1. DEFINITIONS
| Carriage: |
Means the whole of the operations and services
undertaken or performed by or on behalf of the
Carrier in respect of the Goods. |
| Carrier: |
means the Company stated on the front of this
Bill of Lading as being the Carrier and on whose
behalf this Bill of Lading has been signed |
| Charges: |
Means freight and all expenses and money
obligations incurred and payable by the Merchant.
|
| COGSA: |
Means the Carriage of Goods by Sea Act of the
United States of America approved on 16th April
1936.
|
| COGWA: |
Means the Hague-Visby Rules. |
| Combined Transport: |
Arises where the carriage called for by this
Bill of Lading is not a Port to Port shipment.
|
| Container: |
Means any container, trailer, transportable
tank, lift van, flat, pallet, or any similar article
of transport used to consolidate goods.
|
| Defenses: |
Means all rights, immunities, exclusions,
exemptions, defenses, limitations, however described
(no matter whether arising by law or by contract),
which might abate, bar, defeat or diminish any
recovery against the Carrier. |
| Freight: |
Means all of the following relating to or in
connection with the Goods: ocean freight and other
charges provided by the Carrier's applicable tariff,
including but not limited to ad valorem charges,
advance charges and less than full container load
service charges, currency adjustment factor, bunker
adjustment factor, surcharges, war risk premiums,
arbitrary and accessorial charges; all charges
arising as a result of changing the port of loading
or discharge, and expenses arising or incurred under
this Bill of Lading; additional freight or other
charges; deadfreight; special freight for the
carriage of special containers; return freight if
the Goods are returned. |
| Goods: |
Means the cargo supplied by the Merchant and
includes any Container not supplied by or on behalf
of the Carrier. |
| Hague Rules: |
Means the provisions of the International
Convention for Unification of certain Rules relating
to Bills of Lading signed at Brussels on 25th August
1924. |
| Hague-Visby Rules: |
Means the Hague Rules as amended by the Protocol
signed at Brussels on 23rd February 1968. |
| Merchant: |
Means the shipper, the consignee, the receiver
of the Goods, the holder of this Bill of Lading, any
person owning or entitled to the possession of the
Goods or this Bill of Lading, any person having a
present or future interest in the Goods or any
person acting on behalf of any of the above
mentioned persons.
|
| Package: |
(1) the Container when the Goods are
shipped in a Container
(2) the skid or pallet when Goods are shipped
on a skid or pallet and stuffed in a Container, and
the Container is adjudged not to be the package for
the purposes of the Carrier's limitation of
liability
(3) the skid or pallet when Goods are shipped
on a skid or pallet but not in a Container
(4) that shipping unit which contains the
greatest quantity of the Goods and to which some
packaging preparation for transportation has been
made which facilitates handling even though it does
not conceal or completely enclose the Goods. This
clause does not apply to Goods shipped in bulk, and
it supersedes any inconsistent provision which may
be printed, stamped or written elsewhere in this
Bill of Lading. |
| Participating
Carrier: |
Means the ocean carrier and any other water,
land or air carrier involved in the Carriage of the
Goods whether it be a Port to Port or a Combined
Transport movement. |
| Person: |
Means an individual, a partnership, a body
corporate or other entity.
|
| Port to Port
Shipment: |
Means when the port of loading and the port of
discharge only are shown on the face hereof and
neither the place of acceptance nor the final
destination are stipulated on the face hereof.
|
| Shipping Unit: |
Means freight unit and the term "unit" as used
in the Hague Rules and Hague-Visby Rules. |
| Stuffed: |
Means filled, consolidated, packed, loaded, or
secured. |
2. CARRIER'S TARIFF
The provisions of the Carrier's applicable tariff, are
incorporated herein. A copy of the applicable tariff is
available for review in the Carrier's web-site upon payment
of a reasonable charge, if any, set out in the Carrier's
tariff and/or where applicable, upon request, obtainable
from the Interstate Commerce Commission or other regulatory
body with whom the tariff has been filed. In the case of
inconsistency between this Bill of Lading and the applicable
Tariff, this Bill of Lading shall prevail.
3. WARRANTY
The Merchant warrants that in agreeing to the terms hereof
he is or is the agent of and has the authority of the person
owing or entitled to the possession of the Goods or any
person who has a present or future interest in the Goods.
4. NON-NEGOTIABILITY OF BILL OF LADING
This Bill of Lading shall be non-negotiable unless made out
"to order" in which event it shall be negotiable and shall
constitute title to the Goods and the holder shall be
entitled to receive or to transfer the Goods herein
described.
5. CERTAIN RIGHTS AND IMMUNITIES FOR THE CARRIER AND
OTHER PERSONS
(1) The carrier shall be entitled to sub-contract on
any terms the whole or any part of the Carriage.
(2) It is expressly agreed that any and all servants,
agents and independent contractors (including the Master,
officers, and crew of the vessel, participating carrier, all
terminal operators, warehousemen, stevedores, watchman,
husbanding agents, managing agents, general agents, ship's
agents, and all other agents, subcontractors and independent
contractors whatsoever as well as any officers, directors,
agents or employees of any of the foregoing) used or
employed by the Carrier in connection with the performance
of any or all of Carrier's obligations under this bill of
lading, in consideration of the agreement to be so used or
employed, shall be express beneficiaries under this bill of
lading and shall have the benefit of all defenses to which
the Carrier is entitled so that in no circumstances shall
any servant, agent or independent contractor of the Carrier
be under any liability in contract, warrant, tort (including
negligence) indemnity or contribution, greater than that of
the Carrier to anyone other than the Carrier.
(3) The Merchant shall defend, indemnify and hold
harmless the Carrier against any claim or liability (and any
expense arising therefrom) arising from the Carriage of the
Goods insofar as such claim or liability exceeds the
Carrier's liability under this Bill of Lading.
(4) The defenses and limits of liability provided for
in this Bill of Lading shall apply in any action against the
Carrier whether the action be found in Contract or in Tort.
6. CLAUSE PARAMOUNT
(1) To and From non-United States Ports. As far as
this Bill of Lading covers the Carriage of Goods by sea to
and from non-U.S. ports by the Carrier and any Participating
Carrier, the Contract evidenced in this Bill of Lading shall
have effect subject to the Hague-Visby Rules, if and as
enacted in the country of shipment and any legislation
making those Rules compulsorily applicable to this Bill of
Lading shall be deemed incorporated herein and made part of
this Bill of Lading contract. When no such enactment is in
force in the country of shipment, the Hague-Visby Rules will
apply. The Hague-Visby Rules shall also govern before the
Goods are loaded on and after they are discharged from the
vessel and throughout the entire time the Goods are in the
actual custody of the Carrier or Participating Carrier. The
Hague-Visby Rules shall also apply to the Carriage of Goods
by inland waterways and reference to carriage by sea in such
Rules or legislation shall be deemed to include reference to
inland waterways.
(2) To or From United States ports. If the Carriage
called for in this Bill of Lading is a shipment to or from
the United States, the liability of the Carrier shall be
exclusively determined pursuant to COGSA; the Pomerene Act
[49 U.S.C. �80101 et. seq.] for both export and import cargo
moving to/from the United States; and Article 7-301 of the
Uniform Commercial Code. The provisions cited in the Hague
Rules and COGSA shall also govern before the Goods are
loaded on and after they are discharged from the Vessel and
throughout the entire time the Goods are in the actual
custody of the Carrier or Participating Carrier.
(3) The Carrier shall be entitled to (and nothing in
this Bill of Lading shall operate to deprive or limit such
entitlement) the full benefit of, and rights to, all
limitation of and exclusions from liability and all rights
conferred or authorised by any applicable law, statute or
regulation of any country (including, but not limited to,
where applicable any provisions or sections 4281 to 4287,
inclusive, of the Revised Statutes of the United States of
America and amendments thereto and where applicable any
provisions of the laws of the United States of America) and
without prejudice to the generality of the foregoing also
any law, statute of regulation available to the Owner of the
vessel on which the Goods are carried.
7. CARRIER'S RESPONSIBILITY
The Carrier shall not be responsible for any loss to the
Goods however caused occurring while the Goods are not in
the actual custody of the Carrier.
(1) PORT TO PORT SHIPMENT
The responsibility of the Carrier is limited to that part of
the Carriage from and during loading onto vessel up to and
during discharge from the vessel and the Carrier shall not
be liable for any loss or damage whatsoever in respect of
the Goods or for any other matter arising during any other
part of the Carriage even though Charges for the whole
Carriage have been charged by the Carrier. The Merchant
appoints and/or authorizes the Carrier as agent to enter
into contracts on behalf of the Merchant with others for
transport, storage, handling, or any other services in
respect of the Goods prior to loading and subsequent to
discharge of the Goods from the vessel without
responsibility for any act or omission whatsoever on the
part of the Carrier or others and the Carrier may as such
agent enter into contracts with others on any terms
whatsoever including terms less favorable than the terms in
this Bill of Lading.
(2) COMBINED TRANSPORT
(A) The carrier acts as agent for Merchant with regard to
procuring inland and ocean transportation. If, for any
reason, it is adjudged that the Carrier was not acting as
the Merchant's agent, then in addition to the defenses and
limitation of liability permitted to the Carrier by law and
by this bill of lading, the Carrier shall also have the
benefit of all defenses available to the participating
carrier(s) by law and by the terms of its or their contracts
of Carriage and tariffs, all of which shall be deemed
incorporated in this bill of lading, as applicable and with
respect to inland transportation of the Goods, Carrier will
be afforded all of the defenses according to the provisions
of any International Convention or national law which is
compulsorily applicable in the country, where the inland
transportation took place or, if no such law or convention
is applicable, then according to the Participating Carrier's
contracts of carriage and/or tariffs, if any.
(B) Save as is otherwise provided in this Bill of Lading,
the Carrier shall be liable for loss of or damage to the
Goods occurring from the time that the Goods are taken into
his charge until the time of delivery to the agent set out
below.
(i) If the place where the loss or damage occurred cannot be
proven.
(a) The Carrier shall be entitled to rely upon all Defenses
under COGSA or the Hague-Visby Rules under 6(a) or (b) above
had the loss or damage occurred at sea or where the loss or
damage occurred cannot be proved, said loss or damage shall
be presumed to have occurred at sea.
(b) Where under (i) above, the Carrier is not liable in
respect of some of the factors causing the loss or damage,
the Carrier shall only be liable to the extent that those
factors for which he is liable have contributed to the loss
or damage. (c) Subject to 8(c) below,
where the Hague Rules (such as COGSA) or the Hague-Visby
Rules (such as COGWA) or any legislation applying either
Rules is not compulsorily applicable, the Carrier's
liability shall not exceed US$500 per package or shipping
unit or US$2.00 per kilo of the gross weight of the Goods
lost, damaged in respect of which the claim arises or the
value of such Goods, whichever is the less. (d) The value of
the goods shall be determined according to the CIF value.
(ii) If the place where the loss or damage occurred can be
proved: (a) the liability of the Carrier shall be determined
by the provisions contained in any international convention
or national law of the country which provisions: (A) cannot
be departed from by private contract to the detriment of the
Merchant; and (B) would have 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 and had received as evidence thereof any
particular document which must be issued in order to make
such international convention or national law applicable;
(b) with respect to the transportation in the United States
of America or in Canada to the Port of Loading or from the
Port of Discharge the responsibility of the Carrier shall be
to procure transportation by carriers (one or more) and such
transportation shall be subject to the inland carriers
contract of carriage and tariffs and any law compulsorily
applicable. The Carrier guarantees the fulfillment of such
inland carrier's obligations under their contracts and
tariffs; (c) where neither (i) or (ii) above apply any
liability of the Carrier shall be determined by 7(b)(A)
above.
8. GENERAL PROVISIONS
(1) Delay, Consequential Loss Save as otherwise
provided herein, the Carrier shall in no circumstances be
liable for direct, indirect or consequential loss or damage
caused by delay or any other cause whatsoever and howsoever
caused. Without prejudice to the foregoing, if the Carrier
is found liable for delay, liability shall be limited to the
freight applicable to the relevant stage of the transport.
(2) Package or Shipping Unit Limitation
Where the Hague Rules (COGSA) or Hague-Visby Rules
(COGWA) or any legislation making either Rules
compulsorily applicable to this Bill of Lading, the Carrier
shall not unless a declared value has been noted in
accordance with (C) below, be or become liable for any loss
or damage to or in connection with the Goods in an amount
per package or shipping unit in excess of the package or
shipping unit limitation as laid down by either of the Rules
or legislation. Such limitation amount according to COGSA is
US$500 and according to COGWA is 666.67 units of account per
package or units of account per kilogram of gross weight of
the Goods lost or damaged, whichever is the higher. If no
limitation amount is applicable under either of the Rules or
legislation the limitation shall be US$500.
(3) Ad Valorem: Declared Value of Package or Shipping
Unit The Carrier's liability may be increased to a higher
value by a declaration in writing of the value of the Goods
by the shipper upon delivery to the Carrier of the Goods for
shipment, such higher value being inserted on the front of
this Bill of Lading in the space provided and, if required
by the Carrier, extra freight paid. In such case, if the
actual value of the Goods shall exceed such declared value,
the value shall nevertheless be deemed to be the declared
value and the Carrier's liability, if any, shall not exceed
the declared value and any partial loss or damage shall be
adjusted pro rata on the basis of such declared value.
(4) Rust, etc. It is agreed that superficial rust,
oxidation or any like condition due to moisture is not a
condition of damage but is inherent to the nature of the
Goods and the acknowledgement of the receipt of the Goods in
apparent good order and condition is not a representation
that such conditions of rust, oxidation or the like did not
exist on receipt.
(5) Notice of Loss or Damage
The Carrier shall be deemed prima facie to have delivered
the Goods as described in this Bill of Lading unless notice
of loss of or damage to the Goods indicating the general
nature of such loss or damage shall have been given in
writing to the Carrier or to his representative at the place
of delivery before or at the time of removal of the Goods
into the custody of the person entitled to delivery thereof
under this Bill of Lading or, if the loss or damage is not
apparent, within three consecutive days thereafter.
(6) Time-bar
(A)Unless notice of loss and the general nature of
such loss be given in writing to the Carrier at the port of
discharge or place of delivery before or at the time of
delivery of the Goods or if the loss is not apparent, within
three (3) consecutive days after that delivery, the Goods
shall be presumed to have been delivered as described in
this Bill of Lading.
(B) Where the loss has occurred in the custody of a
Participating Carrier, the Carrier shall be discharged from
all liability in respect of loss unless notice of claim is
filed and suit is brought within nine (9) months after
delivery of the Goods or the date when the Goods should have
been delivered or the time period prescribed by the
Participating Carrier's contract of carriage, tariff or by
law covering such Participating Carrier or overland carriage
whichever is less (in the United States, pursuant to the
Carmack Amendment, 49 U.S.C. �11-107(a), suit must be
brought within nine months).
(C) In any event, the Carrier shall be discharged
from all liability in respect of loss unless suit is brought
within one (1) year after delivery of the Goods or the date
when the Goods should have been delivered.
9. MERCHANT'S RESPONSIBILITY
(1) The description and particulars of the Goods set
out on the face hereof are furnished by the Merchant and the
Merchant warrants to the Carrier that the description and
particulars including, but not limited to, of weight,
content, measure, quantity, quality, condition, marks,
numbers and value are correct.
(2) The Merchant shall comply with all applicable
laws, regulations and requirements of customs, port and
other authorities and shall bear and pay all duties, taxes,
fines, imposts expenses and losses incurred or suffered by
reason thereof or by reason of any illegal, incorrect or
insufficient marking, numbering or addressing of the Goods.
(3) The Merchant undertakes that the Goods are packed
in a manner adequate to withstand the ordinary risks of
Carriage having regard to their nature and in compliance
with all laws, regulations and requirements which may be
applicable.
(4) No Goods which are or may become dangerous,
inflammable or damaging or which are or may become liable to
damage any property or person whatsoever shall be tendered
to the Carrier for Carriage without the Carrier's express
consent in writing and without the Container or other
covering in which the Goods are to be transported and the
Goods being distinctly marked on the outside so as to
indicate the nature and character of any such articles and
so as to comply with all applicable laws, regulations and
requirements. If any such articles are delivered to the
Carrier without such written consent and marking or if in
the opinion of the Carrier the articles are or are liable to
become of a dangerous, inflammable or damaging nature, the
same may at any time be destroyed, disposed of, abandoned,
or rendered harmless without compensation to the Merchant
and without prejudice to the Carrier's right to Charges.
(5) The Merchant shall be liable for the loss,
damage, contamination, soiling, detention or demurrage
before, during and after the Carriage of property
(including, but not limited to, Containers) of the Carrier
or any person or vessel (other than the Merchant) referred
to in 5(2) above caused by the Merchant or any person acting
on his behalf or for which the Merchant is otherwise
responsible.
(6) The Merchant shall defend, indemnify and hold
harmless the Carrier against any loss damage, claim,
liability or expense whatsoever arising from any breach of
the provisions of this clause 9 or from any cause in
connection with the Goods for which the Carrier is not
responsible.
10. CONTAINERS
(1) Goods may be stuffed by the Carrier in or on
Containers and Goods may be stuffed with other Goods.
(2) The terms of this Bill of Lading shall govern the
responsibility of the Carrier in connection with or arising
out of the supply of a Container to the Merchant, whether
supplied before or after the Goods are received by the
Carrier or delivered to the Merchant.
(3) If a Container has been stuffed by or on behalf
of the Merchant.
(A) the Carrier shall not be liable for loss of or damage to
the Goods
(i) caused by the manner in which the Container has been
stuffed
(ii) caused by the unsuitability of the Goods for carriage
in Containers
(iii) caused by the unsuitability or defective condition of
the Container provided that where the Container has been
supplied by or on behalf of the Carrier, this paragraph
(iii) shall only apply if the unsuitability or defective
condition arose (a) without any want of due diligence on the
part of the Carrier or (b) would have been apparent upon
reasonable inspection by the Merchant at or prior to the
time when the Container was stuffed; (iv) if the Container
is not sealed at the commencement of the Carriage except
where the Carrier has agreed to seal the Container. (B) The
Merchant shall defend, indemnify and hold harmless the
Carrier against any loss, damage, claim, liability or
expense whatsoever arising from one or more of the matters
covered by (A) above except for (A)(iii)(a) above.
(4) Where the Carrier is instructed to provide a
Container, in the absence of a written request to the
contrary, the Carrier is not under an obligation to provide
a Container of any particular type or quality.
11. TEMPERATURE CONTROLLED CARGO
(1) The Merchant undertakes not to tender for
transportation any Goods which require temperature control
without previously giving written notice (and filling in the
box on the front of this Bill of Lading if this Bill of
Lading has been prepared by the Merchant or a person acting
on his behalf) of their nature and particular temperature
range to be maintained and in the case of a temperature
controlled Container stuffed by or on behalf of the Merchant
further undertakes that the Container has been properly
pre-cooled, that the Goods have been properly stuffed in the
Container and that its thermostatic controls have been
properly set by the Merchant before receipt of the Goods by
the Carrier.
If the above requirements are not complied with the Carrier
shall not be liable for any loss of or damage to the Goods
caused by such non compliance.
(2) The Carrier shall not be liable for any loss of
or damage to the Goods arising from defects, derangement,
breakdown stoppage of the temperature controlling machinery,
plant, insulation or any apparatus of the Container,
provided that the Carrier shall before or at the beginning
of the Carriage exercise due diligence to maintain the
refrigerated Container in an efficient state.
12. INSPECTION OF GOODS
The Carrier or any person authorized by the Carrier shall be
entitled, but under no obligation, to open any Container or
Package at any time and to inspect the Goods.
13. MATTERS AFFECTING PERFORMANCE
(1) If at any time the Carriage is or is likely to be
affected by any hindrance, risk, delay, difficulty or
disadvantage of any kind (including the condition of the
Goods) whensoever and howsoever arising (whether or not the
Carriage has commenced) the Carrier may:
(A) without notice to the Merchant abandon the
Carriage of the Goods and where reasonably possible place
the Goods or any part of them at the Merchant's disposal at
any place which the Carrier may deem safe and convenient,
whereupon the responsibility of the Carrier in respect of
such Goods shall cease; (B) without prejudice to the
Carrier's right subsequently to abandon the Carriage under
(A) above, continue the Carriage.
In any event the Carrier shall be entitled to full Charges
on Goods received for Carriage and the Merchant shall pay
any additional costs resulting from the above mentioned
circumstances.
(2) The liability of the Carrier in respect of the
Goods shall cease on the delivery or other disposition of
the Goods in accordance with the orders or recommendations
given by any government or authority or any person acting or
purporting to act as or on behalf of such government or
authority.
14. METHODS AND ROUTE OF TRANSPORTATION
(1) The Carrier may at any time and without notice to
the Merchant use (i) any means of transport or storage
whatsoever, (ii) load or carry the Goods on any vessel
whether named on the front hereof or not, (iii) transfer the
Goods from one conveyance to another including transshipping
or carrying the same on another vessel than that named on
the front hereof or by any other means of transport
whatsoever, (iv) at any place unpack and remove Goods which
have been stuffed in or on a Container and forward the same
in any manner whatsoever including but not limited to
unstuffing and stuffing of less than container loads into or
on other containers at transshipment ports, (v) proceed at
any speed and by any route in Carrier's discretion (whether
or not the nearest or most direct or customary or advertised
route) and proceed to or stay at any place whatsoever once
or more often and in any order, (vi) load or unload the
Goods from any conveyance at any place (whether or not the
place is a port named on the front hereof as the intended
Port of Loading or intended Port of Discharge), (vii) comply
with any orders or recommendations given by any government
or authority or any person or body acting or purporting to
act as or on behalf of such government or authority or
having under the terms of the insurance on the conveyance
employed by the Carrier the right to give orders or
directions, (viii) permit the vessel to proceed with or
without pilots, to tow or be towed or to be dry-docked, (ix)
permit the vessel to carry Goods of all kinds, dangerous or
otherwise.
(2) If a less than a full container shipment is
transshipped at any intermediate port, the Carrier may break
the container seal to unstuff the shipment from the
container and restuff that shipment into or on another
container. In this respect, the Carrier is acting as the
agent of the Merchant. (3) The liberties set out in
(1) and (2) above may be invoked by the Carrier for any
purposes whatsoever whether or not connected with the
Carriage of the Goods. Anything done in accordance with (1)
above or any delay arising therefrom shall be deemed to be
within the contractual Carriage and shall not be a deviation
of whatsoever nature or degree.
15. DECK CARGO
(1) Goods of any description whether containerized or
not may be stowed on or under deck without notice to the
Merchant and such stowage shall not be a deviation of
whatsoever nature or degree. Subject to (2) below, such
Goods whether carried on deck or under deck shall
participate in General Average and such Goods shall be
deemed to be within the definition of Goods for the purposes
of the Hague Rules or any legislation making such Rules or
the Hague Visby Rules compulsorily applicable (such as
COGSA) to this Bill of Lading.
(2) Goods (not being Goods stuffed in or on
Containers other than open flats or pallets) which are
stated on the front of this Bill of Lading to be carried on
deck and which are so carried are carried without
responsibility on the part of the Carrier for loss or damage
of whatsoever nature arising during carriage by sea or
inland waterway whether caused by unseaworthiness or
negligence or any other cause whatsoever.
16. NOTIFICATION AND DELIVERY CLAUSE
(1) Any mention in this Bill of Lading of parties to
be notified of the arrival of the Goods is solely for the
information of the Carrier, and failure to give such
notification shall not involve the Carrier in any liability
or remove the Merchant of any obligations hereunder.
(2) The Merchant shall take delivery of the Goods
within the time provided for in the Carrier's applicable
tariff.
(3) If the Merchant fails to take delivery of the
Goods or part of them in accordance with this Bill of
Lading, the Carrier may without notice remove the Goods or
that part thereof and/or store the Goods or that part
thereof ashore, afloat, in the open or under cover. Such
storage shall constitute due delivery hereunder and there
upon all liability whatsoever of the Carrier in respect of
the Goods or that part thereof shall cease. (4) The
Merchant's attention is drawn to the stipulation concerning
free storage time and demurrage contained in the Carrier's
applicable Tariff, which is incorporated in this Bill of
Lading.
(5) Once free time has expired, the Goods will be
stored at a warehouse or receiver's terminal at the sole
risk and expense of the Merchant and the Goods. However, if
the Carrier believes that the Goods are likely to
deteriorate, decay, lose value or incur storage or other
charges in excess of their value, the Carrier may, without
notice to the Merchant, publicly or privately sell or
dispose of the Goods and apply the proceeds of the
disposition in reduction of the Freight, and any other
charges associated with the warehousing and/or sale of the
Goods.
17. BOTH-TO-BLAME COLLISION
The both blame clause published by the Baltic and
International Maritime Counsel (BIMCO) is incorporated
herein by this reference.
18. GENERAL AVERAGE
(1) The Carrier may declare General Average which
shall be adjustable according to the York/Antwerp Rules of
1974 at any place at the option of the Carrier and the
Amended Jason Clause as approved by BIMCO is to be
considered as incorporated herein and the Merchant shall
provide such security as may be required by the Carrier in
this connection.
(2) Notwithstanding (1) above, the Merchant shall
defend, indemnify and hold harmless the Carrier in respect
of any claim (and any expense arising therefrom) of a
General Average nature which may be made on the Carrier and
shall provide such security as may be required by the
Carrier in this connection.
(3) The Carrier shall be under no obligation to take
any steps whatsoever to collect security for General Average
contributions due to the Merchant.
19. CHARGES
(1) Charges shall be deemed fully earned on receipt
of the Goods by the Carrier and shall be paid and
non-returnable in any event, whether vessel, inland carrier
and/or cargo lost or not lost. (2) The Charges have
been calculated on the basis of particulars furnished by or
on behalf of the Merchant. The Carrier shall be entitled to
production of the commercial invoice for the Goods or true
copy thereof and to inspect, reweigh, remeasure and revalue
the Goods and if the particulars are found by the Carrier to
be incorrect the Merchant shall pay the Carrier the correct
Charges (credit being given for the Charges charged) and the
costs incurred by the Carrier in establishing the correct
particulars.
(3) All Charges shall be paid without any set off,
counterclaim, deduction or stay of execution.
(4) Any person, firm or corporation engaged by any
party to perform forwarding services with respect to the
Goods shall be considered the exclusive agent of the
Merchant for all purposes and any payment of Freight to such
person, firm or corporation shall not be considered payment
to the Carrier in any event. Failure of such person, firm,
or corporation to pay any part of the Freight to the Carrier
shall be considered a default by the Merchant in the payment
of the Freight.
(5) Should the Merchant fail to make timely payment
of the applicable Freight, the Merchant shall be liable to
Carrier for all costs and expenses including attorneys' fees
associated with the collection of such Freight from the
Merchant plus 6% of interest calculated from the date the
Freight became due.
20. LIEN
The Carrier shall have a lien for General Average
contribution and for Freight for the Carriage of the Goods
and on any documents relating to the Goods as well as in
respect to unpaid Freight from any previous Carriage on
behalf of the Merchant who owes that Freight to the Carrier.
The Carrier has the right to sell the Goods at public or
private sale without notice to the Merchant to satisfy the
lien in whole or in part. If the proceeds of this sale fail
to cover the whole amount due, the Carrier is entitled to
recover the deficit from the Merchant.
21. VARIATION OF THE CONTRACT
No servant or agent of the Carrier shall have power to waive
or vary any of the terms hereof unless such waiver or
variation is in writing and is specifically authorized or
ratified in writing by a director or officer of the Carrier
who has the actual authority of the Carrier so to waive or
vary.
22. PARTIAL INVALIDITY
If any provision in this Bill of Lading is held to be
invalid or unenforceable by any court or regulatory or self
regulatory agency or body, such invalidity or
unenforceability shall attach only to such provision. The
validity of the remaining provisions shall not be affected
thereby and this Bill of Lading contract shall be carried
out as if such invalid or unenforceable provision were not
contained herein.
23. LAW AND JURISDICTION (a) To Or From United States
Ports. The claims arising from or in connection with or
relating to this Bill of Lading shall be exclusively
governed by the law of the United States. Any and all action
concerning custody or carriage under this Bill of Lading
whether based on breach of contract, tort or otherwise shall
be brought before the United States District Court for the
Southern District of New York.
(b) To And From Non-U.S. Ports. The claims arising from or
in connection with or relating to this Bill of Lading shall
be exclusively governed by English law. Any and all actions
concerning custody or carriage under this Bill of Lading
whether based on breach of contract, tort or otherwise shall
be brought before a London court of competent jurisdiction.
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