General Terms & Conditions

Edition April 2007

valid from 1/2007

DFDS Container Line B.V.
General Terms and Conditions for Multimodal Transport or Port to Port Shipment

 

I GENERAL PROVISIONS

1. Definitions

"Carrier" means DFDS Container Line B.V., Oever 5, 3161 GR, Rhoon, the Netherlands,

"Merchant" includes the shipper, consignor, endorsee, transferee, holder, consignee or receiver of the Goods; any Person owning, holding or entitled to the possession of the Goods or the transport document; any Person having a present or future interest in the Goods and anyone acting on behalf of any such Person.

"Person" includes an individual, group, company or other entity.

"Sub-Contractor" includes owners and operators of vessels (other than the Carrier), stevedores, terminal and groupage operators, road and rail transport operators and any independent contractor employed directly or indirectly by or on behalf of the Carrier in performance of the Carriage.

"Goods" means the whole or any part of the cargo received from or through the Merchant and includes but is not limited to any equipment or Unit not supplied by or on behalf of the Carrier.

"Unit" includes any container, swap body, transportable tank, flat or pallet, or any similar article used to pack or consolidate Goods and any equipment thereof or connected thereto.

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

"Multimodal Transport" means any Carriage of Goods undertaken by the Carrier hereby the Goods are carried by a combination of road, rail, sea and inland waterway(s) (including possible intermediate and/or connected storage of the Goods).

"Freight" includes all charges payable to the Carrier in connection with any Carriage undertaken by him.

"Hague-Visby Rules" means the provisions of the International Convention for the Unification of Certain Rules of Law relating to Bills of Lading, signed at Brussels on 25th August 1924 and includes the amendments to the Convention by the Protocol signed at Brussels on 23rd February 1968 as well as the amendments to the SDR Protocol signed at Brussels on 21 December 1979. (It is expressly provided that nothing in these GENERAL TERMS AND CONDITIONS shall implement Article X (c) of said Rules as amended by said Protocol).



”CIM” means the provisions of the Uniform Rules concerning the Contract of international Carriage of Goods by Rail (CIM-Appendix B to the Convention concerning international Carriage by Rail (COTIF) of 9 May 1980 in the version of the Protocol of Modification of 3 June 1999).

“CMNI” means the provisions of the Budapest Convention on the Contract for the Carriage of Goods by Inland Waterway, dated 22 June 2001.

"CMR" means the provisions of the Convention concerning the International Carriage of Goods by Road, dated 19th May 1956 as amended by the Protocol amending that Convention, signed in Geneva in 1978.

2. Applicable law and arbitration

(1) Applicable law
All contracts of Carriage and legal relationships between the Carrier and the Merchant are governed by and subject to Dutch law.

(2) TAMARA Arbitration

Any dispute arising out of or in connection with this agreement shall be referred to Arbitration in Rotterdam in accordance with the TAMARA Arbitration Rules available at the TAMARA Institute, P.O. Box 23158, 3001 KD Rotterdam (www.Tamara-arbitration.nl). A sole arbitrator shall decide such dispute unless Carrier opts for three arbitrators. Where applicable arbitrator(s) shall apply the provisions of the CMR.

3. Scope of application, validity and applicability

(1) Subject to Clause 2.1 above, the provisions of these GENERAL TERMS AND CONDITIONS shall at all times govern all responsibilities of the Carrier in connection with the Carriage including all responsibilities arising out of the supply of a Unit to the Merchant, not only during the Carriage, but also during the periods prior to and/or subsequent to the Carriage.

(2) The rights, defences, limitations and liberties of whatsoever nature provided for in these GENERAL TERMS AND CONDITIONS and as available by law shall apply in any actions against the Carrier for loss, damage or delay, howsoever occurring and whether the action be founded in contract or in tort and even if the loss, damage or delay arose as a result of unseaworthiness, negligence or an act or omission committed with the intent to cause such loss, damage or delay or recklessly and with the knowledge that such loss, damage or delay would probably result.

(3) Unless explicitly agreed otherwise in writing, applicability of any general terms and conditions used by the Merchant is excluded.

(4) In the event that anything contained in these GENERAL TERMS AND CONDITIONS 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 no further, be null and void.

(5) Any rights of the Carrier under these GENERAL TERMS AND CONDITIONS are in addition to and shall not in any way limit or reduce any right of the Carrier under any applicable law.

 

II PERFORMANCE OF THE CONTRACT

4. Sub-contracting

(1) The Carrier shall be entitled to sub-contract on any terms the whole or any part of the Carriage, loading, unloading, storing, warehousing, handling and any and all duties whatsoever undertaken by the Carrier in relation to the Goods.

(2) The Merchant undertakes and warrants that no claims or allegations shall be made against any servant, agent, or Sub-Contractor of the Carrier which impose or attempt to impose upon any of them or any vessel owned or chartered by any of them any liability whatsoever in connection with or arising out of the Carriage and, if any such claim or allegation should nevertheless be made, to fully indemnify the Carrier against all consequences thereof. Without prejudice to the foregoing, every such servant, agent, and Sub-Contractor shall have, in relation to the Merchant, the benefit of all provisions herein benefiting the Carrier as if such provisions were expressly for their benefit, and all limitation of and exonerations from liability provided to the Carrier by law and by the terms hereof shall be available to them, and, in entering into this contract the Carrier, to the extent of those provisions, does so not only on his own behalf, but also as agent and trustee for such servants, agents, and Sub-Contractors.

5. Methods and route of Carriage

(1) The Carrier may at any time without notice to the Merchant:

(a) Use any means of Carriage whatsoever.

(b) If necessary unpack and remove the Goods which have been packed into a Unit and forward them in another Unit or otherwise.

(c) Proceed by any route at his discretion (whether or not the nearest or most direct or customary or advertised route) at any speed and proceed to or stay at any place or port whatsoever, once or more often and in any order.

(d) Load or unload the Goods at any place or port (whether or not such port is named in the document evidencing the contract of Carriage, if available, as the port of loading or port of discharge) and store the Goods at any such place or port.

(e) Comply with any 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, or having under the terms of any insurance on any conveyance employed by the Carrier the right to give orders or directions.

(f) Permit any vessel to proceed with or without pilots, to tow or be towed, to be dry-docked, to undergo repairs and to adjust equipment.

(2) The discretionary powers set out in Clause 5(1) may be invoked by the Carrier for any purpose whatsoever, whether or not connected with the Carriage. Anything done in accordance with Clause 5(1) or any delay arising therefrom shall be deemed to be within the contractual Carriage and shall not be a deviation and shall not give rise to any liability of the Carrier.

6. 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 and howsoever arising (even though the circumstances giving rise to such hindrance, risk, delay, difficulty or disadvantage existed at the time this contract was entered into or the Goods were received for Carriage), the Carrier (whether or not the Carriage is commenced) may either:

(a) without notice to the Merchant, abandon the Carriage or the Goods and place the Goods at the disposal of the Merchant at any place or port which the Carrier may deem safe and/or convenient, whereupon the responsibility of the Carrier in respect of such Goods shall cease. The Carrier shall nevertheless be entitled to full Freight on the Goods received for Carriage, and the Merchant shall pay any additional costs of the Carriage to and delivery and storage at such place or port, or

(b) upon notice to the Merchant suspend the Carriage of the Goods and store the Goods ashore or afloat under cover or in the open air, at any place, The Carrier will endeavour to forward the Goods, the Carriage of which has been suspended, as soon as possible after the cause of hindrance, risk, delay, difficulty or disadvantage has been removed, but the Carrier makes no representations as to the maximum period between such removal and the forwarding of the Goods to the port of discharge or place of delivery, whichever is applicable, named in the document evidencing the contract of Carriage, if available. The Carrier shall be entitled to payment of such additional Freight as the Carrier may determine, including but not limited to, charges for storage, handling and any other services to the Goods and for Freight from the place of suspension to the port of discharge or place of delivery, which ever is applicable, crediting the account of the Merchant only to the extent of costs not incurred by the Carrier resulting from such suspension, but without crediting the account of the Merchant for Freight already paid in respect of the Carriage.

(2) If the Carrier elects to suspend the Carriage under Clause 6(1)(b) this shall not prejudice his right to subsequently abandon the Carriage under Clause 6(1)(a).

7. Notification and delivery

(1) Any mention in the document evidencing the Contract of Carriage of parties to be notified of the arrival of the Goods is solely for information of the Carrier and failure to give such notification shall not involve the Carrier in any liability nor relieve the Merchant of any obligation hereunder.

(2) If the Merchant fails to take delivery of the Goods at the agreed time and place the Carrier shall be entitled, without notice, to unpack the Goods if packed in Units and/or to store the Goods ashore, afloat, in the open or under cover, all at the sole risk of the Merchant. Such storage shall constitute due delivery hereunder, and thereupon the liability of the Carrier in respect of the Goods stored as aforesaid shall wholly cease, and the costs of such storage (if paid or payable by the Carrier or any agent or Sub-Contractor of the Carrier) shall forthwith upon demand be paid by the Merchant to the Carrier.

(3) If the Merchant fails to take delivery of the Goods within reasonable time of first presentation of the Goods for delivery by the Carrier to the Merchant, or if in the opinion of the Carrier they are likely to deteriorate, decay, become worthless or incur charges whether for storage or otherwise in excess of their value, the Carrier may, without prejudice to any other rights which he may have against the Merchant, without notice and without his incurring any responsibility whatsoever, sell, destroy or dispose of the Goods and apply any proceeds of sale in reduction of any sums due by the Merchant to the Carrier.

(4) Refusal by the Merchant to take delivery of the Goods, notwithstanding having been notified of the availability of the Goods for delivery, shall constitute a waiver by the Merchant to the Carrier of any claim whatsoever relating to the Goods or the Carriage thereof.

 

III CARRIER'S LIABILITY

8. Port to Port Shipment

Subject to Clauses 10 and 11, the liability of the Carrier for loss of or damage to the Goods shall be determined in accordance with the Hague-Visby Rules, save as follows.

(a) Each Unit together with their respective contents (if any) shall be deemed to be one package or unit for the purposes of the Hague-Visby Rules.

(b) The Carrier shall in no event be liable for any loss or damage to or in connection with the Goods in an amount exceeding 666,67 SDR per package or unit.

(c) Any liability of the Carrier is excluded in respect of damage or loss arising before loading or after discharge from the ship.

9. Multimodal Transport

Subject to Clauses 10 and 11:

(1) If the stage of the carriage during which loss or damage occurred is not known.

(a) Exclusions

If the stage of the Carriage during which the loss or damage occurred is not known, the Carrier shall be relieved of liability for any loss or damage if such loss or damage was caused by:

(i) an act or omission of the Merchant,

(ii) insufficiency of or defective condition of packing or marking,

(iii) handling, loading, stowage or unloading of the Goods by or on behalf of the Merchant,

(iv) inherent vice of the Goods,

(v) strike, lockout, stoppage or restraint of labour,

(vi) a nuclear incident,

(vii) any cause or event which the Carrier could not avoid and the consequences whereof he could not prevent by the exercise of reasonable diligence.

(viii) Compliance with instructions of any Person entitled to give them.

(b) Burden of Proof

The burden of proof that the loss or damage was due to one or more of the causes or events specified in the Clause 9(1) shall rest upon the Carrier. Save that if the 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 Clause 9(1) (a), (ii), (iii) or (iv), it shall be presumed that it was so caused. The Merchant shall, however, be entitled to prove that the loss or damage was not, in fact, caused either wholly or partly by one or more of these causes of events.

(2) If the stage of the carriage during which loss or damage occurred is known.

If it is known during which stage of the Carriage the loss or damage occurred, the liability of the Carrier in respect of such loss or damage shall be determined:

(a) in case of carriage by sea by the provisions of Clause 8;

(b) in case of national or international carriage by road by the provisions of Chapter IV on the Liability of the carrier of the CMR;

(c) in case of national or international carriage by rail by the provisions of Title III on Liability of the CIM;

(d) in case of national or international carriage by inland waterways by Chapter V on the Liability of the Carrier of the CMNI;

(e) in case of any other stage of carriage as mentioned under (a)-(d) or a stage before, in between or after carriage by the provisions of Clause 9(1) and Clause 9(3);

(f) in case of warehousing, storage or other services not being carriage provided by the Carrier, by the provisions of Clause 9(1) and Clause 9(3).

(3) Limitation of liability

If Clause 9(2)(e) or 9(2)(f) applies the Carrier shall in no event be liable for any loss or damage to or in connection with the Goods in an amount exceeding 666,67 SDRs per Unit, packed with

Goods or not.

10. Sundry liability provisions

(1) Delay

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 of use, and the Carrier shall in no circumstances whatsoever and howsoever arising be liable for direct, indirect or consequential loss or damage caused by delay.

(2) Consequential loss, duties etc.

The Carrier shall never be liable for lost profit, consequential loss or damage (inter alia as a result of delay and/or wrong delivery), direct, indirect and immaterial damage. Any liability in respect of import duties, excise duty, turnover tax, restitutions and/or other levies or related fines which are imposed by any government or any other authority charged with such duties, which are demanded in connection with the Carriage, is excluded.

(3) Livestock

The Carrier shall not in any circumstances whatsoever be liable for any damage, injury or death to livestock howsoever caused (including, without prejudice to the foregoing, negligence, default or omission of the Carrier or his servants or agent or independent contractor) which may occur in the course of loading, Carriage or unloading of livestock and during such times the Goods shall be at the sole risk of the Merchant, whether or not they are on the Carrier’s premises or in the custody of the Carrier.

(4) Notice of loss

The Carrier shall be deemed to have delivered the Goods complete and in sound (undamaged) condition unless notice of loss or damage indicating the general nature of such loss or damage has been given in writing to the Carrier before or at the time of removal of the Goods into the custody of the Person entitled to delivery thereof or, if the loss of damage is not apparent, within three working days thereafter.

(5) Timebar

The Carrier shall be discharged of all liability unless suit is brought and notice thereof is given to the Carrier within twelve months of delivery of the Goods or the date when the Goods should have been delivered.

11. Amount of compensation

(1) Compensation shall be calculated by reference to the value of the Goods at the place and time they have been delivered to the Merchant, or at the place and time they should have been delivered. For the purpose of determining the extent of the liability of the Carrier for loss of or damage to the Goods the sound value of the Goods is agreed to be the invoice value plus Freight and insurance if paid.

(2) The Merchant agrees and acknowledges that the Carrier has no knowledge of the value of the Goods, and that higher compensation than that provided under these GENERAL TERMS AND CONDITIONS may not be claimed unless, with the prior written consent of the Carrier, the value of the Goods declared by the shipper prior to the commencement of the Carriage is stated on the document evidencing the contract of Carriage and extra Freight paid, if required. In that case, the amount of the declared value shall be the basis for calculation of the Carrier’s liability, (if any), provided that such declared value shall be prima facie evidence but shall not be conclusive on the Carrier 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.

12. Miscellaneous

(1) If by order of the authorities at any place, a Unit has to be opened for the Goods to be inspected, the Carrier will not be liable for any loss or damage incurred as a result of any opening, unpacking, inspection or recapping. The Carrier shall be entitled to recover the cost of such opening, unpacking, inspection and repackaging from the Merchant.

(2) The Merchant shall safeguard and keep the Carrier indemnified against all claims and demands whatsoever by whomsoever made in excess of the liability of the Carrier as per these GENERAL TERMS AND CONDITIONS in respect of any loss, damage or delay whatsoever, howsoever arising.

(3) Whenever the Merchant requests the assistance of any employee, servant or agent of the Carrier or of the Sub-Contractor and this assistance in all reasonableness does not fall within the scope of the contractual obligations of the Carrier or the Sub-Contractor, then this assistance shall be given at the sole responsibility of the Merchant. The Carrier and/or the Sub-Contractor shall thus not be liable for any damage resulting from such assistance.

(4) The Merchant:

(a) shall be liable for any damage which may be suffered by the Carrier, his Sub-Contractors, his employees, his servants, his agents and/or any other third party caused by the Goods (including hazardous substances and waste) during their loading, handling, custody, stowage, care, Carriage and/or unloading;

(b) shall, without prejudice to the generality of Clause 12 (2), safeguard and keep the Carrier indemnified against all claims and demands whatsoever by whomsoever made in respect of any damage caused by the Goods during their loading, handling, custody, stowage, care, Carriage and/or unloading.

For the purpose of this Clause 12(4) "damage" includes, but is not limited to, loss of life, personal injury, loss of and/or damage to Goods and/or other property, real or personal, loss of and/or damage to the environment, the costs of preventive measures and/or further loss and/or damage caused by preventive measures.

(5) Any party who enters any premises of the Carrier or of its agent and/or subcontractor, in sheds, transport vehicles or any other place where work is executed, shall be there, with all Goods he has with him, at his own risk, and he must strictly adhere to any regulations and/or instructions established by the government and by the Carrier. The Merchant shall indemnify the Carrier in this respect against claims of third parties which are on site in connection with the Carriage.

 

IV DESCRIPTION OF THE GOODS

13. Document evidencing the Contract of Carriage

(1) The Carrier is not obliged to and will not issue a bill of lading or CT-document as mentioned in Article 8:44 Dutch Civil Code. Article 3, sections 3, 4, 7 and 8, of the Hague-Visby Rules do not apply.


(2) The Carrier may, at the request of the Merchant, issue a (sea)waybill or (international) consignment note. Such waybill or consignment note is not a bill of lading or CT-document as mentioned in Article 8:44 Dutch Civil Code.

14. Responsibility of the Carrier

(1) The document evidencing the contract of Carriage shall be prima facie evidence of the receipt by the Carrier of the Goods as therein described in respect of the particulars which the Carrier had reasonable means of checking.

(2) 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 be under no responsibility whatsoever in respect of such description or particulars.

15. Responsibility of the Merchant

The Merchant shall be deemed to have guaranteed to the Carrier the accuracy, at the time the Goods were taken in charge by the Carrier, of the description of the Goods, marks, numbers, quantity and weight, as furnished by the Merchant and he shall fully indemnify the Carrier against any loss, damage and expense arising or resulting from inaccuracies in or inadequacy of such particulars.

16. Merchant-packed Units

(1) If a Unit has not been packed by or on behalf of the Carrier the Carrier shall not be liable for loss of or damage to the contents and the Merchant shall indemnify the Carrier against any loss, damage, liability or expense incurred by the Carrier, if such loss, damage, liability or expense has been caused by:

(a) the manner in which the Unit has been packed, loaded and/or stowed, or

(b) the unsuitability of the Goods for Carriage in the Unit supplied, or

(c) the unsuitability or defective condition of the Unit, provided that, if the Unit has been supplied by or on behalf of the Carrier, this unsuitability or defective condition could have been apparent upon inspection by the Merchant at or prior to the time when the Unit was packed, or

(d) packing of temperature controlled Goods at other than the booked temperature.

(2) If a Merchant-packed Unit is delivered by the Carrier with its original seal intact, as it was affixed during or following loading of the Unit, irrespective of whether the Carrier or the Merchant applied the seal to the Unit, such delivery shall constitute full and complete performance of the Carrier's obligations hereunder and the Carrier shall not be liable for any shortage and/or discrepancy of or to Goods ascertained.

17. Inspection of Goods

The Carrier or any Sub-Contractor or any Person authorised by the Carrier shall be entitled, but under no obligation, to open any Unit or package at any time and to inspect the Goods. The right of the Carrier to rely on Clause 16(2) shall not be prejudiced in any way in case the Carrier or any Sub-Contractor or any Person authorised by the Carrier is obliged to open the Unit pursuant to an order of the (customs) authorities. If it thereupon appears that the contents or any part thereof cannot safely or properly be carried or carried further, either at all, or without incurring any additional expense or taking any measures in relation to the Unit or its contents or any part thereof, the Carrier may at the sole risk and expense of the 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 by the Carrier. The Merchant shall indemnify the Carrier against any reasonable additional expense so incurred.

 

V FREIGHT, PAYMENT, LIEN AND PLEDGE

18. Freight and payment


(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.

(2) The attention of the Merchant 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.

(3) Freight is calculated on the basis of particulars furnished by or on behalf of the Merchant. The Carrier may at any time open any Unit or other package or unit in order to identify, weigh, measure or value the contents, and, if the particulars furnished by or on behalf of the Merchant 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, failing which the Carrier shall be entitled to withhold delivery until payment in full has been received. Subject to Clause 18(9) the Carrier shall be further entitled to 1% interest or a higher interest rate as notified by the Carrier to the Merchant with reasonable notice per month as from the original date of delivery and to full compensation of all costs and damages incurred by non-payment or late-payment of the Freight including but not limited to legal fees.

(5) All the Persons and/or entities coming within the definition of Merchant in Clause 1 shall be jointly and severally liable for the payment of Freight and liquidated damages as provided in this Clause.

(6) Any Person engaged by the Merchant to perform forwarding services with respect to the Goods, shall be considered to be the exclusive agent of the Merchant for all purposes and any payment of Freight to such Person shall not be considered payment to the Carrier in any event. Failure of such Person to pay the Freight to the Carrier shall be considered a default by the Merchant in the payment of Freight.

(7) The Carrier may at all times, even after a Freight has been agreed between parties, revise the agreed Freight with reasonable notice.

(8) Payment shall be made in the currency in which the Freight has been agreed and/or invoiced, unless it has been otherwise agreed. In the latter case any exchange losses suffered by the Carrier shall be for the account of the Merchant.

(9) If the amount due to the Carrier from the Merchant according to any invoice has not been promptly and fully paid to the Carrier by or on behalf of the Merchant within 15 days of the invoice date or, if a different period for payment has been agreed in writing, within that different period, the Merchant shall owe interest on the invoice amount or the unpaid balance thereof, as the case may be, from the invoice date at the rate of 1% per month or a higher interest rate as notified by the Carrier to the Merchant with reasonable notice, in which part of a month shall be taken as a full month, all the above without any demand, summons or notice of default from the Carrier to the Merchant being required.

(10) The Merchant shall be deemed to have approved the invoice as correct and to have acknowledged the debt if the invoice has not been protested in writing within 14 days of its date.

(11) All costs arising from or in connection with the exercise by the Carrier of his rights arising from or in connection to the contract of Carriage or for the rendering of other services that has been concluded with the Merchant, including all costs arising from or in connection with the judicial and/or extra-judicial collection of any invoice amount which has not been paid in time or not been paid in full or arising on any other account, shall be for the account of the Merchant without any demand, summons or notice of default being required; and also the costs of any demand, summons or notice of default not awarded against the unsuccessful party in the event of any court proceeding, all the above with a minimum of €500 (five hundred Euros) per amount to be collected. The amounts entered in the books of the Carrier with respect to the aforesaid costs shall constitute full proof as to the total amount of the aforesaid costs, unless the contrary is proven by the Merchant.

19. Lien and pledge

The Carrier shall have a lien and pledge on the Goods, documents and monies and the right to sell the same by public auction or otherwise at his discretion for all Freight, charges and expenses of whatever kind and nature due to the Carrier under the contract of Carriage and under these GENERAL TERMS AND CONDITIONS and also in respect of any previously unsatisfied amounts of the same nature and for the costs and expenses of exercising such lien / pledge and such sale. Such lien / pledge and liability shall remain valid notwithstanding that the Goods have been landed, stored or otherwise dealt with. If on the sale the proceeds fail to realise the amount due, the Carrier shall be entitled to recover the difference from any of the parties included in the term Merchant in Clause 1.

 

VI MISCELLANEOUS

20. General average

(1) In the event of accident, danger, damage or disaster before or after the commencement of the voyage, resulting from any cause whatsoever, due to negligence or not, for which, or for the consequences of which, the Carrier is not responsible, by statute, contract or otherwise, the Merchant shall contribute with the Carrier in general average to the payment of any sacrifices, losses or expenses of a general average nature that may be made or incurred, and shall pay salvage and special charges incurred in respect of the Goods. All expenses in connection with a general average act to avoid damage to the environment shall always be deemed general average expenses.

(2) General average shall be adjusted according to the York/Antwerp Rules of 1994 at any port or place in any currency at the option of the Carrier. The Merchant shall give such cash deposit or other security as the Carrier may deem sufficient to cover the estimated general average contribution of the Goods before delivery when the Carrier requires this, or, if the Carrier does not so require, within three months of the delivery of the Goods, whether or not at the time of delivery the Merchant had notice of the Carrier's lien. The Carrier shall be under no obligation to exercise any lien for a general average contribution due to the Merchant.

(3) The Carrier shall have a lien on the Goods for all general average contribution (including but not limited to salvage) for which the Merchant is responsible. If the Carrier delivers the Goods without obtaining security for general average contributions or such other expense, the Merchant, by taking delivery of the Goods, undertakes personal responsibility to pay such contributions or expense and to provide such cash deposit or other security for the estimated amount of such contributions or expense as the Carrier shall reasonably require.

(4) Conversion into the currency of the adjustment shall be calculated at the rate prevailing on the date of payment for disbursements and on the date of completion of discharge of the vessel for allowances, contributory values etc.

(5) In the event of any general average credit balance due to Merchants still being unclaimed

5 years after the date of issue of the adjustment, these shall be paid to the Carrier, who will hold such credit balances pending application by the Merchants entitled thereto.

(6) If a salving vessel is owned or operated by the Carrier, salvage shall be paid to the same extent as should the salving vessel or vessels belong to other parties.

21. Optional stowage and deck cargo

(1) The Goods may be packed by the Carrier in Units and consolidated with other Goods in Units. The Carrier shall not be liable for damage to or loss of the Goods therein and the Merchant shall indemnify the Carrier for any loss, damage or expense incurred by the Carrier if this is attributable to:

(a) the Goods being unsuitable for Carriage in the Unit actually used;

(b) the unsuitability of or defective condition of the Unit, unless the Unit has been supplied by the Carrier and the unsuitability and/or defective condition would have been apparent by reasonable means of checking at the time when the Carrier accepted the Unit for conveyance.

(2) goods, whether or not packed in Units, may be carried on deck or under deck or in any part of the vessel or craft without prior notice to the Merchant. All such Goods, whether carried on deck or under deck, shall participate in general average and shall be deemed to be within the definition of Goods for the purpose of the Hague-Visby Rules.

(3) Notwithstanding Clause 21(2) in the case of Carriage of Goods which are stated in the document evidencing the Contract of Carriage as being carried on deck and which are so carried, the Hague-Visby Rules shall not apply and the Carrier shall be under no liability whatsoever for loss, damage or delay, howsoever arising.

22. Dangerous Goods

(1) No Goods which are or may become dangerous, combustible, inflammable or damaging (including radio-active materials), or which are or may become liable to damage any property whatsoever, shall be tendered to the Carrier or Carriage without his express consent in writing, and without the Unit in which the Goods are to be carried as well as the Goods themselves being distinctly marked on the outside so as to indicate the nature and character of any such Goods and so as to comply with any applicable laws, regulations or requirements. If any such Goods are delivered to the Carrier without such written consent and/or making, or if in the opinion of the Carrier the Goods are liable to become of a dangerous, combustible, inflammable or damaging nature, they may at any time be destroyed, disposed of, abandoned, or rendered harmless without any compensation to the Merchant and without prejudice to the right to Freight of the Carrier.

(2) The Merchant undertakes that such Goods are packed in a manner adequate to withstand the risks of Carriage having regard to their nature and in compliance with all laws or regulations, which may be applicable during the Carriage.

(3) Whether or not the Merchant was aware of the nature of the Goods, the Carrier is not liable for and the Merchant shall fully indemnify the Carrier against all claims (including but not limited to loss of live or injury), losses, damages or expenses arising in consequence of the Carriage of such Goods.

(4) Nothing contained in this Clause shall deprive the Carrier of any of his rights provided for elsewhere.

23. Reefer or heating machines

(1) The Carrier does not accept liability for the consequences of malfunctioning of the refrigerating or heating machines attached to or fit in any Unit used for Carriage.

(2) The Merchant releases and indemnifies the Carrier, his employees and every servant or agent of the Carrier including every Sub-Contractor from and against all claims, losses and expenses whatsoever in respect of any loss, deterioration or damage to the Unit, its refrigeration plant or the Goods which arises from or as a consequence of:

(a) Failure to provide or delay in providing a suitable electricity supply to operate the Unit's refrigeration plant or failure to provide suitable electrical or other equipment to enable the electricity supply of the vessel, train, truck or other means of carriage to be connected to the Unit's refrigeration plant, or

(b) refusal to connect such means of carriage electricity supply to the Unit's refrigeration plant and the Carrier shall in this respect have an absolute right to refuse to permit such a connection if the Carrier considers that the Unit or its refrigeration plant is unsuitable for connection with the electricity supply of the means of carriage or would be unsafe if so connected.

(3) Whenever the Carrier provides a refrigerating or heating machine or any other temperature controlling device attached to a Unit with fuel, in order to allow it to keep operating during the Carriage, and/or checks the temperature data as they appear from the setting and thermostat of the said refrigerating or heating machine, then this shall be done at the sole responsibility of the Merchant. The Carrier shall thus not be liable for any damage resulting from the fact that the Carrier does not provide such fuel or provides not enough fuel and/or does not check such temperature data or checks them incorrectly and/or does not provide the Merchant with the results of such check.

24. Variation of the contract

No servant or agent of the Carrier shall have the power to waive or vary any of the terms of these GENERAL TERMS AND CONDITIONS, unless such waiver or variation is in writing and is specifically authorised or ratified in writing by an officer of the Carrier.