The following terms and conditions govern while the goods are in the custody of the water-carrier named as Carrier on the face side of this Bill of Lading. During any connecting water, rail or motor carriage prior to or subsequent to the time the water-carrier has custody of the goods, such carriage shall be governed by and subject to the terms and conditions of the rail or motor carrier’s bill of lading or other contract of affreightment. In the event of loss, damage or delay of the goods the Carrier having custody of the goods at the time of such event of loss, damage or delay shall be responsible, therefore, in accordance with the terms and conditions of the governing bill of lading or other contract of affreightment. In the event the time of such loss, damage or delay cannot be determined, and water-carrier has arranged through routes and rates or joint routes and rates, it shall be presumed that such loss, damage or delay of the goods occurred while the water-carrier had possession of the goods.
1. CLAUSE PARAMOUNT. This Bill of Lading and the applicable tariff of Carrier shall have effect while the goods are in the custody of the Vessel or Carrier, its agents, servants, and independent contractors. When this Bill of Lading governs it is subject to the provisions of the Carriage of Goods by Sea Act of the United States, approved April 16, 1936 (“COGSA”) which are incorporated herein, and nothing herein contained shall be deemed a surrender by Carrier of any of its rights immunities or limitations or an increase of its responsibilities or liabilities under COGSA. If any term of this Bill of Lading is repugnant to COGSA to any extent, such term shall be void to that extent, but no further. COGSA shall govern throughout the time the goods are in the custody of or are the responsibility of Carrier including before the goods are loaded on and after they are discharged from the Vessel. The terms of this Bill of Lading shall be separable and if any term hereof is invalid or unenforceable, such circumstances shall not affect the validity or enforceability of any other part or term hereof. Carrier shall be entitled to the full benefits of all rights and immunities and all limitations of the exemptions from liability provided in or authorized by 46 U.S.C. Sections 181 to 186, inclusive and 188. Carrier shall also be entitled to the full benefit of all rights and immunities and all limitation of or exemptions from liability contained in any law of the United States or any other country or place whose laws shall be applicable. This Bill of Lading shall not be deemed to give rise to a personal contract of Carrier. Nothing on this Bill of Lading expressed or implied shall be deemed to waive or operate to deprive Carrier of or lessen the benefits of any such rights, immunities, limitations or exemptions. If this Bill of Lading is issued in Canada, it shall have effect subject to The Water Carriage of Goods Act, 1936, of the Dominion of Canada which in such event it is deemed to be incorporated herein (except as otherwise specifically provided for herein) and nothing contained in this Bill of Lading is deemed a surrender by the Carrier of any of its rights, immunities, exemptions or liberties or an increase of any of its responsibilities or liabilities under such Act. If anything herein contained be valid under such Act, insofar as it applies as a matter of law, it shall to the extent of such invalidity but not further be null and void.
2. DEFINITIONS. In this Bill of Lading the word “Vessel” shall include the vessel named in this Bill of Lading, its towing tug or tugs, if the named Vessel is a barge, any substitute vessels and any craft, lighter, towboat or other vessel used in the performance of this Bill of Lading. The word “Carrier” shall include the company named as Carrier on the face side of this Bill of Lading, the Vessel as defined herein and her owners, operators and demise characters, any substituted Carrier and also any time charterer or person to the extent bound by this Bill of Lading, whether acting as Carrier or bailee. The word “Shipper” shall include the person named as such in this Bill of Lading, the shipper, the consignee and the owner of the goods, the holder of this Bill of Lading and the person for whose account the goods are shipped. The word “goods” means the cargo accepted from Shipper and includes the containers and/or rolling equipment not supplied on behalf of Carrier. The word “person” shall include an individual corporation, partnership and any other entity. The words “relay service” means the transfer of the goods before the sea port of discharge from the Vessel named in this Bill of Lading to a substitute vessel operated by Carrier and for which Carrier assumes responsibility for completion of the sea voyage described in this Bill of Lading. The words “feeder service” mean the transfer of the goods before the sea port of discharge from the Vessel named in this Bill of Lading to a substitute vessel operated by a person other than Carrier and for which Carrier assumes responsibility for completion of the sea voyage described in this Bill of Lading. The words “intermodal service” mean a combined land and sea service pursuant to an applicable tariff whereby the land portion of the service is performed by a rail or truck carrier and the sea service is performed by Carrier. The word “charges” shall include freight and all general average, salvage, special charges, expenses, amounts and money obligations whatsoever payable by or chargeable to or for account of the obligations whatsoever payable by or chargeable to or for account of the goods or Shipper regardless of whether sustained, incurred or paid by Carrier in the first instance. The word “package” shall include any piece, shipping unit, machine or article of any description whether or not enclosed or boxed in whole or in part, except goods shipped in bulk, provided, however that in the case of goods carried in containers, vans or trailers. The word “package” shall mean the container, van or trailer.
3. SCOPE OF VOYAGE/LIBERTIES. The scope of voyage herein contracted for shall include usual or customary ports of call, whether named in this Bill of Lading or not, and also ports in and out of this geographical, usual or ordinary route or order, even though in proceeding thereto the Vessel may sail beyond the port of discharge or in a direction contrary thereto or return to the original port or depart from the direct or customary route, and includes all canals, straits and other waters. The Vessel may call at any port for the purposes of the current voyage or of a prior or subsequent voyage, may omit calling at any port or ports, whether scheduled or not, and may call at the same port more than once. The Vessel may, for matters occurring before loading the goods, known or unknown at any time of such loading, and matters occurring after such loading, either with or without the goods on board, and before or after proceeding toward the port of discharge, adjust compasses, drydock with or without cargo aboard, go on ways or to repair yards, shift berths, make trial trips or tests, take fuel or stores in any quantity at the discretion of Carrier remain in port, sail with or without pilots, tow and be towed, and go to the assistance of vessels in distress to save or attempt to save life or property, and all the foregoing are included in the contract voyage and shall not be considered deviations. All derelicts and salvage shall be for the sole benefit of the Carrier. Carrier may substitute another vessel for the named vessel(s) at any time prior to or during the voyage whether in a feeder service, a relay service or otherwise. Carrier makes no warranties to the time of delivery of the goods or that the goods will be delivered for any particular use or market. If the Vessel’s attended route, either when proceeding to the loading port or on the voyage to the destination port, is via the Suez Canal or the Panama Canal then the exclusive route of the Vessel shall be by the way of said canal. If passage through such canal, in order to reach the loading port and/or to perform the voyage, is in the judgement of Carrier or the master likely to be hindered, delayed or prevented by reason of actual happening of and/or aftereffects of and/or threat of landslide, earthquake, flood, obstruction, war, riot, strike, civil commotion, sabotage, orders or threats or acts of any government de jure or de facto or any similar or dissimilar cause whatsoever, the voyage shall be deemed frustrated. If such frustration occurs prior to the loading of the goods this contract thereupon shall terminate. If such frustration occurs after loading of the goods, Carrier may, in addition to the other rights contained in this Bill of Lading, order the vessel to proceed to and discharge the goods at any other port at Carrier’s discretion. All expenses incurred in discharging and storing the goods at such alternate port of discharge shall be for the account of Shipper and the goods. Such discharge of the goods shall constitute complete delivery and performance under this Bill of Lading, and Carrier shall be freed from any further responsibility.
4. TRANSSHIPMENT. Carrier may transship AND FORWARD all or any part of the goods whenever they are consigned to a place where the Vessel does not expect to discharge, or whenever the Carrier, for any reason whatsoever, may deem it advisable. Such transshipments AND FORWARDING may be made at the port of shipment, or at any other place or places, whether or not within the voyage contracted for above, and may be made by any vessel or vessels or any other means of water, land or air transportation or combinations of such means selected by Carrier, whether operated by Carrier or not, and regardless of actual or scheduled time or arrival or departure as compared with other means of transportation or carriers. Every incident of transshipment AND FORWARDING shall be governed by the regular bill of lading, freight note, contract or other shipping document of the oncarrier, whether issued or not, vent though less favorable to Shipper in any respect whatsoever than this Bill of Lading and even though Carrier’s own through bill of lading has been issued, in which case such issuance is for convenience only and does not bind Carrier after the goods have been discharged from Carrier’s vessel. In all matters whatsoever connected with the transshipment OR FORWARDING Carrier shall act solely as Shipper’s forwarding agent and without any further responsibility. Shipper expressly authorizes Carrier, as such agent, to arrange with the oncarrier for the lowest valuation of the goods or limitations of liability contained in such bill of lading or other documents of the oncarrier. Pending or during transshipment, Carrier may store the goods in any place ashore or afloat, at their own risk and expense, and in so doing shall be considered solely the agent of Shipper. Carrier shall not be liable for any detention, delay, mis-delivery, conversion, loss or damage after the goods have been discharged from Carrier’s vessel. The goods and Shipper shall be liable for all additional costs of every nature, including, but not limited to, storage, cartage, handling charges, or increase in oncarrying rates beyond those used in computing freight charges on this shipment. Carrier or the master, in the exercise of its or his discretion, may at any time, whether or not customary and without notice, require the goods to be lightered to or from the vessel at the risk and expense of the goods and, in this event, Carrier or master may make arrangement for lighterage or use of craft but, in so doing, shall be considered solely as the agent of Shipper and without any other responsibility whatsoever Carrier shall not be responsible for the choice of conditions seaworthiness or manning of such lighter or craft nor for any loss or damage to the goods while on such lighter or craft or in the custody of the lighterman who shall be considered agents to the shipper. If Carrier elects to lighter the goods in or with lighters or crafts operated or controlled by it, Carrier shall have the benefit of all the liberties, rights, exemptions, immunities and limitations contained in this Bill of Lading with respect to such lighterage and may collect the cost thereof from Shipper.
5. ON-DECK CARRIAGE. Goods stowed in any covered space or in a container, van or trailer carried on the deck of the Vessel shall be deemed to be stowed under deck and in all respects the custody and carriage of such goods shall be governed by the terms of this Bill of Lading and COGSA, notwithstanding Section 1(c) thereof if goods are stowed on deck and not in containers, all risks of loss or damage by perils inherent in or incident to such carriage shall be borne by Shipper but in all other respects the custody and carriage of such goods shall be governed by the terms of this Bill of Lading and COGSA, notwithstanding Section 1(c). When transportation hereunder is accomplished by the use of an unmanned barge or barges, the following special provisions shall apply and supercede the preceding paragraph. (a) Such unmanned barge or barges shall be towed by a towing vessel or vessels, on a single, double, or multiple tow basis; (b) All goods accepted hereunder may be carried without notice to Shipper either under the covered deckhouse (if any) or on deck or on the roof of the deckhouse (if any) of said barge or barges at Carrier’s option, any custom or practice of the trade to the contrary notwithstanding. Goods so carried shall be subject to the provisions herein and shall participate in general average, and (c) All risk of loss of damage by perils inherent in or incident to such carriage shall be borne by Shipper but not in all other respects the custody and carriage of such goods shall be governed by the terms of this Bill of Lading and COGSA, notwithstanding Section 1(c)
6. SPECIAL CIRCUMSTANCES. In any situation whatsoever and wheresoever occurring and whether existing or anticipated before commencement of or taking place during the voyage, including the period before and during discharge, which in the judgement of Carrier or the master is likely to give rise to risk of capture, seizure, detention, damage, delay (howsoever long or short) or disadvantage to or loss of the Vessel or any part of her cargo, or to make it unsafe, imprudent, unlawful or impossible for any reason to commence or proceed on or continue the voyage, or to enter or discharge or to continue to discharge the goods at the port or discharge or to give rise to any delay (howsoever long or short) or difficulty in arriving, discharging or continuing to discharge, or leaving the port of discharge, Carrier or master may before loading or before the commencement of the voyage require the Shipper to take delivery of the goods at the port of shipment, and upon failure to do so may discharge and warehouse the goods at Shipper’s risk and expense, or Carrier or the master, whether or not proceeding toward or entering or attempting to enter a port of discharge, or reaching or attempting to reach a usual place of discharge therein or attempting to discharge the goods, may discharge the goods and/or unpack the containers at the port of shipment or at any port in depot, lighter, craft or other place or may discharge and forward them by any means (rail, water, land or air) at the risk and expense of Shipper to any port or place whatsoever at Carrier’s or the master’s sole discretion and Carrier or the master in making arrangements for any such forwarding shall be the forwarding agent of the Shipper, or the Vessel may proceed or return directly or indirectly to or stop at any port or place whatsoever at Carrier’s or master’s sole discretion and discharge the goods or any part thereof at any such port, or Carrier may retain same on board until the return trip or until such time as Carrier or the master thinks advisable and discharge them at any place whatsoever as herein provided. Discharge of the goods under the provisions of this clause shall constitute complete delivery and performance under this contract and Carrier shall be freed from any further responsibility. When the goods are discharged from the Vessel as provided in this clause they shall be at the risk and expense of Shipper, and all charges incurred shall be payable by Shipper. When the place of delivery is names herein and the goods are oncarried by Carrier from the port at which they are discharged from the Vessel as provided in this clause to such place of delivery Shipper shall pay all additional charges and transport costs in connection therewith.
7. NO RECOURSE CLAUSE. This clause shall be applicable only where required by law or governmental orders. The owner or consignee shall pay the freight and average if any, and all other lawful charges accruing on said property, but except in those instances where it may lawfully be authorized to do so, no carrier by railroad shall deliver or relinquish possession at destination of the property covered by the Bill of Lading until all tariff rates and charges thereon have been paid. The shipper shall be liable for the freight and all other lawful charges, except that if the shipper stipulates, by signature, in the space provided for that purpose on the face of this Bill of Lading that the Carrier shall not make delivery without requiring payment of such charges and the Carrier contrary to such stipulation, shall make delivery without requiring such payment the Shipper (except as hereinafter provided) shall not be liable for such charges. Provided that, where the Carrier has been instructed by the Shipper to deliver said property to a consignee other than the shipper such consignee shall not be legally liable for transportation charges in respect of the transportation of said property (beyond those billed against him at the time of delivery for which he is otherwise liable) which may be found to be due after the property has been delivered to him, if the consignee (a) is an agent only and has no beneficial title in said property, and (b) prior to delivery of said property has notified the delivering Carrier in writing of the fact that such agency and absence of beneficial title, and, in the case of a shipment re-consigned or diverted to a point other than that specified in the original bill of lading, has also notified the delivering Carrier in writing of the name and address of the beneficial owner of said property and, in such cases the Shipper or in the case of a shipment so reconsigned or diverted, the beneficial owner, shall be liable for such additional charges. If the consignee has given to the Carrier erroneous information as to who the beneficial owner is, such consignee shall himself be liable for such additional charges. On shipments re-consigned or diverted by an agent who has furnished the Carrier in the re-consignment or diversion order with a notice of agency and the proper name and address of the beneficial owner, and where such shipments are refused or abandoned at ultimate destination, the said beneficial owner shall be liable for all legally applicable charges in connection therewith. If the re-consignor or diverter has given to the Carrier erroneous information as to who the beneficial owner is, such re-consignor or diverter shall himself be liable for all such charges. If a shipper of a shipment of property (other than a prepaid shipment) is also the consignee named in the bill of lading and, prior to the time of delivery, notifies in writing, a delivering Carrier by railroad (a) to deliver such property at destination to another party, (b) that such party is the beneficial owner of such property, and (c) that delivery is to be made to such party only upon payment of all transportation charges in respect of the transportation of such property, and delivery is made by the Carrier to such party without payment, such Shipper shall not be liable (as shipper, consignee or otherwise) for such transportation charges but the party to whom delivery is so made shall in any event be liable for transportation charges billed against the property at the time of such delivery and also for any additional charges which may be found to be due after delivery of the property, except that if such party prior to such delivery has notified in writing the delivering Carrier that he is not the beneficial owner of the property and has given in writing to such delivering Carrier the name and address of such beneficial owner such party shall not be liable for any additional charges which may be found to be due after delivery of the property, but if the party to whom delivery is made has given to the Carrier erroneous information as to beneficial owner, such party shall nevertheless be liable for such additional charges. If the shipper or consignor has given to the delivering Carrier erroneous information as to who the beneficial owner is such shipper or consignor shall himself be liable for such transportation, notwithstanding the foregoing provisions of this paragraph and irrespective of any provisions to the contrary in the bill of lading or in the contract of transportation under which the shipment was made. The term “delivering carrier” means the line-haul Carrier making ultimate delivery. Nothing herein shall limit the right of the Carrier to require at time of shipment the prepayment of guarantee of the charges. If upon inspection it is ascertained that the articles shipped are not those described in this Bill of Lading, the freight charges must be paid upon the articles actually shipped.
8. GOVERNMENTAL OR OTHER ORDERS. Carrier, the master and the Vessel shall have liberty to comply with any directions, recommendations, orders, requirements, or suggestions as to the Vessel, her voyage, employment or movements or any disposition or other matter whatsoever relating to the goods and including but not limited to loading, departure, arrival, routes, zones, ports of call, stoppage, discharge destination, delivery or in any other matter whatsoever given by the government of the nation under whose flag the Vessel sails or any other government or local authority including any DE FACTO government or local authority, or by any person or body acting or purporting to act as or with the authority of any such government or authority or by any committee or person having under the terms of the war risks insurance on the Vessel the right to give any such directions or recommendations if by reason of or incompliance with any such directions or recommendations anything is done or is not done, such shall not be deemed a deviation. Delivery or disposition of the goods in accordance with such directions ,recommendations, orders or suggestions shall be deemed in accordance with and a fulfillment of the contract voyage. In complying therewith, Carrier shall have but shall not be limited to, the liberties as to disposition of the goods contained in Clause 6 hereof. Carrier and the Vessel may carry goods declared by any belligerent to be contraband, persons belonging to or intending to join, the armed forces or government services of any belligerent, explosives, munitions, war-like stores or hazardous cargo, and may sail armed or unarmed with or without convoy. In addition to all other liberties herein, Carrier shall have the right to withhold delivery or re-ship to deposit or discharge the goods at any place whatsoever surrender or dispose of the goods in accordance with any direction, condition, or agreement imposed upon or exacted from Carrier by any government or department thereof or any person purporting to act with the authority of either of them in any of the above circumstances. Carrier shall have no further responsibility for the goods, and the goods shall be solely at their risk and expense and all expenses and charges so incurred shall be payable by Shipper and shall be liens on the goods.
9. DESCRIPTION AND PACKING OF GOODS. Any reference on the face hereof to marks, numbers, description, quantity, gauge, weight, measure, kind, value and any other particulars of the goods is as furnished by the Shipper, and Carrier shall not be responsible for the accuracy thereof. The weight or quantity of any bulk cargo inserted in this Bill of Lading is the weight or quantity as ascertained by a third party other than the Carrier and Carrier makes no representation with regard to the accuracy thereof. This Bill of Lading shall not be needed evidence against the Carrier of receipt of goods or the weight or quantity so inserted in the Bill of Lading. When containers, vans, trailers, portable tanks, palletized units and other packages (all hereinafter referred to generically as cargo units) are not packed or loaded by Carrier, Carrier has no reasonable means of checking the quantity, weight, condition or existence of the contents thereof and does not represent the quantity, weight, condition or existence of such contents, as furnished by Shipper and inserted in this Bill of Lading, to be accurate, and shall not be liable for non-receipt or misdescription of such contents. Carrier shall have no responsibility or liability whatsoever for the packing, loading, security and/or stowage of contents of such cargo unit(s) or for loss or damage caused thereby or resulting therefrom or for the physical suitability or structural adequacy of such cargo units to properly contain their contents. Shipper by packing or loading the cargo unit and/or by allowing the cargo unit to be so packed or loaded represents and warrants (a) that the contents are properly described, marked, secured, and packed properly in their respective cargo units, that such cargo units are physically suitable, sound, and structurally adequate to properly contain and support the goods during handling and on the voyage, and that the cargo units may be handled in the ordinary course without damage to themselves or to their contents or to the Vessel or her other cargo or property or persons and (b) that all particulars with regard to the cargo units and their contents and the weight of each cargo unit are in all respects correct and (c) that they have ascertained and have disclosed in writing to the Carrier or on or prior to shipment any condition, ingredient or characteristic of the goods which might indicate that they are of flammable, explosive, corrosive, radioactive, noxious, hazardous or dangerous nature or which might cause damage, injury or detriment to the goods or to the Vessel or other cargo or to the property or persons. Shipper, the consignee and the owner of the goods agree fully to protect and indemnify Carrier and to hold it harmless in respect of any injury or death of any person or loss or damage to cargo or cargo unit or any other property or to the Vessel or expense or fine arising out of, or in any way connected with breach of any representations or warranties, howsoever occurring even without fault of Shipper and even though injury, death, loss or damage is caused in whole or in part by fault of Carrier or unseaworthiness notwithstanding the foregoing. Carrier shall neither be liable for nor concluded as to the correctness of any such marks, descriptions or representations. When any cargo unit owned or leased by Carrier is packed or loaded by Shipper or its agent, or discharged by consignee or its agent, Shipper, consignee and owner of the goods shall be and remain liable, jointly and severally, for any loss or damage to the cargo unit during such loading or discharge, howsoever occurring, until the cargo unit is returned to Carrier’s custody, and at tariff rates, for any delay beyond the time allowed for such loading or discharge and for any loss, damage or expense incurred by Carrier as a result of the failure to return the cargo unit to Carrier in the same sound condition and state of cleanliness as when received by Shipper. Such loss, damage, delay or expense shall constitute a lien on the goods. When a cargo unit is to be discharged by the consignee or its agent, consignee or its agent shall promptly discharge such cargo unit and take delivery of its contents, irrespective of whether the goods are damaged or not. Carrier shall not be liable for loss or damage caused to the goods by or during such discharge. Without undertaking any duty to do so, Carrier reserves the right, at its sole discretion and at any time to open any cargo unit in order to inspect the contents and the stowage or packing thereof and at the expense of the goods, to re-stow or repack the contents whenever, in its judgement, such re-stowing or re-packing is necessary for the safety of the goods or of the cargo unit. Any exercise of this right shall be without liability or responsibility on the part of the Carrier.
10. COOPERAGE, FINES. Shipper shall be liable for all expenses for mending, cooperage, bailing or reconditioning of the goods or packages and gathering of loose contents of packages, also for any payment, expense, fine, dues, duty, tax, import, loss, damage or detention sustained or incurred by or levied upon Carrier or the Vessel in connection with the goods, howsoever caused, including any action or requirement of any government or governmental authority or person purporting to act under the authority thereof, seizure under legal process or attempted seizure, incorrect or insufficient marking, numbering or addressing of packages or description of the contents, failure of Shipper to procure consular or any other certificates to accompany the goods or to comply with the laws or regulations of any kind imposed with respect to the goods by the authorities at any port or place or any act or omission of Shipper. Shipper shall be liable to Carrier for the payment of all charges and for the obligation of each of them and shall pay all expenses caused by extra handling of the goods for any reason whatsoever.
11. CARRIAGE AFFECTED BY CONDITION OF GOODS. If it appears to Carrier or the master at any time that the goods or any part thereof cannot safely or properly be carried further, either at all, or without incurring any additional expense or taking any measure(s) in relation to the container or the goods or any part thereof, Carrier or the master may without notice to Shipper take any measure(s) and/or incur any reasonable additional expense to carry or to continue the carriage thereof, and/or abandon the carriage and/or store the same ashore or afloat under cover or in the open, at any place, which abandonment or storage shall be deemed to constitute due delivery under this Bill of Lading. Shipper shall indemnify Carrier against any reasonable additional expense so incurred.
12. DANGEROUS GOODS, CONTRABAND. (1) Carrier undertakes to carry goods of an explosive, flammable, radioactive, corrosive, damaging, noxious, hazardous, poisonous, injurious or dangerous nature only upon Carrier’s acceptance of a prior written application by Shipper for the carriage of such goods. Such application must accurately state the nature, name, label and classification of the goods, as well as the method of rendering them innocuous, with the full names and addresses of the Shipper and consignee. (2) Shipper shall undertake that the nature of the goods referred to in the preceding paragraph is distinctly and permanently marked and manifested on the outside of the package(s) and container(s) and shall also undertake to submit the documents or certificates required by statutes or regulations or by Carrier. (3) Whenever the goods are discovered to have been received by Carrier without complying with paragraph (1) or (2) above or the goods are found to be contraband or prohibited by any laws or regulations of the port of loading, discharge or call or any place or waters during transport, Carrier shall be entitled to have such goods rendered innocuous, thrown overboard or discharged or otherwise disposed of at Carrier’s discretion without compensation and Shipper shall be liable for and indemnify Carrier against any kind of loss, damage, or liability, including loss of freight, and any expenses directly or indirectly arising out of or resulting from such goods. (4) Carrier may exercise or enjoy the right or benefit conferred upon Carrier under the preceding paragraph whenever it is apprehended that the goods received in compliance with paragraphs (1) and (2) above become dangerous to Carrier, Vessel, cargo, persons and/ or other property. (5) Carrier has the right to inspect the contents of the package(s) at any time and anywhere without Shipper’s agreement but only at the risk and expense of Shipper.
13. EARNED FREIGHT. Full freight and charges hereunder to port of discharge named herein shall be considered completely and irrevocable earned upon commencement of loading whether the freight be stated or intended to be prepaid or to be collected at destination, and Carrier shall be entitled to all freight and charges due hereunder, whether actually paid or not, and to receive and retain them irrevocably under all circumstances whatsoever, the Vessel and/or goods lost or not lost or the voyage broken up or abandoned. If there shall be a forced interruption or abandonment of the voyage at the port of loading or elsewhere, any forwarding of the goods or any part thereof shall be at the risk and expense of the goods. Freight shall be payable on actual gross intake weight or measurement or, at Carrier’s option on actual gross discharge weight or measurement. Freight may be calculated on the basis of the particulars of the goods furnished by Shipper, but Carrier may at any time open the packages and examine, weight, measure and value the goods. In case Shipper’s particulars are found to be erroneous and additional freight is payable, Shipper and the goods shall be liable for any expense incurred for examining, weighing, measuring, and valuing the goods. Freight, demurrage and other charges shall be paid to Carrier in United States currency, without discount or set-off of any kind, at such place and in such manner as the Carrier may direct. Carrier shall have a lien on the goods for all charges payable to Carrier under this contract and for the cost of recovering the same, and Carrier shall have the right to sell the goods by public auction or private treaty without notice to Shipper. Shipper shall remain responsible for payment of such sums due hereunder. Payment of ocean freight and charges to a freight forwarder, broker, or anyone other than Carrier or its authorized agent shall not be deemed payment to Carrier and shall be made at payer’s sole risk.
14. BOTH TO BLAME COLLISIONS. If the Vessel comes into collision with another vessel as a result of the negligence of the other vessel and any negligence or other fault on the part of the Carrier or its servants or subcontractors. Shipper shall indemnify Carrier against all loss or liability to the other or noncarrying vessel or her owners insofar as such loss or liability represents loss of or damage to, or any claim whatsoever of Shipper paid or payable by the other or non-carrying vessel or her owners to Shipper and set off recouped or recovered by the other or carrying Vessel or Carrier. The foregoing provision shall also apply where the owners, operators or those in charge of any vessels or objects other than, or in addition to, the colliding vessels or objects are at fault in respect of a collision or contact.
15. GENERAL AVERAGE/NEW JASON CLAUSE. General Average shall be adjusted stated and settled according to York-Antwerp Rules 1974, excluding Rule 22, at such port or place in the United State as may be selected Carrier, and as to matters not provided for by these Rules according to the laws and usages of the port of San Francisco. Notwithstanding Rule 10(b) of said York-Antwerp Rules, however, it is expressly agreed that the cost of handling, discharging and re-stowing cargo shall be admitted as general average when reasonably necessary for the safe prosecution of the voyage, as well as under the circumstances set forth in said rule. In such adjustment, disbursements in foreign currencies shall be exchanged into United States money at the rate prevailing on the dates made and allowances for damage to cargo in foreign currency shall be converted at the rate prevailing on the last day of discharge at the port or place of final discharge of such damaged cargo from the ship Average agreement or bond and such additional security, as may be required by Carrier, must be furnished before delivery of goods. Such cash deposit as Carrier or its agent may deem sufficient as additional security for the contribution of the goods and for any salvage and special charges thereon shall, if required, be made by the goods and Shipper to Carrier before delivery. Such deposit shall, at the option of the Carrier, be payable in United States money and be remitted to the adjuster. When so remitted the deposit shall be held in a special account at the place of adjustment in the name of the adjuster pending settlement of the General Average, and refunds or credit balances, if any, shall be paid in United States money. In the event of accident, danger, damage or disaster, before or after commencement of the voyage resulting from any cause whatsoever, whether due to negligence or not, for which or for the consequence of which Carrier is not responsible by statute, contract or otherwise, the goods and Shipper shall contribute with 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 salvaging ship is owned or operated by Carrier salvage shall be paid for as fully and in the same manner as if such salvage ship or ships belonged to strangers.
16. STRIKE CLAUSE. If an actual or threatened labor disturbance of any kind including strikes, lockouts, stoppages, and restraints of labor from any cause whatsoever will in the opinion of the master or Carrier prevent or delay the Vessel in reaching the loading berth, prevent or delay loading of cargo, prevent or delay departure of the Vessel from the loading port, or result in damage to the Vessel or her cargo or injury to the Vessel’s crew, Carrier shall have the option at any time to wait at or off the loading berth until the master or Carrier determines it is safe for the Vessel to enter to cancel carriage of the goods pursuant to this Bill of Lading, to depart the loading berth with whatever goods have been loaded aboard the Vessel or with Shipper’s consent, to load the goods at Shipper’s expense at an alternative port. If an actual or threatened labor disturbance of any kind including strikes, lockouts, stoppages and restraints of labor from any cause whatsoever will, in the opinion of the master or Carrier, prevent or delay the Vessel in reaching the unloading berth, prevent or delay unloading cargo, prevent or delay departure of the Vessel from the unloading port, or result in damage to the Vessel or her cargo or in jury to the Vessel’s crew. Carrier shall have the option at any time to wait at or off the unloading berth until termination of said disturbance or to discharge the goods or a portion thereof at an alternative port, the next scheduled port of call or the port of loading, which discharge shall constitute complete delivery under this Bill of Lading.
17. ICE CLAUSE. If ice or the threat thereof will, in the opinion of the master or Carrier, prevent or delay the Vessel in reaching the loading berth, prevent or delay loading of cargo, prevent or delay departure of the Vessel from the loading port or result in damage to the Vessel or her cargo or in injury to the Vessel’s crew. Carrier shall have the option at any time to wait at or off the loading port until the master or Carrier determines it is safe for the Vessel to enter to cancel carriage of the goods pursuant to this Bill of Lading, to depart the loading port with whatever goods have been loaded aboard the Vessel or with Shipper’s consent to load the goods at Shipper’s expense at an alternative port if ice or the threat thereof will in the opinion of the master or Carrier prevent or delay the Vessel in reaching the unloading berth, prevent or delay unloading of cargo, prevent or delay departure of the vessel from the unloading port or result in damage to the Vessel or her cargo or in injury to the Vessel’s crew. Carrier shall have the option at any time to wait at or off the unloading berth until termination of said ice condition or to discharge the goods or a portion thereof at an alternative port to the next scheduled port of call or the port of loading which discharge shall constitute the complete delivery under this Bill of Lading.
18. NUCLEAR CLAUSE. Notwithstanding any provision whether written, printed or contained in this Bill of Lading it is agreed that nuclear fuels or radioactive waste or products are specifically excluded from the cargo, permitted to be loaded, or carried under the Bill of Lading. This exclusion does not apply to radio isotopes used or intended to be used for any industrial, commercial, agricultural, medical or scientific purposes provided Carrier’s prior approval has been obtained to the loading thereof.
19. EXCEPTIONS CLAUSE. Carrier shall not be liable for any loss, damage, delay or failure in performance hereunder arising or resulting from the happening and/or threat and/or after effects of one or more of the following: act of God act of war; force majeure; quarantine restrictions; embargo; acts of public enemies, pirates or sailing thieves; arrest or restraint or princes, rulers or people; seizure under legal process; act or omission of Shipper, his agent or representative; strikes, lockouts or stoppage or restraint of labor from whatever cause, partial or general; riots or civil commotion; act, neglect or default of the master, pilots, mariners or other servants of Carrier in navigation or management of the Vessel: barratry; ice; fire unless caused by the actual fault or privity of Carrier; explosion; collision; stranding perils, dangers and accidents of the sea or other navigable waters; wharfage in bulk or weight or any other loss or damage arising from inherent defect, quality, or vice of the goods; insufficiency of packing; insufficiency or inadequacy of marks; bursting of boilers, breakage of shafts or any latent defect in hull, equipment, machinery, hawsers or lines; un-seaworthiness unless caused by want of due diligence on the part of Carrier to make the Vessel seaworthy or to have her properly manned, equipped and supplied; saving or attempting to save life or property at sea or any deviation in rendering such service; loss of or material damage to the Vessel; any other similar or dissimilar cause beyond the control of the Carrier.
20. INSURANCE. The freight for transportation of certain types of cargo may include marine insurance purchased by Carrier for the benefit of Shipper. SHIPPER SHOULD CONSULT CARRIER’S TARIFF(S) APPLICABLE TO THIS BILL OF LADING TO DETERMINE IF MARINE INSURANCE IS PROVIDED FOR THE TRADE AND GOODS COVERED BY THIS BILL OF LADING AND, IF PROVIDED, TO DETERMINE THE TERMS OF THE MARINE INSURANCE IF THE TARIFF OF CARRIER IS SILENT ON THE SUBJECT NO MARINE INSURANCE HAS BEEN PURCHASED BY CARRIER FOR THE BENEFIT OF SHIPPER.
21. VALUATION. Carrier shall not be liable in any event for any loss, damage, mis-delivery or delay with respect to the goods in an amount exceeding $500.00 lawful money of the United States per package or, in the case of goods not shipped in packages, per customary freight unit, unless the nature of the goods and a valuation thereof higher the $500.00 is declared in writing by Shipper on delivery of the goods to Carrier and inserted in the Bill of Lading and extra freight is paid thereon as required by the applicable tariff to obtain the benefit of such higher valuation, in which event Shipper agrees that the value of the goods shall not exceed such declared value, and any partial loss or damage shall be adjusted pro rata on the basis thereof. It is understood that the word “package” includes any piece, shipping unit, machine or article of any description, whether or not enclosed or boxed in whole or in part, except goods shipped in bulk. IN the case of goods carried in containers, vans, or trailers, the word “package” shall mean the container, van or trailer. Carrier shall on no event be responsible for indirect or consequential damages, including without limitation extra expense, loss of profits, loss of use of property, delay or damages consequential upon loss of use, whether resulting from negligence, breach of this contract or otherwise by Carrier and even of the possibility of such damages was foreseeable by Carrier or Shipper had advised Carrier to the possibility of such damages. Carrier shall have the option of replacing any lost goods and replacing or reconditioning any damaged goods. No oral declaration or agreement shall be evidence of a value different from that provided herein.
22. NOTICE OF LOSS OR DAMAGE-TIME FOR SUIT. Unless notice of loss or damage and the general nature of such loss or damage be given in writing to Carrier or his agents before or at time of delivery of the container(s) or the goods to Shipper, such delivery shall be PRIMA FACIE evidence of the receipt by Shipper of the container or the goods as described in this Bill of Lading. If the loss or damage is not apparent the notice must be given within three days of the delivery. In any event Carrier shall be discharged from any liability unless suit is brought within one year after delivery of the goods or the date the goods should have been delivered. Suit shall not be deemed brought against Carrier or Vessel unless jurisdiction shall have been obtained over Carrier or Vessel or both by service of a process on Carrier or a written agreement by Carrier to appear.
23. LUMBER, TIMBER, PLYWOOD ETC. Neither Carrier nor the Vessel shall be responsible for stains, discoloration, shakes, holes, chafage, breakage or splitting of lumber, timber, plywood or wood products, whether or not unprotected or partly covered.
24. NO VALUABLES. Shipper agrees not to ship bank bills, coin or currency, deeds, drafts, notes or valuable papers of any kind, jewelry, other than costumes or novelty jewelry, postage stamps or letters and packets of letters with or without postage stamps affixed, United States Post Office Service mail of any class, precious metals or articles manufactured therefrom, precious stones, revenue stamps, antiques or other related old, rare, or precious articles of extraordinary value.
25. PERISHABLE GOODS. Carrier does not undertake to carry any goods in specially heated, cooled or ventilated compartments or containers and shall not be liable for any loss or damage for failure to do so, unless such carriage is expressly agreed and endorsed herein. Where any such express contract is made and included herein Carrier will transport the goods in accordance with applicable tariff provisions and will not be deemed to warrant maintenance of any temperatures and further will have as to such goods the benefit of all other rights, limitations, immunities, and defenses afforded by this Bill of Lading and by applicable law. Carrier shall not be liable in any respect whatsoever of heat or refrigeration or special cooling facilities are not furnished during loading or discharge or at any part of the time while the goods are on the wharf, craft or other loading or discharging place.
26. RUST. It is agreed that superficial rust, oxidation or any like condition due to moisture is not a condition of damage but is inherent in the nature of the goods, and acknowledgement of receipt of the goods in apparent good order and condition is not representation that such conditions of rust, oxidation and the like did not exist on receipt.
27. LIVE ANIMALS. Live animals, birds and fish are received, kept and carried solely at Shipper’s risk of accident, disease or mortality and without warranty or undertaking whatsoever by Carrier.
28. FIRE. Carrier shall not be liable to answer for or make good any loss or damage to the goods occurring at any time even though before loading on or after discharge from the Vessel, by reason or by means of any fire whatsoever, unless such fire shall be caused by its design or neglect.
29. EXTENSION OF BENEFITS. All exceptions, exemptions, defenses, immunities, limitations of liability, privileges and conditions granted or provided by this Bill of Lading or by COGSA or by any applicable statute for the benefit of the Vessel or Carrier shall also apply to and for the benefit of the master, officers and crew of the Vessel and to and for the benefit of all corporations parent of, subsidiary to, affiliated with or under the same management as Carrier, as well as all directors, officers, employees and agents of said corporations, and to and for the benefit of all parties performing services for or on behalf of the Vessel or Carrier as employees, servants, agents or contractors of Carrier (including without limitation to stevedores and terminal operators), and the directors, officers, employees, servants, agents and subcontractors of such parties.
30. HEADINGS FOR CONVENIENCE. The headings of the above clauses are for the convenience of reference only and shall not affect the interpretation of terms of this Bill of Lading.
31. FURTHER AGREEMENTS. All prior agreements or freight engagements for the shipment of the goods are superseded by this Bill of Lading if required by Carrier, a signed original Bill of Lading, duly endorsed, must be surrendered to the Carrier on delivery of the goods. It is also agreed that the carriage of the goods hereunder is subject to all of the terms and provisions of the tariffs on file with the Federal Maritime Commission. The Surface Transportation Board or other regulatory body which governs the particular portions of Carriage, and the terms of said tariff or tariffs are hereby incorporated herein as part of the terms and conditions of this Bill of Lading. It is specifically agreed that during any connecting water, rail or motor vehicle carriage prior to or subsequent to the time the water Carrier has custody of the goods or containers, such carriage shall be governed by and subject to the terms and conditions of the connecting water rail or motor vehicle carrier’s bill of lading OR OTHER CONTRACT OF CARRIAGE. Such bill of lading or other contract of carriage may contain a released valuation of the goods. Shipper can obtain the terms of such released valuation from the Carrier and can arrange through Carrier for the opportunity to declare full value for the goods in consideration for payment of increased freight. When used in or endorsed on this Bill of Lading, the words “ON BOARD” shall mean on board the vessel named on the face of this Bill of Lading or on board another mode of transportation operated by or on behalf of Carrier to carry the goods to the port of loading for loading to the vessel named on the face of this Bill of Lading. If this Bill of Lading is issued in connection with an intermodal service, the land carrier’s Bill of Lading or other contract of carriage lawfully in effect on the date of issue of this Bill of Lading shall, together with the rules and tariffs and classifications of such carrier and applicable rules and regulations of government agencies with jurisdiction over such land carriage, govern and control the possession and carriage of the goods by such carrier. Copies of said bill of lading or other contract of carriage form are available from such carrier or its agents on request. At all times when goods are in the care, custody or control of a land carrier, such carrier shall be entitled to all rights, privileges, liens, limitations of and exonerations from eligibility, optional or discretionary rights of indemnity granted to Carrier hereunder to the full extent permitted to carriers under any rules and regulations and laws pertaining to carriers. If this Bill of Lading is issued in connections with an intermodal service, a relay service or feeder service, claims for loss of or damage to the goods may be filed against the Carrier named on the face of this Bill of Lading, who agrees to be solely responsible for processing said claims to conclusion. It is agreed that, in the event of payment of any such claims by the Carrier named on the face of this Bill of Lading, it shall automatically be subrogated to all the rights of Shipper against all others including land carriers, on account of such loss or damage. Claims must be filed and suit commenced within the time limits provided by law and the terms of the Bill of Lading and tariff of the Carrier which had, or is deemed in accordance with this paragraph to have had custody of the goods when the loss or damage occurred. When the loss or damage occurs during Carrier custody or control but it cannot be established which Carrier hereunder had custody or control of the goods at the time of loss or damage, it shall be deemed, as between Shipper and any Carrier hereunder that the loss or damage occurred aboard the ship while in the custody or control of Carrier. All compensation and other amounts (including freight and detention) set forth in Carrier’s published tariff or tariffs required to be filed or on file as information with the Federal Maritime Commission or other appropriate regulatory body shall be due and payable in accordance therewith. Said tariff or tariffs shall be available to Shipper on file with the Federal Maritime Commission, Washington, DC, U.S.A. the Surface Transportation Board or other regulatory body and also available from any port agent listed on the reverse side hereof. It shall be solely the responsibility of Shipper to review and comply with such tariff or tariffs.
32. APPLICABLE LAW. Nothing in this Bill of Lading shall operate to deprive the Carrier of any statutory protection or exemption from or limitation of liability contained in the laws of the United States, or in the laws of any other country which may be applicable. This Bill of Lading shall be construed according to the laws of the United States and the Shipper, consignee and holder hereof agree that any suits against the Carrier shall be brought in the Federal Courts of the United States. The terms of this Bill of Lading shall be separate and, if any part or term hereof shall be held invalid, such holding shall not affect the validity or enforceability of any other part or term hereof.
These terms and conditions of service constitute a legally binding contract between the “Company” and the “Customer”. In the event the Company renders services and issues a
document containing Terms and Conditions governing such services, the Terms and
Conditions set forth in such other document(s) shall govern those services, and these
Terms and Conditions shall supplement those contained in the separate document(s).
a. “Company” shall mean Trailer Bridge, Inc. , its subsidiaries, related companies, agents and/or representatives;
b. “Customer” shall mean the person for which the Company is rendering service, as well as its principals, agents and/or representatives, including, but not limited to, shippers, importers, exporters, carriers, secured parties, warehousemen, buyers and/or sellers, shipper’s agents, insurers and underwriters, break-bulk agents, consignees, etc. It is the responsibility of the Customer to provide notice and copy(s) of these terms and conditions of service to all such agents or representatives;
c. “Documentation” shall mean all information received directly or indirectly from Customer, whether in paper or electronic form;
d. “Ocean Transportation Intermediaries” (“OTI”) shall include an “ocean freight forwarder” and a “non-vessel operating carrier”;
e. “Third parties” shall include, but not be limited to, the following: carriers, truckmen, cartmen, lightermen, forwarders, OTIs, customs brokers, agents, warehousemen and others to which the goods are entrusted for transportation, cartage, handling and/or delivery and/or storage or otherwise.
2. COMPANY AS AGENT. The Company acts as the “agent” of the Customer for the purpose of performing duties in connection with the entry and release of goods, post entry services, the filing of export and security documentation on behalf of the Customer and other dealings with Government Agencies or for arranging for transportation services or other logistics services in any capacity other than as a carrier.
3. LIMITATION OF ACTIONS.
a. Unless subject to a specific statute or international convention, all claims against the Company for a potential or actual loss, must be made in writing and received by the Company, within 90 days of the event giving rise to claim; the failure to give the Company timely notice shall be a complete defense to any suit or action commenced by Customer.
b. All suits against Company must be filed and properly served on Company as follows:
i. For claims arising out of ocean transportation, within one (1) year from the date of the loss
ii. For claims arising out of air transportation, within two (2) years from the date of the loss;
iii. For claims arising out of the preparation and/or submission of an import entry(s), within seventy – five (75) days from the date of liquidation of the entry(s);
iv. For any and all other claims of any other type, within two (2) years from the date of the loss or damage.
NO LIABILITY FOR THE SELECTION OR SERVICES OF THIRD PARTIES AND/OR ROUTES. Unless services are performed by persons or firms engaged pursuant to express written instructions from the Customer, Company shall use reasonable care in its selection of third parties, or in selecting the means, route and procedure to be followed in the handling, transportation, clearance and delivery of the shipment; advice by the Company that a particular person or firm has been selected to render services with respect to the goods, shall not be construed to mean that the Company warrants or represents that such person or firm will render such services nor does Company assume responsibility or liability for any actions(s) and/or inaction(s) of such third parties and/or its agents, and shall not be liable for any delay or loss of any kind, which occurs while a shipment is in the custody or control of a third party or the agent of a third party; all claims in connection with the Act of a third party shall be brought solely against such party and/or its agents; in connection with any such claim, the Company shall reasonably cooperate with the Customer, which shall be liable for any charges or costs incurred by the Company.
4. QUOTATIONS NOT BINDING. Quotations as to fees, rates of duty, freight charges, insurance premiums or other charges given by the Company to the Customer are for informational purposes only and are subject to change without notice; no quotation shall be binding upon the Company unless the Company in writing agrees to undertake the handling or transportation of the shipment at a specific rate or amount set forth in the quotation and payment arrangements are agreed to between the Company and the Customer.
5. RELIANCE ON INFORMATION FURNISHED.
a. Customer acknowledges that it is required to review all documents and declarations prepared and/or filed with U.S. Customs & Border Protection, other Government Agency and/or third parties, and will immediately advise the Company of any errors, discrepancies, incorrect statements, or omissions on any declaration or other submission file on Customer’s behalf;
b. In preparing and submitting customs entries, export declarations, applications, security filings, documentation and/or other required data, the Company relies on the correctness of all documentation, whether in written or electronic format, and all information furnished by Customer; Customer shall use reasonable care to ensure the correctness of all such information and shall indemnify and hold the Company harmless from any and all claims asserted and/or liability or losses suffered by reason of the Customer’s failure to disclose information or any incorrect, incomplete or false statement by the Customer or its agent, representative or contractor upon which the Company reasonably relied. The Customer agrees that the Customer has an affirmative non-delegable duty to disclose any and all information required to import, export or enter the goods.
c. Customer acknowledges that it is required to provide verified weights obtained on calibrated, certified equipment of all cargo that is to be tendered to steamship lines and represents that Company is entitled to rely on the accuracy of such weights and to counter-sign or endorse it as agent of Customer in order to provide the certified weight to the steamship lines. The Customer agrees that it shall indemnify and hold the Company harmless from any and all claims, losses, penalties or other costs resulting from any incorrect or questionable statements of the weight provided by the Customer or its agent or contractor on which the Company relies.
6. DECLARING HIGHER VALUE TO THIRD PARTIES. Third parties to whom the goods are entrusted may limit liability for loss or damage; the Company will request excess valuation coverage only upon specific written instructions from the Customer, which must agree to pay any charges therefore; in the absence of written instructions or the refusal of the third party to agree to a higher declared value, at Company’s discretion, the goods may be tendered to the third party, subject to the terms of the third party’s limitations of liability and/or terms and conditions of service.
7. INSURANCE. Unless requested to do so in writing and confirmed to Customer in writing, Company is under no obligation to procure insurance on Customer’s behalf; in all cases, Customer shall pay all premiums and costs in connection with procuring requested insurance.
8. DISCLAIMERS; LIMITATION OF LIABILITY.
a. Except as specifically set forth herein, Company makes no express or implied warranties in connection with its services;
b. In connection with all services performed by the Company, Customer may obtain additional liability coverage, up to the actual or declared value of the shipment or transaction, by requesting such coverage and agreeing to make payment there for, which request must be confirmed in writing by the Company prior to rendering services for the covered transaction(s).
c. In the absence of additional coverage under (b) above, the Company’s liability shall be limited to the following:
i. where the claim arises from activities other than those relating to customs business, $50 per shipment or transaction, or
ii. where the claim arises from activities relating to “Customs business,” $50 per entry or the amount of brokerage fees paid to Company for the entry, whichever is less;
d. In no event shall Company be liable or responsible for consequential, indirect, incidental, statutory or punitive damages, even if it has been put on notice of the possibility of such damages, or for the acts of third parties.
9. ADVANCING MONEY. All charges must be paid by Customer in advance unless the Company agrees in writing to extend credit to Customer; the granting of credit to a Customer in connection with a particular transaction shall not be considered a waiver of this provision by the Company. When Customer provides a check as payment Customer and the account holder on whose account the check was written authorize Company either to use information for the check to make a one-time electronic funds transfer from the account or to process the payment as a check transaction.
10. INDEMNIFICATION/HOLD HARMLESS. The Customer agrees to indemnify, defend, and hold the Company harmless from any claims and/or liability, fines, penalties and/or attorneys’ fees arising from the importation or exportation of Customer’s merchandise and/or any conduct of the Customer, including but not limited to the inaccuracy of entry, export or security data supplied by Customer or its agent or representative, which violates any Federal, State and/or other laws, and further agrees to indemnify and hold the Company harmless against any and all liability, loss, damages, costs, claims, penalties, fines and/or expenses, including but not limited to reasonable attorney’s fees, which the Company may hereafter incur, suffer or be required to pay by reason of such claims; in the event that any claim, suit or proceeding is brought against the Company, it shall give notice in writing to the Customer by mail at its address on file with the Company.
11. C.O.D. OR CASH COLLECT SHIPMENTS.Company shall use reasonable care regarding written instructions relating to “Cash/Collect on Deliver (C.O.D.)” shipments, bank drafts, cashier’s and/or certified checks, letter(s) of credit and other similar payment documents and/or instructions regarding collection of monies but shall not have liability if the bank or consignee refuses to pay for the shipment.
12. COSTS OF COLLECTION. In any dispute involving monies owed to Company, the Company shall be entitled to all costs of collection, including reasonable attorney’s fees and interest at 15% per annum or the highest rate allowed by law, whichever is less unless a lower amount is agreed to by Company.
13. GENERAL LIEN AND RIGHT TO SELL CUSTOMER’S PROPERTY.
a. Company shall have a general and continuing lien on any and all property of Customer coming into Company’s actual or constructive possession or control for monies owed to Company with regard to the shipment on which the lien is claimed, a prior shipment(s) and/or both;
b. Company shall provide written notice to Customer of its intent to exercise such lien, the exact amount of monies due and owing, as well as any on-going storage or other charges; Customer shall notify all parties having an interest in its shipment(s) of Company’s rights and/or the exercise of such lien.
c. Unless, within thirty (30) days of receiving notice of lien, Customer posts cash or letter of credit at sight, or, if the amount due is in dispute, an acceptable bond equal to 110% of the value of the total amount due, in favor of Company, guaranteeing payment of the monies owed, plus all storage charges accrued or to be accrued, Company shall have the right to sell such shipment(s) at public or private sale or auction and any net proceeds remaining thereafter shall be refunded to Customer.
14. NO DUTY TO MAINTAIN RECORDS FOR CUSTOMER.Customer acknowledges that pursuant to Sections 508 and 509 of the Tariff Act, as amended, (19 USC §1508 and 1509) it has the duty and is solely liable for maintaining all records required under the Customs and/or other Laws and Regulations of the United States; unless otherwise agreed to in writing, the Company shall only keep such records that it is required to maintain by Statute(s) and/or Regulation(s), but not act as a “record keeper” or “recordkeeping agent” for Customer.
15. OBTAINING BINDING RULINGS, FILING PROTESTS, ETC. Unless requested by Customer in writing and agreed to by Company in writing, Company shall be under no obligation to undertake any pre- or post- Customs release action, including, but not limited to, obtaining binding rulings, advising of liquidations, filing of petition(s) and/or protests, etc.
16. NO DUTY TO PROVIDE LICENSING AUTHORITY. Unless requested by Customer in writing and agreed to by the Company in writing, Company shall not be responsible for determining licensing authority or obtaining any license or other authority pertaining to the export from or import into the United States.
17. PREPARATION AND ISSUANCE OF BILLS OF LADING. Where Company prepares and/or issues a bill of lading, Company shall be under no obligation to specify thereon the number of pieces, packages and/or cartons, etc.; unless specifically requested to do so in writing by Customer or its agent and Customer agrees to pay for same, Company shall rely upon and use the cargo weight supplied by Customer.
18. NO MODIFICATION OR AMENDMENT UNLESS WRITTEN. These terms and conditions of service may only be modified, altered or amended in writing signed by both Customer and Company; any attempt to unilaterally modify, alter or amend same shall be null and void.
19. COMPENSATION OF COMPANY. The compensation of the Company for its services shall be included with and is in addition to the rates and charges of all carriers and other agencies selected by the Company to transport and deal with the goods and such compensation shall be exclusive of any brokerage, commissions, dividends, or other revenue received by the Company from carriers, insurers and others in connection with the shipmen On ocean exports, upon request, the Company shall provide a detailed breakout of the components of all charges assessed and a true copy of each pertinent document relating to these charges. In any referral for collection or action against the Customer for monies due the Company, upon recovery by the Company, the Customer shall pay the expenses of collection and/or litigation, including a reasonable attorney fee.
20. FORCE MAJEURE. Company shall not be liable for losses, damages, delays, wrongful or missed deliveries or nonperformance, in whole or in part, of its responsibilities under the Agreement, resulting from circumstances beyond the control of either Company or its subcontractors, including but not limited to:
i. acts of God, including flood, earthquake , storm, hurricane, power failure or other natural disaster;
ii. war, hijacking, robbery, theft or terrorist activities;
iii. incidents or deteriorations to means of transportation,
v. civil commotions or riots,
vi. defects, nature or inherent vice of the goods;
vii. acts, breaches of contract or omissions by Customer, Shipper, Consignee or anyone else who may have an interest in the shipment,
viii. acts by any government or any agency or subdivision thereof, including denial or cancellation of any import/export or other necessary license; or
ix. strikes, lockouts or other labor conflicts.
21. SEVERABILITY. In the event any Paragraph(s) and/or portion(s) hereof is found to be invalid and/or unenforceable, then in such event the remainder hereof shall remain in Full force and effect. Company’s decision to waive any provision herein, either by conduct or otherwise, shall not be deemed to be a further or continuing waiver of such provision or to otherwise waive or invalidate any other provision herein.
22. GOVERNING LAW; CONSENT TO JURISDICTION AND VENUE. These terms and conditions of service and the relationship of the parties shall be construed according to the laws of the State of Florida without giving consideration to principals of conflict of law.
Customer and Company
a. Irrevocably consent to the jurisdiction of the United States District Court and the State courts of Florida;
b. Agree that any action relating to the services performed by Company, shall only be brought in said courts;
c. Consent to the exercise of in personam jurisdiction by said courts over it, and further agree that any action to enforce a judgment may be instituted in any jurisdiction.
d. Further agree that any action to enforce a judgment may be instituted in any jurisdiction.