STANDARD TRADING CONDITIONS
INTRODUCTION
In the days of break-bulk, port-to-port carriage, carriers operated one contract only: the contract of carriage in the bill of lading as this covered all of their activities. With the advent of combined transport the contract of carriage had to be expanded to cover liability during land carriage as well as sea carriage and then gradually carriers started to offer additional services to their customers to create a “one stop shopping” approach by offering “value added services” which covered activities outside of the contract of carriage, such as Customs clearance, distribution, warehousing etc. in an effort to offer customers an all inclusive service and bind them into the carrier’s services by taking over their entire distribution network, so that the customer could concentrate on manufacturing or retailing, whichever was his business.
Many of these activities fell outside of the contract of carriage in the bill of lading and it was therefore necessary for the combined transport operator to develop a set of terms and conditions to cover activities that were not covered by the bill of lading contract. These terms and conditions had to be dovetailed into the bill of lading terms and conditions so that it was clear which are applied to any particular activity. The following standard trading conditions are designed to dovetail with the bill of lading terms and conditions described in Chapter 6.
Any carrier who undertakes services over and above the contract of carriage, without adopting a set of standard trading conditions to cover those services, risks operating without the protection of a contract. Accordingly the back-up of a set of standard trading conditions is vital to a combined transport operator.
CONDITIONS
Preamble
The majority of services offered by the Company and its subsidiary organizations are covered by the contract of carriage, the terms of which appear in the Bill of Lading terms and conditions and Tariff for the trade in question. However some value added services are offered which fall outside the scope of the contract of carriage. In order to formalize the relationship of the Company with its Customers on such occasions the following Standard Trading Conditions are published.
(The Customer’s attention is drawn to the clauses herein which exclude or limit the Company’s liability and those which require the Customer to indemnify the Company in certain circumstances).
The preamble merely introduces the conditions and outlines briefly the reason for them and when they will apply. These are terms and conditions, rather like the bill of lading terms and conditions, where the company will always find difficulty in showing that the terms and conditions have been brought adequately to the attention of the customer and the third paragraph of the preamble is an attempt to warn a customer who does not read the whole conditions that there are provisions therein of which he should make himself aware.
1. Definitions
In these conditions:
‘The Company’ means [………]
‘Customer’ means any person to whom the Company provides any services.
‘Person’ includes individuals, groups, companies or any other legal entity.
‘Owner’ means the owner of the goods to or in respect of which the Company provides any services and any other Person who has or may acquire an interest in them.
‘Goods’ means all or any part of the goods (including any packaging, containers or equipment supplied by the Customer or Owner) which are the subject of any Services.
‘Conditions’ means the provisions of this contract.
‘Instructions’ means any statement of the Customer’s requirements, whether verbal or written.
‘Service(s)’ means all or any business undertaken by the Company for the Customer including the provision of advice, information and any services whatsoever.
‘Sub-Contractor’ means direct and indirect sub-contractors and their respective servants, agents and sub-contractors.
Any reference in these Conditions to agreement in writing that varies these terms and conditions must be on the Company’s stationery and signed by an authorized official of the Company.
Like the bill of lading terms and conditions, these conditions start with a series of definitions of important words, which are self-explanatory. The clause finishes with a provision that any variation of the terms and conditions has to be on the company’s stationery and signed by an authorized official of the company.
2. Application
Any Services provided by the Company, whether gratuitous or otherwise, shall be subject to these Conditions unless:
A. The Company contracts in writing with the Customer on alternative terms and conditions, including, but not limited to, issuing Bills of Lading, Air or Sea Waybills or any other contract for carriage or any other Service to Goods, or
B. Any Conditions herein are contrary to any mandatory applicable law relating to the Services undertaken by the Company on behalf of the Customer.
In which case the alternative terms and conditions or mandatory applicable law shall be paramount and prevail to the extent of any inconsistency with these Conditions (but no further). In case of (A) or (B) these Conditions shall continue to operate in respect of any Services to which the alternative terms and conditions or mandatory law do not apply or in respect of any matter upon which they are silent.This clause provides for when the conditions shall apply by creating a formula as follows:
They apply to all Services provided by the company unless:
a) that service is covered by a separate specific alternative contract agreed between the company and the customer or the bill of lading contract;
or
b) any of the conditions are contrary to applicable law.
In either of these cases the alternative terms specifically agreed, the bill of lading contract or the mandatory law overrides and is paramount, but only to the extent of such conflict and, if there is no provision in these contracts or law for anything which is covered in these conditions, then the provisions in these conditions apply.
3. Role
A. Unless specifically agreed in writing between the Customer and the Company prior to the commencement of the Service, the Company shall be at liberty to provide the Service as a principal or to procure it as an agent, in either case subject to the appropriate Conditions herein.
B. The agreement of a price for the Service is not of itself an indication of whether the Company is acting as a principal or as an agent.
This clause provides for the carrier to be able to choose whether he acts as principal or agent, unless the customer and the company specifically agree in writing prior to the commencement of the service that the company will act in any particular agreed role. The mere fact that a price is agreed for a service is not an indication that the company is acting as a principal.
4. The Company’s General Conditions
A. Performance: The Company will undertake the tasks necessary to provide the contracted Services to the Customer with a reasonable degree of care and skill and, subject to Clause 8(D), within a reasonable timescale.
An undertaking by the company to exercise a reasonable degree of care and skill and to perform services within a reasonable timescale (subject to the provisions regarding consequential loss and delay in clause 8(D).
B. Deviation from Customer’s Instructions: Whilst, subject to these Conditions, the Company will take reasonable steps to perform the Customer’s Instructions, if at any time the Company, in its sole discretion, considers that there is good reason, in the Customer’s interest, to depart from any of the Customer’s Instructions, it shall be free to do so without prior notice to the Customer or incurring any additional liability as a result thereof.
In this sub-clause the company takes to itself the right to deviate from the customer’s instructions if it considers it to be in the customer’s best interest to do so. The sub-clause provides for this to be done without prior notice to the customer in case the customer cannot be contacted or there is not time to do so, but clearly any reasonable carrier would consult the customer beforehand if this were possible.
C. Customer fails to take Delivery: If Services provided involve the handling and/or carriage of Goods and the Customer, Consignee or Owner fails to take delivery thereof at the time and place when and where the Company is entitled to call upon such Person to take delivery thereof, the Company shall be entitled to store said Goods, at the sole risk of the Customer, whereupon the Company’s liability (if any) for the Goods shall wholly cease. The cost of such storage, if paid or payable by the Company or any of its agents or Sub-Contractors, shall forthwith, upon demand, be paid by the Customer to the Company.
This sub-clause provides the company’s rights in the event of the customer failing to take delivery of goods in the agreed manner, if the service provided is one involving the handling and/or carriage of goods. As with all contracts of this nature, it has to provide for a worst possible scenario and is not necessarily an indication of the action which the company would pursue initially in such a situation.
D. Disposal of Goods: If the Services provided involve the handling, storage and/or carriage of Goods and the Customer fails to take delivery thereof in accordance with Clause 4(C), the Company shall be entitled to dispose of the Goods, at the expense of the Customer, by sale or otherwise at the Company’s sole discretion, after the Goods have been in the Company’s control for 30 days.
The Company shall give 14 days’ notice in writing to the Customer of any intention to dispose of the Goods. However, in respect of Goods that, in the sole opinion of the Company, are likely to deteriorate, decay, become worthless or incur charges in excess of their value, or Goods which may cause loss or damage to other Goods, injury to Persons or contravene any applicable laws or regulations, the Company may dispose of such Goods immediately without prior notice to the Customer.
The proceeds of sale, after deducting the cost of sale and any sums whatsoever due by the Customer to the Company for this or any earlier Services, shall be held by the Company to the credit of the Customer. The Customer shall forth-with upon demand remit any shortfall between the proceeds of sale and the sums owed by him to the Company.
This sub-clause follows clause 20(3) in the bill of lading, adapted to cover the different situation envisaged which might bring about its application. It starts by giving the company the right to dispose of the goods at the expense of the customer; however they think fit, if the customer fails to take delivery in accordance with sub-clause 4(C) after the goods have been in the company’s control for 30 days. Unlike in the bill of lading, provision is made for the company to give fourteen days’ notice in writing to the customer of any intention to dispose of the goods, unless this is impractical because the goods are deteriorating and, in the sole opinion of the company, likely to become worthless or incur charges in excess of their value in that time.
The sub-clause concludes with a provision requiring the customer to remit any shortfall if the sale realizes insufficient funds or for the company to hold any surplus to the credit of the customer.
E. Separate Service to Goods: Services to Goods may be undertaken in conjunction with goods of other customers or third parties, unless specifically agreed in writing prior to commencement of the Services.
Self-explanatory.
F. Effecting Insurance: No insurance will be effected, except upon express instructions given in writing by the Customer, and all insurances effected by the Company are subject to the usual exceptions and conditions of the policies of the insurance company or underwriters taking the risk. Unless otherwise agreed in writing, the Company shall not be under any obligation to effect a separate insurance on each consignment but may declare it on any open or general policy held by the Company. Insofar as the Company agrees to arrange insurance, it acts solely as agent for the Customer to arrange such insurance.
This sub-clause provides as follows:
i insurance is not effected automatically, only upon the express instructions of the customer;
ii when effected, insurance is subject to the usual exceptions and conditions of the policy upon which the insurance is placed;
iii the company may effect insurance by means of making a declaration on their open cover and need not effect a separate cover;
iv the company acts as agent only in effecting insurance.
G. Declarations: Except in accordance with Instructions in writing previously received and accepted by the Company, the Company shall not be obliged to make any declaration for the purpose of any statute, convention, contract or other requirement as to the nature or value of any Goods, any characteristic of any Goods or Services to any Goods.
The company will not make any declaration to any parties in respect of goods handled, except upon explicit instructions from the customer.
H. Special Delivery Arrangements: Except by prior written agreement or under the terms of a printed document signed by the Company, any Instructions relating to the delivery or release of Goods in specified circumstances only, such as (but without prejudice to the generality of this Clause) against payment or against surrender of a particular document, are accepted by the Company only as agents for the Customer if third Persons are engaged to effect compliance with the Instructions.
The Company shall not be under any liability in respect of such arrangements unless such arrangements are made in writing. In any event, the Company’s liability in respect of the performance of such Instructions shall not exceed that provided for in these Conditions in respect of loss of or damage to Goods.
This sub-clause covers a situation where the customer requests special delivery arrangements, such as cash on delivery. Such arrangements have to be agreed in writing by the company beforehand and, if the delivery is not effected by the company direct but by a sub-contractor, the company acts as an agent only. Any liability of the company arising from accepting such instructions is subject to the provisions elsewhere in these conditions covering loss of or damage to goods.
5. The Company as a Principal
In the same way as clauses 5 and 6 of the bill of lading were the only clauses that did not refer to both port-to-port and combined transport, so clauses 5 and 6 of the standard trading conditions are the only clauses which do not refer to the company acting both as a principal and as an agent. Clause 5 provides for where the company agrees to act as a principal (in accordance with clause 3) and provides for the standard trading conditions to apply, to the extent that a separate contract under agreed terms has not been signed between the parties. Except where this is the case, the following conditions apply specifically to where the company acts as a principal.
If, in accordance with Clause 3 hereof, the Company agrees to act as a principal, then it will perform, or in its own name procure the performance of the Services contracted, subject to the provisions of any specific contract for Services which it may issue subject to Clause 2(A), failing which these Conditions in general and this Clause in particular shall apply.
A. Liberties: The Company is not a common carrier and, except to the extent provided in Clause 2 hereof, contracts on the basis of these Conditions alone. The Company reserves to itself the liberties as to the means, routes and procedures to be followed in the handling, storage and carriage of Goods.
In this sub-clause the company provides that it is not a common carrier. This has different implications in different jurisdictions but, the most important point is that the company can refuse to accept goods for services and is not obliged to accept all goods offered to it.
The sub-clause further reinforces that these conditions apply in respect of all services undertaken, unless specific terms are agreed and signed between the parties, and provides for the company to have discretion as to how it carries out the services for which it has contracted with the customer.
B. Period of Responsibility: If the Company contracts to provide Services as a principal, it accepts liability for loss of or damage to Goods occurring between the time when it takes the Goods into its charge and the time when it is entitled to call upon the Customer, Consignee or Owner to take delivery of the Goods. The Company shall be deemed to have taken the Goods into its charge when the Goods have been received by the Company or have been released or handed over by the Customer, or any Person acting on behalf of the Customer, to any Person acting on behalf of the Company in accordance with any directions of the Company for the performance of the Services. The Company shall be deemed to have delivered the Goods, either when they have been placed at the disposal of the Customer (or its nominee) and notice thereof has been given to the Customer (or its nominee) at the address provided by the Customer, following completion of the contracted Service(s), or following the implementation of Clause 4(B), (C) or (D).
This sub-clause provides for the company to be responsible for goods, where it has agreed to act as a principal, from the time when it takes the goods into charge to the time when it is entitled to call upon the customer, consignee or owner to take delivery of the goods. It then proceeds to define more closely how to identify these particular times in order to avoid any confusion or misunderstanding.
C. Liabilities: The Company’s liabilities will be as provided in Clause 8 hereof.
This sub-clause is self-explanatory.
6. The Company as an Agent
This sub-clause provides for where the Company acts as an agent.
If, in accordance with Clause 3 hereof, the Company acts as an agent then, without prejudice to the general applicability of these Conditions, its responsibilities shall be as follows:
A. Agency: The Company shall be entitled and the Customer hereby expressly authorizes the Company, except in so far as has been otherwise specifically agreed between the Company and the Customer, to enter into contracts with third parties on behalf of the Customer for the Service required. (Third parties for the purpose of this Clause, includes the Company’s parent, subsidiary and/or associated companies).
When acting as an agent the Company does not make, or purport to make, any contract with the Customer for Services, but acts solely on behalf of the Customer in establishing contracts with third party contractors for the Services required, so that a direct contractual relationship is established between the Customer and such third party contractor.
This sub-clause provides for the customer to authorize the company, when acting as an agent, to enter into contracts on behalf of the customer with third parties for the services required. (“Third parties” is defined to include any associated companies etc. of the company, in case the company is a conglomerate.) The sub-clause finishes with a provision which outlines the duties and responsibilities of an agent, which would have applied even in the absence of such a clause as this is the generally accepted definition of what an agent does.
C. Contracting Terms with Third Parties: If there is a choice of prices according to the extent or degree of the liability assumed by third party contractors, no declaration of value will be made, except under prior Instructions received in writing and accepted by the Company; nor shall the Company be under any liability to the Customer by reason of having entered into any contract on behalf of the Customer, whereby the extent or degree of the liability assumed by a third party contractor is in any respect excluded or limited, unless such contract is entered into contrary to prior written Instructions given by the Customer and accepted in writing by the Company.
This sub-clause gives the company the right to enter into contracts with third parties on behalf of the customer upon whichever terms the company considers appropriate, unless the customer gives prior specific written instructions to the contrary. This means that, if there is a choice of rates with the cheaper rate offering a lower level of recourse, the company may opt for the cheaper rate in the absence of specific instructions to the contrary.
C. Evidence of Contract with Third Party Contractor: The Company shall, on demand by the Customer, provide evidence of any contract entered into as agent for the Customer. Insofar as the Company may be in default of this obligation, it shall be deemed to have contracted with the Customer as a principal for the performance of the Customer’s Instructions.
If the company wishes to be able to claim to act as an agent it must, upon demand by the customer, provide evidence of any contract entered into on behalf of the customer. If it fails to do so then it is deemed to act as a principal.
7. Customer’s Warranties and Indemnities
This clause contains important warranties and indemnities to protect the company in respect of the services which it renders on behalf of the customer. Many of the warranties and indemnities found here are very similar to those found in the bill of lading.
A. Goods: The Customer warrants that, unless the Customer provides prior written notification to and obtains written agreement from the Company; the Customer will not tender for Services any Goods which are:
(a) Hazardous/Obnoxious Goods:
i. classified by the IMO Dangerous Goods Code as being hazardous,
ii. nevertheless of a dangerous, damaging or obnoxious nature, so as to be liable to cause damage to any other goods or to be a risk to property, life or health, or
iii. likely to harbor or encourage vermin or other pests.
a) High Value Goods: of a valuable nature (which description shall include but not be restricted to bullion, coin, precious stones, jewellery, works of art, antiques and valuables of all kinds).
b) Perishables: perishable and require temperature controlled conditions or have a short shelf-life.
c) Packing/Marking: not properly and sufficiently prepared, packed, stowed, labeled and/or marked for the Services for which they are being tendered, unless those Services include said tasks.
If the Goods are tendered in/on containers, trailers, flats, railway wagons, tanks, igloos, or any other unit load device specifically constructed for the carriage of goods by land, sea or air, (each hereafter individually referred to as ‘transport unit’) then, unless the Company has accepted Instructions as principal to load the transport unit, the Customer also warrants that:
i. the Goods have been properly and competently loaded into/onto the transport unit;
ii. the Goods are suitable for carriage in/on the transport unit being utilized, and
iii. the transport unit is in a suitable condition to carry the Goods loaded therein/on,
and if nevertheless Goods which breach any of the warranties in this Clause 7(A) are tendered for Services, the Customer shall indemnify the Company, its servants, agents and Sub-Contractors against all penalties, claims, damages, costs and expenses of whatsoever nature and howsoever arising in connection with such Goods.
Unless prior arrangements have been made and prior written acceptance obtained from the Company, no liability whatsoever, howsoever arising, will be accepted by the Company in connection with such Goods and the Company, their servants, agents and/or Sub-Contractors may deal with such Goods as they, in their sole discretion, consider appropriate.
In this sub-clause the customer makes warranties in respect of any goods tendered for services. He warrants that, unless he provides prior written notification and obtains the written agreement of the company, he will not tender the following goods for service:
a) hazardous/obnoxious goods;
b) high-value goods;
c) perishables;
d) improperly packed or marked goods.
The customer also warrants that any goods tendered already packed in some way have been properly packed in a transport unit suitable for their carriage. Failure to comply with any of the requirements of this sub-clause leads to the customer having to indemnify the company, its servants, agents and subcontractors against all consequences thereof. Also, if the customer fails to make prior arrangements with and obtain prior written agreement from the company before tendering such goods, the company reserves the right to deal with such goods as it considers appropriate, in its sole discretion.
B. Details of Goods: The Customer warrants that the description and particulars of the Goods furnished by or on behalf of the Customer or Owner are complete and accurate and include all data necessary to accomplish the required Services safely and effectively.
This sub-clause is self-explanatory.
C. Authority: The Customer warrants that he is either the Owner or has the authority of the Owner to contract with the Company for the Services.
This sub-clause is equivalent to bill of lading clause 3. As the company has no way of knowing whether or not the customer is entitled to contract with the company for the services, the company requires a warranty from the customer that he is entitled to do so.
D. Circular Indemnity: The Customer warrants that no claim or allegation shall be made by any Person against any parent, subsidiary or associate company, director, servant, agent, Sub-Contractor or employee of the Company (hereinafter referred to as ‘such Persons’) which imposes or attempts to impose upon any of such Persons any liability whatsoever in connection with any Services and/or Goods (whether or not arising out of negligence on the part of such Persons) unless the Company is acting as an agent only in accordance with Clause 6 and such Persons are independent contractors providing a Service to the Customer through the agency of the Company, in which case the Customer may proceed against such Persons under the terms of the contract procured on its behalf from such Persons by the Company acting as an agent only. Excepting for such instance, if any such claim or allegation should nevertheless be made, the Customer will indemnify the Company and such Persons against all consequences thereof.
Without prejudice to the foregoing, unless trading directly with the Customer under its own conditions through the agency of the Company, every such Person shall have the benefit of every right, defence, limitation and liberty of whatsoever nature herein contained or otherwise available to the Company as if such provisions were expressly for his benefit; and in entering into this contract the Company, to the extent of these provisions, does so not only on its own behalf but also as agent and trustee for such Persons.
The Customer further warrants that no claim or allegation in respect of any Services or Goods shall be made against the Company by any Person other than in accordance with these Conditions which imposes or attempts to impose upon the Company any liability whatsoever, whether or not arising out of negligence on the part of the Company and, if any such claim or allegation should nevertheless be made, to indemnify the Company against all consequences thereof.
This sub-clause is the equivalent of clause 4 of the bill of lading and is the link in the chain of indemnity in the standard trading conditions. However, as in these conditions the company may be acting as an agent, it is necessary to exclude this situation from the circular indemnity in order to allow the customer to proceed against any third party with whom the company may have contracted on behalf of the customer whilst acting as agent only. Accordingly the clause provides for the circular indemnity to operate only when the company acts as a principal.
Ε. Acting on Customer’s Instructions: The Customer shall indemnify the Company against all liability, loss, damage, cost and expense whatsoever and howsoever arising as a result of the Company acting in accordance with the Customer’s Instructions or arising from any breach by the Customer of any warranty contained in these Conditions or from the negligence of the Customer.
This is an indemnity to the company against the consequences of acting in accordance with the customer’s instructions, arising from any breach by the customer of any warranty in these conditions or from the negligence of the customer.
F. Duty, Fines, etc: The Customer shall be liable for and shall indemnify the Company in respect of all duties, taxes, imposts, levies, deposits and outlays of whatsoever nature levied by any authority in relation to the Goods and for all payments, fines, costs expenses, loss or damage whatsoever and howsoever incurred or sustained by the Company in connection therewith.
This sub-clause is self-explanatory.
G. General Average: The Customer shall indemnify the Company in respect of any claims of a General Average or Salvage nature which may be made on it and shall provide such security as may be required by the Company in this connection on demand.
This sub-clause provides for the customer to be responsible for any general average or salvage costs incurred by goods during the period that the company is providing services on them.
H. Information Indemnity: Advice and information, in whatever form it may be given, is provided by the Company for the Customer only and the Customer shall indemnify the Company against any liability, claim, loss, damage, cost or expense arising out of any other Persons relying upon such advice or information. Except under special arrangements previously made in writing, advice and information which is not related to Instructions accepted by the Company is provided gratuitously and without liability.
This sub-clause refers to information or advice which the company may give to the customer relating to some matter in connection with instructions received by the company from the customer. It provides that such advice is for the customer’s use only and, if the customer passes it on to another party who suffers any loss etc. as a result of relying upon it, the customer indemnifies the company if that other party brings any action against the company based on that advice.
If the company gives advice to the customer on matters not related to instructions to the company by the customer, such advice is provided gratuitously and without liability.
I. EDI Transmission: In the event of Instructions data being transmitted via electronic communication, the Customer accepts that the sender is responsible for the quality of such Instructions or data.
This sub-clause is self-explanatory.
8. Liability
A. Time Bar: Any claim by the Customer against the Company in respect of any Service must be made in writing without delay. In the event of delay in presentation of a claim causing prejudice to the Company’s ability to investigate said claim or reserve its rights against its Sub-Contractors, the Company shall be relieved of any liability in respect of such claim.
In any event, the Company shall be discharged of all liability whatsoever and howsoever arising in respect of any Service provided for the Customer unless suit be brought and written notice thereof given to the Company within nine months from the date of any event or occurrence alleged to give rise to a cause of action against the Company.
This sub-clause provides the time bar in respect of any claims by the customer against the company. It provides for notice of any claim to be made in writing without delay and for a claim to be time barred if delay prejudices the company’s ability to investigate the claim or reserve its rights against the contractor whom it engaged to undertake the service required. In any event any claim becomes time barred nine months after the date of any event or occurrence alleged to have given rise to a course of action against the company, unless the customer commences suit beforehand.
B. Exclusions: Whether the Company acts as agent or principal it shall be relieved of liability for loss, damage or expense if and to the extent that same was caused by:
a. the act or omission of the Customer, or Person other than the Company acting on behalf of the Customer, Owner or of the Person from whom the Company took the Goods in charge;
b. insufficiency of the packing and/or marks and/or labels and/or numbers unless the Company had undertaken to carry out the packing, application of marks or labeling or numbering of the Goods;
c. handling, loading, stowage or unloading of the Goods by the Customer, Owner or any Person other than the Company acting on behalf of the Customer;
d. inherent vice of the Goods;
e. strike, lock out, stoppage or restraint of labor;
f. a nuclear incident;
g. any cause or event which the Company was unable to avoid and the consequences whereof the Company was unable to prevent by the exercise of reasonable diligence;
h. any act or omission of the Company the consequences of which it could not reasonably have foreseen;
i. compliance with the instructions of any Person entitled to give them.
The burden of proving that the loss or damage was due to one or more of the above causes or events shall rest upon the Company.
The exclusions listed in this sub-clause are comparable with those listed in clause 6(1) to the bill of lading and the comments made in Chapter 6 are equally applicable here.
C. Limits of Liability: Subject to Clause 2, unless the Company agrees in writing to accept alternative levels of liability (in which case such limits as agreed shall be substituted for those provided in this Clause), the Company’s liability (if any and whether acting as principal or agent), howsoever arising, and notwithstanding that the cause of loss, damage or expense is unexplained, shall not exceed:
a) in the case of claims for loss or damage to Goods:
i. the value of any Goods lost or damaged, or
ii. a sum at the rate of two Special Drawing Rights as defined by the International Monetary Fund, (hereinafter referred to as SDRs), per kilo of gross weight of any Goods lost or damaged,
whichever shall be the lesser.
b) in the case of all other claims:
i. the value of the Goods the subject of the relevant Service; or
ii. a sum at the rate of two SDRs per kilo of the gross weight of the Goods the subject of the said Service, or
iii. 75,000 SDRs in respect of any one Service,
whichever shall be the lesser.
For the purposes of this Clause the value of the Goods shall be their value at the place and time they are delivered to the Consignee in accordance with the relevant Service or should have been so delivered. The exchange from SDRs to settlement currency shall be calculated at the rate applicable on the date when the claim is paid.
Details of the Company’s additional charges for accepting increased liability will be provided on request.
Unless the customer agrees an alternative limit with the company in writing, the limits of liability as provided in this clause shall apply, whether the company is acting as a principal or as an agent. These limits will apply whether the cause of the loss etc. is obvious or unexplained.
In the event of claims for loss or damage to goods, liability is limited to the lesser of the value of the goods lost or damaged or 2 SDRs (special drawing rights) per kilo of the gross weight of any goods lost or damaged.
In the case of all other claims limitation is the same but with the added maximum limit of any one service of 75,000 SDRs.
The value of goods for the purposes of claim is their value at the place and time when they are delivered or should have been delivered. The exchange from the currency of the claim into SDRs is calculated at the rate applicable on the date when the claim is paid.
The sub-clause finishes with an offer of details of the company’s additional charges for accepting increased liability to be available on request to the company from the customer. The purpose of this provision is to make it clear that the customer has an alternative in order to protect these conditions against any claim of breach of the Unfair Contract Terms Act.
D. Consequential Loss/Delay: Except by prior written agreement, the Company shall not in any circumstances, whatsoever or howsoever arising, be liable for indirect or consequential loss, such as (but not limited to) loss of profits, loss of market or the consequences of delay or deviation howsoever caused.
However, if pursuant to Clause 4(B) the Company accepts any liability for delay, liability shall in no circumstances exceed a sum equal to twice the amount of the Company’s charges in respect of the relevant Service.
The defenses and limits of liability provided for in these Conditions shall apply in any action against the Company whatsoever, howsoever arising, whether the action be founded in contract, tort or otherwise.
This sub-clause provides that, except by prior written agreement, the company accepts no liability for consequential loss or delay. However, if the company does agree to accept liability for delay, such liability is limited to a sum equal to twice the amount of the company’s charges in respect of the relevant service.
Postscript: The clause ends with a provision that the conditions apply in any action against the company, whether such action be founded in contract, tort or otherwise.
9. Payments, etc.
A. Payment of the Company’s Invoices: The Customer shall pay to the Company in cash or as otherwise agreed all sums immediately when due, without reduction or deferment on account of any claim, counterclaim or set off. If any sum due is still unpaid 30 days after the date of the invoice, the Company shall be entitled to add interest at 2% above the minimum lending rate of the local national bank for any period in excess thereof.
This sub-clause provides for the company’s invoices to be paid in cash (or as otherwise agreed) immediately when due. Claim, counterclaim or set-off is no excuse for delayed payment. Interest at two per cent above the minimum lending rate of the local national bank must be paid on any sums outstanding 30 days after the date of the invoice.
B. Collecting Charges for Customer: Despite the acceptance by the Company of Instructions to collect freight, duties, charges or other expenses from the Consignee or any other Person, the Customer shall remain responsible for such freight, duties, charges or expenses on receipt of evidence of proper demand and in the absence of evidence of payment (for whatever reason) by such Consignee or other Person when due.
Even though the company may accept instructions from the customer to collect freight, duties, charges or other expenses from the consignee, the customer remains responsible for such costs and must pay them on demand, unless he can produce evidence of payment by the consignee or some other person.
C. Lien:
a) Subject to sub-clause (b), the Company shall have a general lien on all Goods and documents relating to Goods in its possession, custody or control for all sums due at any time from the Customer or Owner, in respect of Services to the Goods under lien or of any earlier Services on other Goods, and shall be entitled to sell or dispose of such Goods or documents as agent for and at the expense of the Customer and apply the proceeds in or towards the payment of such sums. Upon accounting to the Customer for any balance remaining after payment of any sum due to the Company and the costs of sale or disposal, the Company shall be discharged of any liability whatsoever in respect of the Goods or documents.
b) If the Goods, in the sole opinion of the Company, are liable to perish or deteriorate, the Company’s right to sell or dispose of the Goods shall arise immediately upon any sum becoming due to the Company taking reasonable steps to bring to the Customer’s attention its intention of selling or disposing of the Goods before doing so.
Sub-clause (a) provides for the company to have a general lien on all goods and documents. That is to say a lien on any goods and documents held at that time, not only for any charges on those goods, but also for any unsatisfied charges on earlier consignments. Applying the lien the company may sell or dispose of the goods and documents as agent for and at the expense of the customer in order to realize funds towards the payment of the customer’s outstanding liability to the company. After the sale the company will account to the customer for any balance remaining (or debit still outstanding) and thereafter the liability of the company in respect of those goods or documents shall be discharged.
In sub-clause (b) it is particularly provided that, if the company considers the goods are liable to perish or deteriorate, the lien arises immediately upon any sum becoming due and the right to sale in such circumstances is subject only to the company taking reasonable steps to inform the customer of its intention to sell or dispose of the goods before doing so.
(D) Brokerages, Commissions, etc: The Company shall be entitled to be paid and retain all brokerages, commissions, allowances and other remunerations customarily retained by or paid to freight forwarders.
This sub-clause provides for the company to retain any brokerages or commissions earned in respect of services procured from third parties by the company, acting either as agent or principal, on behalf of the customer.
Takis Kalogerakos
Marine Underwriter
www.greenwoods.org
