RULE: 8 - COMBINED TRANSPORT BILL(S) OF LADING Eff: 08SEP2020
| Effective | 08SEP2020 |
|---|---|
| Filed | 08SEP2020 |
| Filing Codes | I |
RECEIVED FOR SHIPMENT from the MERCHANT in apparent good order and
condition unless otherwise stated herein,the GOODS mentioned on the
face of this Bill of Lading to be transported as provided herein, by
any mode of transport for all or any part of the Carriage, SUBJECT
TO ALL THE TERMS AND CONDITIONS appearing on the face and back
hereof and in the CARRIER'S applicable Tariff(s) and/or Service
Agreements, to which the Merchant agrees by accepting this Bill
of Lading.
1. DEFINITIONS.
a) "Bill of Lading" as used herein includes conventional bills
of lading, as well as electronic, express and laser bills
of lading, sea waybills and all like documents, howsoever
generated, covering the Carriage of Goods hereunder,
whether or not issued to the Merchant.
b) "Carriage" means the whole or any part of the operations
and services undertaken or performed by or on behalf of the
Carrier with respect to the Goods.
c) "Carrier" means the Company named on the face side hereof and
on whose behalf this Bill of Lading was issued, whether acting
as carrier or bailee.
d) "Charges" means freight, deadfreight, demurrage and all expenses
and money obligations incurred and payable by the Merchant.
e) "Container" means any container (closed or open top), van,
trailer, flatbed, transportable tank, railroad car, vehicle,
flat, flatrack, pallet, skid, platform, cradle, sling-load or
any other article of transport and any equipment associated or
appurtenant thereto.
f) "Goods" means the cargo received from the shipper and described
on the face side hereof and any Container not supplied by or on
behalf of the Carrier.
g) "Merchant" means the shipper, consignee, receiver, holder of this
Bill of Lading, owner of the cargo or person entitled to the
possession of the cargo and the servants and agents of any of
these, all of whom shall be jointly and severally liable to the
Carrier for the payment of all Charges, and for the performance
of the obligations of any of them under this Bill of Lading.
h) "On Board" or similar words endorsed on this Bill of Lading means
that in a Port to Port movement, the Goods have been loaded on
board the Vessel or are in the custody of the actual ocean
carrier and, in the event of intermodal transportation, if the
originating carrier is an inland or coastal carrier, means that
the Goods have been loaded on board rail cars or another mode
of transport at the Place of Receipt and/or are in the custody
of a Participating carrier and en route to the Port of Loading
named on the reverse side.
i) "Participating carrier" means any other carrier by water, land
or air, performing any stage of the Carriage, including inland
and coastal carriers, whether acting as sub-carrier, connecting
carrier, substitute carrier or bailee.
j) "Person" means an individual, a partnership, a body corporate or
any other entity of whatsoever nature.
k) "Vessel" means the ocean vessel named on the face side hereof,
and any substitute vessel, feedership, barge, or other means of
conveyance by water used in whole or in part by the Carrier to
fulfill this contract.
2. CARRIER'S TARIFFS.
The Goods carried hereunder are subject to all the terms and
conditions of the Carrier's applicable tariff(s) and/or Service
Agreements which, if required, are on file with a regulatory body
whose rules govern all or a particular portion of the Carriage and
said terms and conditions are hereby incorporated herein as part of
the Terms and Conditions of this Bill of Lading. Copies of the
relevant provisions of the applicable tariff(s) are obtainable
from the Carrier or concerned regulatory body upon request. In
the event of any conflict between the terms and conditions of
such tariff(s) and the Terms and Conditions of this Bill of
Lading, this Bill of Lading shall prevail.
3. WARRANTY/ACKNOWLEDGMENT.
The Merchant warrants that in agreeing to the Terms and
Conditions hereof, it is, or is the agent and has the authority
of, the owner or person entitled to the possession of the Goods
or any person who has a present or future interest in the Goods.
The Merchant acknowledges that the Carrier is a non-vessel
operating common carrier ("NVOCC"), and that it neither owns nor
charters vessels, as a result of which the Carrier or any sub-
carrier, connecting carrier or substitute carrier (which may be an
NVOCC) will be required to contract with an actual ocean carrier
to accomplish the Carriage contemplated by this Bill of Lading and
does so as agent of the Merchant.
The Merchant further acknowledges that by identifying the
carrying Vessel on the face side hereof, it knows or can determine
the name of the actual ocean carrier and the terms and conditions
of the actual ocean carrier's bill of lading and applicable tariff(s)
and agrees to be bound thereby.
4. RESPONSIBILITY.
a) Except where the Carriage covered by this Bill of Lading is to or
from a port or locality where there is in force a compulsorily
applicable ordinance or statute of a nature similar to the
International Convention for the Unification of Certain Rules
Relating to Bills of Lading, dated at Brussels, August 25,
1924, the provisions of which cannot be departed from, and
suit or other proceeding is instituted and litigated in such
locality, this Bill of Lading shall have effect subject to the
Carriage of Goods by Sea Act of the United States ("COGSA"),
approved April 16, 1936, and nothing herein contained, unless
otherwise stated, shall be deemed a surrender by the Carrier of
any of its rights, immunities, exemptions, limitations or
exonerations or an increase of any of its responsibilities
or liabilities under COGSA or, as the case may be, such
compulsorily applicable ordinances or statutes. The provisions
of COGSA or such compulsorily applicable ordinances or statutes
(except as otherwise specifically provided herein) shall govern
before loading on and after discharge from the vessel and
throughout the entire time the Goods or Containers or other
packages are in the care, custody and/or control of the
Carrier, Participating carriers or independent contractors
(inclusive of all subcontractors), their agents and servants,
whether engaged by or acting for the Carrier or any other
person, as well as during the entire time the Carrier is
responsible for the Goods. In the absence of compulsorily
applicable legislation, COGSA shall apply.
b) The Carrier shall not be liable in any capacity whatsoever for
any delay, non-delivery, mis-delivery or other loss or damage
to or in connection with the Goods or Containers or other
packages occurring at any time contemplated under subdivision
a) of this Clause.
c) The Carrier shall, irrespective of which law is applicable
under subdivision a) of this Clause, be entitled to the benefit
of the provisions of Sections 181 through 186 and 188, Title 46,
U.S. Code.
d) The rights, defenses, exemptions, limitations of and exonerations
from liability and immunities of whatsoever nature provided for
in this Bill of Lading shall apply in any action or proceeding
against the Carrier, its agents and servants and/or any
Participating carrier or independent contractor.
5. THROUGH TRANSPORTATION.
When either the Place of Receipt or Place of Delivery set forth
herein is an inland point or place other than the Port of Loading or
Port of Discharge (Through Transportation basis), the Carrier will
procure transportation to or from the sea terminal and such inland
point(s) or place(s) and, notwithstanding anything in this Bill of
Lading contained, but always subject to Clause 4. hereof, the Carrier
shall be liable for loss or damage of whatsoever nature and howsoever
arising to the following extent, but no further:
a) Upon proof that the loss or damage arose during a part of the
Carriage herein made subject to COGSA or other compulsorily
applicable legislation, as set forth in Clause 4. a) hereof,
said legislation shall apply; or
b) Upon proof that the loss or damage not falling within a)
above, but concerning which the law of any country, state or
subdivision thereof contains provisions that are compulsorily
applicable and would have applied if the Merchant had made a
separate and direct contract with the Carrier, a Participating
carrier or independent contractor, as referred to in Clause 4.
a), relative to a particular stage of transport or other
handling wherein the loss or damage occurred and received as
evidence thereof a particular receipt or other document, then
the liability of the Carrier, Participating carrier and
independent contractor shall be subject to the provisions
of such law.
c) If it should be determined that the Carrier bears any
responsibility for loss or damage occurring during the care,
custody and/or control of any Participating carrier or
independent contractor, and be subject to law compulsorily
applicable to their bills of lading, receipts, tariffs and/or
law applicable thereto, then the Carrier shall be entitled to
all rights, defenses, immunities, exemptions, limitations of
and exonerations from liability of whatsoever nature accorded
under such bill of lading, receipt, tariff and/or applicable
law, provided however, that nothing contained herein shall be
deemed a surrender by the Carrier of any of its rights,
defenses and immunities or an increase of any of its
responsibilities or liabilities under this Bill of Lading,
the Carrier's applicable tariff or laws applicable or
relating to such Carriage.
d) Except as hereinabove provided, the Carrier shall have no
liability for damage to the Goods.
6. SUBCONTRACTING: BENEFICIARIES.
a) The Carrier shall be entitled to subcontract on any terms the
whole or any part of the Carriage, loading, unloading, storing,
warehousing, handling and any and all duties whatsoever under-
taken by it in relation to the Goods or Containers or other
packages or any other goods.
b) It is understood and agreed that if it should be adjudged that
any person or entity other than or in addition to the Carrier
is under any responsibility with respect to the Goods or any
other goods, regardless of the port or place where any loss
or damage shall occur and without regard to whether the Goods
covered hereby or any other goods are being handled or are
damaged directly or indirectly during any handling, and even
if the Goods or other goods are transported on free in, stowed
and/or free out terms, all exemptions, limitations of and
exonerations from liability provided by law or by the Terms
and Conditions hereof shall be available to all agents,
servants, employees, representatives, all Participating
(including inland and coastal) carriers and all stevedores,
terminal operators, warehousemen, crane operators, watchmen,
carpenters, ship cleaners, surveyors and all independent
contractors whatsoever. In contracting for the foregoing
exemptions, limitations of and exonerations from liability,
the Carrier is acting as agent and trustee for and on behalf
of all persons described above, all of whom shall to this
extent be deemed to be a party to the contract evidenced by
this Bill of Lading, regardless for whom acting or by whom
retained and paid, it being always understood that said
beneficiaries are not entitled to any greater or further
exemptions, limitations of or exonerations from liability
than those that the Carrier has under this Bill of Lading
in any given situation.
c) The Carrier undertakes to procure such services as necessary
and shall have the right at its sole discretion to select any
mode of land, sea or air transport and to arrange participation
by other carriers to accomplish the total or any part of the
Carriage from Port of Loading to Port of Discharge or from
Place of Receipt to Place of Delivery, or any combination
thereof, except as may be otherwise provided herein.
d) The Merchant agrees that the Carrier shall be deemed to be a
beneficiary of the actual ocean carrier's bill of lading and
of all exemptions, limitations of and exonerations from
liability therein contained even though the Carrier acts as
agent of the Merchant in contracting with the actual ocean
carrier for the Carriage of the Goods. Notwithstanding, under
no circumstances shall the Carrier be responsible for any
damages to an extent greater than the actual ocean carrier
or any beneficiaries thereof or hereof.
e) No agent or servant of the Carrier or other person or class
named in subdivision b) hereof shall have power to waive or
vary any of the Terms and Conditions hereof unless such waiver
or variation is in writing and is specifically authorized or
ratified in writing by an officer or director of the Carrier
having actual authority to bind the Carrier to such waiver
or variation.
7. MERCHANT'S RESPONSIBILITY/ DESCRIPTION OF GOODS.
a) The description and particulars of the Goods set out on the face
hereof or any description, particular or other representation
appearing on the Goods or documents relating thereto are
furnished by the Merchant and the Merchant warrants to the
Carrier that the description, particulars and any representation
made including, but not limited to, weight, content, measure,
quantity, quality, condition, marks, numbers and value are
correct.
b) The Merchant warrants that it has complied with all applicable
laws, regulations and requirements 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, numbering, addressing or any other particular relative
to the Goods.
c) The Merchant further warrants that the Goods are packed 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.
d) 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 prior express consent in
writing and without the Container or other covering in which
the Goods are to be transported being distinctly marked on the
outside thereof 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.
e) The Merchant shall be liable for all loss or damage of any kind
whatsoever, including but not limited to contamination, soiling,
detention and 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)
caused by the Merchant or any person acting on its behalf or
for which the Merchant is otherwise responsible.
f) The Merchant and the Goods themselves shall be liable for and
shall indemnify the Carrier, and the Carrier shall have a lien
on the Goods for all expenses of mending, repairing, fumigating,
repacking, coopering, baling, reconditioning of the Goods and
gathering of loose contents, also for expenses for repairing
Containers damaged while in the possession of the Merchant, for
demurrage on Containers and any payment, expense, fine, dues,
duty tax, import, loss, damage or detention sustained or
incurred by or levied upon the Carrier, Vessel or any action
or requirement of any government or governmental authority or
person purporting to act under the authority thereof, seizure
under legal process or attempted seizure, incorrect or
insufficient marking, numbering or addressing of Containers
or other packages or description of the contents, failure of
the Merchant to procure consular, Board of Health or other
certificates to accompany the Goods or to comply with laws
or regulations of any kind imposed with respect to the Goods
by the authorities at any port or place or any act or omission
of the Merchant. The Carrier's lien shall survive delivery and
may be enforced by private or public sale and without notice.
g) The Merchant shall defend, indemnify and hold harmless the
Carrier, any Participating carrier, independent contractor,
their agents and servants, 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. CONTAINERS.
a) Goods may be stowed by the Carrier in or on Containers, and may
be stowed with other goods. Containers, whether stowed by the
Carrier or received fully stowed, may be carried on or under
deck without notice, and the Merchant expressly agrees that
cargo stowed in a Container and carried on deck is considered
for all legal purposes to be cargo stowed under deck. Goods
stowed in Containers on deck shall be subject to the legislation
referred to in Clause 4. hereof and will contribute in General
Average and receive compensation in General Average, as the
case may be.
b) The Terms and Conditions of this Bill of Lading shall govern the
responsibility of the Carrier with respect to the supply of a
container to the Merchant.
c) If a Container has been stuffed by or on behalf of the Merchant,
the Carrier, any Participating Carrier, all independent
contractors and all persons rendering any service whatsoever
hereunder shall not be liable for any loss or damage to the
Goods, Containers or other packages or to any other goods caused
(1) by the manner in which the Container has been stuffed
and its contents secured,
(2) by the unsuitability of the Goods for carriage in
Containers or for the type of Container requested
by and furnished to the Merchant, or
(3) condition of the Container furnished, which the
Merchant acknowledges has been inspected by it or
on its behalf before stuffing and sealing.
d) The Merchant shall defend, indemnify and hold harmless the
Carrier, any Participating carrier, independent contractor,
their agents and servants, against any loss, damage, claim,
liability or expense whatsoever arising from one or more of
the matters covered by a), b) and/or c) above.
9. CONTAINERS WITH HEATING OR REEFER APPARATUS.
Containers with temperature or atmosphere control apparatus
for heating, refrigeration, ventilation or otherwise will not be
furnished unless contracted for expressly in writing at time of
booking and, when furnished, may entail increased Charges. In the
absence of an express request, it shall be conclusively presumed
that the use of a dry container is appropriate for the Goods.
Merchant must provide Carrier with desired temperature range
in writing at time of booking and insert same on the face side of
the Bill of Lading and, where so provided, Carrier is to exercise
due diligence to maintain the temperature within a reasonable range
while the Containers are in its care, custody and/or control or that
of any Participating carrier or independent contractor. The Carrier
does not accept any responsibility for the functioning of tempera-
ture or atmosphere-controlled Containers not owned or leased by
Carrier or for latent defects not discoverable by the exercise
of due diligence.
Where the Container is stuffed or partially stuffed by or on
behalf of the Merchant, the Merchant warrants that it has properly
pre-cooled or pre-heated the Container, that the Goods have been
properly stuffed and secured within the Container and that the
temperature controls have been properly set prior to delivery of
the Container to the Carrier, or any Participating carrier or
independent contractor, their agents and servants. The Merchant
accepts responsibility for all damage or loss of whatsoever nature
resulting from a breach of any of these warranties, including but
not limited to other cargo consolidated in the Container with the
Merchant's Goods or to any other cargo, property or person damaged
or injured as a result thereof, and the Merchant agrees to defend,
indemnify and hold the Carrier, Participating carriers and independent
contractors, their agents and servants, harmless from and against all
claims, suits, proceedings and all other consequences thereof regard-
less of their nature and merit.
10. OPTION OF INSPECTION.
The Carrier and any Participating carrier shall be entitled,
but under no obligation, to open any Container at any time and to
inspect the contents. If it thereupon appears that the contents or
any part thereof cannot safely or properly be carried or carried
further, either at all or without incurring any additional expense,
the Carrier and Participating carrier may abandon the transportation
thereof and/or take any measures &/or incur any reasonable additional
expenses to continue the Carriage or to store the Goods, which
storage shall be deemed to constitute due delivery under this Bill
of Lading. The Merchant shall indemnify the Carrier, any Partici-
pating carrier, independent contractor, their agents and servants,
against any reasonable additional Charges so incurred.
11. DECK CARGO.
Deck cargo (except that carried in Containers on deck) and
live animals are received and carried solely at Merchant's risk
(including accident or mortality of animals), and the Carrier will
not in any event be liable for any loss or damage for or from which
he is exempt, immune or exonerated by applicable law, or from any
other cause whatsoever not due to the fault of the Carrier, any
warranty of seaworthiness in the premises being hereby waived, and
the burden of proving liability being in all respects upon the
Merchant. Except as may be otherwise provided, such shipments
shall be deemed Goods and shall be subject to all Terms and
Conditions of this Bill of Lading.
12. METHODS AND ROUTES OF TRANSPORTATION.
With respect to the Goods or Containers or other packages,
the Carrier may at any time and without notice to the Merchant:
a) use any means of transport (water, land and/or air) or
storage whatsoever;
b) forward, transship or retain on board or carry on another
vessel or conveyance or by any other means of transport
than that named on the reverse side hereof;
c) carry Goods on or under deck at its option;
d) proceed by any route in its sole and absolute discretion
and whether the nearest, most direct, customary or
advertised route or in or out of geographical rotation;
e) proceed to or stay at any place whatsoever once or more
often and in any order or omit calling at any port,
whether scheduled or not;
f) store, vanned or devanned, at any place whatsoever,
ashore or afloat, in the open or covered;
g) proceed with or without pilots;
h) carry livestock, contraband, explosives, munitions,
warlike stores, dangerous or hazardous Goods or Goods
of any and all kinds;
i) drydock or stop at any unscheduled or unadvertised port
for bunkers, repairs or for any purpose whatsoever;
j) discharge and require the Merchant to take delivery,
vanned or devanned;
k) comply with any orders, directions or recommendations
given by any government or authority or by any person
or body acting or purporting to act with the authority
of any government or authority or having under the terms
of the insurance on the Vessel or other conveyance
employed by the Carrier the right to give such orders,
directions or recommendations.
l) take any other steps or precautions as may appear
reasonable to the Carrier under the circumstances.
The liberties set out in subdivisions a) through l) may be
invoked for any purpose whatsoever even if not connected with the
Carriage covered by this Bill of Lading, and any action taken or
omitted to be taken, and any delay arising therefrom, shall be
deemed to be within the contractual and contemplated Carriage
and not be an unreasonable deviation.
In no circumstance whatsoever shall the Carrier be liable for
direct, indirect or consequential loss or damage caused by delay.
13. MATTERS AFFECTING PERFORMANCE.
In any situation whatsoever and wheresoever occurring and
whether existing or anticipated before commencement of, during or
after the Carriage, which in the judgment of the Carrier is likely
to give rise to any hindrance, risk, capture, seizure, detention,
damage, delay, difficulty or disadvantage or loss to the Carrier or
any part of the Goods, or make it unsafe, imprudent, impracticable
or unlawful for any reason to receive, keep, load, carry or discharge
them or any part of them or commence or continue the Carriage or
disembark passengers at the Port of Discharge or of the usual or
intended place of discharge or delivery, or to give rise to danger,
delay or difficulty of whatsoever nature in proceeding by the usual
or intended route, the Carrier and any Participating carrier,
independent contractor, their agents and servants, without notice
to the Merchant, may decline to receive, keep, load, carry or
discharge the Goods, or may discharge the Goods and may require
the Merchant to take delivery and, upon failure to do so, may
warehouse them at the risk and expense of the Merchant and Goods
or may forward or transship them as provided in this Bill of Lading,
or the Carrier may retain the Goods on board until the return of the
Vessel to the Port of Loading or to the Port of Discharge or any
other point or until such time as the Carrier deems advisable and
thereafter discharge them at any place whatsoever. In such event,
as herein provided, such shall be at the risk and expense of the
Merchant and Goods, and such action shall constitute complete
delivery and performance under this contract, and the Carrier
shall be free from any further responsibility. For any service
rendered as herein above provided or for any delay or expense to
the Vessel or Carrier caused as a result thereof, the Carrier shall,
in addition to full Charges, be entitled to reasonable extra
compensation, and shall have a lien on the Goods for same. Notice
of disposition of the Goods shall be sent to the Merchant named in
this Bill of Lading within a reasonable time thereafter.
All actions taken by the Carrier hereunder shall be deemed to
be within the contractual and contemplated Carriage and not be an
unreasonable deviation.
14. DELIVERY.
If delivery of the Goods or Containers or other packages or any
part thereof is not taken by the Merchant when and where and at such
time and place as the Carrier is entitled to have the Merchant take
delivery, whether or not the Goods are damaged, they shall be
considered to have been delivered to the Merchant, and the Carrier
may, at its option, subject to its lien and without notice, elect to
have same remain where they are or, if containerized, devanned and
sent to a warehouse or other place, always at the risk and expense
of the Merchant and Goods.
If the Goods are stowed within a Container owned or leased by
the Carrier, the Carrier shall be entitled to devan the contents of
any such Container, whereupon the Goods shall be considered to have
been delivered to the Merchant, and the Carrier may, at its option,
subject to its lien and without notice, elect to have same remain
where they are or sent to a warehouse or other place, always at the
risk and expense of the Merchant and Goods.
At ports or places where by local law, authorities or custom,
the Carrier is required to discharge cargo to lighters or other craft
or where it has been so agreed or where wharves are not available
which the Vessel can get to, be at, lie at, or leave, always safely
afloat, or where conditions prevailing at the time render discharge
at a wharf dangerous, imprudent or likely to delay the Vessel, the
Merchant shall promptly furnish lighters or other craft to take
delivery alongside the Vessel at the risk and expense of the
Merchant and the Goods. If the Merchant fails to provide such
lighters or other craft, Carrier, acting solely as agent for the
Merchant, may engage such lighters or other craft at the risk and
expense of the Merchant and the Goods. Discharge of the Goods into
such lighters or other craft shall constitute proper delivery, and
any further responsibility of Carrier with respect to the Goods
shall thereupon terminate.
15. CHARGES, INCLUDING FREIGHT.
The Charges payable hereunder have been calculated on the basis
of particulars furnished by or on behalf of the Merchant. The Carrier
shall, at any time, be entitled to inspect, reweigh, remeasure or
revalue the contents and, if any of the particulars furnished by the
Merchant are found to be incorrect, the Charges shall be adjusted
accordingly, and the Merchant shall be responsible to pay the correct
Charges and all expenses incurred by the Carrier in checking said
particulars or any of them.
Charges shall be deemed earned on acceptance of the Goods or
Containers or other packages for shipment by or on behalf of the
Carrier and shall be paid by the Merchant in full, without any
offset, counterclaim or deduction, cargo and/or vessel or other
conveyance lost or not lost, and shall be non-returnable in any
event.
The Merchant shall remain responsible for all Charges,
regardless whether the Bill of Lading states, in words or symbols,
that it is "Prepaid," "To be Prepaid" or "Collect."
In arranging for any services with respect to the Goods, the
Carrier shall be considered the exclusive agent of the Merchant for
all purposes, and any payment of Charges to other than the Carrier
shall not, in any event, be considered payment to the Carrier.
The Merchant shall defend, indemnify and hold the Carrier, any
Participating carrier, independent contractor, their agents and
servants, harmless from and against all liability, loss, damage and
expense which may be sustained or incurred relative to the above.
16. CARRIER'S LIEN.
The Carrier shall have a lien on the Goods, inclusive of any
Container owned or leased by the Merchant, as well as on any Charges
due any other person, and any documents relating thereto, which lien
shall survive delivery, for all sums due under this contract or any
other contract or undertaking to which the Merchant was party or
otherwise involved, including, but not limited to, General Average
contributions, salvage and the cost of recovering such sums,
inclusive of attorney's fees. Such lien may be enforced by the
Carrier by public or private sale at the expense of and without
notice to the Merchant.
The Merchant agrees to defend, indemnify and hold the Carrier,
any Participating carrier, independent contractor, their agents and
servants, harmless from and against all liability, loss, damage or
expense which may be sustained or incurred by the Carrier relative
to the above and the Merchant agrees to submit to the jurisdiction
of any court, tribunal or other body before whom the Carrier may be
brought, whether said proceeding is of a civil or criminal nature.
17. BULK CARGO.
The weight or quantity of any bulk cargo inserted in this Bill
of Lading is the weight or quantity as ascertained by a third party
other than the Carrier, and Carrier makes no representation with
regard to the accuracy thereof. This Bill of Lading shall not be
deemed evidence against the Carrier of receipt of bulk cargo of the
weight or quantity so inserted in the Bill of Lading.
18. GOLD, SILVER, ETC.
Gold, silver, specie, bullion or other valuables, including
those named or described in Sec. 4281 of the Revised Statutes of the
United States, will not be received by the Carrier unless their true
character and value are disclosed to the Carrier and a special
written agreement therefor has been made in advance, and will not,
in any case, be loaded or landed by the Carrier. No such valuables
shall be considered received by or delivered to the Carrier until
brought aboard the ship by the shipper and put in the actual
possession of, and a written receipt therefor is given by, the
Master or other officer in charge. Such valuables will only be
delivered by the Carrier aboard the ship on presentation of proper
documentation and upon such delivery the Carrier's responsibility
shall cease. If delivery is not so taken promptly after the ship's
arrival at Port of Discharge, said valuables may be retained aboard
or landed or carried on, solely at the risk and expense of the
valuables and Merchant.
19. RUST.
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. 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.
20. GENERAL AVERAGE.
a) If General Average is declared, it shall be adjusted according
to the York/Antwerp Rules of 1994 and all subsequent amendments
thereto from time to time made, at any place at the option of
any person entitled to declare General Average, and the Amended
Jason Clause as approved by BIMCO is to be considered as
incorporated herein, and the Merchant shall provide such
security as may be required in this connection.
b) Notwithstanding a) above, the Merchant shall defend, indemnify
and hold harmless the Carrier and any Participating carrier,
their agents and servants, in respect of any claim (and any
expense arising therefrom) of a General Average nature which
may be made against the Carrier and/or any Participating
carrier and shall provide such security as may be required
in this connection.
c) Neither the Carrier nor any Participating carrier shall be under
any obligation to take any steps whatsoever to collect security
for General Average contributions due to the Merchant.
21. LIMITATION OF LIABILITY.
Except as otherwise provided in this Clause or elsewhere in this
Bill of Lading, in case of any loss or damage to or in connection
with cargo exceeding in actual value the equivalent of $500 lawful
money of the Unites States, per package, or in case of cargo not
shipped in packages, per shipping unit, the value of the cargo shall
be deemed to be $500 per package or per shipping unit. The Carrier's
liability, if any, shall be determined on the basis of a value of
$500 per package or per shipping unit or pro rata in case of partial
loss or damage, unless the nature of the cargo and valuation higher
than $500 per package or per shipping unit shall have been declared
by the Merchant before shipment and inserted in this Bill of Lading,
and extra freight paid if required. In such case, if the actual
value of the cargo per package or per shipping unit shall exceed
such declared value, the value shall nevertheless be deemed to be
declared value and the Carrier's liability, if any, shall not exceed
the declared value.
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 cargo shipped in bulk,
and irrespective of the weight or measurement unit employed in
calculating freight and related charges.
As to cargo shipped in bulk, the limitation applicable thereto
shall be the limitation provided in Section 1304(5) of COGSA, or
such other legislation, convention or law as may be compulsorily
applicable, and in no event shall anything herein be construed as
a waiver of limitation as to cargo shipped in bulk.
Where a Container is not stuffed by or on behalf of the Carrier
or the parties characterize the Container as a package or a lump sum
freight is assessed, in any of these events, each individual such
Container, including in each instance its contents, shall be deemed
a single package and Carrier's liability limited to $500 with
respect to each such package, except as otherwise provided in
this Clause or elsewhere in this Bill of Lading with respect to
each such package. In the event this provision should be held
invalid during that period in which compulsory legislation shall
apply of its own force and effect, such as during the tackle-to-
tackle period, it shall nevertheless apply during all non-compulsory
periods such as, but not limited to, all periods prior to loading
and subsequent to discharge from the Vessel for which the Carrier
remains responsible.
Where compulsorily applicable legislation provides a limitation
less than $500 per package or shipping unit, such lesser limitation
shall apply and nothing herein contained shall be construed as a
waiver of a limitation less than $500.
Further, where a lesser monetary limitation is applicable, such
as during handling by a Participating carrier or independent con-
tractor and damage occurs during its or their period of care,
custody, control and/or responsibility, the Carrier shall be
entitled to avail itself of such lesser limitation.
22. NOTICE OF CLAIM: TIME FOR SUIT.
As to any loss or damage presumed to have occurred during the
Carrier's period of responsibility, the Carrier must be notified in
writing of any such loss or damage or claim before or at the time of
discharge/removal of the Goods by the Merchant or, if the loss or
damage is not then apparent, within 3 consecutive days after
discharge/delivery or the date when the Goods should have been
discharged/delivered. If not so notified, discharge, removal or
delivery, depending upon the law applicable, shall be prima facie
evidence of discharge/delivery in good order by the Carrier of such
Goods.
In any event, the Carrier shall be discharged from all
liability of whatsoever nature unless suit is brought within 1
year after delivery of the Goods or the date when the Goods should
have been delivered, provided however, that if any claim should
arise during a part of the transport which is subject by applicable
law and/or tariff and/or contract to a shorter period for notice of
claim or commencement of suit, any liability whatsoever of the
Carrier shall cease unless proper claim is made in writing and suit
is brought within such shorter period.
Suit shall not be deemed "brought" unless jurisdiction shall
have been obtained over the Carrier by service of process or by an
agreement to appear. In the event this provision should be held
invalid during that period in which compulsory legislation shall
apply of its own force and effect, such as during the tackle-to-
tackle period, it shall nevertheless apply during all non-compulsory
periods during which the Carrier remains responsible for the Goods.
23. LAW AND JURISDICTION.
a) Governing Law shall be in accordance with Clause 4. hereof.
b) Jurisdiction: All disputes in any way relating to this Bill
of Lading shall be determined by the United States District
Court for the Southern District of New York to the exclusion
of the jurisdiction of any other courts in the United States
or the courts of any other country PROVIDED ALWAYS that the
Carrier may in its absolute and sole discretion invoke or
voluntarily submit to the jurisdiction of any other court
which, but for the terms of this Bill of Lading, could
properly assume jurisdiction to hear and determine such
disputes, but such shall not constitute a waiver of the
terms of this provision in any other instance.
24. NON-WAIVER AND SEPARABILITY.
Nothing in this Bill of Lading shall operate to deprive the
Carrier of any statutory protection or any defense, immunity,
exemption, limitation of or exoneration from liability contained in
the laws of the United States, or of any other country whose laws
may be applicable. The Terms and Conditions of this Bill of Lading
(including all the terms and conditions of the carrier's applicable
tariff or tariffs, incorporated herein by virtue of Clause 2 above)
shall be separable, and if any part or term hereof shall be held
invalid, such holding shall not affect the validity or enforceability
of any other part or term hereof.
