whether named on the front hereof or not; transfer the Goods from one conveyance to another including transhipping or carrying the same on another vessel than that named on the front hereof or by any other means of transport whatsoever; at any place unpack and remove Goods which have been stuffed in or on a Container and forward the same in any manner whatsoever; proceed at any speed and by any route in his discretion (whether or not the nearest or most direct or customary or advertised route); and proceed to or stay at any place whatsoever once or more often and in any order; load or unload the Goods from any conveyance at any place (whether or not the place is a port named on the front hereof as the intended Port of Loading or intended 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;; comply with any orders or recommendations given by any government or authority or any person or body acting or purporting to act as or on behalf of such government or authority or having under the terms of the insurance on the conveyance employed by the Carrier the right to give orders or directions; permit the vessel to proceed with or 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; to tow or be towed or to be dry-docked; Goods of all kinds, dangerous or otherwise, contraband, explosives, munitions or warlike stores and sail armed or unarmed.
12.2 The liberties set out in 12.1 above may be invoked by the Carrier for any purposes whatsoever whether or not connected with the Carriage of the Goods. Anything done in accordance with 12.1 above or any delay arising therefrom shall be deemed to be within the contractual Carriage and shall not be a deviation of whatsoever nature or degree.
13. DECK CARGO (AND LIVESTOCK)
13.1 Goods of any description whether containerised or not may be stowed on or under deck without notice to the Merchant and such stowage shall not be a deviation of whasoever nature or degree. Subject to 13.2 below, such Goods whether carried on deck or under deck shall participate in General Average and such Goods shall be deemed to be within the definition of Goods for the purposes of the Hague Rules or any legislation making such Rules or the Hague-Visby Rules compulsory applicable (such as GOGSA) to the Bill of Lading.
13.2 Goods (not being Goods stuffed in or on Containers other than open top containers, flatracks or platforms) which are stated on the front of this Bill of Lading to be carried on deck and which are so carried (and livestock, whether or not carried on deck) are carried without responsibility on the part of the Carrier for loss or damage of whatsoever nature arising during carriage by sea or inland waterway whether caused by unseaworthiness or negligence or any other cause whatsoever and the Hague Rules or the COGSA shall not apply. The Merchant shall defend, indemnify and hold harmless the Carrier against all and any extra cost incurred for any reason whatsoever in connection with carriage of deck cargo.
14. DELIVERY OF GOODS
If delivery of the Goods or any part thereof is not taken by the Merchant at the time and place when and where the Carrier is entitled to call upon the Merchant to take delivery thereof, the Carrier shall be entitled without notice to remove from a Container the Goods or that part thereof if stuffed in or on a Container and to store the Goods or that part thereof ashore, afloat, in the open or under cover at the sole risk and expense of the Merchant. Such storage shall constitute due delivery hereunder, and thereupon the liability of the Carrier in respect of the Goods or that part thereof shall cease.
15. BOTH-TO-BLAME COLLISION
If the vessel on which the Goods are carried (the carrying vessel) comes into collision with any other vessel or object (the non-carrying vessel or object) as a result of the negligence of the non-carrying vessel or object or the owner of, charterer of or person responsible for the non-carrying vessel or object, the Merchant undertakes to defend, indemnify and hold harmless the Carrier against all claims by or liability to (and any expense arising therefrom) any vessel or person in respect of any loss of, or damage to, or any claim whatsoever of the Merchant paid or payable to the Merchant by the non-carrying vessel or object of the owner of, charterer of or person responsible for the non-carrying vessel or object and set off, recouped or recovered by such vessel, object or person(s) against the Carrier, the carrying vessel or her owners or charterers.
16. GENERAL AVERAGE
16.1 The Carrier or Carrier’s subcontractor entrusted with the ocean carriage of the Goods may declare General Average which shall be adjustable according to the York-Antwerp Rules of 1994 at any place or the option of the Carrier and the Amended Jason Clause as approved by BIMCO is to be considered as incorporated herein and the Merchant and/or Owner shall provide such security as may be required by the Carrier in this connection.
16.2 Nothwithstanding 16.1 above, the Merchant shall defend, indemnify and hold harmless the Carrier in respect of any claim (and any expense arising therefrom) of a General Average nature which may be made on the Carrier and shall provide such security as may be required by the Carrier in this connection.
16.3 The Carrier shall be under no obligation to take any steps, including the exercise of any lien, whatsoever to collect security for General Average contributions due to the Merchant and/or the Owner.
17.1 Any person defined as Merchant in Clause 1 is primarily liable for the payment of all freight, fees, duties, charges and other expenses whether the same (or any of them) are to be pre-paid or to be collected.
17.2 Freight and fees shall be deemed fully earned on receipt of the Goods by the Carrier and shall be paid and non-returnable in any event.
17.3 The Merchant shall pay to the Carrier all sums immediately when due without any deduction or deferment on account of any claim, counterclaim or set-off. Payment to the Carrier is due as soon as an invoice is rendered. Payment shall be made in cash unless otherwise agreed by the Carrier.
17.6 The Charges have been calculated on the basis of particulars furnished by or on behalf of the Merchant. The Carrier shall be entitled to production of the commercial invoice for the Goods or true copy thereof and to inspect, reweigh, remeasure and revalue the Goods and if the particulars are found by the Carrier to be incorrect the Merchant shall pay the Carrier the correct Charges (credit being given for the Charges charged) and the costs incurred by the Carrier in establishing the correct particulars.
18.1 The Carrier shall have a particular and general lien on Goods and any documents relating thereto for all sums in relation to the present contract and previous contracts whatsoever due at any time to the Carrier from the Merchant and for General Average contributions to whomsoever due and for the costs of recovering the same and the Carrier shall have the right to sell the Goods and documents by public auction or private treaty, without notice to the Merchant and at the Merchant’s expense and without any liability towards the Merchant.
18.2 If any such monies due to the Carrier are not paid within fourteen (14) days after notice has been given to the Merchant that such goods are being detained, the goods and/or the documents may be sold at any time and any place whether the contractual carriage is completed or not, without notice to the Merchant, by auction or otherwise at the sole discretion of the Carrier at the expense of the Merchant and the proceeds (net of the expenses in connection with such sale) applied in or towards satisfaction of such indebtedness, and the Carrier shall not be liable for any deficiencies or reduction in value received on the sale of the goods, nor shall the Merchant be relieved from the liability merely because the goods have been sold. The Carrier’s 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. The rights of the Carrier are reserved for any shortfall subsequent to the disposal of the Goods.
19. VARIATION OF THE CONTRACT
No servant or agent of the Carrier shall have power to waive or vary any of the terms hereof unless such waiver or variation is in writing and is specifically authorised or ratified in writing by a director or officer of the Carrier who has the actual authority of the Carrier so to waive or vary.
20. PARTIAL INVALIDITY
If any provision in this Bill of Lading is held to be invalid or unenforceable by any court of regulatory or self regulatory agency or body, such invalidity or unenforceability shall attach only to such provision. The validity of the remaining provisions shall not be affected thereby and this contract of carriage shall be carried out as if such invalid or unenforceable provision were not contained herein.
21. DESCRIPTION OF GOODS AND MERCHANT’S RESPONSIBILITY
21.1 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 on the front hereof.
21.2 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.
21.3. 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.
22. BULLION ETC.
Except under special arrangements previously made in writing the Carrier will not accept or deal with bullion, coins, precious stones, jewellery, valuables, antiques, pictures, livestock, tobacco, alcohol or plants. Should the Merchant nevertheless deliver any such goods to the Carrier or cause the Carrier to handle or deal with any such goods otherwise than under special arrangements previously made in writing, the Carrier shall be under no liability whatsoever for or in connection with the goods or any part thereof (including without limitation any loss or damage or non-delivery or misdelivery or delay) howsoever caused and notwithstanding that the value may be shown, declared or indicated on any documents accompanying the shipment.
24. NO DUTY TO PRESERVE RIGHTS
The Carrier shall not be under any duty or obligation to the Merchant or the Owner to give any notice or otherwise take any action to preserve or protect the right of the Merchant or the Owner in relation to any claim or remedy which the Merchant or Owner may have against any third parties.
25. THE CARRIER’S RIGHT TO SET-OFF
The Carrier shall have the right to set-off any sum due from the Carrier to the Merchant
against any sum due from the Merchant to the Carrier, whether under these Conditions or
26. JURISDICTION AND APPLICABLE LAW CLAUSE
26.1 These Conditions and any act or contract to which they apply shall be governed by and construed according to the laws of the Netherlands.
26.2 Any dispute arising out of these Conditions or any such act or contract shall be subject to the exclusive jurisdiction of the court of Rotterdam in the Netherlands. 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 forum.
26.3 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 forum 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.