Terms and conditions on the reverse of CSAV AUSTRAL sea waybill
HEAD OFFICES: Hendaya 60, Oficina 1202, Piso 12, Las Condes, Santiago.
“Carrier” means CSAV Austral SpA.
“Precarrier” and “Oncarrier” shall include any carrier by land, water or air, which participates in the Combined Transport of Goods moving under this Waybill from the Place of Receipt to the Port of Loading in the case of the Precarrier and from the Port of Discharge to the Place of Final Delivery in the case of the Oncarrier.
“Merchant” includes the shipper, holder, consignee, receiver of the Goods, any person owning or entitled to the possession of the Goods or of this Waybill and anyone acting on behalf of any such person.
“Goods” means the whole or part of the cargo received from the shipper and includes any container, trailer, transportable tank, flat or pallet or any similar article used to consolidate the Goods.
“Carriage” means the whole of the operations and services undertaken by the Carrier in respect of the Goods.
“Vessel” means any waterborne craft on which the Goods are carried during all or part of their Carriage between the Port of Loading and the Port of Discharge and which may be a feeder or ocean vessel.
This term shall include any alternative or substitute vessel to the Vessel named on this Waybill.
“Freight” includes all charges payable to the Carrier in accordance with the applicable tariff, charter party, contract of affreightment and this Waybill.
“On board” or similar words endorsed on this Waybill means that the Goods have been loaded on the Vessel or in the event of Combined Transport, if the originating Precarrier is an inland carrier, means that the Goods have been loaded on railcars or other means of inland transportation and are in the custody of a railroad or other Precarrier.
“Package” includes containers, vans, trailers, pallets and unitised Goods or things of any description whatsoever having packaging excluding Goods shipped in bulk or Goods not shipped in packages.
“Hague Rules” means the provisions of the International Convention for the Unification of Certain Rules relating to Bills of Lading signed at Brussels on 25 August 1924 or any national legislation making such Rules compulsorily applicable to Bills of Lading.
“Hague Visby Rules” means the provisions of the International Convention for the Unification of Certain Rules relating to Bills of Lading signed at Brussels on 25 August 1924 as amended by the Protocol signed at Brussels on 23 February 1968 or any national legislation making such Rules as amended compulsorily applicable to Bills of Lading.
“Hamburg Rules” means the provisions of the United Nations Convention on the Carriage of Goods by Sea 1978 adopted at Hamburg on 31 March 1978 or any national legislation giving compulsory effect to such Rules in respect of this Waybill and “national legislation” in the case of Chile, shall mean the provisions of the said Convention and Title V of Book Third of the Chilean Code of Commerce.
The interested parties (Carrier, Merchant, Vessel) express their will and accept, together with the remaining clauses of this Waybill, the following: (1) that any alteration of the Waybill requires a written agreement, without prejudice to the Chilean Customs regulations; and (2) if in the cases to which the Hamburg Rules are compulsorily applicable, there is proof that the Carrier, his servants or agents adopted all the means which could reasonably be expected to avoid the occurrence and its consequences, the Carrier shall not be liable for the loss, damage or delay resulting from or arising out of any of the circumstances established in Rule 2 of Article 4 of the Hague Visby Rules, save the ones contained in letters a) and b) . In the same aforementioned cases, the agreed freight comprises the Carriage from the “Point of Reception” of the Goods at the Port of Loading to the “Port of Final Delivery” of same, at the Port of Discharge, including loading and discharge operations for account of the Carrier.
2. CLAUSE PARAMOUNT.
(1) This Waybill is a non-negotiable document. It is not a Bill of Lading, nor shall it be construed in any way as being a document of title. This Waybill is subject always to this Clause 2(1).
(2) Save for the carriage of live animals and Goods which are stated herein to be carried on deck and are so carried (see clause 23 hereof), it is agreed that the Hague Rules or Hague Visby Rules, whichever would have been applicable by operation of law or otherwise, had this document been a Bill of Lading, shall apply and have full effect to this Waybill. In circumstances where neither the Hague Rules nor the Hague Visby Rules are applicable to this Waybill as aforesaid then it is agreed to be subject to the Hague Rules and the Carrier shall be entitled to the benefit of all the privileges, rights and immunities contained in Articles I to VIII of the Hague Rules, which will be deemed to be incorporated herein. It is agreed that notwithstanding the provision of Article III Rule 8 of the Hague Rules, the limitation sum for the purposes of Article IV Rule 5 of the Hague Rules shall be £100 pounds sterling. For the avoidance of doubt the contract evidenced by this Waybill is deemed to be a contract of carriage as defined in Article I(b) of the Hague Rules and the Hague Visby Rules whichever may be applicable in accordance with this Clause 2(2).
(3) Notwithstanding Clause 2(2) above, for shipments to and from the United States, this Waybill shall be deemed to incorporate and shall have effect, subject to the provisions of the United States Carriage of Goods by Sea Act (“COGSA”) approved April 16, 1936 as if this document had been a Bill of Lading and nothing herein nor contained in the said Act shall be deemed a surrender by the Carrier of any of its rights or immunities or an increase of any of its responsibilities or liabilities thereunder, nor shall the Carrier be deemed to have warranted the seaworthiness of the Vessel. The provisions stated in COGSA shall govern the Goods before they are loaded on and after they are discharged from the Vessel and throughout the entire time that they are in the custody of the Carrier at a United States port.
The Carrier shall also have the benefit of Sections 181 to 189, inclusive of title 46 US Code and the benefits of Sections 4281 to 4286 inclusive and Section 4289 of the United States Revised Statutes, as amended, the same as if it were the owner of the Vessel or other water craft used to transport the Goods. For the avoidance of doubt the contract evidenced by this Waybill is deemed to be a contract of carriage as defined in paragraph 1(b) of Section 1301 of COGSA, where this Clause 2(3) applies.
(4) Notwithstanding Clauses 2(2) and 2(3) above, if this Waybill is subject to legislation which makes the Hamburg Rules compulsorily applicable to it, then this Waybill shall have effect subject to the Hamburg Rules, which shall nullify any stipulation derogating therefrom to the detriment of the shipper or consignee. If the Hamburg Rules are compulsorily applicable to this Waybill by reason of the aforesaid, it is hereby agreed that the date of delivery of the Goods shall be six (6) months from the date of shipment.
(5) In circumstances where Clauses 2(2) or Clause 2(3) hereof are applicable then the statutes, Rules and Conventions mentioned therein shall be read and interpreted as if they made express reference to sea Waybills and wherever the term “Bill of Lading” or “Bills of Lading” appear in such documents, statutes, Rules and Conventions, such words are to be read and interpreted as if they said “Waybill” or “Waybills” respectively.
Delivery will be made to the Consignee named, or his authorised agents, on production of proof of identity at the Port of Discharge or the Place of Final Delivery, whichever applicable. Unless the Shipper expressly waives his right to control the Goods until delivery by means of a clause on the face hereof, any delivery to the Consignee will be subject to any instruction to the contrary by the Shipper. Unless instructed to the contrary by the Shipper prior to the commencement of Carriage and noted accordingly on the face hereof, the Carrier will, subject to the aforesaid terms and conditions, process cargo claims with the Consignee. Claims settlement, if any, shall be a complete discharge of the Carrier’s liability to the Shipper. The Shipper accepts the said standard terms and conditions on his own behalf, on behalf of the Consignee and the owner of the Goods and authorises the Consignee to bring suit against the Carrier in his own name but as agent of the Shipper and warrants that he has authority so to accept and authorise. The Shipper further undertakes that no claim or allegation in respect of the Goods shall be made against the Carrier by any person other than in accordance with the terms and conditions of this Waybill.
4. PROHIBITION TO ALTER CONSIGNEE.
Upon receipt of a written notification from a bank that it has accepted presentation of this Waybill under a letter of credit transaction the Shipper shall be deemed to have irrevocably waived any right to vary the identityof the Consignee of these Goods during transit.
5. INCORPORATION OF TARIFF.
The terms of the Carrier’s applicable tariffs are incorporated herein. Particular attention is drawn to the terms therein relating to Container and vehicle demurrage. Copies of relevant provisions of the applicable tariff are obtainable from the Carrier or its agents upon request. In the case of inconsistency between this Waybill and the applicable tariff, this Waybill shall prevail.
6. SCOPE OF VOYAGE AND LIBERTIES.
(1) The Carrier may at any time and without notice to the Merchant:
(a) use or substitute any means of carriage whatsoever;
(b) transfer and/or forward the Goods by any means and from one conveyance to another, including, without limitation, transhipping or carrying Goods in whole or in part on another vessel (or vessels) other than the Vessel (or Vessels) named overleaf, whether operated by the Carrier or others and even though transhipment of forwarding of the Goods may not have been contemplated or provided for herein. Any rights and exceptions accorded to the Vessel named in this Waybill shall likewise apply to any of the conveyances mentioned in this clause;
(c) load, unload, unpack or transfer the Goods and store them at any port(s) or place(s) whatsoever for any purpose whatsoever;
(d) proceed at any speed to usual, customary or advertised ports of call (whether or not named in this contract), ports in or out of the advertised, geographical, usual or ordinary route or order, even though in proceeding thereto the Vessel may sail beyond the Port of Discharge once or more often, or in a direction contrary thereto, or depart from the direct or customary route;
(e) call at any port(s) or place(s) (whether or not named in this contract) in any order, once or more often, for any purpose whatsoever;
(f) sail with or without pilots, tow and be towed, save or attempt to save life or property;
(g) comply with any order(s), recommendations or directions of any government(s) or international organization(s) or authority/authorities or persons or body acting or purporting to act with the authority of such government(s) or international organization(s) or authority/authorities.
(h) omit calling at any port(s) or place(s), once or more often.
(2) The liberties set out in Clause 6(1) may be invoked by the Carrier for any purpose whatsoever, whether or not connected with the Carriage of the Goods, including (without limitation) loading and unloading other goods and/or for the purpose or the current voyage or of a prior or subsequent voyage, adjusting equipment or instruments, picking up or landing persons, drydocking, going on ways or repair yards, shifting berths, taking fuel or stores or remaining in ports and shall be included in the contracted voyage. Anything done in accordance with Clauses 6(1) and 6(3) or any delay arising therefrom shall be deemed to be within the scope of the voyage herein and shall not be a deviation.
(3) At any time and in any situation whatsoever, including but not limited to political disturbances, strikes or work stoppages or closures or blockages of waterways, which in the judgment of the Carrier or Master is likely to give rise to risk of capture, seizure, detention, damage, delay or disadvantage to the Vessel, Goods and/or those on board, the Carrier or Master shall, without prior notice to the Merchant, in addition to the other rights contained in this Waybill, have the right to stop or delay the Vessel, awaiting the removal of any such hindrance or obstruction, or to return the Goods to the Port of Loading or store them ashore or afloat upon the terms of this Waybill and endeavour to forward them as soon as possible to proceed via any other route, or to transfer the Goods to craft off shore and/or forward them by any means of conveyance to destination or to abandon the Carriage of the Goods and place them at the disposal of the Merchant at any place or port, whereupon the responsibility of the Carrier in respect of such Goods shall cease.
(4) If the Carrier invokes any of the terms of Clause 6(3), notwithstanding the terms of Clause 6(2), he does so at the risk and expense of the Merchant and shall be entitled to such additional freight and expenses of forwarding and/or relaying as the Carrier may determine and for all or any storage charges in connection therewith, in respect of which the Carrier shall have a lien over the Goods. In addition, where the Carrier abandons the Goods in accordance with Clause 6(3), the Carrier shall nevertheless be entitled to full freight on the Goods received for the Carriage. If the Carrier elects to stop or delay the Vessel or use alternative route or means of conveyance, this shall not subsequently prejudice his right to abandon the Carriage.
7. SUB-CONTRACTING AND BENEFICIARIES OF CONTRACT.
(1) The Carrier shall be entitled to subcontract on any terms the whole or any part of the handling and Carriage of the Goods and any and all duties whatsoever undertaken by the Carrier in relation to the Goods.
(2) Every employee, agent, sub-contractor and independent contractor of the Carrier, including the Master, officers and crew members of the Vessel, stevedores, longshoremen, terminal operators and others used and employed by the Carrier in the performance of this work and services, in relation to the Goods referred to herein and the goods of others, including but not limited to other shipowners or charterers whose services are engaged by the Carrier, shall be a beneficiary of this Waybill and shall be entitled to all defences, liberties, exemptions, and immunities from and limitations of liability which the Carrier has under the provisions of this Waybill and under any other applicable national law, and as such may protect themselves against any liability whether or not arising out of negligence on the part of such persons, companies or other entities, and in entering into this contract, the Carrier, to the extent of these provisions, does so not only on its own behalf but also as agent and trustee for each of the persons, companies or other entities described above, all of whom shall be deemed parties to the contract evidenced by this Waybill.
(3) The provisions of Clause 7(2) shall extend to any claims of whatsoever nature against any other persons, companies or other entities, including, without limitation other persons, companies or other entities chartering or utilising space on the carrying Vessel, whether or not such liabilities arise out of the negligence on the part of those other persons, companies or entities.
(4) The expression “subcontractor” and “independent contractor” in Clause 7 shall include direct and indirect subcontractors and/or indirect contractors and their respective servants and agents.
8. IDENTITY OF CARRIER.
If despite the terms of this Waybill it is adjudged that any party other than the one defined in clause 1 above is the Carrier and/or bailee of the Goods shipped hereunder, all rights, defences, immunities, limitations of and exceptions from liability provided for by law or by this Waybill shall be available to such other party.
9. CARRIER’S RESPONSIBILITY PORT-TO-PORT SHIPMENTS.
(1) If Carriage is from Port-to-Port, the following provisions shall apply to determine the liability, if any, of the Carrier. Without prejudice to the generality of the meaning of “Vessel” given elsewhere in this Waybill, for the avoidance of doubt, “Vessel” in this clause 9 shall include any transhipment vessel or vessels.
(2) Any liability of the Carrier for the loss of or damage to the Goods occurring from and during loading onto a Vessel up to and during discharge from that Vessel or from another vessel or vessels into which the Goods have been transhipped shall be determined in accordance with Clause 2 hereof.
(3) The Carrier shall be under no liability whatsoever for loss or damage to the Goods, howsoever occurring, if such loss or damage arises prior to loading on or subsequent to discharge from the Vessel.
(4) Notwithstanding the above, if and to the extent that any applicable law provides for an additional period of responsibility, the Carrier shall have the benefit of every right, defence, limitation and liberty provided by such national law, or if none, as provided by the Hague Rules during that period notwithstanding that the loss or damage did not occur at sea.
10. CARRIER’S RESPONSIBILITY COMBINED TRANSPORT; TARIFFS.
(1) If Carriage is Combined Transport, the Carrier undertakes responsibility for the entire (Combined) transportation of the Goods from the Place of Receipt or the Port of Loading (whichever is applicable) to the Port of Discharge or the Place of Final Delivery (whichever is applicable) save to the extent and as set out in this Waybill and this Clause. The Carrier shall be entitled to use the services of Precarriers and/or Oncarriers and any mode of transport to accomplish the same.
(2) Custody and Carriage of the Goods during the non ocean carriage Combined Transport are subject to the tariffs and terms of the relevant Bills of Lading and/or contract of carriage and/or transport documents adopted by the Precarrier and/or Oncarrier and prescribed or made compulsorily applicable by the country in which the Combined Transport is performed, copies of which are available from the Carrier on request.
(3) If loss or damage occurs while the Goods are in the custody of the Precarrier and/or Oncarrier the liability of the Carrier as defined in 1 above shall be no greater than that of the Precarrier and/or Oncarrier including all benefits, exemptions, defences and limits whatsoever of the Precarrier and/or Oncarrier provided by applicable law or the Precarrier’s and/or Oncarrier’s Bills of Lading and/or contract of carriage and/or transport documents which the Carrier shall be entitled to invoke. Particular attention of the Merchant is directed to the terms, conditions or provisions of such documents and laws of the country of transport, as the liability of the Precarrier and/or Oncarrier under such terms, conditions or provisions may be less than the liability of the Carrier in respect of the sea transport.
(4) If loss or damage occurs to which this Clause 10 applies, but the Merchant cannot establish the stage at which the loss or damage occurs, it is hereby agreed that it shall be deemed to have occurred during the sea transport, from the Port of Loading to the Port of Discharge, and nothing contained in this Clause shall deprive the Carrier of its rights or immunities provided for elsewhere.
(5) Without prejudice to the foregoing, the liability of the Carrier shall under no circumstances exceed the limitation of liability provided for in respect of the sea transport as set forth in Clause 17 hereof. Nothing herein shall be deemed a waiver of any rights the Carrier may have against Precarriers and/or Oncarriers for indemnity or otherwise.
11. DESCRIPTION OF GOODS AND SHIPPER’S/MERCHANT’S RESPONSIBILITY.
(1) This Waybill shall be prima facie evidence of the receipt by the Carrier from the Shipper, in apparent good order and condition, unless otherwise noted, of the total number of containers or packages, indicated overleaf, in the “Total no. of Containers or Packages received by the Carrier” box.
(2) No representation is made by the Carrier as to the weight, measurement, marks, numbers, quality, quantity, description, gauge, contents, nature, or value and the Carrier shall be under no responsibility whatsoever in respect of such particulars or description.
(3) The Shipper/Merchant warrants that:
(a) all particulars and markings on the Goods, Containers or Packages are correct and appropriate (including, without limitation, numbering, addressing of all Goods, and description of contents);
(b) all Certificates required to accompany the Goods are procured;
(c) all regulations or requirements whatsoever of any kind imposed in respect of the Goods by customs, port or other authorities at any port(s) or place(s) whatsoever, including (without limitation) transhipment are complied with and
(d) no illegal, unmanifested or improperly described Goods (including, without limitation, drugs) will be shipped and that they are in compliance with the United States Carrier Initiative Agreement.
(4) The Merchant shall be responsible for all costs and payments of whatsoever nature (including, without limitation, fines, storage charges and duties) levied upon the Carrier or for transhipment expenses for or in connection with the Goods or charged against the Goods and in respect of clearing the Goods and Containers in or out of any port or country.
(5) The Merchant and their agents shall be responsible for, hold the Carrier harmless for and indemnify the Carrier against, all claims, losses, damages, fines, penalties, payments, attachments, arrests, detention, demurrage, or expenses of whatsoever nature and any other consequences arising or resulting from breach of Clause 11(3) and/or due to, or arising out of, any fault, defect or inherent vice of the Goods and/or for which the Carrier is not responsible.
12. SHIPPER-PACKED CONTAINERS.
(1) With respect to the Goods shipped in Containers whether or not furnished by the Carrier, if a Container has not been packed by or on behalf of the Carrier, the Carrier shall have no responsibility whatsoever for any loss or damage to the contents caused by:
(a) the manner in which the Container(s) have been packed, stuffed, consolidated, stowed or loaded;
(b) the unsuitability of the contents for carriage in Containers; or
(c) the unsuitability or defective condition of the Container(s).
(2) The loading of such Container(s) by the Shipper/Merchant shall be prima facie evidence that the Container(s) were sound and suitable for use.
(3) The Merchant shall return the Containers in the same condition as received and shall be responsible for any loss or damage to the Containers and equipment while in the possession of the Merchant. The costs to the Carrier of cleaning or washing the Containers returned in unclean condition shall be for the account of the Merchant.
(4) The Shipper shall be responsible for the packing and sealing of Containers before shipment and the seal reference and identification references of the Containers shall be noted overleaf.
(5) The Merchant shall be responsible for any damage, loss, delay or expense whatsoever to the Vessel, Container(s), other property or to persons resulting from any defect in the Goods, Shipper’s packaging, securing and containerization.
(6) The Carrier shall be entitled to give the Goods the care, handling and stowage appropriate to ordinary goods, unless notified overleaf and on their covering or on the Containers that they are fragile or breakable in character or need special handling or stowage. Whether or not such notice is given or the character of the Goods is otherwise revealed to the Carrier, the Merchant warrants and agrees that the Carrier may assume that the Goods are packed in the best approved methods for Goods of their type and that the Carrier shall not be obliged to give them any care, handling or stowage beyond that appropriate to Goods so packed.
13 . SPECIAL, CONTAINERIZED AND PERISHABLE GOODS: REFRIGERATION.
(1) The Carrier shall be entitled to carry any Goods of a perishable or special nature (including, without limitation, fruit, vegetables, fish and meat) in ordinary compartments, ordinary dry cargo containers or on deck and without special cooling, heating or ventilation facilities or attention unless noted overleaf in a typewritten provision that the Goods will be carried in refrigerated or heated or ventilated spaces or containers. The Merchant undertakes not to tender for transportation Goods which require refrigeration, ventilation, heating and the like without giving prior written notice of their nature prior to receipt by the Carrier with specific instructions as to temperature, ventilation, heating and the like.
(2) Unless a special agreement is made and inserted in this Waybill the Carrier does not undertake and shall not be liable for failure to give the Goods, whether or not of a perishable or special nature, any unusual or special care, handling, storage or facilities not given to ordinary non-perishable, general Goods, nor will it discharge or deliver the Goods into or to any refrigerated, chilled, cooled, ventilated, insulated, heated, drained, dry, moist, or specially equipped place, compartment, container or other facility, and the Merchant represents and warrants that the Goods do not require any such special care or facilities.
(3) If perishable Goods requiring special temperature are delivered to the Carrier in a refrigerated container, the Merchant undertakes that the Goods have the temperature provided on the face hereof and that they have been properly stowed and the thermostatic controls have been properly set by him before delivery of the Goods to the Carrier.
(4) The Merchant agrees that when a temperature is noted on the face hereof or if not noted and the ambient temperature for the carriage of the perishable commodity is known or recognized for ocean transportation of said perishable commodity, the Carrier will exercise reasonable care to maintain the ambient temperature in the refrigerated chamber or container plus or minus 2°C.
(5) In no event shall the Carrier be liable in any respect because heating, refrigeration or special cooling facilities are not furnished during loading, discharge or any part of the time that the Goods are on a dock, wharf, craft, or other loading or discharging place, and the Carrier does not undertake to furnish such facilities.
(6) The Carrier shall be under no responsibility whatsoever for loss of and/or damage to Goods arising out of defect, malfunction or irregularity of a container (whether a Merchant supplied container or not) unless such loss and/or damage arises out of causes for which the Carrier would otherwise be liable under this Waybill.
14. GENERAL AVERAGE.
General Average shall be adjusted, stated and settled according to the York/Antwerp Rules of 1994 or any subsequent modification thereof, at any port or place as selected by the Carrier and as to matters not provided for by these Rules, according to the laws and usages of London. Anything in this Waybill to the contrary notwithstanding, the cost of handling on board, restowing, reloading, discharging Goods or containers, fuel or stores, whether at port or place of loading, call or refuge, shall be admitted as General Average when the handling or discharge was necessary for the common safety or to enable the Vessel to be repaired and/or remedied, if the repairs or restowage were necessary for the safe prosecution of the voyage. In the event of accident, danger, damage or disaster, before or after commencement of the voyage resulting from any cause whatsoever whether or not due to any act, neglect or default of the Carrier the Goods and the Merchant, jointly and severally, shall contribute with the Carrier in General Average to the payment of any sacrifices, losses or expenses of a General Average nature that may be made or incurred, and shall pay salvage and special charges incurred in respect of the Goods. If a salving ship is owned or operated by the Carrier, salvage shall be paid for as fully and in the same manner as if such salving ship or ships belonged to strangers. Security including a cash deposit as the Carrier may deem sufficient to cover the estimated contribution of the Goods and any salvage or special charges thereof shall, if required, be submitted to the Carrier prior to delivery of the Goods. The Carrier shall be under no obligation to exercise any lien for General Average contribution due to the Merchant.
15 . BOTH-TO-BLAME COLLISIONS.
If the Vessel comes into collision with another ship as a result of the negligence of the other ship and/or any act, neglect or default of the Master, mariner, pilot or the servants of the Carrier in the navigation or the management of the Vessel, the Merchant will indemnify the Carrier against all loss or liability to the other or non-carrying ship or her owners insofar as such loss or liability represents loss of or damage to, or any claim whatsoever, of the Merchant, paid or payable by the other or non-carrying ship or her owners to the Merchant and set-off, recouped or recovered by the other or non-carrying ship or her owners as part of their claim against the carrying Vessel or Carrier.
The foregoing provisions shall also apply where the owners, operators or those in charge of any ship or ships or objects other than, or in addition to, the colliding ships or objects are at fault in respect of a collision or contact.
16 . FREIGHT AND CHARGES.
(1) Full freight and charges (including but not limited to inland freight, additional freight, deadfreight, demurrage, charges and all other amounts due herein) against the Goods shall be deemed fully earned on receipt of the Goods by the Carrier (whether intended to be prepaid or to be collect at the Port of Discharge or Place of Final Delivery or subsequently) and shall be paid and be non returnable in any event under all circumstances whatever, Vessel and/or Goods lost or not lost, or the voyage changed, frustrated or abandoned.
(2) Freight may be calculated on the basis of particulars furnished by or on behalf of the Shipper/Merchant. The Carrier may at any time (re)weigh, measure and value the Goods, and may (but without any obligation) open Packages, Containers or trailers to examine contents. If the particulars furnished by or on behalf of the Shipper/Merchant are incorrect or there is an error in freight or other charges and if on correction the freight or charges should be higher, the Carrier may collect the additional amount and the Merchant shall be liable for any expense incurred in examining, weighing, measuring and valuing the Goods.
(3) All such Freight, charges or sums of whatsoever nature payable to the Carrier are due from all persons defined as the Merchant (who shall be jointly and severally liable to the Carrier therefor) and shall be paid in full, without any set-off, counter-claim or deduction in the currency named in this Waybill or, at Carrier´s option, in other currency.
(4) Any person, firm or corporation engaged to perform forwarding services with respect to the Goods shall be considered the exclusive agent of the Merchant for all purposes and any payment of freight to such person, firm or corporation shall not be considered payment to the Carrier in any event. Failure of such person, firm or corporation to pay any part of the freight to the Carrier shall be considered a default by the Merchant in the payment of the freight.
Neither the Carrier nor the Vessel shall in any event be or become liable for any loss or damage to or in connection with the transportation of Goods in the following amounts:
(1) If this Waybill shall be subject to COGSA in accordance with Clause 2 (2), in an amount exceeding $500 per package lawful money of the United States, or in case of Goods not shipped in packages, per customary freight unit, or the equivalent of that sum in other currency;
(2) If this Waybill shall be subject to the Hague Rules by application of national law, in an amount exceeding the limit provided for by the applicable law. If the Hague Rules are applicable otherwise than by applicable law, notwithstanding Article IV Rule 5 of the Hague Rules, in an amount in excess of 100 pounds sterling per package or unit.
(3) If this Waybill shall be subject to the Hague Visby Rules, in an amount exceeding the limit provided for in the Hague Visby Rules.
(4) If this Waybill shall be subject to the Hamburg Rules, in an amount exceeding the limit provided for in Article 6 thereof and limited to 835 SDR per package or other shipping units or 2.5 SDR per Kilogram of gross weight of the Goods lost or damaged, whichever is higher.
(5) In the event the value of the Goods has been declared by the Merchant in writing before shipment and inserted on the face of the Waybill in the box MERCHANTS DECLARED VALUE, and provided extra freight or charges will have been paid thereon, the Carrier’s liability if any, for loss or damage to or in connection with the Goods shall be determined on the basis of such declared value or pro rata of such declared value in the case of partial loss or damage, provided such declared value does not exceed the actual value of the Goods. Charges for excess value declaration shall apply as per Carrier’s tariff.
(6) In no event shall the Carrier be liable for more than loss or damage actually sustained. The Carrier does not undertake that the Goods shall arrive at the Port of Discharge or the Place of Final Delivery at any particular time or to meet any particular market or use. The Carrier shall not be liable for any delay or loss or damage occasioned thereby or for any indirect, consequential or special damages of whatsoever nature and shall have the option of replacing any lost Goods and/or replacing or repairing any damaged Goods.
The Carrier shall have a lien on the Goods and any documents for all sums payable to the Carrier from the Merchant under this Waybill, including, without limitation all freight, inland freight, additional freight, dead freight, advances, general average contributions, demurrage, fines, taxes, damages, expenses and charges becoming due under this Waybill or which may be sustained or incurred by the Carrier, whether they are payable in advance or not. Any lien shall extend to the cost of recovering the sums due including the cost, expenses and legal fees of exercising such lien. Such lien shall not be lost by delivery of the Goods, and it may be enforced by public or private sale in any manner at the Carrier´s discretion, without notice to the Merchant.
19. NUCLEAR INCIDENT
The Carrier shall not be responsible for any loss or damage to the Goods arising or resulting from nuclear incident occurring at any time, unless caused solely by personal wilful misconduct of the Carrier.
20. NOTICE OF LOSS OR DAMAGE
(1) Unless Clause 28 applies, notice of loss or damage to the Goods indicating the general nature of such loss or damage must be given in writing to the Carrier or his agent at the Port of Discharge or Place of Delivery (as the case may be) before or at the time of the removal of the Goods into the custody of the Merchant or if the loss or damage is not apparent, within three days after delivery or in the case of perishable goods, within 24 hours after delivery, failing which such removal shall be prima facie evidence of the delivery by the Carrier of the Goods as described in this Waybill.
(2) Any claim against the Carrier for any adjustment, refund of or with respect to Freight, charges or expenses or any claim other than for loss or damage to Goods must be given to the Carrier or its agent in writing within 20 days from the day when the Goods were or should have been delivered.
(3) Notice of claim should be sent to the Carrier at the address set forth above.
21. TIME BAR
(1) Unless Clause 28 applies, the Carrier shall be discharged from all liability in respect of the Goods unless suit is brought and notice thereof is given to the Carrier within nine months after delivery of the Goods or in the case of a failure to make delivery of the Goods, within nine months after the date when the Goods should have been delivered.
(2) If this Waybill is compulsorily subject to the Hamburg Rules, any claim in relation to the Carriage of Goods will be time barred if judicial proceedings have not been instituted within a period of two (2) years from the day of delivery of the Goods or from the last day on which the Goods should have been delivered. Suit shall not be considered to have been brought within time specified unless formal notification of the suit shall have been actually served and/or jurisdiction obtained over the Vessel or Carrier within such time.
22. DISCHARGE, COLLECTION AND DELIVERY. DELIVERY BY MARKS
(1) The Port authorities are hereby authorised to grant a general order for discharging immediately after the arrival of the Vessel. The Vessel may commence discharging immediately on arrival and discharge continuously day and night, Sunday and holidays included any customs of the port to the contrary notwithstanding.
(2) At ports and places of discharge where the Carrier is required to discharge Goods into lighters or other craft by local law, local authorities or local custom, or where it has been so agreed or where piers and wharves which the Vessel can reach, lie at or depart from always afloat are not available or where prevailing conditions at the time render discharge to a pier or wharf dangerous or imprudent or would subject the Vessel, Goods and cargo of others to abnormal delay, the Merchant shall be required to furnish lighters or other craft and take delivery alongside the Vessel in such lighters or craft from the Vessel’s tackle at the risk and expense of the Goods. In such cases, if the Merchant fails or refuses to provide lighters or other craft, the Carrier acting as agent for the Merchant may engage lighters or craft for the risk and account of the Goods and upon discharge of the Goods into such lighters or craft, performance hereunder and delivery of the Goods shall be completed and the Carrier shall not be under any further responsibility with respect to the Goods.
(3) The Carrier shall not be liable for failure to deliver in accordance with leading marks unless such marks shall have been clearly and durably stamped or marked by the Merchant before shipment of the Goods in such a manner as to clearly identify such Goods and their port of discharge. Goods that cannot be identified as to marks and any unclaimed Goods not otherwise accounted for may at Carrier’s option be allocated for completing delivery to the various consignees of Goods of like character in proportion to any apparent shortage.
(4) Any mention in this Waybill of parties to be notified of the arrival of the Goods is solely for information of the Carrier, and failure to give such notification shall not involve the Carrier in any liability nor relieve the Merchant of any obligation hereunder.
(5) The Merchant shall collect the goods within the free storage time provided for in the Carrier’s applicable Tariff or otherwise. If the Merchant fails to do so without prejudice to any other rights of the Carrier hereunder, the Carrier may without notice unload the Goods or that part thereof from the vessel or the Container and/or store the Goods or that part thereof ashore, afloat in the open or under cover at the sole risk of the Merchant. Such storage shall constitute due delivery hereunder, and thereupon all liability whatsoever of the Carrier in respect of the Goods or that part of the Goods thereof shall cease, and the costs and expenses of such unloading or storage (if paid or payable by the Carrier or any agent or sub-contractor of the Carrier) shall forthwith upon demand be paid by the Merchant to the Carrier.
(6) If the Merchant fails to collect the Goods or part of them within thirty days of his having been notified of its arrival and/or agreed free time, or if in the opinion of the Carrier the Goods are likely to deteriorate, decay, become worthless or incur charges whether for storage of otherwise, the Carrier may without prejudice to any other rights which it may have against the Merchant, without notice and without any responsibility whatsoever attaching to the Carrier, sell, destroy or dispose of the Goods and apply any proceeds in reduction of the sums due to the Carrier from the Merchant in respect of this Waybill. Alternatively and at its sole discretion, the Carrier may (but it is not bound to) send the Goods back to either their point of origin, be the place of receipt or port of loading, at the sole risk and expense of the Merchant.
(7) The Merchant’s attention is drawn to the stipulations concerning free storage time and demurrage contained in the Carrier’s applicable Tariff, which are incorporated in this Waybill and are available at all times upon request to the Carrier at the address as set out above.
23. STOWAGE UNDER AND ON DECK. LIVE ANIMALS.
(1) The Carrier shall have the right to stuff Goods in containers and consolidate them with other Goods and containers.
(2) Goods, whether or not carried in containers, may be carried on deck or under deck without notice to the Merchant or any notation on the face hereof and all such Goods (including goods stowed in poop forecastle, deck house, passenger spaces, state rooms or any other covered space) whether carried on deck or under deck shall participate in General Average and shall, save as provided in Clause 23(3) below, be deemed to be within the definition of Goods for the purposes of the Hague Rules, Hague Visby Rules and COGSA and shall be carried subject to the provisions of Clause 2 of this Waybill.
(3) Notwithstanding Clause 23(2) above, in the case of Goods which are stated on the face hereof as being carried on deck and which are so carried and live animals, the Hague Rules, the Hague Visby Rules and COGSA shall not apply and the Carrier shall be under no liability whatsoever for loss, damage or delay howsoever arising during the carriage whether caused by unseaworthiness or negligence or any other cause whatsoever and they shall be carried at the sole risk of the Merchant.
(4) Live animals are carried without responsibility on the part of the Carrier for any accident, injury, illness, death, loss or damage arising at any time whether caused by unseaworthiness or negligence or any other cause whatsoever. The Merchant shall indemnify the Carrier against any claim, loss, damage or expense arising in consequence of the carriage of live animals.
24. DANGEROUS GOODS.
(1) No Goods which are or may become dangerous, inflammable or damaging (including radio-active materials) or which are or may become liable to damage any property whatsoever, shall be tendered to the Carrier for Carriage without his express consent in writing, and without the container (if any) as well as the Goods themselves being distinctly marked on the outside so as to indicate the nature and character of any such Goods and so as to comply with any applicable laws, regulations, International Conventions or requirements. If any such Goods are delivered to the Carrier, without such written consent and/or marking, or if in the opinion of the Carrier the Goods are or are liable to become of a dangerous, inflammable or damaging nature, they may at any time be destroyed, disposed of, abandoned, or rendered harmless without compensation to the Merchant and without prejudice to the Carrier‘s right to Freight.
(2) The Merchant undertakes that such Goods are packed in a manner adequate to withstand the risks of Carriage having regard to their nature and in compliance with all laws, regulations, International Conventions or requirements which may be applicable during the Carriage.
(3) Whether or not the Merchant was aware of the nature of the Goods, the Merchant shall indemnify the Carrier against all claims, losses, damages or expenses arising in consequence of the Carriage of such Goods whether or not arising out of the negligence of the same. Nothing contained in this Clause shall deprive the Carrier of any of its rights or immunities provided for elsewhere.
25. Application under NVOCC.
If this Waybill is issued to a Non Vessel Operating Common Carrier (NVOCC), who has in turn made other contracts of carriage with third parties, the said NVOCC hereby: a) undertakes that no claim or allegation in respect of the Goods shall be made against the Carrier by any person other than in accordance with the terms hereof which imposes or attempt to impose upon the Carrier or any vessel owned or operated by the Carrier any liability whatsoever in connection with the Goods, whether or not arising out of any act, neglect or default on the part of the Carrier, and if such claim or allegation should nevertheless be made to indemnify the Carrier against all consequences thereof, and b) warrants that all Bills of Lading or other documents recording the contracts of carriage issued by him in respect of the Goods shall incorporate the terms of this Waybill including the law and jurisdiction clause, and agrees to indemnify the Carrier, his servants, agents and subcontractors agains/t all consequences of his failing so to incorporate.
Non-performance or delay by the Carrier in exercisingits rights for any period of time under this Sea Waybill shall not be a waiver of any of the Carrier’s rights.
27. LAW AND JURISDICTION.
This Waybill and any claim or dispute arising hereunder shall be subject to English law and the exclusive jurisdiction of the English High Court of Justice in London. If, notwithstanding the foregoing, any proceedings are commenced in another jurisdiction by effect of legal provisions compulsorily applicable in such jurisdiction, such proceedings shall be referred to ordinary courts of law.
If anything herein contained is invalid under any compulsorily applicable International Convention or National law the provisions hereof shall to the extent of such invalidity but no further be null and void.
29. FINAL AGREEMENT.
All agreements or freight engagements for the shipment of the Goods are superseded by this Waybill and all its terms, whether written, typed, stamped or printed are accepted and agreed to by the Merchant to be binding as fully as if signed by the Merchant any local customer privileges to the contrary notwithstanding. Nothing in this Waybill shall operate to limit or deprive the Carrier of any statutory protection or exemption from or limitation of liability. This Waybill is in no sense the personal contract of the Carrier.