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- 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, how so ever
generated, covering the Carriage of Goods hereunder, whether or
not issued to the Merchant.
- b) "Carriage" means the whole 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, dead freight, 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.
flat rack, 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. In the event of intermodal transportation, if the
originating carrier is an inland and coastal carriers 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 subcarrier, 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.
- 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 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 or tariffs are obtainable from the Carrier,
Federal Maritime Commission, Interstate Commerce 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, this Bill of Lading
shall prevail.
- 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 a 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.
-
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 cater 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, a Participating carrier or independent contractor
(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 during the entire time the Carrier remains
responsible hereunder.
-
b) The Carrier shall not be liable in any capacity whatsoever for
any delay, nondelivery, 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 4281 to 4287, inclusive 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.
- 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 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 the provisions of such law.
- c) If it should be determined that the Carrier bears any
responsibility far 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.
- 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 and coastal)
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 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 car 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.
- 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, numbering, addressing at 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 at 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 it 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 in the
Carrier's right to Charges.
- e) The Merchant shall be liable for all less at 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 at 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, 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, tax, impost, loss, damage or detention sustained or incurred
by or 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 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.
- 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.
- 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 cars, custody and/or control or that of any
Participating carrier or independent contractor.
- 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 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 all other
consequences thereof regardless of their nature and merit.
- 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, independent contractor, their agents and servants, 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, any Participating carrier, independent
contractor, their agents and servants, before against any
reasonable additional Charges so incurred.
- 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 by otherwise provided,
such shipments shall be deemed Goods and shall be subject to all
Terms and Conditions of this Bill of Lading.
- 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 at more offer
and in any order or omit calling at any port, whether scheduled at
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 of 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 I) 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 bean
unreasonable deviation. In no circumstance whatsoever shall the
Carrier be liable for direct, indirect or consequential, loss or
damage caused by delay.
- 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, and 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.
- 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 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.
- 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, it 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 or Collect."
In arranging for any services with respect to the Goods, the
Carrier shall he 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.
- 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 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.
- 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.
- 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 not 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
contributions due to the Merchant.
- 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 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 of 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. lncluding in each instance its contents, shall be
deemed a single package and Carriers 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
noncompulsory 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
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.
- 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.
- 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.
- 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.
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