RULE: 8 - BILL(S) OF LADING Eff: 20APR2018
| Effective | 20APR2018 |
|---|---|
| Filed | 20APR2018 |
| Filing Codes | I |
Received by the Carrier for shipment by ocean vessel between port of
loading and port of discharge, and for arrangement or procurement
of pre -carriage from place of receipt and on carriage to place of
delivery, where stated above, the goods as specified above in
apparent good order and condition unless otherwise stated. The
goods to be delivered at the above-mentioned port of discharge
or place of delivery, whichever is applicable, subject always
to the exceptions, limitations, conditions and liberties set
out on the reverse side hereof, to which the Shipper and/or
Consignee agree to accepting this Bill of Lading
IN WITNESS WHEREOF Three (3) Original Bills of Lading have been
signed, not otherwise stated above, one of which being accomplished
the others shall be void/
Bill of Lading Terms and Conditions
1. DEFINITIONS
"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" means the Company stated on the front of this Bill of
Lading as being the Carrier and on whose behalf this Bill of Lading
has been signed.
"Charges" means freight and all expenses and money obligations
incurred and payable by the Merchant.
"COGSA" means the Carriage of Goods by Sea Act of the United States
of America approved on 16th April 1936.
"COGWA" means the Hague-Visby Rules.
"Combined Transport" arises where the carriage called for by this
Bill of Lading is not a Port to Port shipment.
"Container" means any container, trailer, transportable tank, lift
van, flat, pallet, or any similar article of transport used to
consolidate goods.
"Defenses" means all rights, immunities, exclusions, exemptions,
defenses, limitations, however described (no matter whether arising
by law or by contract), which might abate, bar, defeat or diminish
any recovery against the Carrier.
"Freight" means all of the following relating to or in connection
with RT
Carrier's applicable tariff, including but not limited to ad valorem
charges, advance charges and less than full container load service
charges, currency adjustment factor, bunker adjustment factor,
surcharges, war risk premiums, arbitrary and accessorial charges;
all charges arising as a result of changing the port of loading or
discharge, and expenses arising or incurred under this Bill of
Lading; additional freight or other charges; deadfreight; special
freight for the carriage of special containers; return freight if
the Goods are returned.
"Goods" means the cargo supplied by the Merchant and includes any
Container not supplied by or on behalf of the Carrier.
"Hague Rules" means the provisions of the International Convention
for Unification of certain Rules relating to Bills of Lading signed
at Brussels on 25th August 1924.
"Hague-Visby Rules" means the Hague Rules as amended by the Protocol
signed at Brussels on 23rd February 1968.
"Merchant" means the shipper, the consignee, the receiver of the
Goods, the holder of this Bill of Lading, any person owning or
entitled to the possession of the Goods or this Bill of Lading,
any person having a present or future interest in the Goods or any
person acting on behalf of any of the above mentioned persons.
"Package" means (1) the Container when the Goods are shipped in a
Container, (2) the skid or pallet when Goods are shipped on a skid
or pallet and stuffed in a Container, and the Container is adjudged
not to be the package for the purposes of the Carrier's limitation
of liability, (3) the skid or pallet when Goods are shipped on a
skid or pallet but not in a Container, (4) that shipping unit which
contains the greatest quantity of the Goods and to which some
packaging preparation for transportation has been made which
facilitates handling even though it does not conceal or completely
enclose the Goods. This clause does not apply to Goods shipped in
bulk, and it supersedes any inconsistent provision which may be
printed, stamped or written elsewhere in this Bill of Lading.
"Participating Carrier " means the ocean carrier and any other
water, land or air carrier involved in the Carriage of the Goods
whether it be a Port to Port or a Combined Transport movement.
"Person" means an individual, a partnership, a body corporate or
other entity.
"Port to Port Shipment" means when the port of loading and the port
of discharge only are shown on the face hereof and neither the place
of acceptance nor the final destination are stipulated on the face
hereof.
"Shipping Unit" means freight unit and the term "unit" as used in
the Hague Rules and Hague-Visby Rules.
"Stuffed" means filled, consolidated, packed, loaded, or secured.
2. CARRIER'S TARIFF
The provisions of the Carrier's applicable tariff, are incorporated
herein. A copy of the applicable tariff is available for review in
the Carrier's web-site upon payment of a reasonable charge, if any,
set out in the Carrier's tariff and/or where applicable, upon
request, obtainable from the Federal Maritime Commission or other
regulatory 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. WARRANTY
The Merchant warrants that in agreeing to the terms hereof he is
or is the agent of and has the authority of the person owing or
entitled to the possession of the Goods or any person who has a
present or future interest in the Goods.
4. NON-NEGOTIABILITY OF BILL OF LADING
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.
5. CERTAIN RIGHTS AND IMMUNITIES FOR THE CARRIER AND OTHER PERSONS
(1) The carrier shall be entitled to sub-contract on any terms
the whole or any part of the Carriage.
(2) It is expressly agreed that any and all servants, agents and
independent contractors (including the Master, officers, and crew of
the vessel, participating carrier, all terminal operators, ware-
housemen, stevedores, watchman, husbanding agents, managing agents,
general agents, ship's agents, and all other agents, subcontractors
and independent contractors whatsoever as well as any officers,
directors, agents or employees of any of the foregoing) used or
employed by the Carrier in connection with the performance of any
or all of Carrier's obligations under this Bill of Lading, in
consideration of the agreement to be so used or employed, shall
be express beneficiaries under this Bill of Lading and shall have
the benefit of all defenses to which the Carrier is entitled so
that in no circumstances shall any servant, agent or independent
contractor of the Carrier be under any liability in contract,
warrant, tort (including negligence) indemnity or contribution,
greater than that of the Carrier to anyone other than the Carrier.
(3) 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.
(4) The defenses 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. CLAUSE PARAMOUNT
(1) To and From non-United States Ports. As far as this Bill
of Lading covers the Carriage of Goods by sea to and from non-U.S.
ports by the Carrier and any Participating Carrier, the Contract
evidenced in this Bill of Lading shall have effect subject to the
Hague-Visby Rules, if and as enacted in the country of shipment and
any legislation making those Rules compulsorily applicable to this
Bill of Lading shall be deemed incorporated herein and made part of
this Bill of Lading contract. When no such enactment is in force in
the country of shipment, the Hague-Visby Rules will apply. The Hague-
Visby Rules shall also govern before the Goods are loaded on and
after they are discharged from the vessel and throughout the entire
time the Goods are in the actual custody of the Carrier and/or
Participating Carrier. The Hague-Visby Rules shall also apply to
the Carriage of Goods by inland waterways and reference to carriage
by sea in such Rules or legislation shall be deemed to include
reference to inland waterways.
(2) To or From United States ports. If the Carriage called for in
this Bill of Lading is a shipment to or from the United States, the
liability of the Carrier shall be exclusively determined pursuant to
COGSA; the Pomerene Act [49 U.S.C. 80101 et. seq.] for both export
and import cargo moving to/from the United States; and Article 7-301
of the Uniform Commercial Code. The provisions cited in the Hague
Rules and COGSA shall also govern before the Goods are loaded on and
after they are discharged from the Vessel and throughout the entire
time the Goods are in the actual custody of the Carrier and/or
Participating Carrier.
(3) The Carrier shall be entitled to (and nothing in this Bill of
Lading shall operate to deprive or limit such entitlement) the full
benefit of, and rights to, all limitation of and exclusions from
liability and all rights conferred or authorized by any applicable
law, statute or regulation of any country (including, but not
limited to, where applicable any provisions or sections 4281 to
4287, inclusive, of the Revised Statutes of the United States of
America and amendments thereto and where applicable any provisions
of the laws of the United States of America) and without prejudice
to the generality of the foregoing also any law, statute of
regulation available to the Owner of the vessel on which the
Goods are carried.
7. CARRIER'S RESPONSIBILITY
The Carrier shall not be responsible for any loss to the Goods
however caused occurring while the Goods are not in the actual
custody of the Carrier.
(1) PORT TO PORT SHIPMENT
The responsibility of the Carrier is limited to that part of the
Carriage from and during loading onto vessel up to and during
discharge from the vessel and the Carrier shall not be liable for
any loss or damage whatsoever in respect of the Goods or for any
other matter arising during any other part of the Carriage even
though Charges for the whole Carriage have been charged by the
Carrier. The Merchant appoints and/or authorizes the Carrier as
agent to enter into contracts on behalf of the Merchant with others
for transport, storage, handling, or any other services in respect
of the Goods prior to loading and subsequent to discharge of the
Goods from the vessel without responsibility for any act or
omission whatsoever on the part of the Carrier or others and the
Carrier may as such agent enter into contracts with others on any
terms whatsoever including terms less favorable than the terms in
this Bill of Lading.
(2) COMBINED TRANSPORT
(A) The carrier acts as agent for Merchant with regard to
procuring inland and ocean transportation. If, for any reason, it
is adjudged that the Carrier was not acting as the Merchant's agent,
then in addition to the defenses and limitation of liability
permitted to the Carrier by law and by this Bill of Lading, the
Carrier shall also have the benefit of all defenses available to
the participating carrier(s) by law and by the terms of its or their
contracts of Carriage and tariffs, all of which shall be deemed
incorporated in this Bill of Lading, as applicable and with respect
to inland transportation of the Goods, Carrier will be afforded all
of the defenses according to the provisions of any International
Convention or national law which is compulsorily applicable in the
country, where the inland transportation took place or, if no such
law or convention is applicable, then according to the Participating
Carrier's contracts of carriage and/or tariffs, if any.
(B) Save as is otherwise provided in this Bill of Lading, the
Carrier shall be liable for loss of or damage to the Goods occurring
from the time that the Goods are taken into his charge until the
time of delivery to the agent set out below.
(i) If the place where the loss or damage occurred cannot be
proven.
(a) The Carrier shall be entitled to rely upon all Defenses
under COGSA or the Hague-Visby Rules under 6(a) or (b) above had the
loss or damage occurred at sea or where the loss or damage occurred
cannot be proved, said loss or damage shall be presumed to have
occurred at sea.
(b) Where under (i) above, the Carrier is not liable in
respect of some of the factors causing the loss or damage, the
Carrier shall only be liable to the extent that those factors for
which he is liable have contributed to the loss or damage.
(c) Subject to 8(c) below, where the Hague Rules (such as
COGSA) or the Hague-Visby Rules (such as COGWA) or any legislation
applying either Rules is not compulsorily applicable, the Carrier's
liability shall not exceed US$500 per package or shipping unit or
US$2.00 per kilo of the gross weight of the Goods lost, damaged in
respect of which the claim arises or the value of such Goods,
whichever is the less.
(d) The value of the goods shall be determined according to
the CIF value.
(ii) If the place where the loss or damage occurred can be proved:
(a) The liability of the Carrier shall be determined by the
provisions contained in any international convention or national law
of the country which provisions:
(A) cannot be departed from by private contract to the
detriment of the Merchant; and
(B) would have applied if the Merchant had made a separate
and direct contract with the Carrier in respect of the
particular stage of Carriage where the loss or damage
occurred and had received as evidence thereof any
particular document which must be issued in order to
make such international convention or national law
applicable;
(b) With respect to the transportation in the United States
of America or in Canada to the Port of Loading or from the Port of
Discharge the responsibility of the Carrier shall be to procure
transportation by carriers (one or more) and such transportation
shall be subject to the inland carriers contract of carriage and
tariffs and any law compulsorily applicable. The Carrier guarantees
the fulfillment of such inland carrier's obligations under their
contracts and tariffs;
(c) Where neither (i) or (ii) above apply any liability of
the Carrier shall be determined by 7(b)(A) above.
8. GENERAL PROVISIONS
(1) Delay, Consequential Loss
Save as otherwise provided herein, the Carrier shall in no
circumstances be liable for direct, indirect or consequential loss
or damage caused by delay or any other cause whatsoever and howsoever
caused. Without prejudice to the foregoing, if the Carrier is found
liable for delay, liability shall be limited to the freight applicable
to the relevant stage of the transport.
(2) Package or Shipping Unit Limitation
where the Hague Rules (COGSA) or Hague-Visby Rules (COGWA) or any
legislation making either Rules compulsorily applicable to this Bill
of Lading, the Carrier shall not unless a declared value has been
noted in accordance with (C) below, be or become liable for any
loss or damage to or in connection with the Goods in an amount per
package or shipping unit in excess of the package or shipping unit
limitation as laid down by either of the Rules or legislation. Such
limitation amount according to COGSA is US$500 and according to
COGWA is 666.67 units of account per package or units of account per
kilogram of gross weight of the Goods lost or damaged, whichever is
the higher. If no limitation amount is applicable under either of
the Rules or legislation the limitation shall be US$500.
(3) Ad Valorem: Declared Value of Package or Shipping Unit
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.
(4) 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 the acknowledgement of the 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.
(5) Notice of Loss or Damage
The Carrier shall be deemed prima facie to have delivered the Goods
as described in this Bill of Lading unless notice of loss of or
damage to the Goods indicating the general nature of such loss or
damage shall have been given in writing to the Carrier or to his
representative at the place of delivery before or at the time of
removal of the Goods into the custody of the person entitled to
delivery thereof under this Bill of Lading or, if the loss or
damage is not apparent, within three consecutive days thereafter.
(6) Time-bar
(A)Unless notice of loss and the general nature of such loss be
given in writing to the Carrier at the port of discharge or place of
delivery before or at the time of delivery of the Goods or if the
loss is not apparent, within three (3) consecutive days after that
delivery, the Goods shall be presumed to have been delivered as
described in this Bill of Lading.
(B) Where the loss has occurred in the custody of a Participating
Carrier, the Carrier shall be discharged from all liability in
respect of loss unless notice of claim is filed and suit is brought
within nine (9) months after delivery of the Goods or the date when
the Goods should have been delivered or the time period prescribed
by the Participating Carrier's contract of carriage, tariff or by
law covering such Participating Carrier or overland carriage
whichever is less (in the United States, pursuant to the Carmack
Amendment, 49 U.S.C. 11-107(a), suit must be brought within nine
months).
(C) In any event, the Carrier shall be discharged from all
liability in respect of loss unless suit is brought within one (1)
year after delivery of the Goods or the date when the Goods should
have been delivered.
9. MERCHANT'S RESPONSIBILITY
(1) 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, of weight, content, measure, quantity, quality,
condition, marks, numbers and value are correct.
(2) The Merchant shall comply 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 or
addressing of the Goods.
(3) The Merchant undertakes 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.
(4) 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 without 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.
(5) 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(2) above caused by the Merchant or any
person acting on his behalf or for which the Merchant is otherwise
responsible.
(6) 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
9 or from any cause in connection with the Goods for which the
Carrier is not responsible.
10. CONTAINERS
(1) Goods may be stuffed by the Carrier in or on Containers and
Goods may be stuffed with other Goods.
(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.
(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 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.
(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.
(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.
11. TEMPERATURE CONTROLLED CARGO
(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) of their nature and particular tempera-
ture 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.
(2) The Carrier shall not be liable for any loss of or damage to
the Goods arising from defects, derangement, breakdown stoppage of
the temperature controlling machinery, plant, insulation or any
apparatus of the Container, provided that the Carrier shall before
or at the beginning of the Carriage exercise due diligence to
maintain the refrigerated Container in an efficient state.
12. INSPECTION OF GOODS
The Carrier or any person authorized by the Carrier shall be
entitled, but under no obligation, to open any Container or Package
at any time and to inspect the Goods.
13. MATTERS AFFECTING PERFORMANCE
(1) If at any time the Carriage is or is likely to be affected
by any hindrance, risk, delay, difficulty or disadvantage of any
kind (including the condition of the Goods) whensoever and howsoever
arising (whether or not the Carriage has commenced) the Carrier may:
(A) without notice to the Merchant abandon the Carriage of the
Goods and where reasonably possible place the Goods or any part of
them at the Merchant's disposal at any place which the Carrier may
deem safe and convenient, whereupon the responsibility of the
Carrier in respect of such Goods shall cease;
(B) without prejudice to the Carrier's right subsequently to
abandon the Carriage under (A) above, continue the Carriage.
In any event the Carrier shall be entitled to full Charges on
Goods received for Carriage and the Merchant shall pay any
additional costs resulting from the above mentioned circumstances.
(2) 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.
14. METHODS AND ROUTE OF TRANSPORTATION
(1) The Carrier may at any time and without notice to the
Merchant use (i) any means of transport or storage whatsoever,
(ii) load or carry the Goods on any vessel whether named on the
front hereof or not, (iii) transfer the Goods from one conveyance
to another including transshipping or carrying the same on another
vessel than that named on the front hereof or by any other means of
transport whatsoever, (iv) at any place unpack and remove Goods
which have been stuffed in or on a Container and forward the same
in any manner whatsoever including but not limited to unstuffing
and stuffing of less than container loads into or on other
containers at transshipment ports, (v) proceed at any speed and
by any route in Carrier's 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,
(vi) 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),
(vii) 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, (viii) permit
the vessel to proceed with or without pilots, to tow or be towed or
to be dry-docked, (ix) permit the vessel to carry Goods of all
kinds, dangerous or otherwise.
(2) If a less than a full container shipment is transshipped at
any intermediate port, the Carrier may break the container seal to
unstuff the shipment from the container and restuff that shipment
into or on another container. In this respect, the Carrier is acting
as the agent of the Merchant.
(3) The liberties set out in (1) and (2) 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 (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.
15. DECK CARGO
(1) Goods of any description whether containerized or not may
be stowed on or under deck without notice to the Merchant and such
stowage shall not be a deviation of whatsoever nature or degree.
Subject to (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 compulsorily applicable (such as COGSA) to this Bill of Lading.
(2) Goods (not being Goods stuffed in or on Containers other
than open flats or pallets) which are stated on the front of this
Bill of Lading to be carried on deck and which are so carried 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.
16. NOTIFICATION AND DELIVERY CLAUSE
(1) Any mention in this Bill of Lading of parties to be notified
of the arrival of the Goods is solely for the information of the
Carrier, and failure to give such notification shall not involve the
Carrier in any liability or remove the Merchant of any obligations
hereunder.
(2) The Merchant shall take delivery of the Goods within the
time provided for in the Carrier's applicable tariff.
(3) If the Merchant fails to take delivery of the Goods or part
of them in accordance with this Bill of Lading, the Carrier may
without notice remove the Goods or that part thereof and/or store
the Goods or that part thereof ashore, afloat, in the open or under
cover. Such storage shall constitute due delivery hereunder and
there upon all liability whatsoever of the Carrier in respect of
the Goods or that part thereof shall cease.
(4) The Merchant's attention is drawn to the stipulation
concerning free storage time and demurrage contained in the
Carrier's applicable Tariff, which is incorporated in this Bill
of Lading.
(5) Once free time has expired, the Goods will be stored at a
warehouse or receiver's terminal at the sole risk and expense of the
Merchant and the Goods. However, if the Carrier believes that the
Goods are likely to deteriorate, decay, lose value or incur storage
or other charges in excess of their value, the Carrier may, without
notice to the Merchant, publicly or privately sell or dispose of the
Goods and apply the proceeds of the disposition in reduction of the
Freight, and any other charges associated with the warehousing
and/or sale of the Goods.
17. BOTH-TO-BLAME COLLISION
The both to blame clause published by the Baltic and International
Maritime Counsel (BIMCO) is incorporated herein by this reference.
18. GENERAL AVERAGE
(1) The Carrier may declare General Average which shall be
adjustable according to the York/Antwerp Rules of 1974 at any place
at the option of the Carrier 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 by the Carrier in this
connection.
(2) Notwithstanding (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.
(3) The Carrier shall be under no obligation to take any steps
whatsoever to collect security for General Average contributions due
to the Merchant.
19. CHARGES
(1) Charges shall be deemed fully earned on receipt of the Goods
by the Carrier and shall be paid and non-returnable in any event,
whether vessel, inland carrier and/or cargo lost or not lost.
(2) 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.
(3) All Charges shall be paid without any set off, counterclaim,
deduction or stay of execution.
(4) Any person, firm or corporation engaged by any party to
perform forwarding services with respect to the Goods shall be
considered the exclusive agent of the Merchant for all purposes
and any payment of Freight to such person, firm or corporation shall
not be considered payment to the Carrier in any event. Failure of such
person, firm, or corporation to pay any part of the Freight to the
Carrier shall be considered a default by the Merchant in the payment
of the Freight.
(5) Should the Merchant fail to make timely payment of the
applicable Freight, the Merchant shall be liable to Carrier for all
costs and expenses including attorneys' fees associated with the
collection of such Freight from the Merchant plus 6% of interest
calculated from the date the Freight became due.
20. LIEN
The Carrier shall have a lien for General Average contribution
and for Freight for the Carriage of the Goods and on any documents
relating to the Goods as well as in respect to unpaid Freight from
any previous Carriage on behalf of the Merchant who owes that Freight
to the Carrier. The Carrier has the right to sell the Goods at public
or private sale without notice to the Merchant to satisfy the lien in
whole or in part. If the proceeds of this sale fail to cover the whole
amount due, the Carrier is entitled to recover the deficit from the
Merchant.
21. 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 authorized 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.
22. PARTIAL INVALIDITY
If any provision in this Bill of Lading is held to be invalid or
unenforceable by any court or 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 Bill of Lading contract shall be
carried out as if such invalid or unenforceable provision were
not contained herein.
23. LAW AND JURISDICTION
(a) To Or From United States Ports. The claims arising from or
in connection with or relating to this Bill of Lading shall be
exclusively governed by the law of the United States. Any and all
action concerning custody or carriage under this Bill of Lading
whether based on breach of contract, tort or otherwise shall be
brought before the United States District Court for the Southern
District of New York.
(b) To And From Non-U.S. Ports. The claims arising from or
in connection with or relating to this Bill of Lading shall be
exclusively governed by English law. Any and all actions concerning
custody or carriage under this Bill of Lading whether based on breach
of contract, tort or otherwise shall be brought before a London court
of competent jurisdiction.
