Terms and conditions for shipping with Missionary Expediters.
Navigation Network, Inc.
Last updated 9/20/18
RESOLUTION, INC. – D.B.A. MISSIONARY EXPEDITERS, D.B.A. NAVIGATION NETWORK, D.B.A. CARGO LOGISTICS
5620 TCHOUPITOULAS ST., NEW ORLEANS, LA 70115, USA
STANDARD TERMS AND CONDITIONS OF INTERNATIONAL FREIGHT FORWARDING SERVICES
All freight forwarding/shipping services provided by RESOLUTION, INC. – D.B.A. MISSIONARY EXPEDITERS, D.B.A. NAVIGATION NETWORK, D.B.A. CARGO LOGISTICS (hereinafter “RESOLUTION”) to the “Customer”, whether the Customer is a manufacturer, distributor, merchant, cargo-owner, shipper, exporter, importer, sender, consignor, consignee, transferor, or transferee of the shipment, will be subject to the terms and conditions set forth herein.
1. Third Party Services. Unless RESOLUTION carries, stores or otherwise physically handles the shipment, and loss, damage, expense or delay occurs during such activity, RESOLUTION assumes no liability as a carrier and is not to be held responsible for any loss, damage, expense or delay to the goods to be forwarded or imported except as provided in paragraph 8 and subject to the limitations of paragraph 9 below, but undertakes only to use reasonable care in the selection of carriers, truckers, lightermen, OTIs, forwarders, customs brokers, agents, warehousemen and others to whom it may entrust the goods for transportation, cartage, handling and/or delivery and/or storage or otherwise. When RESOLUTION carries, stores or otherwise physically handles the shipment, it does so subject to the limitations of paragraph 8 below, unless a separate bill of lading, air waybill, or other contract of carriage is issued by RESOLUTION in which events the terms thereof shall govern.
2. Liability For Acts or Omissions of Third Parties. RESOLUTION is authorized to select and engage carriers, truckers, lightermen, forwarders, customs brokers, agents, warehousemen and others, as required, to transport, store, deal with and deliver the goods, all of whom shall be considered the agents of the Customer, and the goods may be entrusted to such agencies subject to all conditions as to limitations of liability for loss, damage, expense or delay and to all rules, regulations, requirements and conditions, whether printed, written or stamped, appearing in bills of lading, receipts or tariffs issued by such carriers, truckers, lightermen, forwarders, customs brokers, agents, warehousemen, and others. RESOLUTION shall under no circumstances be liable for any loss, damage, expense or delay to the goods for any reason whatsoever when said goods are in the custody, possession or control of third parties selected by RESOLUTION to forward, enter, clear, transport or render other services with respect to such goods.
3. Choosing Routes or Agents. Unless express instructions in writing are received from the Customer, RESOLUTION has complete freedom in choosing the means, route and procedure to be followed in the handling, transportation and delivery of the goods. Advice by RESOLUTION to the Customer that a particular person or firm has been selected to render services with respect to the goods shall not be construed to mean that RESOLUTION warrants or represents that such person or firm will render such service. All terms of delivery shall be based upon INCOTERMS® 2010 unless otherwise specifically noted or implied through the use of a term not defined in INCOTERMS® 2010.
4. Quotations Not Binding. Quotations as to fees, rates of duty, freight charges, insurance premiums or other charges given by RESOLUTION to the Customer are for informational purposes only and are subject to change without notice and shall not under any circumstances be binding upon RESOLUTION unless RESOLUTION in writing specifically undertakes the handling or transportation of the shipment at a specific rate.
5. Duty to Furnish Information. (a) On an import, at a reasonable time prior to entering of the goods for U.S. Customs, the Customer shall furnish to RESOLUTION invoices in proper form and other documents necessary or useful in the preparation of the U.S. Customs entry and, also, such further information as may be sufficient to establish, inter alia, the dutiable value, the classification, the country of origin, the genuineness of the merchandise and any mark or symbol associated with it, the Customer’s right to import and/or distribute the merchandise, and the merchandise’s admissibility, pursuant to U.S. law or regulation. If the Customer fails in a timely manner to furnish such information or documents, in whole or in part, as may be required to complete U.S. Customs entry or comply with U.S. laws or regulations, or if the information or documents furnished are inaccurate or incomplete, RESOLUTION shall be obligated only to use its best judgment in connection with the shipment and in no instance shall be charged with knowledge by the Customer of the true circumstances to which such inaccurate, incomplete or omitted information or document pertains. Where a bond is required by U.S. Customs to be given for the production of any document or the performance of any act, the Customer shall be deemed bound by the terms of the bond notwithstanding the fact that the bond has been executed by RESOLUTION as principal, it being understood that RESOLUTION entered into such undertaking at the instance and on behalf of the Customer, and the Customer shall indemnify and hold RESOLUTION harmless for the consequences of any breach of the terms of the bond.
(b) On an export, at a reasonable time prior to the exportation of the shipment, the Customer shall furnish to RESOLUTION the commercial invoice in proper form and number, a proper consular declaration, weights, measures, values and other information in the language of and as may be required by the laws and regulations of the U.S. and the country of destination of the goods.
(c) On an export or import, RESOLUTION shall not in any way be responsible or liable for increased duty,
penalty, fine or expense unless caused by the negligence or other fault of RESOLUTION in which event its liability to the Customer shall be governed by the provisions of paragraphs 8-10 below. The Customer shall be bound by and warrant the accuracy of all invoices, documents and information furnished to RESOLUTION by the Customer or its agents for export, entry or other purposes and the Customer agrees to indemnify and hold harmless RESOLUTION against any increased duty, penalty, fine or expense including attorneys’ fees, resulting from any inaccuracy, incomplete statement, omission or any failure to make timely presentation, even if not due to any negligence of the Customer.
6. GDPR. In the act of fulfilling a contract we may collect and keep your contact information, including your name, e-mail address, telephone number, and/or physical address. We keep these only to use to contact you regarding current or future shipments with you. We do not sell or distribute that data. The data is kept securely in encrypted form in our database. If you wish to have your contact information removed at any time please contact us in writing at [email protected]
7. Declaring Higher Valuation. Inasmuch as truckers, carriers, warehousemen and others to whom the goods are entrusted usually limit their liability for loss or damage unless a higher value is declared and a charged based on such higher value is agreed to by said trucker, etc., RESOLUTION must receive specific written instructions from the Customer to pay such higher charge based on valuation and the truckers, etc., must accept such higher declared value; otherwise the valuation placed by the Customer on the goods shall be considered solely for export or customs purposes and the goods will be delivered to the truckers etc., subject to the limit of liability set forth herein in paragraphs 8-9 below with respect to any claim against RESOLUTION and subject to the provisions of paragraph 2 above.
8. Insurance. RESOLUTION will make reasonable efforts to effect marine, theft and other insurance upon the goods only after specific written instructions have been received by RESOLUTION from the Customer in such sufficient time prior to the shipment from the point of origin, and at the same time the written instructions from the Customer specifically states the kind and amount of insurance to be placed. RESOLUTION does not undertake or warrant that such insurance can or will be placed. Unless the Customer has its own open marine policy and instructs RESOLUTION to effect insurance under such policy, insurance is to be effected with one or more insurance companies or other underwriters to be selected by RESOLUTION. Any insurance placed shall be governed by the certificate or policy issued and will only be effective when accepted by such insurance companies or other underwriters. Should an insurer dispute its liability for any reason, the insured shall have recourse against the insurer only and RESOLUTION shall not be under any responsibility or liability in relation thereto, notwithstanding that the premium upon the policy may not be at the same rates as that charged or paid to RESOLUTION by the Customer, or that the shipment was insured under a policy in the name of RESOLUTION. Insurance premiums and the charge of RESOLUTION for arranging the same shall be at the Customer’s expense. If for any reason the goods are held in warehouse, or elsewhere, the same will not be covered under any insurance, unless RESOLUTION receives written instructions from the Customer. Unless specifically agreed in writing, RESOLUTION assumes no responsibility to effect insurance on any export or import shipment which it does not handle.
9. Limitation of Liability for Loss, etc. (a) The Customer agrees that RESOLUTION shall only be liable for any loss, damage expense or delay to the goods resulting from the negligence or other fault of RESOLUTION; such liability shall be limited to an amount equal to the lesser of fifty ($50) dollars per entry or shipment or the fee(s) charged for the services, provided that, in the case of partial loss, such amount will be adjusted pro rata;
(b) Where RESOLUTION issues its own bill of lading and receives freight charges as its compensation, Customer has the option of paying a special compensation and increasing the limit of RESOLUTION’s liability up to the shipment’s actual value; however, such option must be exercised by written agreement, entered into prior to any covered transaction(s), setting forth the limit of RESOLUTION’s liability and the compensation received;
(c) In instances other than in (b) above, unless the Customer makes specific written arrangements with RESOLUTION to pay special compensation and declare a higher value and RESOLUTION agrees in writing, liability is limited to the amount set forth in (a) above;
(d) Customer agrees that RESOLUTION shall, in no event, be liable for consequential, punitive, statutory or special damages in excess of the monetary limit provided for above.
10. Presenting Claims. RESOLUTION shall not be liable under paragraph 8, or otherwise, for any claims not presented to it in writing within thirty (30) days of either the date of loss or incident giving rise to the claim; no suit to recover for any claim or demand hereunder shall be maintained against RESOLUTION unless instituted within six (6) months after the presentation of the said claim or such longer period provided for under statute(s) of the State having jurisdiction of the matter.
11. Advancing Money. All charges must be paid by Customer in advance unless RESOLUTION agrees in writing to extend credit to customer; the granting of credit to a Customer in connection with a particular transaction shall not be considered a waiver of this provision by RESOLUTION.
12. Indemnification for Freight & Duties. In the event that a carrier, other person or any governmental agency makes a claim or institutes legal action against RESOLUTION for ocean or other freight, duties, fines, penalties, liquidated damages, demurrage, detention, container charges, or other money due arising from a shipment of goods of the Customer, the Customer agrees to defend, indemnify and hold harmless RESOLUTION for any amount RESOLUTION may be required to pay such carrier, other person or governmental agency together with reasonable expenses, including attorney fees, incurred by RESOLUTION in connection with defending such claim or legal action and obtaining reimbursement from the Customer. The confiscation or detention of the goods by any governmental authority shall not effect or diminish the liability of the Customer to RESOLUTION to pay all charges or other money due promptly on demand.
13. Abandonment. As Customer (manufacturer, distributor, merchant, cargo-owner, shipper, exporter, importer, sender, consignor, consignee, transferor, or transferee) you are ultimately responsible for any penalties, including but not limited to demurrage, storage, detention, destination ramp or port fees, border crossing fees, cargo abandonment costs, container charges and all cargo related fees or penalties. Cargo that is not released and picked up at the destination within 120 days, or per carrier contract or port regulations, which ever period is shortest, may be considered, at Resolution’s sole election, abandoned and Resolution is entitled to take such steps as it considers appropriate for Customer’s account, including auction, private sale or other disposition of the cargo, and Customer shall be liable for any penalties, detention, loss, expenses, container chargers and attorneys’ fees and costs incurred as a result thereof. At Resolution’s election, upon 120 days of cargo sitting idle (or per carrier contract or port regulations), the customer will be asked to put up a deposit equal to the current amount of the penalties; then, the customer will be given 60 days more to clear and remove the cargo, or it will be followed by final abandonment procedures. Alternately, the customer may proceed with abandonment of the shipment immediately. Abandonments are handled at customer’s expense.
14. C.O.D. Shipments. Goods received with Customer’s or other person’s instructions to “Collect on Delivery” (C.O.D.) by drafts or otherwise, or collect to collect on any specified terms by time drafts or otherwise, are accepted by RESOLUTION only upon the express understanding that it will exercise reasonable care in the selection of a bank, correspondent, carrier or agent to whom it will send such an item for collection, and RESOLUTION will not be responsible for any act, omission, default, suspension, insolvency or want of care, negligence, or fault of such bank, correspondent, carrier or agent, nor for any delay in remittance lost in exchange, or loss during transmission, or while in the course of collection.
15. General Lien on Any Property. RESOLUTION shall have a general lien on any and all property (and documents relating thereto) of the Customer, in its possession, custody or control or en route, for all claims for charges, expenses or advances incurred by RESOLUTION, INC. in connection with any shipments of the Customer and if any claim remains unsatisfied for thirty (30) days after demand for its payment is made, RESOLUTION may sell at public auction or private sale, upon ten (10) days written notice
registered mail (R.R.R.) to the Customer, the goods, wares and/or merchandise, or so much thereof as may be necessary to satisfy such lien, and apply the net proceeds of such sale to the payment of amount due RESOLUTION. Any surplus from such sale shall be transmitted to the Customer, and the Customer shall be liable for any deficiency in the sale.
16. Compensation of RESOLUTION. The compensation of RESOLUTION for its services shall be included with and is in addition to the rates and charges of all carriers and other agencies selected by RESOLUTION to transport and deal with the goods and such compensation shall be exclusive of any brokerage, commissions, dividends or other revenue received by RESOLUTION from carriers, insurers and others in connection with the shipment. On ocean exports, upon request, RESOLUTION shall provide a detailed breakout of the components of all charges assessed and a true copy of each pertinent document relating to these charges. In any referral for collection or action against the Customer for money due to RESOLUTION, the Customer shall pay the expenses of collection and/or litigation, including RESOLUTION’s reasonable attorneys’ fees.
17. No Responsibility for Governmental Requirements. It is the responsibility of the Customer to know and comply with the marking requirements of the U.S. Customs Service, the regulations of the U.S. Food and Drug Administration, and all other requirements, including regulations of Federal, state and/or local agencies, and all Foreign/ International regulations pertaining to the merchandise. RESOLUTION shall not be responsible for action taken or fines or penalties assessed by any governmental agency – in the USA or another country against the shipment because of the failure of the Customer to comply with the law or the requirements or regulations of any governmental agency or with a notification issued to the Customer by any such agency.
18. Indemnity Against Liability Arising From the Importation of Merchandise. The Customer agrees to indemnify and hold RESOLUTION harmless from any claims and/or liability arising from the importation of merchandise which violates any Federal, state and/or other laws or regulations and further agrees to indemnify and hold RESOLUTION harmless against any and all liability, loss, damages, costs, claims and/or expenses, including but not limited to attorney’s fees, which RESOLUTION may hereafter incur, suffer or be required to pay by reason of claims by any government agency or private party. In the event that any action, suit or proceeding is brought against RESOLUTION by any government agency or private party, RESOLUTION shall give notice in writing to the Customer by mail at its address on file with RESOLUTION. Upon receipt of such notice, the Customer, at its own expense, shall defend against such action and take all steps as may be necessary or proper to prevent the obtaining of a judgment and/or order against RESOLUTION.
19. Loss, Damage or Expense Due To Delay. Unless the service to be performed by RESOLUTION on behalf of the Customer are delayed by reason of negligence or other fault of RESOLUTION, RESOLUTION shall not be responsible for any loss, damage or expense incurred by the Customer because of such delay. In the event RESOLUTION is at fault, as aforesaid, its liability is limited in accordance with the provisions of paragraphs 8-9 above.
20. Jurisdiction, Venue, and Choice of Law Clause. This agreement shall be enforced, interpreted and governed by the principles of the General Maritime Law of the United States. In any case where U.S. General Maritime law cannot be applied and/or is silent for any issue, the parties expressly agree that the Agreement shall be enforced, interpreted and governed by the laws of the State of Louisiana, without regard to any conflicts of law, statutes or principles that might require the application of the laws of another jurisdiction. The parties hereto agree that all litigation between the parties related to rights, liabilities, and disputes under this Agreement shall be brought in either the United States District Court for the Eastern District of Louisiana or, in the event that said court lacks subject matter jurisdiction, the Civil District Court for the Parish of Orleans. In the event that either party initiates a lawsuit against the other party in any court other than the two courts specified herein, then the party that filed the lawsuit shall be liable to the other party for all attorney’s fees and costs incurred by the defending party in dismissing the lawsuit and/or transferring the lawsuit to one of the courts specified herein.
NAVIGATION NETWORK, INC.
NON-VESSEL-OPERATING COMMON CARRIER – OTI 268NF
5620 TCHOUPITOULAS STREET – NEW ORLEANS, LA 70115
Telephone: (504) 891-6300
“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 assigned.
“Merchant” includes any Person who at any time has been or becomes the Shipper, Holder, Consignee, Receiver of the Goods, Exporter, Importer, and Person who owns or is entitled to the possession of the Goods or of this Bill of Lading and any Person acting on behalf of any such Person.
“Holder” means any Person for the time being in possession of (or entitled to the possession of) this Bill of Lading.
“Goods” means the whole or any part of the cargo received from the Shipper and includes the packing and any equipment or Container not supplied by or on behalf of the Carrier.
“Container” includes any container, trailer, transportable tank, lift van, flat, pallet or any similar article of transport used to consolidate goods.
“Carriage” means the whole of the operations and services undertaken or performed by or on behalf of the Carrier in respect of the Goods.
“Combined Transport” arises where the Carriage called for by this Bill of Lading is not Port to Port.
“Port to Port Shipment” arises where the Place of Receipt and the Place of Delivery are not indicated on the front of this Bill of Lading or if both the Place of Receipt and the Place of Delivery indicated are ports and the Bill of Lading does not in the nomination of the Place of Receipt or the Place of Delivery on the front hereof specify any place or spot within the area of the port so nominated.
“Hague Rules” means the provisions of the International Convention for the Unification of Certain Rules relating to Bills of Lading signed at Brussels on 25th August, 1924 and includes the amendments by the Protocol signed at Brussels on 23rd February, 1968, but only if such amendments are compulsorily applicable to this Bill of Lading. (It is expressly provided that nothing in this Bill of Lading shall be construed as contractually applying said Rules as amended by said Protocol.)
“Hague-Visby Rules” means the Hague Rules as amended by the Protocol signed at Brussels on 23rd February, 1968.
“COGSA” means the Carriage of Goods by Sea Act of the United States of America approved on 16th April, 1936.
“COGWA” means the Carriage of Goods by Water Act 1936 of Canada.
“Charges” includes freight and all expenses and money obligations incurred and payable by the Merchant.
“Shipping Unit” includes freight unit and the term “unit” as used in the Hague Rules and Hague-Visby Rules.
“Person” includes an individual, group, company or other entity.
“Stuffed” includes filled, consolidated, packed, loaded or secured.
- CARRIER’S TARIFF AND TERMS AND CONDITIONS OF SERVICE
The provisions of the Carrier’s applicable Tariff, if any, and the Carrier’s terms and conditions of service are incorporated herein. Copies of the provisions of the Carrier’s applicable Tariff are obtainable from the Carrier or its agents upon request or, from the Carrier’s publicly available Tariff, which is published at the location reported to the appropriate government body, the Tariff is available by subscription. The Carrier’s terms and conditions of service are provided to the Merchant by the Carrier in other commercial documents related to the carriage hereunder (which may include, but are not limited to, the carrier’s invoices, the shipper’s letter of instructions, the credit application powers of attorney, and the other commercial documents), and at the Carrier’s offices. In the case of inconsistency between this Bill of Lading and the applicable Tariff or the terms and conditions of service, this Bill of Lading shall prevail.
The Merchant warrants that in agreeing to the terms hereof he is or is the agent of and has the authority of the person owning or entitled to the possession of the Goods or any person who has a present or future interest in the Goods.
- NEGOTIABILITY AND TITLE TO THE GOODS
(1) 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.
(2) This Bill of Lading shall be prima facie evidence of the taking in charge by the Carrier of the Goods as herein described. However, proof to the contrary shall not be admissible when this Bill of Lading has been negotiated or transferred for valuable consideration to a third party acting in good faith.
- 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) The Merchant undertakes that no claim or allegations shall be made against any person or vessel whatsoever, other than the Carrier, including, but not limited to, the Carrier’s servants or agents, any independent contractor and his servants or agents, and all others by whom the whole or any part of the Carriage, whether directly or indirectly, is procured, performed or undertaken, which imposes or attempts to impose upon any such person or vessel any liability whatsoever in connection with the Goods or the Carriage and the provisions of COGSA shall apply by agreement of the parties to all agents, contractors, and subcontractors, including but not limited to draymen, truckers, and stevedores, prior to the loading of and after the unloading of the cargo and if any claim or allegation should nevertheless be made to defend, indemnify and hold harmless the Carrier against all consequences thereof. Without prejudice to the foregoing every such person and vessel shall have the benefit of all provisions herein benefiting the Carrier, including but not limited to the provisions of COGSA, as if such provisions were expressly for his benefit and in entering into this contract the Carrier, to the extent of these provisions, does so not only on his own behalf but also as agent or trustee for such persons and vessels and such persons and vessels shall to this extent be or be deemed to be parties to this contract.
(3) The Merchant shall defend, indemnify and hold harmless the Carrier against any claim or liability (any any expense arising therefrom) arising from the Carriage of 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.
- CARRIER’S RESPONSIBILITY
(A)Subject to clause 13 below, this Bill of Lading insofar as it relates to sea carriage by any vessel whether named herein or not shall have effect subject to the Hague Rules or any legislation making such Rules or the Hague-Visby Rules compulsorily applicable (such as COGSA or COGWA) to this Bill of Lading and the provisions of the Hague Rules or applicable legislation shall be deemed incorporated herein. The Hague Rules (or COGSA or COGWA if this Bill of Lading is subject to U.S. or Canadian law respectively) shall apply to the carriage of Goods by highways and roads and by inland waterways and reference to carriage by sea in such Rules or legislation shall be deemed to include reference to highways and roads and inland waterways. If and to the extent that the provisions of the Harter Act of the United States of America 1893 would otherwise be compulsorily applicable to regulate the Carrier’s responsibility for the Goods during any period prior to loading on or after discharge from the vessel the Carrier’s responsibility shall instead be determined by the provisions of 6(3) below, but if such provisions are found to be invalid such responsibility shall be subject to COGSA.
(B) 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 limitations and exclusions of liability and all rights conferred or authorized by any applicable law, statute or regulations of any country (including, but not limited to, where applicable any provisions of 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 or regulations available to the Owner of the vessel(s) on which the Goods are carried.
(2) PORT TO PORT SHIPMENT
The responsibility of the Carrier is limited to that part of the Carriage from and during loading onto the vessel up to and during discharge from the vessel and the Carrier shall not be liable for any loss or damage whatsoever in respect to 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 constitutes 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.
(3) COMBINED TRANSPORT
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 the Goods are taken into his charge until the time of delivery to the extent set out below.
(A)Where the stage of Carriage where the loss or damage occurred cannot be proved:
(i) The Carrier shall be entitled to rely upon all exclusions of liability under the Rules or legislation that would have applied under 6(1)(A) above had the loss or damage occurred at sea or, if there was no carriage by sea, under the Hague Rules (or COGSA or COGWA if this Bill of Lading is subject to U.S. or Canadian law respectively).
(ii) Where under (i) above, the Carrier is not liable in respect of some of the factors causing the loss or damage, he shall only be liable to the extent that those factors for which he is liable have contributed to the loss or damage.
(iii) Subject to 6(4)(C) below, where the Hague Rules or any legislation applying such Rules or the Hague–Visby Rules (such as COGSA or COGWA) is not compulsorily applicable, the Carrier’s liability shall not exceed the lesser of US $500 per package or shipping unit or US $2.00 per kilo of the gross weight of the Goods lost, damaged or in respect of which the claim arises or the value of such Goods.
(iv)The value of the Goods shall be determined according to the commodity exchange price at the place and time of delivery to the Merchant or at the place and time when they should have been so delivered or if there is no such price according to the current market price by reference to the normal value of Goods of the same king and quality, at such place and time.
(B)Where the stage of Carriage where the loss or damage occurred can be proved and the loss is not covered by section 5(2) above.
(i) 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.
(ii) 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 carrier’s contracts of carriage and tariffs and any law compulsorily applicable. The Carrier guarantees the fulfillment of such inland carriers’ obligations under their contracts and tariffs;
(iii) where neither (i) or (ii) above apply, any liability of the Carrier shall be determined by 6(3)(A) above.
The Carrier does not undertake that the Goods shall arrive at the Port of Discharge or Place of Delivery at any particular time or to meet any particular market or use, and the Carrier shall in no circumstances whatsoever and howsoever arising be liable for direct, indirect, special incidental, punitive or consequential damages including, but not limited to, loss of profits, income, utility, interest or loss of market, caused by delay whether or not Carrier had knowledge that such damage might be incurred. Schedule or advertised departure and arrival are only expected times and may be advanced or delayed should the Carrier find it necessary, prudent or convenient.
(B)Package or Shipping Unit Limitations
Where the Hague Rules or any legislation making such Rules compulsorily applicable (such as COGSA or COGWA) to this Bill of Lading apply, 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 such Rules or legislation. Such limitation amount according to COGSA is US $500 and according to COGWA is Can $500. If no limitation amount is applicable under such Rules or legislation, the limitation shall be US $500 per package or shipping unit.
(C) Ad Valorem
The Merchant agrees and acknowledges that the Carrier has no knowledge of the value of the Goods, and that higher compensation than that provided for in this Bill of Lading may not be claimed unless, with the consent of the Carrier, the value of the Goods declared by the Shipper prior to the commencement of the Carriage is stated in this Bill of Lading and extra Freight paid, if required. In that case, the amount of the declared value shall be substituted for the limits laid down in this Bill of Lading. Any partial loss or damage shall be adjusted pro rata on the basis of such declared value.
(D)Description of Goods
(1) This Bill of Lading shall be prima facie evidence of the receipt by the 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 in the box on the face hereof entitled “*Total No. of Containers/Packages received by the Carrier”.
(2) Except as provided in Clause 6(D)(1), no representation is made by the Carrier as to the weight, contents, measure, quantity, quality, description, condition, marks, numbers or value of the Goods, and the Carrier shall under no responsibility whatsoever in respect of such description or particulars.
(3) If any particulars of any Letter of Credit and/or Import License and/or Sale Contract and/or Invoice or Order number and/or details of any contract to which the Carrier is not a party are shown on the face of this Bill of Lading, such particulars are included solely at the request of the Merchant for his convenience. The Merchant agrees that the inclusion of such particulars shall not be regarded as a declaration of value and in no way increases the Carrier’s liability under this Bill of Lading. The Merchant further agrees to indemnify the Carrier against all consequences of including such particulars in this Bill of Lading. The Merchant acknowledges that, except when the provisions of Clause 6(C) apply, the value of the Goods is unknown to the Carrier.
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 acknowledgement of 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.
(F)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.
The Carrier shall be discharged of all liability unless suit is brought in the proper forum and written notice thereof received by the Carrier within nine months after delivery of the Goods or the date when the Goods should have been delivered. In the event that such time period shall be found contrary to any convention or law compulsorily applicable, the period prescribed by such convention or law shall then apply but in that circumstance only.
- SHIPPER’S/MERCHANT’S RESPONSIBILITY
(1) All of the Persons coming within the definition of Merchant in Clause 1 shall be jointly and severally liable to the Carrier for the due fulfillment of all obligations undertaken by the Merchant in this Bill of Lading and remain so liable throughout Carriage, notwithstanding their having transferred this Bill of Lading and/or title to the Goods to another party.
(2) Merchant warrants to the Carrier that the particulars relating to the Goods as set out overleaf have been checked by the Merchant on receipt of this Bill of Lading and that such particulars, and any other particulars furnished by or on behalf of the Shipper, are adequate and correct. The Merchant also warrants that the Goods are lawful goods and contain no contraband. If the Container is not supplied by or on behalf of the Carrier, the Merchant further warrants that the Container meets all ISO and.or other international safety standards and is fit in all respects for Carriage by the Carrier.
(3) The Merchant shall indemnify the Carrier against all claims, losses, damages, fines and expenses arising or resulting from any breach of any of the warranties in Clause 7(2) hereof or from any other cause in connection with the Goods for which the Carrier is not responsible.
(4) The Merchant shall comply with all regulations or requirements of Customs, port and other authorities, and shall bear and pay all duties, taxes, fines, imposts, expenses or losses (including, without prejudice to the generality of the foregoing, Freight for any additional Carriage undertaken) incurred or suffered in respect of the Goods, and shall indemnify the Carrier in respect thereof. If the vessel is delayed due to an act or omission by the Merchant, the Merchant shall be responsible to Carrier for all costs, including clean up and delay, incurred as a result of the Merchant’s act or omission.
(5) If Containers supplied by or on behalf of the Carrier are unpacked at the Merchant’s premises, the Merchant is responsible for returning the empty Containers free from labels etc., with interiors brushed clean, odor free and in every respect fit for immediate reuse, to the point or place designated by the Carrier, his servants or agents, within the time prescribed. Should a Container not be returned as required above within the time prescribed, the Carrier is entitled to take such steps as he considers appropriate for the account of the Merchant and the Merchant shall be liable for any detention, loss or expense, including attorney’s fees and costs, incurred as a result thereof.
(6) Containers released into the care of the Merchant for packing, unpacking or any other purpose whatsoever are at the sole risk of the Merchant until redelivered to the Carrier. The Merchant shall indemnify the Carrier for all loss and/or damage to such Containers occurring during such period. The Merchant shall also indemnify the Carrier for any loss, damage, injury, fines or expenses caused or incurred by such Containers whilst in his control.
(7) DANGEROUS, HAZARDOUS, OR NOXIOUS CARGO
Carrier may throw overboard or destroy any cargo that has not been fully disclosed or if the cargo should subsequently endanger the ship or its personnel. The Merchant shall indemnify the Carrier for all fines, civil or criminal penalties, costs of cleanup and disposal charges, and attorneys’ fees arising out of any omission of fully disclosure or as a result of improper packing or stowage by the Merchant.
(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 conditions 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 conditions 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.
- 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.
- 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.
- 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.
- METHODS AND ROUTE OF TRANSPORTATION
(1) The Carrier may at any time and without notice to the Merchant: use any means of transport or storage whatsoever, including but not limited to inland carriage by truck, rail and/or air; load or carry the Goods on any vessel whether named on the front hereof or not; 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; at any place unpack and remove Goods which have been stuffed in or on a Container and forward the same in any manner whatsoever; proceed at any speed and by any route in his 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; 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); 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; permit the vessel to proceed with or without pilots, to tow or be towed or to be dry-docked; permit the vessel to carry livestock, Goods of all kinds, dangerous, or otherwise, contraband, explosives, munitions or warlike stores and sail armed or unarmed.
(2) The liberties set out in (1) 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.
- DECK CARGO (AND LIVESTOCK)
(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 (other than livestock) 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 or COGWA) 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 (and livestock, whether or not carried on deck) 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. The Merchant shall defend, indemnify and hold harmless the Carrier against all and any extra cost incurred for any reason whatsoever in connection with carriage of such livestock.
- DELIVERY OF GOODS
If delivery of the Goods or any part thereof is not taken by the Merchant at the time and place when and where the Carrier is entitled to call upon the Merchant to take delivery thereof, the Carrier shall be entitled without notice to remove from a Container the Goods or that part thereof if stuffed in or on a Container and to store the Goods or that part thereof ashore, afloat, in the open or under cover at the sole risk and expense of the Merchant. Such storage shall constitute due delivery hereunder, and thereupon the liability of the Carrier in respect of the Goods or that part thereof shall cease.
- BOTH-TO-BLAME COLLISION
If the vessel on which the Goods are carried (the carrying vessel) comes into collision with any other vessel or object (the non-carrying vessel or object) as a result of the negligence of the non-carrying vessel or object or the owner of, character of or person responsible for the non-carrying vessel or object, the Merchant undertakes to defend, indemnify and hold harmless the Carrier against all claims by or liability to (and any expense arising therefrom) any vessel or person in respect of any loss of, or damage to, or any claim whatsoever of the Merchant paid or payable to the Merchant by the non-carrying vessel or object or the owner of, character of or person responsible for the non-carrying vessel or object and set-off, recouped or recovered by such vessel, object or person(s) against the Carrier, the carrying vessel or her owners or characters.
- GENERAL AVERAGE
(1) The Carrier may declare General Average which shall be adjustable according to the New 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.
- FREIGHT & CHARGES
(1) Freight shall be deemed fully earned on receipt of the Goods by the Carrier and shall be paid and non-returnable in any event by the Merchant.
(2) The Merchant’s attention is drawn to the stipulations concerning currency in which the Freight is to be paid, rate of exchange, devaluation and other contingencies relative to Freight in the applicable Tariff.
(3) Freight has been calculated on the basis of particulars furnished by or on behalf of the Shipper. If the particulars furnished by or on behalf of the Shipper are incorrect, it is agreed that a sum equal to double the correct Freight less the Freight charged shall be payable as liquidated damages to the Carrier.
(4) All Freight shall be paid without any set-off, counter-claim, deduction or stay of execution before delivery of the Goods.
(5) The Merchant and owner of the goods shall be jointly and severally liable to the Carrier for the payment of freight and all charges, including the attorney’s fees, costs, and expenses incurred in collecting such freight, and the performance of the obligation of each of them hereunder.
(6) The Merchant is ultimately responsible for any destination charges, including but not limited to demurrage, storage, detention, destination ramp or port fees, border crossing fees, cargo abandonment costs, container charges and all cargo related fees or penalties. Cargo that is not released and picked up at the destination within six months, or in accordance with free time under port regulations, which ever period is shortest, may be considered, at Carrier’s sole election, abandoned and Carrier is entitled to take such steps as it considers appropriate for Merchant’s account, including auction, private sale or other disposition of the cargo, and Merchant shall be liable for any detention, loss, expenses, container chargers and attorneys’ fees and costs incurred as a result thereof.
(7) The Carrier shall be entitled to all freight and other charges due hereunder, whether actually paid or not, and to receive and retain them irrevocably under any circumstances whatsoever whether the vessel and/or goods be lost or not or the voyage be broken up or frustrated or abandoned at any stage of the entire transit period.
(8) The Merchant shall be liable for, and indemnify the Carrier against all dues, duties, taxes and charges including consular fees levied on the goods or all fines and/or losses sustained or incurred by the Carrier in connection with the goods however caused, including the procedure consular, board of health or other certified to accompany the goods.
(9) The Merchant shall be liable for return freight and charges on the goods refused exportation or importation.
(10) The Merchant authorizes the Carrier to pay and/or incur all such charges and expenses and to do any matters mentioned above at the expense of an as agents for the Merchant and to engage other persons to regain possession of the goods and to do all things deemed advisable to the carrier for payment of all freight and charges and for the performance of the obligation of each of them hereunder.
The Carrier shall have a lien on the Goods and any documents relating thereto for all sums whatsoever due at any time to the Carrier from the Merchant and for General Average contributions to whomsoever due and for the costs, including attorney’s fees of recovering the same and the Carrier shall have the right to sell the Goods and documents by public auction or private treaty, without notice to the Merchant and at the Merchant’s expense and without any liability towards the Merchant. If on the sale of goods the proceeds fail to cover the amount due and attorneys’ fees, costs and expenses incurred, then the Carrier shall be entitled to recover the difference from the Merchant.
- 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.
- 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 provisions were not contained herein.
- JURISDICTION, VENUE, AND CHOICE OF LAW CLAUSE
This agreement shall be enforced, interpreted and governed by the principles of the General Maritime Law of the United States. In any case where U.S. General Maritime law cannot be applied and/or is silent for any issue, the parties expressly agree that the Agreement shall be enforced, interpreted and governed by the laws of the State of Louisiana, without regard to any conflicts of law, statutes or principles that might require the application of the laws of another jurisdiction. The parties hereto agree that all litigation between the parties related to rights, liabilities, and disputes under this Agreement shall be brought in either the United States District Court for the Eastern District of Louisiana or, in the event that said court lacks subject matter jurisdiction, the Civil District Court for the Parish of Orleans. In the event that either party initiates a lawsuit against the other party in any court other than the two courts specified herein, then the party that filed the lawsuit shall be liable to the other party for all attorney’s fees and costs incurred by the defending party in dismissing the lawsuit and/or transferring the lawsuit to one of the courts specified herein.