DEFINITIONS: in this Bill of Lading:
"Carrier" – the issuer of this Bill of Lading.
"Merchant" - means jointly and severally the shipper, the consignee, the holder and any assignee or endorsee of this Bill of Lading, and/or any one acting on behalf of such persons.
"Container" - includes any container, flat, open top, open side container, ISO tank, used to consolidate goods and any equipment thereof or connected thereto.
"Goods" - means the whole or any part of the cargo carried under this Bill of Lading received from the shipper, including any Container not supplied by or on behalf of the Carrier.
"Vessel" - means the vessel named on the face of this Bill of Lading, or any substitute thereto, and any vessel, feeder vessel, lighter, barge, ship, watercraft or any other means of conveyance by water used in whole or in part for carriage of the Goods under this Bill of Lading.
"Place of Receipt" - the place at which the Goods are received by the Carrier for carriage, when such place is other than the Port of Loading.
"Port of Loading" - the port at which the Goods are loaded on the Vessel.
"Port of Destination"- the final port to which the Goods are destined.
"Final Destination" - the place to which the Carrier has contracted to deliver the Goods, when such place is other that the Port of Destination, as defined herein.
"Combined Transport" - arises where the Place of Receipt and/or the Final Destination are indicated on the face of this Bill of Lading in the relevant boxes, and the carriage of the Goods is not only by sea.
"Port to Port carriage" - arises where the ports of loading and of destination are inserted in the appropriate boxes on the face of this bill, and the carriage of the Goods is only by sea.
"CY/CY or FCL/FCL" carriage terms - means that the Container has been inspected, accepted, stuffed and sealed by the Merchant, or his agents, and the unsealing and unstuffing of such Container shall also be performed by the Merchant or his agents, all at the Merchant’s sole risk and responsibility.
"The Hague-Visby Rules" means the rules contained in the International Convention for Unification of Certain Rules Relating to Bills of Lading dated 25th August 1924 as amended in the Protocol to Amend the International Convention of the Unification of Certain Rules of Law Relating to Bills of Lading, Brussels, February 23, 1968 and in the Brussels Protocol, 1979.
"U.S. COGSA" means the U.S. Carriage of Goods by Sea Act, 46 U.S.C. 1300 et seq.
(a) The contract evidenced by this Bill of Lading is between the Carrier and the Merchant. The Carrier shall be entitled to sub-contract on any terms whatsoever the whole or any part of the carriage. Each and every party defined as "Merchant" in Clause 1 hereof is jointly and severally liable towards the Carrier for fulfillment of the various undertakings, responsibilities and liabilities of the Merchant as detailed hereunder or in connection herewith.
(b) This Bill of Lading shall be neither negotiable nor transferable unless made out "to order", in which event it shall be transferable and shall entitle any rightful holder or assignee thereof to receive the Goods herein described.
(1) The Merchant undertakes that no claim or allegation whether arising in contract, bailment, tort or otherwise shall be made against any Servant which imposes or attempts to impose upon any of them or any vessel owned or chartered by any of them any liability whatsoever in connection with this contract, whether or not arising out of negligence on the part of such Servant. The Servant shall also be entitled to enforce the foregoing covenant against the Merchant; and
(2) The Merchant undertakes that if any such claim or allegation should nevertheless be made, it will indemnify the Carrier against any and all consequences resulting there from.
The Carrier shall be liable for the Goods from the time they are received in the Carrier’s sole custody until delivered from the Carrier’s sole custody, in accordance with the terms and conditions of this Bill of Lading and the Carrier’s tariffs, and in the event that it is proved that damage, loss or delay were sustained to or in connection with the Goods whilst under the actual and legal custody and care of the Carrier, and in circumstances which impose responsibility on the Carrier, and as follows:
I PORT TO PORT CARRIAGE -
In case of Port to Port Carriage, save in respect of Goods carried to or from the U.S.A. (as to which see clause 4III), the Carrier's responsibility and/or liability (if any) for loss, damage or delay to the Goods, shall be subject and determined in accordance with the Hague-Visby Rules which are hereby fully incorporated into this Bill of Lading.
II COMBINED TRANSPORT -
(a) The Carrier undertakes to perform and/or in his own name to procure performance of the carriage from the Place of Receipt to the Port of Destination or Final Destination, or from the Port of Loading to the Final Destination, whichever applicable.
(b) If the period of the carriage during which loss, damage or delay occurred is unknown - the Hague-Visby Rules (or U.S. COGSA for shipments to or from or through the U.S.A. (as to which see clause 4III), shall apply, as if the loss, damage or delay occurred during carriage by sea, in the absence of evidence to the contrary.
(c) If the loss, damage or delay is known to have occurred during carriage by sea - the responsibility and liability of the Carrier shall be determined by the Hague Visby Rules (or U.S. COGSA for shipments to or from or through the U.S.A. (as to which see clause 4III).
(d) If the loss, damage or delay occurred is known to have occurred during inland carriage the responsibility and liability of the Carrier shall be determined:
(1) By the provisions contained in any international convention or national law which provisions:
(i) may not be departed from by private contract to the detriment of the Merchant, and
(ii) would have otherwise be applied if the Merchant had made a separate and direct contract with the Carrier in respect of the particular stage of carriage where the loss or damage occurred.
(2) If the provisions of Clauses 4II(d)(1) above do not apply, in accordance with the contract of carriage, or tariffs of any inland carrier under whose custody the loss or damage occurred, or
(3) In the absence of such contract or tariff mentioned in Clause 4II(d)(2) above, by the Hague Visby Rules (or U.S. COGSA for shipments to or from or through the U.S.A. (as to which see clause 4III).
(4) The Carrier shall nevertheless be relieved of liability for loss or damage or delay occurring during the carriage if such loss or damage or delay were caused by any cause or event which the Carrier could not avoid and the consequences of which he could not prevent by the exercise of reasonable diligence.
(5) The Carrier’s liability for loss of or damage to the Goods shall in any event not exceed 666.67 SDR units per package or unit or 2 SDR units per kilogram of gross weight of the Goods lost or damaged, whichever is the higher, or USD 500 per package for shipments to or from or through the U.S.A. (as to which see clause 4III), or where, by the consent of the Carrier, the value of the Goods has been declared in the Bill of Lading, the amount so declared. SDR units shall be defined and determined according to the Brussels Protocol - 1979 (SDR Protocol).
III USA CLAUSE PARAMOUNT (if applicable)
For shipments to or from or through the U.S.A., this Bill of Lading shall be only subject to U.S. COGSA and to the Pomerene Act, also known as the U.S. Federal Bill of Lading Act of 1916, 49 U.S.C 801. Where U.S. COGSA applies then the provisions stated in the said Act shall [(except as may be otherwise provided herein)] also govern before loading on the Vessel or after discharge there from, as the case may be, [including during carriage to or from a container yard or container freight station in or immediately adjacent to the sea terminal at the Port of Loading and/or Destination.] If the Carrier is requested by the Merchant to procure carriage by an inland carrier in the U.S.A (including to/from Canada) and the inland carrier at his discretion agrees to do so, such carriage shall be procured by the Carrier as agent only to the Merchant and such carriage shall be subject to the inland carrier’s contract and tariff (in addition to all rights, defences, exemptions, limitations, and immunities contained in this Bill of Lading and the Carrier’s tariff) [Copies of inland carriers’ contracts will be made available to the Merchant by the Carrier upon written request.], but in any event the Carrier’s liability shall never exceed the terms otherwise provided for in this Bill of Lading. If for any reason the Carrier is denied the right to act as agent at these times, his liability for loss, damage or delay to the Goods shall be determined in accordance with Clause 4II hereof.
IV Period of responsibility and liability -
(a) In no event, including where carriage is performed under CY/CY or FCL/FCL carriage terms, will the Carrier be responsible for loss, damage or delay to the Goods, however caused, prior to loading of the Goods at the Port of Loading or, if contracted for, prior to the accomplishment of the loading of the Goods at Place of Receipt onto the Carrier's means of transportation and after discharge of Goods at Port of Destination or, if contracted for, after the commencement of lifting of the Goods at Final Destination onto the Merchant’s means of transportation. However, in case and to the extent that any applicable compulsory law provides the contrary, the Carrier shall nevertheless have the benefit of every right, defense, limitation and liberty contained in the Hague-Visby Rules or U.S. COGSA (as to which see clause 4III) during such additional compulsorily period of responsibility, notwithstanding that the loss or damage or delay did not occur at sea.
(b) The Carrier shall not be liable for any loss of or damage or delay to the Goods, when such loss or damage or delay occurs while the Goods are in custody or control of any governmental authority including but not limited to government terminals and warehouses, or when the Goods are being held at the express order of any customs authorities.
(d) Should the Carrier comply with any request of the Merchant to perform any service not initially agreed or mentioned on this Bill of Lading, he shall be deemed to provide such service on Merchant's behalf as an agent, and shall be under no liability whatsoever and however for any loss or damage to the Goods or any direct, indirect or consequential loss arising out or resulting from the performance of such service.
V Defences and limits of liability
The Carrier does not guarantee or undertake to load, carry, discharge or deliver the Goods on or by any particular Vessel, date or time. Advertised sailings and arrivals are only estimated schedules, and are subject to amendments and/or cancellation without any advance notice.
Arrival times at any point or place at any stage during the carriage, even if required to meet any particular market schedules or use, are not guaranteed by the Carrier. The Carrier shall not be liable for any direct or indirect loss or damage sustained throughout delay. However if it shall be adjudged that the Carrier is liable for any such delay, then subject to the terms and conditions of this Bill of Lading, it shall be only liable for any actual physical loss or damage to the Goods according to Clause 4, to the exclusion of any consequential damages due to delay, such as for loss of profits, marketing opportunities etc.
It shall be the responsibility of the Merchant to contact the Carrier regarding time of arrival of the Goods. The Carrier is not obliged to give notice of the arrival of the Goods and no responsibility whatsoever shall attach to the Carrier or his agents for not giving such notice of the arrival of the Goods.
Unless notice of loss or damage and the general nature of such loss or damage be given in writing to the Carrier or his agents at Final Destination (or Port of Destination, if no Final Destination has been contracted hereof) before or at the time of removal of the Goods into the custody of the Merchant, or if the loss or damage is not apparent within three days thereafter, such removal shall be regarded as prima facie evidence of the delivery by the Carrier of the Goods as described in this Bill of Lading. In any event, the Carrier shall be discharged from all and any liability whatsoever in respect of the Goods unless suit is brought within one year of their delivery or of the date when they should have been delivered.
(a) The Carrier may at any time and without notice to the Merchant:
(1) use any means of transport or storage whatsoever;
(2) transfer the Goods from one conveyance to another including but not limited to transshipping or carrying same on a Vessel other than the Vessel named on the face hereof, or by any other means of transport whatsoever and even though transshipment or forwarding of the Goods may not have been contemplated or provided for herein;
(3) unpack and remove the Goods which have been packed into a Container and forward them in a Container or otherwise;
(4) proceed via any route, (whether or not the nearest or most direct or customary or advertised route) at any speed and proceed to, return to and stay at any port or place whatsoever (including the Port of Loading herein provided) once or more often, and in any order in or out of the route or in a contrary direction to or beyond the Port of Destination once or more often;
(5) transship, load and unload the Goods at any place or port (whether or not any such port is named on the face hereof as the Port of Loading or Port of Destination) and store the Goods at any such port or place;
(6) permit the Vessel to proceed with or without pilots, to tow or to be towed, or to be dry-docked, with or without Goods and/or Containers on board;
(7) comply with any orders or recommendations given by any national or
international government, institution or authority or any Person or body purporting to act as or on behalf of the aforesaid, or having under the terms of the insurance on any conveyance employed by the Carrier the right to give orders or directions as to loading, departure, routes in transit (including inland routes) ports of call, roads, stoppages, destination, arrival, discharge, delivery, inspections or confiscations, or in any other way whatsoever, and the Carrier shall be exempted from all liability to the extent caused as a result of the aforesaid or in connection therewith.
(b) The liberties set out in Clause 8 (a) may be invoked by the Carrier for any purpose whatsoever, whether or not connected with the carriage of the Goods, including but not limited to by loading or unloading other goods, bunkering, embarking or disembarking any person(s), undergoing repairs, and assisting other vessels under any circumstances . Anything done or not done in accordance with Clause 8 (a) or any delay arising there from shall not be considered as a deviation and shall constitute due performance by the Carrier of all its obligations hereunder, and in any such event, the Carrier shall be entitled to full freight.
(b) Goods, whether or not packed in Containers, may be carried on deck or under deck, at the sole discretion of the Carrier, at any available location on board the Vessel, without notice to the Merchant. The Carrier does not guarantee under deck stowage.
(c) If carried on deck, the Carrier shall not be required to note, mark or stamp on the Bill of Lading any statement of such on-deck carriage. Save as provided in sub-clause (c) such Goods carried on or under deck shall participate in General Average and shall be deemed to be within the definition of Goods for the purpose of the Hague Visby Rules or U.S. COGSA and shall be carried subject to such Rules or Act, whichever is applicable as well as in accordance with the terms and conditions of this Bill of Lading.
(d) Notwithstanding the provisions of Clauses 9(b and 9(c) above, Goods which are stated to be carried on deck and live animals, are carried solely at Merchant’s risk and responsibility, without any responsibility on the part of the Carrier for loss or damage of whatsoever nature or delay arising during the carriage, whether caused by unseaworthiness or negligence or any other cause whatsoever, and neither the Hague Visby Rules nor U.S. COGSA shall apply.
(b) The Carrier makes no warranty or representation, implied or express, concerning the Containers (including, Refrigerated Containers and gen-sets) or their components interchanged. Responsibility for proper inspection, control and operation of the Containers upon interchange and while not under Carrier’s custody is set with the Merchant and its own agents and servants.
(c) Container demurrage, Container detention, storage, wharfage and/or pier/quay rent shall be based on Carrier's regular charges, and are payable by the Merchant.
(d) The Merchant is responsible for returning at his risk, expense and responsibility the empty Containers in sound condition with interiors brushed and clean and odor free to the Port of Destination, or Final Destination, if contracted for, or to any other point or place designated by the Carrier, his servants or agents, within the prescribed time. Should a Container not be stripped by the Merchant, or not be returned within the prescribed time and/or in sound condition and/or with the interior brushed and clean, the Merchant shall be liable for all losses and/or damage, liabilities, demurrage, detention, charges, costs, expenses (including but not limited to legal fees), resulting there from.
(a) The Carrier shall dose not undertake to carry the Goods in refrigerated, heated, insulated, ventilated or any other specifically equipped Container (hereinafter referred to as "Refrigerated Container"), nor to carry Refrigerated Container packed by or on behalf of the Merchant as such, but the Carrier will treat such Goods or Containers as ordinary Goods or dry Containers respectively, unless special arrangements for the carriage of such Goods or Containers have been agreed to in writing between the Carrier and the Merchant, and are noted on the face of this Bill of Lading, and special freight as required has been paid as agreed upon.
(b) The Merchant undertakes not to tender for carriage any Goods which require refrigeration, ventilation or humidity control (as the case may be) or any other specialized attention without giving to the Carrier at the time of booking written notice, of their nature and the required carrying temperature or other required setting of the thermostatic, ventilation or other special controls. In the absence of clear and specific handling instructions by the Merchant, the Carrier shall not be liable for any loss of or damage to the Goods howsoever arising as a result there from.
(c) The Carrier does not undertake to deliver empty Refrigerated Container(s) to the Merchant at any specific temperature or settings. If the Goods are received by the Carrier in Refrigerated Container into which they have been packed by or on behalf of the Merchant, it is the obligation of the Merchant to stow them properly and at the required carrying temperature, set the thermostatic controls, ventilation or humidity control (as the case may be) and operate the gen-set as properly required. The Carrier shall not be liable for any loss of or damage to the Goods arising out of or resulting from the Merchant’s failure in the performance of such obligations and under such circumstances does not guarantee the maintenance of the intended temperature, ventilation or humidity inside the Container. The Carrier has the right, but not the obligation, to refuse acceptance of any Refrigerated Container intended to be loaded for carriage and/or to actually load same on the Vessel, where the Goods are not or were not stuffed into the Container or maintained by the Merchant within the contracted carrying temperature and/or other settings as applicable.
(d) The Merchant is fully aware that a Refrigerated Container:
(e) As regards the Goods carried by agreement of the Carrier in Refrigerated Container, the Carrier shall exercise due diligence to maintain the well functioning facilities of the Refrigerated Container while they are under his actual custody and control, however it shall not be liable for any kind of loss of or damage to the Goods caused by latent defects, derangement or mechanical breakdown occurring during carriage and/or while under Carrier’s responsibility, without the actual fault of the Carrier.
(f) The Carrier shall not accept any responsibility for the operation of Refrigerated Container supplied by or on behalf of the Merchant.
(g) In the event of any claim in which the temperature or settings of the Goods in a Refrigerated Container are a relevant fact, it is hereby agreed that the temperature reflected in Carrier’s records, to wit: the temperature recording device and/or log book reports maintained by the Carrier, shall be prima facie evidence of the temperature or settings at which the Goods were maintained at all time while under Carrier’s responsibility.
(h) The term "apparent good order and condition" or similar wording when used in this Bill of Lading with reference to Goods which require refrigeration, ventilation or other special attention, does not mean that the Goods and/or their condition, when received, have been verified by the Carrier as complying with the designated carrying temperature, or the appropriate humidity level, or other condition designated by the Merchant, or that the aforesaid are adequate or proper settings for the specific nature of the Goods carried.
(e) The Merchant further warrants that whilst stuffing the Containers or preparing uncontainerized Goods for shipment, it had complied with all the applicable regulations, requirements and rules of the customs and other authorities under whose control the Containers will be from the time of their stuffing until the time they are delivered to his custody upon accomplishment of the carriage.
(f) Containers stuffed with Goods by the Merchant shall be delivered to the Carrier properly sealed with intact seals approved and/or meeting the requirements of local authorities as per prevailing regulations or directives. Seals identification reference, as well as the Container reference, shall be provided by the Merchant to the Carrier by way of shipping declaration or similar applicable document as customary. The Carrier shall not be liable in any event for the accuracy or other particulars furnished by the Merchant relating to the seals reference, as shown on the face of this Bill of Lading.
(g) The Merchant agrees to be liable and to indemnify the Carrier for any direct, indirect or consequential loss or damage, injury, liability, claim, fines or expenses (including, inter alia, legal fees) caused or incurred to the Carrier or any third party or to the environment from either of (i) improper or inadequate stowage in and stuffing of the Containers or Goods by the Merchant its agents or servants, or (ii) any defect, deficiency, unseaworthiness or uncargoworthiness of any equipment or Container supplied by the Merchant, or (iii) any infestation, contamination, condemnation, deficiency or nature of the Goods and/or Containers supplied or stuffed by the Merchant, or (iv) any breach of the Merchant of its warranties or obligations under this Clause or Clause 13, or (v) any other cause related or in connection with the Goods for which the Carrier is not responsible, or as a consequence of the Carrier acting in accordance with the Merchant’s instructions and information, or the inaccuracy or insufficiency thereof, or (vi) any other cause for which the Merchant and its own agents or servants are responsible for under this Bill of Lading.
Should it appear at any time that the performance or continued performance of the transport would or is likely to expose the Carrier, the vessel, her crew or any goods on board to the risk of capture, seizure, detention, damage, delay, hindrance, difficulty or disadvantage of whatever kind, or that the vessel is or is likely to be prevented from reaching or entering the Port of Loading or there loading in the usual manner and leaving again or reaching or entering the Port of Destination or there discharging in the usual manner and leaving again, all of which safely and without delay, or should the Master, in his absolute discretion, consider it impossible, unsafe or inconvenient to discharge the cargo, the subject of this Bill of Lading, or any part thereof at Port of Destination, all of which resulting from any cause whatsoever and in particular, but not exclusively, from any war, warlike operations, blockade, riots, civil commotion or piracy, actual or threatened terrorist acts, insufficient depth of water, conditions of tide, weather conditions, epidemic, quarantine, ice, labor troubles, labor obstructions, strikes, lockouts, any of which on board or on shore, congestion in the port or at quays or berths, or postponement, delay or cancellation of window berthing arrangements, insufficiency of lighters, actual or threatened blockade, interdict, impracticability of entering into the said port, and/or any unfavorable conditions at the said port, prior to or upon or subsequent to the Vessel’s arrival, the Carrier shall be entitled at his sole discretion, whether or not the events or state of affairs in question existed or were anticipated at the time of entering into this contracts, to either:
(a) Carry the Goods to the contracted Port of Destination or Final Destination, whichever is applicable, by an alternative route to that indicated in this Bill of Lading or that which is usual for Goods consigned to that Port of Destination or Final Destination. If the Carrier elects to invoke the terms of this Clause 16(a) then, notwithstanding the provisions of Clause 8 hereof, he shall be entitled to charge such additional freight as the Carrier may determine; or
(b) Suspend the carriage of the Goods and store them ashore or afloat upon the terms and conditions of this Bill of Lading and endeavor to forward them as soon as possible, but the Carrier makes no representations as to the maximum period of suspension. If the Carrier elects to invoke the terms of this Clause 16(b) then, notwithstanding the provisions of Clause 8 hereof, he shall be entitled to charge such additional freight and costs as the Carrier may determine; or
(c) Abandon the carriage of the Goods and place them at the Merchant’s disposal at any place or port which the Carrier may deem safe and convenient, whereupon the responsibility of the Carrier in respect of such Goods shall cease.
Exercising the rights and liberties under the provisions of this Clause shall be deemed due fulfillment by the Carrier of the contract and if in connection with the exercise of any liberty under this Clause any extra expenses are incurred, they shall be paid by the Merchant in addition to the freight together with return freight, if any, and reasonable compensation for any extra service rendered to the Goods.
(a) The Merchant is obliged to pay freight.
Full freight, including but not limited to demurrage, surcharges and charges as applicable shall be paid in cash without discount, set-off and/or deduction whatsoever and whether prepayable or payable at destination to be considered as earned and due on receipt of the Goods by the Carrier and non-returnable in any event, ship and/or Goods lost or not lost. Freight and all other amounts mentioned in this Bill of Lading shall be paid in the currency determined at the option of the Carrier.
(b) Freight is calculated on the basis of particulars furnished by or on behalf of the Merchant. Should it transpire that the particulars furnished by or on behalf of the Merchant are incorrect it is agreed that a sum equal to either double the difference between the correct freight and the freight charged or to double to correct freight less the freight charged, whichever sum is the smaller, shall be payable as liquidated damages and not as additional freight or a surcharge to the Carrier, and the Merchant shall also pay all expenses incurred by the Carrier in ascertaining the said particulars.
(c) All dues, taxes or charges or other expenses in connection with the Goods and all additional amounts for which the Merchant is liable to the Carrier under this Bill of Lading shall be paid by the Merchant on demand.
The Carrier’s freight tariff rules and regulations shall be deemed incorporated herein as if set forth at length and are available at any of the Carrier’s offices.
(a) The liability of the Carrier and/or the Vessel for any loss or damage to the Goods or in connection therewith shall in no event exceed the per package limitation contained in the Hague-Visby Rules.
(b) If U.S. COGSA applies by virtue of Clause 4III, the liability of the Carrier and/or the Vessel shall not exceed US$500.- lawful money of the United States per package or customary freight unit.
(c) Where the Hague Rules apply by national law, the Carrier’s liability shall in no event exceed GBP 100 per package or unit.
(d) In any other event the provisions of Clause 4II(d)] shall apply.
(e) Furthermore, the Carrier’s liability if any, shall not exceed the market value of the Goods at the time and place they should have been delivered. Should, however, the invoice value of the Goods be lower than the market value at the time and place of delivery, the Carrier will only pay the invoice value.
(f) Ad Valorem - The limitations of liability mentioned above shall not apply in the event that the nature and value of the Goods have been declared in writing by the Merchant before shipment and inserted in this Bill of Lading in the "Merchant’s Declared Value of Goods" box and Ad Valorem freight has been paid.
All and any claims and/or disputes arising under this Bill of Lading or in connection therewith shall be brought before and determined by the courts and in accordance with the law at:
(a) Hong Kong, or
(b) if the cargo originates in or is destined for the U.S.A., by the United States District Court for the Southern District of New York, N.Y., U.S.A.
Each of the above courts, respectively, shall have exclusive jurisdiction and, therefore, no proceedings shall be brought before any other court.
Notwithstanding the above, the Carrier shall have the right to may bring a claim against the Merchant in any other competent court in which cased the law of such court shall apply.
This Bill of Lading is the final contract between the parties which supersedes any prior agreement or understanding, whether in writing or verbal, save where this Bill of Lading has been issued pursuant to another contract between the Merchant and the Carrier, whereby such other contract and this Bill of Lading shall be construed together. This Bill of Lading and its terms and conditions may not be altered orally.