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TERMS AND CONDITIONS ON THE
NEW "NVOCC" BILL OF LADING page 1 Definitions - "Carrier" means the
Non Vessel Operating Common Carrier who issues this B\L and is named on the face
of it and assumes liability for the performance of the multimodal transport
contract as a carrier. - "Merchant" means and
includes the Shipper, the Consignor, the Consignee, the Holder of this B\L,
the Receiver and the Owner of the Goods. - "Consignor" means the
person who concludes the multimodal transport contract with the Carrier. - "Consignee" means the
person entitled to receive the goods from the Carrier. - "Taken in charge"
means that the goods have been handed over to and accepted for carriage by
the Carrier at the place of receipt evidenced in this B\L. -
"Goods" means any property including live animals as well as
containers, pallets or similar articles of transport or packaging not
supplied by the Carrier, irrespective of whether such property is to be or is
carried on or under deck. 1.
Applicability These
conditions shall also apply if only one mode of transport is used. 2.
Issuance of this B\L 2.1.
By issuance of this B\L the Carrier a) undertakes to perform and/or in
his own name to procure the performance of the entire transport, from the
place at which the goods are taken in charge (place of receipt evidenced in
this B\L) to the place of delivery designated in this B\L; If only the ‘port
of loading’ and ‘port of discharge’ are mentioned on the reverse of this B\L
same must be intended as "port to port" and not
"multimodal" B\L. b) assumes liability as set out in
these conditions. 2.2.
Subject to the conditions of this B\L the Carrier shall be responsible for
the acts and omissions of his servants or agents acting within the scope of
their employment, or any other person of whose services he makes use for the
performance of the contract evidenced by this B\L, as if such acts and
omissions were his own. 3.
Negotiability and title to the goods 3.1.
This B\L is issued in a negotiable form unless it is marked "non
negotiable". It shall constitute title to the goods and the holder, by
endorsement of this B\L, shall be entitled to receive or to transfer the
goods herein mentioned. 3.2.
The information in this B\L shall be prima facie evidence of the taking in
charge by the Carrier of the goods as described by such information unless a
contrary indication, such as "shipper's weight, load and count",
"shipper-packed container" or similar expressions, has been made in
the printed text or superimposed on this B\L. However, proof to the contrary
shall not be admissible when the B\L has been transferred to the consignee
for valuable consideration who in good faith has relied and acted thereon. 4.
Dangerous Goods and Indemnity 4.1.
The Merchant shall comply with rules which are mandatory according to the
national law or by reason of International Convention, relating to the carriage
of goods of a dangerous nature, and shall in any case inform the Carrier in
writing of the exact nature of the danger, before goods of a dangerous nature
are taken in charge by the Carrier and indicate to him, if need be, the
precautions to be taken. 4.2. If the Merchant fails to
provide such information and the Carrier is unaware of the dangerous nature
of the goods and the necessary precautions to be taken and if, at any time,
they are deemed to be a hazard to life or property, they may at any place be
unloaded, destroyed or rendered harmless, as circumstances may require,
without compensation. The Merchant shall indemnify the Carrier against all
loss, damage, liability, or expense arising out of their being taken in
charge, or their carriage, or of any service incidental thereto. The burden of proving that the
Carrier knew the exact nature of the danger constituted by the carriage of
the said goods shall rest on the Merchant. 4.3.
If any goods shall become a danger to life or property, they may in like
manner be unloaded or landed at any place or destroyed or rendered harmless.
If such danger was not caused by the fault and neglect of the Carrier he
shall have no liability and the Merchant shall indemnify him against all
loss, damage, liability and expense arising therefrom. 5.
Description of Goods and Merchant's Packing and Inspection
5.1.
The Consignor shall be deemed to have guaranteed to the Carrier the accuracy,
at the time the goods were taken in charge by the Carrier, of all particulars
relating to the general nature of the goods, their marks, number, weight,
volume and quantity and, if applicable, to the dangerous character of the
goods, as furnished by him or on his behalf for insertion on the B\L. The
Consignor shall indemnify the Carrier against all loss, damage and expense
resulting from any inaccuracy or inadequacy of such particulars. The
Consignor shall remain liable even if the B\L has been transferred by him.
The right of the Carrier to such an indemnity shall in no way limit this
liability under this B\L to any person other than the Consignor. 5.2. The Carrier shall not be
liable for any loss, damage or expense caused by defective or insufficient
packing of goods or by inadequate loading or packing within containers or
other transport units when such loading or packing has been performed by the
Merchant or on his behalf by a person other than the Carrier, or by the
defect or unsuitability of the containers or other transport units supplied
by the Merchant, or if supplied by the Carrier if a defect or unsuitability
of the container or other transport unit would have been apparent upon
reasonable inspection by the Merchant. The Merchant shall indemnify the
Carrier against all loss, damage, liability and expense so caused. 5.3. Containers.
6.
Carrier's Liability 6.1.
The responsibility of the Carrier for the goods under these conditions covers
the period from the time the Carrier has taken the goods in his charge to the
time of their delivery. 6.2.
The Carrier shall be liable for loss of or damage to the goods if the
occurrence which caused the loss, damage or delay in delivery took place
while the goods were in his charge as defined in Clause 2.1.a, unless the
Carrier proves that no fault or neglect of his own, his servants or agents or
any other person referred to in Clause 2.2., has caused or contributed to
such loss, damage or delay. However, the Carrier shall only be liable for
loss following from delay in delivery if the Consignor has made a declaration
of interest in timely delivery which has been accepted by the Carrier and
stated in this B\L. 6.3.
Arrival times are not guaranteed by the Carrier and delay in delivery may be
claimed to the Carrier only in case the interest to delivery within a certain
time is evidenced in the reverse of this B\L. 6.4.
If the goods have not been delivered within one hundred consecutive days from
the date of the B\L or within 40 days from the date of delivery as determined
in Clause 6.3., the claimant may, in the absence of evidence to the contrary,
treat the goods as lost. The Carrier liability shall not exceed the limits
indicated under point 8.7 of this B\L. 6.5.
When the Carrier establishes that, in the circumstances of the case, the loss
or damage could be attributed to one or more causes or events, specified in
a-e of the present clause, it shall be presumed that it was so caused, always
provided, however, that the claimant shall be entitled to prove that the loss
or damage was not, in fact, caused wholly or partly by one or more of such
causes or events: a)
an act or omission of the Merchant, or person other than the Carrier acting
on behalf of the Merchant or from whom the Carrier took the goods in charge; b)
insufficiency or defective condition of the packaging or marks and/or
numbers; c)
handling, loading, stowage or unloading of the goods by the Merchant or any
person acting on behalf of the Merchant; d)
inherent vice of the goods; e)
strike, lockout, stoppage or restraint of labour 6.6.
Defences for carriage by sea or inland waterways Notwithstanding
Clauses 6.2., 6.3. and 6.4. the Carrier shall not be liable for loss, damage
or delay in delivery with respect to goods carried by sea or inland waterways
when such loss, damage or delay during such carriage has been caused by: a)
act, neglect, or default of the master, mariner, pilot or the servants of the
carrier in the navigation or in the management of the ship, b)
fire, unless caused by the actual fault or privity of the carrier, however,
always provided that whenever loss or damage has resulted from
unseaworthiness of the ship, the Carrier can prove that due diligence has
been exercised to make the ship seaworthy at the commencement of the voyage. 6.7.
Nothing in this B\L shall be deemed to waive or operate to deprive the
Carrier or lessen the benefits of any right, immunity, limitation or
exemption of liability. The Carrier will be entitled to any limitation which
may be adopted by any sub-contractor, shipowner, hauler, terminal or
whatsoever. 7.
Paramount Clauses 7.1.
These conditions shall only take effect to the extent that they are not
contrary to the mandatory provisions of International Conventions or national
law applicable to the contract evidence by this B\L. 7.2. The Hague Rules
contained in the International Convention for the unification of certain
rules relating to Bills of Lading, dated Brussels 25th August 1924, or in
those countries where they are already in force the Hague-Visby Rules
contained in the Protocol of Brussels, dated 23rd February 1968, as enacted
in the Country of Shipment, shall apply to all carriage of goods by sea and
also to the carriage of goods by inland waterways, and such provisions shall
apply to all goods whether carried on deck or under deck. 7.3.
The Carriage of Goods by Sea Act of the United States of America (COGSA)
shall apply to the carriage of goods by sea, whether on deck or under deck,
if compulsorily applicable to this B\L or would be applicable but for the
goods being carried on deck in accordance with a statement on this B\L. 8.
Limitation of Carrier's Liability 8.1.
Assessment of compensation for loss of or damage to the goods shall be made
by reference to the value of such goods at the place and time they are
delivered to the consignee or at the place and time when, in accordance with
this B\L, they should have been so delivered. 8.2.
The value of the goods shall be determined according to the current commodity
exchange price or, if there is no such price, according to the current market
price or, if there are no such prices, by reference to the normal value of
goods of the same name and quality. 8.3.
Subject to the provisions of subclauses 6.7. and 8.4. to 8.9. inclusive, the
Carrier shall in no event be or become liable for any loss of or damage to
the goods in an amount exceeding the equivalent of 666.67 SDR per package or
unit or 2 SDR per kilogram of gross weight of the goods lost or damaged,
whichever is the higher, unless the nature and value of the goods shall have
been declared by the Consignor and accepted by the Carrier before the goods
have been taken in his charge, or the ad valorem freight rate paid, and such
value is stated in the B\L by him, then such declared value shall be the
limit. 8.4.
Where a container, pallet or similar article of transport is loaded with more
than one package or unit, the packages or other shipping units enumerated in
the B\L as packed in such article of transport are deemed packages or
shipping units. Except as aforesaid, such article of transport shall be
considered the package or unit. 8.5.
Notwithstanding the above mentioned provisions, if the multimodal transport
does not, according to the contract, include carriage of goods by sea or by
inland waterways, the liability of the Carrier shall be limited to an amount
not exceeding 6,19 Euro per kilogram of gross weight of the goods lost or
damaged, unless a lower limit is foreseen by any mandatory national Law or
Rule applicable to that particular carriage. 8.6.
a) When the loss of or damage to the goods occurred during one particular
stage of the multimodal transport, in respect of which an applicable international
convention or mandatory national law would have provided another limit of
liability if a separate contract of carriage had been made for that
particular stage of transport, then the limit of the Carrier's liability for
such loss or damage shall be determined by reference to the provisions of
such convention or mandatory national law. If it would not be possible to
find out in which stage of the multimodal transport the loss or damage
occurred it will be presumed that it occurred during the sea transport. b)
Unless the nature and value of the goods shall have been declared by the
Merchant and inserted in this B\L, and the ad valorem freight rate paid, the
liability of the Carrier under COGSA, where applicable, shall not exceed USD
500 per package or, in the case of goods not shipped in packages, per
customary freight unit. 8.7.
If the Carrier is liable in respect of loss following from delay in delivery,
or consequential loss or damage other than loss of or damage to the goods,
the liability of the Carrier shall be limited to an amount not exceeding the
equivalent of twice the freight under the multimodal contract for the
multimodal transport under this B\L. 8.8.
The aggregate liability of Carrier shall not exceed the limits of liability
for total loss of the goods. 8.9.
The Carrier is not entitled to the benefit of the limitation of liability if
it is proved that the loss, damage or delay in delivery resulted from a
personal act or omission of the Carrier done with the intent to cause such
loss, damage or delay, or recklessly and with knowledge that such loss,
damage or delay would probably result. 9.
Applicability to Actions in Tort These
conditions apply to all claims against the Carrier relating to the
performance of the contract evidenced by this B\L, whether the claim be
founded in contract or in tort. 10.
Liability of Servants and other Persons 10.1.
These conditions apply whenever claims relating to the performance of the contract
evidenced by this B\L are made against any servant, agent or other person
(including any independent contractor) whose services have been used in order
to perform the contract, whether such claims are founded in contract or in
tort, and the aggregate liability of the Carrier and of such servants, agents
or other persons shall not exceed the limits in clause 8. 10.2.
In entering into this contract as evidenced by this B\L, the Carrier, to the
extend of these provisions, does not only act on his own behalf, but also as
agent or trustee for such persons, and such persons shall to this extent be
or be deemed to be parties to this contract. 10.3.
However, if it is proved that the loss of or such loss or damage to the goods
resulted from a personal act or omission of such a person referred to in
Clause 10.1., done with intent to cause damage, or recklessly and with
knowledge that damage would probably result, such person shall not be
entitled to benefit of limitation of liability provided for in Clause 8. 10.4.
The aggregate of the amounts recoverable from the Carrier and the persons
referred to in Clause 2.2. and 10.1., shall not exceed the limits provided
for in these conditions. 11.
Method and Route of Transportation Without
notice to the Merchant, the Carrier has the liberty to carry the goods on or
under deck and to choose or substitute the means, route and procedure to be
followed in the handling, stowage, storage and transportation of the goods. 12.
Delivery 12.1.
Goods shall be deemed to be delivered when they have been handed over or
placed at the disposal of the Consignee or his agent in accordance with this
B\L, or when the goods have been handed over to any authority or other party
to whom, pursuant to the law or regulation applicable at the place of
delivery, the goods must be handed over, or such other place at which the
Carrier is entitled to call upon the Merchant to take delivery. 12.2.
The Carrier shall also be entitled to store the goods at the sole risk of the
Merchant, and the Carrier's liability shall cease, and the cost of such
storage shall be paid, upon demand, by the Merchant to the Carrier. 12.3.
If at any time the carriage under this B\L is or is likely to be affected by
any hindrance or risk of any kind (including the condition of the goods) not
arising from any fault or neglect of the Carrier or a person referred to in
Clause 2.2. and which cannot be avoided by the exercise of reasonable
endeavours the Carrier may: Abandon the carriage of the goods under this B\L
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 delivery shall be deemed to have been made, and the
responsibility of the Carrier in respect of such goods shall cease. In any
event, the Carrier shall be entitled to full freight under this B\L and the
Merchant shall pay any additional costs resulting from the above mentioned
circumstances. 13.
Freight and Charges 13.1.
Freight shall be paid in cash, without any reduction or deferment on account
of any claim, counterclaim or set-off, whether prepaid or payable at
destination. Freight shall be considered as earned by the Carrier at the
moment when the goods have been taken in his charge, and not to be returned
in any event. 13.2.
Freight and all other amounts mentioned in this B\L are to be paid in the
currency named in this B\L or, at the Carrier's option, in the currency of
the country of dispatch or destination at the highest rate of exchange for
bankers sight bills current for prepaid freight on the day of dispatch and
for freight payable at destination on the day when the Merchant is notified
on arrival of the goods there or on the date of withdrawal of the delivery order,
whichever rate is the higher, or at the option of the Carrier on the date of
this B\L. 13.3.
All dues, taxes and charges or other expenses in connection with the goods
shall be paid by the Merchant. Where equipment is supplied by the Carrier,
the Merchant shall pay all demurrage and charges which are not due to a fault
or neglect of the Carrier. 13.4.
The Merchant shall reimburse the Carrier in proportion to the amount of
freight for any costs for deviation or delay or any other increase of costs of
whatever nature caused by war, warlike operations, epidemics, strikes,
government directions or force majeure. 13.5.
The Merchant warrants the correctness of the declaration of contents,
insurance, weight, measurements or value of the goods but the Carrier has the
liberty to have the contents inspected and the weight, measurements or value
verified. If on such inspection it is found that the declaration is not
correct it is agreed that a sum equal either to five times the difference
between the correct figure and the freight charged, or to double the correct
freight less the freight charged, whichever sum is the smaller, shall be
payable as liquidated damages to the Carrier for his inspection costs and
losses of freight on other goods notwithstanding any other sum having been
stated on this B\L as freight payable. 13.6.
Despite the acceptance by the Carrier of instructions to collect freight,
charges or other expenses from any other person in respect of the transport
under this B\L, the Merchant, and in particular the Consignor and the Shipper
shall remain jointly and severally responsible for such monies on receipt of
evidence of demand and the absence of payment for whatever reason. 14.
Lien The
Carrier shall have a lien on the goods and any documents relating thereto for
any amount due at any time to the Carrier from the Merchant including storage
fees and container demurrages and the cost of recovering same, and may
enforce such lien in any reasonable manner which he may think fit. 15.
General Average The
Merchant shall indemnify the Carrier in respect of any claims of a General
Average nature which may be made on him and shall provide such security as
may be required by the Carrier in this connection. 16.
Notice 16.1.
Unless notice of loss or damage to the goods, specifying the general nature
of such loss or damage, is given in writing by the consignee to the Carrier
when the goods are delivered to the consignee in accordance with clause 12,
such handing over is prima facie evidence of the delivery by the Carrier of
the goods as described in this B\L. 16.2.
Where the loss or damage is not apparent, the same prima facie effect shall
apply if notice in writing is not given within 3 consecutive days after the
day when the goods were delivered to the consignee in accordance with clause
12. 17.
Time bar The
Carrier shall, unless otherwise expressly agreed, be discharged of all
liability under these conditions unless suit is brought within 12 months
after the delivery of the goods, or the date when the goods should have been
delivered, or the date when in accordance with clause 6.4. failure to deliver
the goods would give the consignee the right to treat the goods as lost. 18.
Partial Invalidity If
any clause or a part thereof is held to be invalid, the validity of this B\L
and the remaining clauses or a part thereof shall not be affected. 19.
Jurisdiction and applicable law Actions
against the Carrier may be instituted only in the Court of the town where the
Carrier has his place of business as stated on the reverse of this B\L and
shall be decided according to the law of the country in which that place of
business is situated. |
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