RULE: 8 - BILL(S) OF LADING Eff:
All cargo transported under the rates, charges, terms and conditions
named in this Tariff and individual NRAs governed by this TAriff shall
be held, carried and delivered SBJ to the provisions of Carrier's
applicable Long Form Bill of Lading, the terms and conditions of
which are shown below.
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 to, from or through the United States, whether
or not issued to the Merchant.
b)"Carriage" means the whole of the operations and services under-
taken or performed by or on behalf of the Carrier with respect to
the Goods.
c)"Carrier" means [either identify it by name or the company named
on the front of this Bill of Lading and on whose behalf this Bill of
Lading has been issued.
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 mean
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. 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 or are in the custody of a Participating carrier
and en route or are intended to be transported 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
carriers, whether acting as sub-carrier, connecting carrier,
substitute carrier and/ 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 or
tariffs on file with the Federal Maritime Commission, Interstate
Commerce Commission or any other regulatory body which governs
a particular portion of the carriage and said terms and condi-
tions are hereby incorporated herein as part of the Terms and
Conditions of this Bill of Lading. Copies of the Commission or
other regulatory body upon request. In the event of any conflict
between the terms and conditions of such tariff or tariffs and
the Terms and Conditions of this Bill of Lading, the Bill of
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 contemplating 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 carriers 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
subject to compulsorily applicable law, the provisions of which may
be avoided, 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
specifically stated herein, shall be deemed a surrender by the
Carrier of any of its rights, immunities, exemptions, limitations
of or exoneration, from liability. The provisions of COGSA or, as
the case may be, compulsorily applicable law shall govern before
loading and after discharge and during the entire time the Carrier
remains responsible for the Goods or Containers or other packages.
If the Hague-Visby Rules shall be compulsorily applicable, the
Carrier's liability shall be limited to US$2.00 per kilo of the
gross weight of the Goods lost or damaged or the actual value
thereof, whichever is less.
b) The Carrier shall not be liable in any capacity whatsoever (1)
for delay and does not undertake that the Goods shall arrive at
any particular time or meet any particular market or use or (2)
for direct, indirect or consequential damages, including but not
limited to lost profits.
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 4281 through 4287 and 4289 of the Revised
Statutes of the United States and amendments thereto.
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, whether in tort,
contract or otherwise.
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 (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, howso-
ever arising.
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, their agents
and/or servants, 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
thereto.
Except as hereinabove provided, the Carrier shall have no liability
for loss or 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 undertaken
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 rail and other inland) carriers and
all stevedores, terminal operators, warehousemen, crane operators,
watchmen, carpenters, ship cleaners, surveyors and all independent
contractors, inclusive of all persons providing any service whatso-
ever. 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 carriers bill of lading and of all
exemptions, limitation 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 of its bill of lading.
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 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 and any description, particular or other representation
appearing on the Goods, container or other packages, 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,
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 Carriers prior express consent in writing and without
the Container or other covering in which the Goods are to be trans-
ported 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 Carriers 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 expense of mending, repairing, fumigating,
repacking, recoopering, 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,
levied upon the Carrier, Vessel, Goods, Containers or other packages
and for 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 or any kind imposed with respect to the Goods
by the authorities at any port of place or any act or omission of
the Merchant. The Carriers 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 other cause for which the Carrier is
not ultimately 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, against any loss, damage, claim, liability or expense
whatsoever arising from one or more of the matters covered by a), b)
and 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 range of plus or
minus five (5) degrees Fahrenheit of the temperature requested by
the Merchant on the face hereof while the Containers are in its
care, custody and/or control or that of any Participating carrier
or independent contractor, their agents or servants. The Carrier
does not accept any responsibility for the functioning of
temperature 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 (as the case may be) 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, its agents,
servants, or any Participating carrier or independent contractor.
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 Merchants 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 other consequences thereof regardless of their
nature and merit.
10. CARRIER'S EQUIPMENT INDEMNITY. Whenever the Merchant, or an
agent, servant, contractor or anyone else acting on its behalf,
directly or indirectly, takes possession of or exercises control
over a container and/or any equipment whatsoever owned or leased
by, or the use of which is provided to, the Carrier, any
Participating Carrier, their agents, servants or independent
contractors, the Merchant agrees to defend, indemnify and hold
harmless the Carrier, any Participating Carrier, their agents,
servants and independent contractors from and against any loss
or damage to said Container and equipment, as well as to any
third-party property, and for any injury to or death of persons
arising out of the use of said Container and equipment.
11. OPTION OF INSPECTION. The Carrier and any Participating carrier
shall be entitled, but under no obligation, to open any Con-
tainer 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 and/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 against any
reasonable additional Charges so incurred.
12. DECK CARGO. Deck cargo (except that carried in Containers on
deck) and live animals are received and carried solely at
Merchants 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.
13. SOLAS WEIGHT CERTIFICATION. Merchant acknowledges that it is
required to provide verified weights obtained on calibrated,
certified equipment of all cargo that is to be tendered to
steamship lines. Shipper agrees that Carrier is entitled to
rely on the accuracy of such weights and to counter-sign or
endorse it as Carrier s own certified weight to the steamship
line carrying the cargo. The Merchant agrees that it shall
indemnify and hold the Carrier harmless from any and all claims,
losses, penalties or other costs resulting from any incorrect or
questionable verification of the weight provided by Merchant or
its agent or contractor on which the Carrier relies.
14. 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.
15. 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 at 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,
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 Carrier or Vessel, 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.
16. 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, in 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 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 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.
17. 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 accord-
ingly, 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 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, regard-
less 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.
18. CARRIER'S LIEN. The Carrier shall have a lien on the Goods,
inclusive of any Container owned or leased by the Merchant, and
all equipment and appurtenances thereto, as well as on any
Charges due any person, and on 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 attorneys 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,
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.
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 by the Carrier in this
connection.
c) Neither the Carrier nor any Participating carrier shall be under
any obligation to take any steps whatsoever to post security for
General Average or to collect security for General Average contri-
butions due 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 United 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 Carriers 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 (e.g.,
container, bundle, pallet, etc.) 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 and during the entire time for which the Carrier
remains responsible for the Goods.
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
contractor 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 Carriers 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 three (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 one (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 appli-
cable 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. JURISDICTION. All disputes of whatsoever nature under or in
connection with this Bill of Lading shall be determined by the
appropriate Illinois State or United States Court located in
Cook County, Illinois, USA to the exclusion of any other court
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 or exoneration
from liability contained in the laws of the United States, or
of any other country whose laws may be compulsorily applicable.
The Terms and Conditions of this Bill of Lading (including all
of the terms and conditions of the carriers 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.
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