BILL OF LADING - TERMS AND CONDITIONS

1. DEFINITIONS

In this Bill of Lading, unless the context otherwise requires:

"Carrier" means Winstar Global Logistics Limited (a company incorporated in Hong Kong) doing business as Winstar Global Logistics Limited and on whose behalf this Bill of Lading has been issued.

"Carriage" means the whole or any part of the operations and services undertaken by Carrier in respect of the Goods covered by this Bill of Lading.

"Goods" means the whole or any part of the cargo provided by Merchant for Carriage and includes any Container, packing or equipment not supplied by or on behalf of Carrier.

"Container" includes any container, trailer, transportable tank, lift van, flat, pallet, skid, platform and similar article of transport used to consolidate or transport goods and any ancillary or associated equipment.

"Combined Transport" arises only if either or both of the Place of Receipt and the Place of Delivery are indicated in the relevant boxes on the face hereof.

"Port to Port Transport" arises where the Carriage called for by this Bill of Lading is not Combined Transport.

"Freight" includes all the freight and all charges, costs and expenses whatsoever payable to Carrier, including without limitation storage and demurrage, in accordance with Carrier's applicable tariffs or this Bill of Lading.

"Hague Rules" means the provisions of the International Convention for the Unification of Certain Rules relating to Bills of Lading signed at Brussels on 25 August 1924.

“Hague-Visby Rules" means the Hague Rules as amended by the Protocol signed at Brussels on 23 February 1968.

"US COGSA" means the Carriage of Goods by Sea Act 1936 of the United States of America.

"Liabilities" includes claims, losses, damages, liabilities, fines, penalties, costs and expenses (including legal costs and expenses) of whatsoever nature and howsoever arising.

"Merchant" includes any person who is or at any time has been or becomes 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 or otherwise having any interest in the Goods or this Bill of Lading, and any person acting on behalf of any of the persons aforesaid.

"Rights and Defences" includes rights, defences, exemptions, limitations of liability, liberties, immunities and benefits of whatsoever nature and howsoever acquired.

“Shipper” means the party indicated in the “Shipper” box on the face hereof.

"Sub-Contractors" includes the owners, charterers and operators of any Vessel, stevedores, terminal operators, forwarders, groupage operators, consolidators, warehouse operators, road, rail and air transport operators, and other independent contractors employed by or for or taking instructions from Carrier directly or indirectly in the performance of any of Carrier's obligations hereunder, and including sub-contractors of any degree.

"Vessel" includes the vessel named on the face hereof and any substitute vessel, feeder, lighter or other watercraft used in the performance of the Carriage, whether owned or chartered or operated or controlled by Carrier or any Sub-Contractor or any other person.

References to Clauses are to clauses of these Terms and Conditions. Clause headings and sub- headings are for convenience only and do not affect the construction of these Terms and Conditions.

2. INTERPRETATION AND GENERAL

2.1. In the event that anything herein is inconsistent with any applicable international convention or national law, which cannot be departed from by private contract, the provisions hereof shall to the extent of such inconsistency but not further be null and void. Unless otherwise specifically agreed in writing between Merchant and Carrier, the Terms and Conditions of this Bill of Lading supersede any prior agreements between Merchant and Carrier.

2.2. Subject to Clause 2.1, provisions in these Terms and Conditions which exempt, exclude, relieve or limit the liability of Carrier, its servants, agents or Sub-Contractors shall be operative and effective notwithstanding (i) any act, omission (whether negligent, deliberate or otherwise) of Carrier, its servants, agents or Sub-Contractors, or (ii) the circumstances or cause of any loss or damage (to which such provisions relate) be unknown or unexplained, or (iii) any other matters or causes whatsoever.

2.3. Any right or remedy herein conferred on Carrier under this Bill of Lading is in addition to and without prejudice to all other rights and remedies available to it.

2.4. Notwithstanding anything to the contrary herein provided, nothing herein shall be construed to contractually apply the Hague-Visby Rules to this Bill of Lading.

3. CARRIER'S TARIFFS

The terms and conditions of Carrier's applicable tariffs, including without limitation provisions relating to Container and vehicle demurrage are incorporated herein. Copies of the applicable tariffs may be obtained from Carrier upon request. In the case of inconsistency between this Bill of Lading and the applicable tariffs, the terms of this Bill of Lading shall prevail.

4. SUB-CONTRACTING

4.1. Carrier shall be entitled to sub-contract the whole or any part of the duties undertaken by the Carrier in this Bill of Lading in relation to the Goods or Carriage or both, directly or indirectly on any terms whatsoever consistent with any applicable law.

4.2. Merchant warrants that no claim or demand whether arising in contract, bailment, tort or otherwise shall be made against any person undertaking or performing such duties (including Carrier's employees, servants, agents and Sub-Contractors) other than Carrier, which imposes or attempts to impose on any such person or any vessel owned or operated or controlled by any such person, any liability whatsoever in connection with the Goods or the Carriage or this Bill of Lading, whether or not arising out of negligence on the part of such person. If any such claim or demand should nevertheless be made, Merchant shall indemnify Carrier against all consequences thereof.

4.3. Without prejudice to the Merchant’s indemnity obligations herein, the employees, servants, agents and Sub-Contractors or each of them, shall have the benefit of all Rights and Defences herein provided for the benefit of or otherwise available to Carrier as if the same were expressly made also for such person's benefit. For the foregoing purposes, Carrier contracts for itself and as agent or trustee for all the aforesaid persons. For the purpose of this Clause 4, the Vessel and any and all employees, servants, agents and Sub-Contractors shall be deemed to be parties to the contract evidenced by this Bill of Lading.

4.4. If loss or damage to the Goods is known to have occurred during a period when the Goods were in the custody of Sub-Contractors then the Carrier shall have the benefit of any and all Rights and Defences contained in or incorporated by or compulsorily applicable to the Sub-Contractors’ tariff(s) or contract(s) with the Carrier (in addition to all Rights and Defences contained in this Bill of Lading and the Carrier’s tariff) and for this purpose such Rights and Defences shall be deemed to be incorporated herein, and copies are obtainable from Carrier upon request.

5. LIMITATION OF LIABILITY

Carrier shall be entitled to the same rights of limitation as are or would be available to the owner of the Vessel under the Brussels Limitation Convention of 1957, the London Limitation Convention of 1976 or any other applicable convention, statute or law, governing the rights of ship owners to limit their liability in accordance with the tonnage or value of the Vessel in the jurisdiction in which any claim is brought under this Bill of Lading.

6. CARRIER'S RESPONSIBILITY AND CLAUSE PARAMOUNT

6.1. If the Carriage is Port to Port the responsibility (if any) of Carrier shall be limited to that Carriage from and during loading onto the Vessel at the Port of Loading up to and during discharge from the Vessel, or from any other vessel onto which the Goods have been transshipped, at the Port of Discharge, and shall be determined in accordance with Clause 6.5.

6.2. Carrier shall be under no liability whatsoever for loss or damage to the Goods or non-delivery or mis-delivery howsoever caused if such loss or damage, non-delivery or mis-delivery arises prior to loading onto or subsequent to discharge from the Vessel.

6.3. Notwithstanding Clause 6.2, if and to the extent that any compulsory applicable national law provides for any additional responsibility for those part(s) of Carriage before loading or subsequent to discharge, Carrier shall have the benefit of all Rights and Defences under the Hague Rules as applied by Clause 6.5 herein during such additional period of responsibility, even though the matter giving rise to Carrier's liability, loss or damage, did not occur at sea.

6.4. If the Carriage is Combined Transport, Carrier undertakes to perform and/or in its own name to procure performance of the Carriage from the Place of Receipt or the Port of Loading (whichever is applicable) to the Port of Discharge or the Place of Delivery (whichever is applicable) and, save as is otherwise provided for in this Bill of Lading, the Liabilities incurred by Carrier for loss or damage to the Goods shall be in accordance with this Clause 6.4.

6.4.1. If the stage of Carriage where the loss or damage occurred is not known:

  • (a) Carrier shall be relieved from all Liabilities for any loss or damage to the extent that such loss or damage was caused by or resulted from:
  • (i) an act or omission of Merchant;
  • (ii) insufficiency or defective condition of packing or marking;
  • (iii) compliance with instructions of persons entitled to given them;
  • (iv) handling, loading, stowage or unloading of the Goods by Merchant;
  • (v) inherent vice of the Goods;
  • (vi) strike, lockout, stoppage or restraint of labor from whatever cause whether partial or general;
  • (vii) a nuclear incident;
  • (viii) an act, neglect or default in the navigation or management of the Vessel occurring during carriage by water;
  • (ix) fire; and/or
  • (x) any other cause or event which Carrier could not avoid and the consequences of whereof it could not prevent by the exercise of reasonable diligence.

  • (b) The burden of proof that the loss or damage was due to one or more of the causes, or events, specified in Sub-clause 6.4.1 shall rest upon Carrier. When Carrier establishes that, in the circumstances of the case, the loss or damage could be attributed to one or more of the causes or events specified in Sub-clause 6.4.1, it shall be presumed that it was so caused and in such circumstances the burden of proof shall be on the Merchant to prove that the loss or damage was not caused wholly or partly by one or more of these events.

  • (c) Subject to the Carrier’s right to limit liability as provided for within this Bill of Lading, the Carrier’s liability shall be calculated by reference to the value of the Goods at the time they were accepted for Carriage at the Place of Receipt or the Port of Loading (whichever applicable). Carrier shall have the option of replacing lost goods or repairing damaged goods.

  • (d) Where the Hague Rules, Hague-Visby Rules or any other rules compulsorily apply to the Carriage, Carrier’s liability shall in no event exceed the amounts provided for in the applicable rules.

  • (e) Carrier’s maximum liability hereunder shall in no event exceed GBP 100 per package or customary freight unit (whichever applicable) or US$2 per kilo of gross weight of the Goods lost or damaged, whichever is lesser, unless the value of the Goods has been declared by Merchant with the consent of Carrier and excess Freight has been paid whereupon the declared value (if higher) as shown on the face of the Bill of Lading shall be substituted for the above limit and any partial loss or damage shall be adjusted on the basis of such declared value.

    6.4.2. If the stage of Carriage where the loss or damage occurred is known, Carriers’ liability shall be determined as follows:

  • (a) by the provisions contained in any international convention or national law, which provisions cannot be departed from by private contract to the detriment of Merchant, and would have applied if Merchant had made a separate and direct contract with Carrier in respect of the particular stage of the Carriage where the loss or damage occurred and received as evidence thereof any particular document which must be issued in order to make such international convention or national law applicable; or
  • (b) If no international convention or national law is applicable then the liability of Carrier shall be determined in accordance with Clause 6.4.1.

    • 6.5 Clause Paramount

  • 6.5.1 All Carriage under this Bill of Lading shall have effect subject to any legislation enacted in any country making the Hague or Hague-Visby Rules compulsorily applicable and in the absence of any such legislation, in accordance with the Hague Rules or US COGSA (in the case of Carriage to or from the United States of America).
  • 6.5.2. In the circumstances where the Hague Rules are not compulsorily applicable but are contractually applicable then subject to Clause 7.7 (ad valorem declaration) Carrier’s responsibility shall in no event exceed GBP 100 per package or customary freight unit. For the avoidance of doubt the reference to gold value in Article 9 of the Hague Rules shall not apply.
  • 6.5.3 If any terms of this Bill of Lading are held repugnant to the Hague Rules, Hague-Visby Rules, US COGSA or any other compulsorily applicable legislation then such provision shall be null and void without invalidating the remaining provisions hereof.
  • 6.5.4. References in the Hague, Hague-Visby, or US COGSA to carriage by sea shall be deemed to include references to inland waterways or waterborne carriage.

    • 6.6 USA Clause Paramount (if applicable)

    6.6.1 If Carriage includes carriage to, from or through a port in the United States of America, this Bill of Lading shall be subject to US COGSA, the terms of which are incorporated herein and shall be paramount throughout carriage by sea and the entire time that the Goods are in the custody of Carrier or its Sub-Contractors, including Goods carried on deck.

    6.6.2 Where Merchant requests Carrier to procure Carriage by an inland carrier in the United States of America, such Carriage shall be procured by Carrier as agent only for and on behalf of Merchant and such Carriage shall be subject to the usual terms, conditions and tariffs of the inland carrier. If for any reason Carrier is denied the right to act as agent only at these times, its liability for loss and damage to the Goods or non-delivery or mis-delivery thereof shall be determined in accordance with Clause 6.4.

    6.6.3 If US COGSA applies then the liability of Carrier shall not exceed US$500 per package or customary freight unit unless the value of the Goods has been declared on the face hereof with the consent of Carrier and extra Freight has been paid in which case Clause 7.7 (ad valorem declaration) shall apply and the declared value (if higher) shall be substituted for the limit and any partial loss or damage shall be adjusted pro-rata on the basis of such declared value.

    6.7 Subrogation When Carrier pays any claims to Merchant, Carrier shall, by reason of such payment and this Bill of Lading, automatically be subrogated to all rights of Merchant against any third parties, including without limitation inland carriers, on account of the losses or damages for which such claims are paid. Merchant shall sign a subrogation receipt, release and indemnity immediately when requested by Carrier.

    7. GENERAL PROVISIONS

    7.1. Delay Carrier does not undertake that the Goods or any documents relating thereto shall arrive at the Port of Discharge, Place of Delivery or at any place at any particular time or to meet any particular market or use. Under no circumstances whatsoever and howsoever arising shall Carrier be liable for any direct, indirect or consequential loss or damage caused by delay. Without prejudice to the foregoing, if Carrier is nevertheless found liable for any such direct or indirect or consequential loss or damage caused by delay, liability shall be limited to the Freight applicable to the relevant stage of transport. It is hereby agreed that ad valorem arrangements pursuant to Clause 7.7 shall have no application to any claim for delay.

    7.2. Consequential Loss Save as otherwise provided herein, Carrier shall under no circumstances whatsoever be liable for any loss of profits, loss of market, loss of contract, loss of revenue or use, nor for any indirect, special or consequential loss, howsoever caused. Without prejudice to the foregoing, if Carrier is nevertheless found liable for any such losses, such liability shall be limited to the Freight applicable to the relevant stage of transport. For the avoidance of doubt, ad valorem arrangements pursuant to Clause 7.7 shall have no application in relation to consequential and/or other losses, which form the subject matter of this Clause 7.2.

    7.3. Value of Goods Subject to the limits of liability and the Rights and Defences of Carrier contained herein, compensation shall be calculated by reference to the value of the Goods, which is agreed to be the bona fide FOB invoice value plus Freight and insurance, if paid. If there is no bona fide invoice value of the Goods, the value of the Goods shall be their value as at the place and time they are or should have been delivered to Merchant, calculated by reference to the market value of goods of the same kind and quality.

    7.4. Heavy Lift

    (a) Single packages with a weight exceeding 2,240 pounds (long ton) gross not presented to Carrier in enclosed containers must be declared in writing by Merchant before receipt of the packages by Carrier. The weight of such packages must be clearly and durably marked on the outside of the package in letters and figures not less than two inches high.

    (b) If Merchant fails to comply with the above provisions, Carrier shall not be liable for any loss of or damage to the goods, persons or property, and Merchant shall be liable for any loss of or damage to persons or property resulting from such failure and Merchant shall indemnify Carrier against any loss or liability suffered or incurred by Carrier as a result of such failure.

    (c) Merchant agrees to comply with all laws or regulations concerning overweight containers and Merchant shall indemnify Carrier against any loss or liability suffered or incurred by Carrier as a result of Merchant’s failure to comply with such laws or regulations.

    7.5. Insurance Carrier will not arrange for insurance on the Goods except upon express written instructions from Merchant and then only at Merchant’s expense and presentation of a declaration of value for insurance purposes prior to handing over the Goods.

    7.6. Package or Unit Subject to Clause 2.1, a package or unit is the largest individual unit of partially or completely covered or contained cargo made up by or for the Shipper which is delivered and entrusted to Carrier, including palletized units and each Container stuffed and sealed by the Shipper or on its behalf, although the Shipper may have furnished a description of the contents of such sealed Container on this Bill of Lading. For the avoidance of doubt, if the Goods are received by Carrier in a Container, the Container shall be the “package” for the purpose of calculating limitation of Carrier’s liability, unless compulsorily applicable law in the individual case stipulates otherwise.

    7.7. Ad Valorem Merchant agrees that higher compensation than that provided for in this Bill of Lading may not be claimed unless the nature and value of the Goods have been declared by Merchant prior to the commencement of the Carriage and inserted in this Bill of Lading in the space caption “Declared value from Merchant” and extra Freight paid on such declared value, if required. In such case, the declared value if inserted in the Bill of Lading shall be the basis for calculating Carrier’s liability (if any), provided that such value shall only be prima facie evidence, but shall not be conclusive evidence of such value and further provided that such declared value does not exceed the true value of the Goods at destination. Any partial loss or damage shall be adjusted pro rata on the basis of such declared value. Provided always that the foregoing provisions of this Clause 7.7 shall not apply and no extra Freight will be accepted by Carrier for higher compensation or compensation in relation to claims for delay or consequential loss referred to in Clause 7.1 and Clause 7.2.

    7.8. Notice of Claim Subject to Clause 2.1, Carrier shall be deemed to have effected timely delivery of the Goods unless notice of any loss, damage or claim indicating the general nature of such loss and damage, shall have been given in writing to Carrier or to its representative at the Port of Discharge or the Place of Delivery (as the case may be) before or at the time of removal of the Goods into the custody of the person entitled to the delivery thereof under this Bill of Lading, or, if the loss or damage is not apparent, within three consecutive days thereafter.

    7.9. Time-bar

    7.9.1. Subject to Clause 7.9.2, Carrier shall be discharged of all Liabilities under this Bill of Lading unless suit is brought and written notice thereof given to Carrier within nine months after delivery of the Goods or, in the case of total loss or non-delivery of the Goods, within ten months after the date of issue of this Bill of Lading.

    7.9.2. Notwithstanding Clause 7.9.1, where COGSA, the Hague Rules or the Hague Visby-Rules apply by force of law or incorporation, Carrier shall be discharged from all Liabilities whatsoever in respect of the Goods, unless suit is brought and jurisdiction is obtained over Carrier by service of summons within one year of their delivery or the date when they should have been delivered.

    7.10. The Rights and Defences of Carrier provided for in this Bill of Lading shall apply in any action or claim against Carrier whether founded in contract, tort, bailment, trust or breach of express or implied warranty or otherwise and notwithstanding any negligence, unseaworthiness, deviation, non-delivery, mis-delivery (including mis-delivery arising from the delivery of the Goods without the presentation of this Bill of Lading) or any other breach by Carrier of the contract evidenced by this Bill of Lading.

    8. DESCRIPTION OF GOODS

    8.1. This Bill of Lading shall be prima facie evidence of the receipt by Carrier from the Shipper in apparent good order and condition, except as otherwise noted, of the total number of Containers or other packages or units indicated on the face hereof as “TOTAL NUMBER OF CONTAINERS OR OTHER PACKAGES OR UNITS RECEIVED BY THE CARRIER”.

    8.2. Save as provided in Clause 8.1, Carrier makes no representation or acknowledgement and assumes no responsibility whatsoever as to any weight, measure, quantity, quality, content, description, marks, numbers, place of origin, value or condition of the Goods (all of which are unknown to it).

    8.3. Any information on the face of this Bill of Lading relating to any invoice, export or import license, documentary credit, order, contract, or like matters is included solely at the request of Merchant and is not verified by Carrier. Any such information shall not constitute any declaration of value of the Goods and shall in no way increase Carrier's liability hereunder.

    9. MERCHANT'S WARRANTIES AND IMDEMNIFICATION

    9.1. All persons coming within the definition of Merchant in Clause 1 shall be jointly and severally liable to Carrier for the fulfillment of all obligations, responsibilities and warranties undertaken by Merchant either in the Bill of Lading, or as required by law and shall remain so liable throughout the transportation and to pay Freight due under it without deduction or set off notwithstanding their having transferred this Bill of Lading and/or title to the Goods to another party.

    9.2. Merchant warrants that in accepting this Bill of Lading, Merchant agrees to be bound by all stipulations, exceptions, terms and conditions on the face and back thereof, whether written, typed, stamped or printed, as fully as if signed by Merchant.

    9.3. Merchant in accepting these Terms and Conditions is either the person or the authorized agent of the person who owns or is entitled to the possession of the Goods and/or this Bill of Lading, and accepts these Terms and Conditions for itself as well as for such person and any other person who may hereafter have any interest in the Goods and/or this Bill of Lading and/or the Carriage.

    9.4. The Merchant warrants that the description and particulars of the Goods set out on the face hereof are furnished by Merchant and have been checked by Merchant on receipt of this Bill of Lading, and that such particulars and all other information whether relating to the Goods or otherwise provided by Merchant are complete, accurate and true. Merchant shall indemnify Carrier against all Liabilities arising or resulting from in accuracies or inadequacy of such particulars.

    9.5. Merchant shall comply with all applicable laws, regulations and requirements (including but not limited to any imposed at any time before or during the Carriage relating to anti-terrorism measures) of customs, port and other authorities and shall bear and pay all duties, taxes, fines, imposts, expenses and losses (including without prejudice to the generality of the foregoing, Freight for any additional Carriage undertaken) incurred or suffered by reason thereof or by reason of any illegal, incorrect or insufficient marking, numbering or addressing of the Goods.

    9.6. Merchant further warrants, represents and agrees that (i) the Goods and any Container loaded by Merchant are packed and secured in such a manner as to be handled in the ordinary course of the transportation without damage to the Goods, Vessel, Containers or other property or persons; (ii) any Goods placed by Merchant in Containers are compatible and suitable for transportation in Containers; and (iii) if the Container is not supplied by or on behalf of Carrier, that the Container meets all ISO and/or other applicable national or international safety standards and is fit in all respects for Carriage.

    9.7. Merchant warrants that the Goods are lawful goods and contain no contraband or prohibited items.

    9.8. Merchant shall not tender for transportation any Goods which require refrigeration or other stable temperature conditions without giving written notice of their nature and the required temperature setting of the thermostatic controls before receipt of the Goods by Carrier.

    9.9. Any Container released into the care of Merchant for packing, unpacking or any other purpose whatsoever shall be at the sole risk of Merchant until proper redelivery to Carrier at the time and place prescribed by Carrier. If Merchant fails to deliver the Container at such prescribed time and place, Merchant shall pay Carrier the applicable demurrage or detention charges arising therefrom. Merchant is responsible for returning the empty Container in good order and condition, undamaged, empty, odour free, cleaned and with all fittings installed by Merchant removed and without any rubbish, dunnage or debris inside, to the point or place designated by Carrier, his servants or agents. Merchant shall be liable for any charges, loss or any other expenses arising therefrom. Merchant shall be responsible for any loss and/or damage to, and any Liabilities caused or incurred by such Container whilst in its custody and/or control including but not limited to any and all costs incurred reinstating or replacing the Container not returned in the condition as specified above, and including the reasonable legal expenses and costs of recovering any costs incurred by Carrier and interest thereon.

    9.10. Merchant warrants that when the Goods are for Carriage to or through or from the United States of America, all information relating to the Goods is complete, accurate and true and in all respects in conformity and compliance with cargo declaration requirements of the U.S. Customs Regulations and other related laws, rules and regulations.

    9.11. Merchant shall indemnify and hold harmless Carrier from and against any and all Liabilities incurred due to a breach of any of Merchant's obligations, representations and warranties contained in this Bill of Lading.

    10. SHIPPER PACKED CONTAINERS

    10.1. If a Container has not been filled, packed, stuffed or loaded by Carrier, the Carrier shall not be liable for loss of or damage to the contents and Merchant shall indemnify Carrier against all Liabilities incurred by Carrier, if such Liabilities has been caused by:

  • (a) the manner in which any Container has been filled, packed, stuffed or loaded;
  • (b) the unsuitability for Carriage of the contents of any Container;
  • (c) if Container was not supplied by Carrier, the unsuitability, defective condition or the incorrect setting of temperature controls of the Container actually used;
  • (d) if Container was supplied by Carrier, the unsuitability, defective condition or incorrect setting of temperature controls of the Container which could have been discovered upon reasonable inspection by Merchant at or prior to the time the Container was filled, packed, stuffed or loaded; or
  • (e) the packing in any Container of temperature controlled Goods that are not at the correct temperature for Carriage.

    • 10.2. The Shipper is responsible for the packing and sealing of all Shipper-packed Containers. The Shipper shall inspect Containers before stuffing them and the use of the Containers shall be prima facie evidence of the receipt of the Container by Shipper and the Container is in good order and condition.

    10.3. Delivery of a Shipper-packed Container by Carrier with its original seal intact shall be deemed to be a full and complete delivery under this Bill of Lading. Carrier shall not be liable for any shortage of Goods in respect of any Shipper-packed Container. If a claim for shortage is made against Carrier, the Merchant agrees to indemnify Carrier against all and any Liabilities of whatsoever nature suffered and/or incurred in connection with such claim (including, without limitation, legal costs).

    10.4. It is the sole responsibility of Merchant to ascertain the applicability of and ensure compliance in sufficient time with the requirements as to the verified gross mass ("VGM") of Containers to be loaded by Carrier on board the Vessel contained in SOLAS Chapter VI (the "SOLAS VGM Requirements") for any Goods provided by Merchant to Carrier. Where Merchant is unable, refuses, fails or is reasonably anticipated to be unable to or fail to comply in full with the SOLAS VGM Requirements or with such other reasonable requests of Carrier in connection thereto, Carrier may, at its sole discretion but without any obligation to do so, reject the Goods for shipment or undertake and comply with that obligation on Merchant's behalf as the Merchant's agent at the Merchant's risk and expense. All consequences of the Merchant's inability, refusal or failure, including delay and Liabilities suffered by any party, shall be solely for Merchant to bear and Merchant shall keep Carrier indemnified from the same. Merchant represents that Carrier is entitled to rely on the accuracy of the VGM information and to counter-sign, endorse or otherwise provide its own certified weight on behalf of the Merchant to the Sub-Contractors or any other relevant parties. Merchant agrees that it shall indemnify and hold Carrier harmless from any and all claims, losses, penalties or other costs resulting from any statements of the VGM provided by Merchant or its agent or contractor or by Carrier on the Merchant's behalf.

    11. FCL MULTIPLE BILLS OF LADING

    11.1. Goods will only be delivered in a Container to an individual Merchant if all Bills of Lading in respect of the content of the Container have been surrendered authorizing delivery to a single Merchant at a single place. In the event that this requirement is not fulfilled, Carrier may in its absolute discretion unpack the Container and, in respect of Goods for which Bills of Lading have been surrendered, deliver them to the Merchant. Such delivery shall constitute due delivery hereunder but will only be effected against payment by Merchant of the appropriate charges.

    11.2. This Bill of Lading is a FCL Multiple Bill of Lading if the tally acknowledged overleaf bears the qualification to the effect that it is one of the part cargoes in the Container. In such event, the Goods detailed overleaf are said to comprise part of the contents of the Container indicated. The special arrangement of receiving Goods on basis of FCL Multiple Bills of Lading being issued shall only be undertaken in Carrier’s absolute discretion and the following provisions shall apply in addition to any other conditions which Carrier may stipulate:

  • (a) Particulars of the Goods detailed overleaf are said to comprise part of the contents of the Container indicated in respect of which Carrier has not verified and makes no representation or acknowledgement (all such particulars being unknown to Carrier).
  • (b) The Goods will only be delivered in the Container to Merchant if the originals of all the Bills of Lading in respect of the different contents of the Container have been surrendered authorizing delivery of all the different parts of the contents in the Container to a single Merchant at a single place.
  • (c) In the event that the requirement under Clause 11.2(b) is not fulfilled, Carrier may in its absolute discretion unpack the Container and deliver the Goods for which Bills of Lading have been surrendered without the Container to Merchant. Such delivery shall constitute due delivery hereunder, but will only be effected against payments by Merchant of LCL service charges and any charges appropriate to LCL Goods (as laid down in Carrier's applicable tariffs) together with the actual costs incurred for any additional services rendered.
  • (d) Further, if all or part of the total Goods within the Container consists of bulk Goods or unappropriated Goods, or is or becomes mixed or unmarked or unidentifiable, Merchant shall take delivery thereof (including any damaged portion thereof) and bear any shortage thereof in such proportions as Carrier shall in its absolute discretion determine, and such delivery shall constitute due delivery hereunder.
  • (e) Carrier shall not in any event be liable for any shortage, loss, damage or discrepancies of the Goods, which are found upon unpacking the Container.
  • (f) Instructions in relation to Carriage which a Merchant may otherwise be entitled to give must be given in writing by all Merchants of the different parts of the contents in the Container simultaneously and, if so required by Carrier, the originals of all Bills of Lading covering the different parts of the contents in the Container must be produced to Carrier at the same time.
  • (g) Merchant undertakes to indemnify Carrier from and against any and all Liabilities arising from accepting the Goods for Carriage on the basis of FCL Multiple Bills of Lading being issued.

    • 12. CARRIER'S CONTAINERS

    Where Carrier is instructed to provide a Container, in the absence of a written request to the contrary accepted by Carrier, the Carrier shall not be under an obligation to provide a container of any particular type or quality.

    13. INSPECTION

    13.1. Carrier or any person authorized by Carrier shall be entitled, but under no obligation, to open any Container or bale, parcel, bag, bundle, crate, carton, pallet, package or other individual unit of partially or completely covered or contained cargo, whether in the Container or not, at any time without liability and notice to Merchant to inspect, examine, weigh or measure the contents thereof.

    13.2. If it appears at any time that the contents of the Container or any part thereof cannot safely or properly be carried or carried further, either at all, or without incurring additional expense or taking any measures in relation to the Container or its contents or any part thereof, Carrier may at the sole risk and expense of Merchant abandon the transportation thereof and/or take any measures and/or incur any reasonable additional expense to carry or to continue the Carriage or to store the same ashore or afloat under cover or in the open, at any place, which storage shall be deemed to constitute due delivery under this Bill of Lading. Merchant shall indemnify Carrier against all additional expenses resulting therefrom.

    13.3. Carrier is not responsible for any damage or loss to Container or its contents resulting from inspection by customs or other authorities and Merchant shall be responsible for any expenses, costs, fines, or penalties incurred as a result of such inspection or otherwise.

    13.4. Carrier in exercising the liberties contained in this Clause shall not be under any obligation to take any particular measures and shall not be liable for any loss, delay or damage howsoever arising from any action or lack of action under this Clause.

    14. DANGEROUS GOODS

    14.1. No Goods which are or may become of a dangerous (whether or not listed in the IMDG Code), hazardous, inflammable, damaging or injurious (including radio-active materials) nature or which may become liable to cause damage to the Vessel or property or person shall be tendered by Merchant to Carrier for Carriage without (i) previously giving Carrier written notice of their nature and having received the Carrier’s express consent in writing; (ii) distinctly and durably indicating and marking the Goods and the Container or other packages or units in compliance with any laws or regulations which may be applicable during the Carriage; and (iii) submitting to Carrier and the appropriate authorities all documents required by any laws or regulations or otherwise required by Carrier.

    14.2. Merchant warrants that all dangerous goods tendered or provided to Carrier are adequately packed in compliance with all applicable laws or regulations and requirements having regard to the nature of the Goods. If the Goods are not packed into the Container by or on behalf of Carrier, Merchant warrants that no incompatible goods are packed in the same Container.

    14.3. Goods which are or which, in the opinion of Carrier, may at any time become dangerous, inflammable, radioactive or damaging may, at any time or place be unloaded, destroyed or rendered harmless by Carrier or any Sub-Contractor without compensation to Merchant and if the Merchant has not given notice of their nature to Carrier under Clause 14.1, the Carrier shall be under no liability to make any General Average contribution in respect of such Goods.

    14.4. If the requirements of Clause 14.1 are not complied with, Merchant shall indemnify Carrier from and against any and all Liabilities of whatsoever nature arising out of the carriage of such Goods or Containers including without limitation environmental damages, direct and indirect clean up or rehabilitation expenses, legal costs, fines and penalties, whether or not Merchant was aware of the nature of such Goods.

    15. PERISHABLE GOODS/TEMPERATURE CONTROLLED GOODS

    15.1. Merchant undertakes not to tender for Carriage any Goods which require temperature control and/or specific settings in terms of humidity, CO2 levels, ventilation etc. without previously giving written notice of their nature and particular temperature range to be maintained.

    15.2. In case of refrigerated Containers packed by or on behalf of Merchant, the Merchant undertakes that the Goods have been properly stowed in the Container and that the Container has been properly pre-cooled and the thermostatic controls have been properly set. It is Merchant’s obligation to set and/or check that the temperature controls on the Container are at the required temperature and to properly set the vents.

    15.3. If the requirements of Clauses 15.1 and 15.2 are not complied with by Merchant, the Carrier shall not be liable for any loss of or damage to the Goods caused by such non-compliance and Merchant shall indemnify Carrier for any resulting loss the Carrier suffers.

    15.4. Insofar as Carrier provides empty refrigerated Containers to Merchant for stuffing by Merchant, Carrier is not responsible for the temperature of those Containers on delivery to Merchant.

    15.5. Merchant acknowledges that refrigerated Containers are not designed to freeze down cargo which has not been presented for stuffing at or below its designated carrying temperature and Carrier shall not be responsible for the consequences of Goods presented at a higher temperature than that required for Carriage.

    15.6. Carrier shall not be held liable for any loss or damage to the Goods resulting from defects, faults, breakdown, and stoppage of the temperature controlling machinery, plant, insulation or any apparatus of any Container used to transport the Goods.

    16. OPTIONAL STOWAGE AND DECK CARGO

    16.1. Goods may be packed by Carrier in any type of Containers and consolidated with other goods.

    16.2. Goods, whether or not packed in Containers, may be carried on deck or under deck at the sole discretion of Carrier without notice to Merchant, and such stowage and Carriage shall not be a deviation of whatsoever nature or degree. All Goods whether carried on deck or under deck shall participate in General Average, and (save as provided in Clause 16.3) such Goods (other than live animals) shall be deemed to be within the definition of goods for the purposes of the Hague Rules, the Hague-Visby Rules or the US COGSA, as the case may be.

    16.3. Goods which are stated on the face hereof as being carried on deck and which are so carried (and live animals whether or not carried on deck) are carried at the sole risk of Merchant and without any responsibility on the part of Carrier for loss or damage of whatsoever nature arising during carriage by sea, whether or not caused by unseaworthiness or negligence or any other cause whatsoever. If the requirements of this Clause 16.3 are satisfied, the Hague Rules, Hague-Visby Rules and US COGSA shall not apply to such Carriage. Merchant shall indemnify Carrier against any extra costs incurred for any reason whatsoever in connection with such Carriage.

    17. NOTIFICATION AND DELIVERY

    17.1. Any mention in this Bill of Lading of any party to be notified of the arrival of the Goods is only for Carrier's information. Failure to give such notice shall not subject Carrier to any Liabilities nor relieve Merchant of any obligation hereunder.

    17.2. Merchant shall take delivery of the Goods (notwithstanding any loss or damage or any other matter whatsoever) within the time and at the address for collection provided in Carrier's applicable tariffs, or otherwise notified to Merchant or the Notify Party named on the face hereof. If Merchant fails to take delivery of the Goods within the prescribed time at the prescribed place, the Goods shall be deemed to have been duly delivered to Merchant under this Bill of Lading upon expiration of such time.

    17.3. Without prejudice to Clause 17.2, where Merchant fails to take delivery of the Goods as provided in Clause 17.2, Carrier shall be entitled without notice, but subject to its lien, to unpack the Goods (if packed in Containers) and/or store the Goods ashore, afloat, in the open or under cover at the sole risk and expense of Merchant. Thereupon, the Carrier’s liability in respect of the Goods shall cease wholly and the costs of such storage (if paid or payable by Carrier or any agent or Sub-contractor of Carrier) shall forthwith upon demand be paid by Merchant to Carrier.

    17.4. If after arrival of the Goods, Carrier in accordance with the applicable custom or practice or law or regulation hands over the Goods into the custody of any customs, port or other authority or any other person having authority, such hand-over shall be deemed to be due delivery of the Goods to Merchant under this Bill of Lading.

    17.5. In the event that Carrier, in its entire discretion, agrees at the request of Merchant to deliver the Goods at a port of discharge or a place of delivery other than the Port of Discharge or Place of Delivery indicated on the face hereof, Carrier shall act only as the agent of Merchant in arranging for the delivery of the Goods to the revised port of discharge or the revised place of delivery, and shall be under no liability whatsoever arising from such revised carriage.

    17.6. In all circumstances, Carrier shall not be liable whatsoever for delivering or releasing the Goods in its actual or constructive possession to any person holding or presenting forged or fraudulent documents purporting to be an original Bill of Lading or other original documents entitling such person to the delivery or possession of the Goods so long as Carrier acts innocently and does not intentionally deliver the Goods to persons known by him to have no right to possession under the Bill of Lading.

    18. LIEN

    18.1. Carrier shall have a lien on the Goods and any document relating thereto for all monies earned, or due or payable to Carrier under this Bill of Lading and/or any other contract with Merchant or, on account of the Goods or Carriage, storage or handling of the Goods including but not limited to General Average contributions, Freight, delivery, destination, demurrage, detention, port and/or handling charges, to whomever due and/or for the cost of recovering the same and/or any fines or penalties levied against Carrier by reason of any acts or omissions for which Merchant is responsible. Carrier may at its sole discretion exercise its lien at any time and in any place, whether the contractual transportation is completed or not. The lien shall survive the delivery of the Goods.

    18.2. For the purpose of enforcing and satisfying the lien, Carrier shall have the right to sell at the cost and expense of Merchant the Goods by public auction or private treaty or other means, without giving any notice or incurring any liability to Merchant and without the need to obtain an order for sale from any Court and to apply the proceeds (net of expenses) thereof in or towards satisfaction of any monies due to Carrier. The Carrier shall be entitled to claim the difference in the event that the sale proceeds fail to cover the full amount due to Carrier.

    19. FREIGHT AND CHARGES

    19.1. Freight is calculated on the basis of the particulars furnished by Merchant. Carrier may at any time open any Container or other package or unit and inspect, reweigh, remeasure or revalue the contents at the Merchant’s sole expense. If the particulars furnished are incorrect, Merchant shall, in addition to the correct Freight, pay to Carrier a sum equal to three times the difference between the correct Freight and the Freight charged as liquidated damages, notwithstanding any other sum having been stated herein as freight payable.

    19.2. Quotations as to Freight, rates of duty, insurance premiums or other charges or fees given by Carrier are for information only and are subject to changes without notice and shall not under any circumstances be binding upon Carrier.

    19.3. Freight shall be deemed fully earned on receipt of the Goods by or for Carrier and shall be paid and non-returnable, whether Freight is indicated to be prepaid or payable elsewhere.

    19.4. All Freight shall be paid in full without any set off or counterclaim or deduction whatsoever.

    19.5. All Freight shall be paid at or within the time stipulated in Carrier's applicable tariffs and in any event before delivery of the Goods. Payment shall be made in cash in the currency named in this Bill of Lading, or, at the option of Carrier in another currency specified by Carrier. Simple interest at the rate of 12% per annum shall be payable on any overdue amount from the date when payment is due until payment in full. All costs and expenses incurred by or on behalf of Carrier in the recovery of any monies due from Merchant including legal costs, recovery or collection fees and expenses shall be recoverable from Merchant as a debt.

    19.6. Merchant shall be liable for all Freight, charges, dues, duties, fines, penalties, taxes, consular fees, levies on or relating to the Goods and Merchant shall reimburse Carrier for any and all advances made by Carrier in Carrier's own discretion. Merchant shall be liable for additional or return Freight on the Goods if they are refused export or import by any government body or authority or any other person having authority.

    20. ABANDONMENT OF GOODS ETC.

    In the event that Merchant fails to take delivery of the Goods as per Clause 17.2, or Carrier reasonably considers that there is any breach by Merchant of any of Merchant's warranties contained herein, or in the sole opinion of Carrier the Goods are likely to deteriorate, decay or become worthless or cause any danger to the Vessel or other goods or property or any person or incur charges, then Carrier may (but without obligation) at any time (in its sole discretion and without liability and without notice to Merchant or requiring any Court order) sell or otherwise dispose of or abandon or store the Goods ashore or afloat, under cover or in the open, at any place at the sole risk and expense of Merchant and apply any proceeds of sale in reduction of the sums due to Carrier from Merchant under this Bill of Lading. Upon such sale, disposal, abandonment or storage, the Goods shall be deemed duly delivered to Merchant under this Bill of Lading. Merchant shall indemnify Carrier from and against any and all Liabilities incurred by Carrier in relation to such sale, disposal, abandonment and storage.

    21. METHODS AND ROUTES OF TRANSPORTATION

    21.1. Carrier may at any time and without notice to Merchant:

  • (a) use any means of carriage or storage whatsoever;
  • (b) transfer the Goods from one conveyance to another, including without limitation transshipping the Goods or carrying them on a Vessel other than that named on the face hereof, even though transshipment or forwarding of the Goods may not have been provided for herein;
  • (c) unpack and remove the Goods which have been packed in a Container and forward them in another Container or otherwise;
  • (d) proceed by any route (whether or not the nearest or most direct or customary or advertised route) in its discretion, at any speed, and proceed to or stay at any place or port whatsoever, once or more often and in any order;
  • (e) load or unload the Goods at any place or port and store the Goods at any such place or port;
  • (f) comply with any orders, directions 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 any insurance on any conveyance used for the Carriage the right to give orders or directions;
  • (g) 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.

    • 21.2. Carrier may invoke any of the liberties under Clause 21.1 for any purpose whatsoever, whether or not connected with the Carriage of the Goods, including but not limited to loading or unloading the Goods, bunkering, undergoing repairs, adjusting instruments, towing or being towed, sailing with or without pilots, drydocking, picking up or landing any persons. Anything done in accordance with Clause

    21.1 or any delay arising therefrom shall be deemed to be within the contractual Carriage and shall not be a deviation. If, in invoking any of the liberties under Clause 21.1, any service provided by any third party is involved, Carrier may without notice to Merchant conclude a contract with such third party as agent of the Merchant, and in respect of such services Carrier shall have no liability whatsoever.

    22. MATTERS AFFECTING PERFORMANCE

    If at any time the performance of the contract contained in or evidenced by this Bill of Lading is or is likely to be affected by any hindrance, risk, danger, delay, difficulty or disadvantage of any kind whatsoever and howsoever arising and which cannot be avoided by reasonable endeavours (even though the circumstances giving rise to such hindrance, risk, danger, delay, difficulty or disadvantage existed at the time this contract was entered into or the Goods were received for Carriage), Carrier may (whether or not the Carriage has commenced) and without prior notice to Merchant and at its sole discretion, elect any one or more of the following:

  • (a) acting as the Merchant’s agent only, suspend the Carriage of the Goods and store them ashore or afloat at Merchant’s expense upon the terms of this Bill of Lading and use reasonable endeavours to forward them as soon as practicable to the Port of Discharge or Place of Delivery. Carrier makes no representations as to the maximum period of suspension. If Carrier elects to invoke the terms of this Clause 22(a) then, notwithstanding the provisions of Clause 21 hereof, he shall be entitled to charge such additional Freight and costs as Carrier may determine ; or
  • (b) carry the Goods to the contracted Port of Discharge or Place of Delivery, whichever is applicable, by an alternative route by any means in the sole discretion of Carrier. If Carrier elects to invoke the terms of this clause 22(b) then, notwithstanding the provisions of Clause 21 hereof, he shall be entitled to charge such additional Freight as Carrier may determine; or
  • (c) abandon the Carriage, treat the performance of this contract as terminated and place the Goods or any part of them at Merchant's disposal at any place or port which Carrier may reasonably deem safe and convenient, whereupon all the responsibility of Carrier under this Bill of Lading shall cease absolutely and the Goods shall be deemed to have been duly delivered by Carrier under this Bill of Lading. Carrier shall nevertheless be entitled to full Freight on the Goods received for the Carriage, and Merchant shall pay any additional costs incurred by reason of the abandonment of the Goods and/or carriage to and delivery and storage at such place or port. If Carrier elects to suspend the Carriage under Clause 22(a) or use an alternative route under Clause 22(b) this shall not prejudice its right subsequently to abandon the Carriage as provided herein.

    • 23. GENERAL AVERAGE

    General Average to be adjusted in any currency at any place selected by Carrier and according to the York-Antwerp Rules 1974 as amended in 1990 and 1994. Any claims and/or disputes relating to General Average shall be exclusive subject to the laws and jurisdiction set out at Clause 28. Merchant shall indemnify Carrier from and against any claim of a General Average nature which may be made on Carrier, and shall provide to Carrier prior to delivery of the Goods such cash deposit or security as Carrier may consider sufficient to cover the estimated General Average contribution of the Goods and any salvage and special charges thereon. Carrier shall be under no obligation to exercise any lien or collect or procure any security for General Average contribution due to Merchant.

    24. BOTH TO BLAME COLLISION AND NEW JASON CLAUSES

    The Both-to-Blame Collision and New Jason clauses published and/or approved by BIMCO and obtainable from Carrier or its agent upon request are incorporated herein.

    25. NOTICE OF ENDORSEE AND/OR HOLDER AND/OR TRANSFEREE

    By taking up this Bill of Lading, whether by endorsement and/or becoming a holder and/or by transfer hereof and/or by presenting this Bill of Lading to obtain delivery of the Goods herein and/or otherwise, the endorsee, holder, transferee and Carrier agree that the holder, endorsee, transferee thereupon become a party to a contract of carriage with Carrier on the basis herein.

    26. EXCEPTIONS CLAUSE

    Carrier shall not be liable for any loss, damage, delay or failure in performance hereunder occurring at any time including before loading on or after discharge from the Vessel or during any voyage, arising or resulting from the happening and/or threat and/or after effects of one or more of the following acts of God, act of war, force majeure, quarantine restrictions, embargo, acts of public enemies, thieves, pirates, assailing thieves, hijacking, arrest or restraint of princes, rulers or people, seizure under legal process, act or omission of Shipper, its agent or representative, strikes or lock-outs or stoppage or restraint of labour from whatsoever cause, partial or general, riots or civil commotions, fire or latent defect.

    27. VARIATION OF CONTRACT

    Merchant agrees that this Bill of Lading constitutes the entire agreement between the parties. There are no understandings to the subject matter of this agreement other than as herein set forth, and any such actual or purported prior to or contemporaneous understandings or communications are hereby abrogated. No servant or agent of 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 by Carrier. Subject to Clause 3, all agreements or freight engagements for the shipment of the Goods are superseded by this Bill of Lading.

    28. APPLICABLE LAW AND JURISDICTION

    28.1. This Bill of Lading, the contract contained in and/or evidenced hereby, and the rights and obligations of all parties concerned in connection with the Carriage of the Goods hereunder shall be governed by and construed in accordance with the laws of the Hong Kong Special Administrative Region.

    28.2. All claims, suits, proceedings or disputes howsoever arising in connection with or arising out of this Bill of Lading and/or the contract contained in and/or evidenced by this Bill of Lading against Carrier shall be determined exclusively by the Courts of the Hong Kong Special Administrative Region to which jurisdiction Merchant irrevocably submits. 28.3. Carrier shall be entitled to bring any claim, suit, proceeding or dispute against Merchant in the Courts of the Hong Kong Special Administrative Region or any other Court of competent jurisdiction.