1. DEFINITIONS AND INTERPRETATION
"Authority" means any duly constituted legal or administrative Person, which exercises jurisdiction or has authority within any nation, state, municipality or port.
"Carriage" means the whole or any part of the packing, stuffing, loading, carriage, transporting, unpacking de-stuffing, unloading, storing, warehousing, handling and any other services whatsoever undertaken by the Carrier in respect of the Goods covered by this bill of lading.
"Carrier" means Damco International B.V., Turfmarkt 107, 2511DP, The Hague, the Netherlands on whose behalf this bill of lading has been signed.
"Carrier Group" means Damco International A/S and any of its direct or indirect subsidiaries, affiliates, associates, or agents.
"Compulsory Legislation" means any national law or international convention which applies compulsorily to this bill of lading (which will be US COGSA for shipments to or from the USA) or which applies pursuant to clause 7.2(a).
"Container" includes any container (including an open top container), flat rack, platform, trailer, transportable tank, pallet or any other similar article used to consolidate the Goods and any connected equipment.
"Freight" includes all charges payable to the Carrier in accordance with the applicable tariff and this bill of lading.
"Goods" means the whole or any part of the cargo and any packaging accepted from the Shipper and includes any Container not supplied by or on behalf of the Carrier.
"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.
"Holder" means any Person for the time being in lawful possession of this bill of lading to or in whom rights of suit and/or liability under this bill of lading have been transferred or vested.
"Merchant" includes the Shipper, Holder, Consignee, Receiver of the Goods, any Person owning or entitled to the possession of the Goods or of this bill of lading and anyone acting on behalf of such Person.
"Multimodal Transport" arises if the Place of Receipt or the Place of Delivery (or both) are filled in on the reverse hereof in the relevant spaces.
"Package" where a Container is loaded with more than one package or unit, the packages or other shipping units enumerated on the reverse hereof as packed in such Container and entered in the box on the reverse side hereof entitled "Total No. of Containers or Packages received by Carrier" are each deemed a Package.
"Person" includes an individual, corporation, or other legal entity.
"Port-to-Port Shipment" arises if the Carriage is not Multimodal Transport.
"SDR" means a special drawing right as defined by the International Monetary Fund.
"SOLAS" means the International Convention for the Safety of Life at Sea of the International Maritime Organization as supplemented by the SOLAS Guidelines, as amended from time to time.
"SOLAS Guidelines" means the Guidelines regarding the verified gross mass of a container carrying cargo (MSC.1/Circ.1475) published by the International Maritime Organization.
"Subcontractor" includes owners, charterers and operators of vessels (other than the Carrier), stevedores, terminal and groupage operators, road, rail and air transport operators, warehousemen and any independent contractors employed by the Carrier in the performance of the Carriage and any direct or indirect Subcontractors, servants and agents thereof whether in direct contractual privity or not.
"Terms and Conditions" means all terms, responsibilities, obligations, warranties, rights, defences, provisions, conditions, exceptions, limitations and liberties hereof.
"USA" means the United States of America.
"US COGSA" means the US Carriage of Goods by Sea Act 1936.
"Vessel" means any water borne craft used in the Carriage under this Bill of Lading, which may be a feeder vessel or an ocean vessel.
Any words following the word "including" shall be interpreted without limitation to the generality of the preceding words.
2. CARRIER'S TARIFF
The terms and conditions of the Carrier's applicable tariff are incorporated herein. Copies of the applicable tariff are obtainable from the Carrier upon request. In the case of inconsistency between this bill of lading and the applicable tariff, this bill of lading shall prevail.
This bill of lading shall be non-negotiable unless made out "to-order" in which event it shall be negotiable.
4. MERCHANT'S WARRANTIES AND RESPONSIBILITIES
4.1 The Merchant warrants that:
a.in agreeing to the Terms and Conditions he is, or has the authority to contract on behalf of, the Person owning or entitled to possession of the Goods and this bill of lading.
b. the Goods are packed in a manner adequate to withstand the risks of Carriage having regard to their nature and in compliance with all laws, regulations or requirements which may be applicable during the Carriage;
c. neither the receipt, delivery or handling of the Goods nor any payment or other transaction relating to the Goods will expose the Carrier or any member of the Damco Group, the Subcontractors or any of their employees, servants, agents, banks, insurers or reinsurers to any sanction, prohibition or penalty (or any risk of sanction, prohibition or penalty) whatsoever imposed by any state, country, supranational or international governmental organisation or other Authority;
d. none of the Persons falling with the meaning of Merchant is or is owned or controlled by or is acting on behalf of a Person which is included on any list of individuals or entities with whom transactions are currently prohibited or restricted under any sanction, prohibition or restriction imposed by any state, country, supranational or international governmental organisation or other Authority, including but not limited to the consolidated list of financial sanctions targets in the United Kingdom or the USA list of Specially Designated Nationals;
e. the Goods are not intended to be used in the design, development, or production of nuclear, chemical, or biological weapons.
4.2 The Merchant shall comply with all regulations or requirements of customs, port and other authorities, and shall bear, pay and indemnify the Carrier against all duties, taxes, fines, impost, expenses or losses (including, without prejudice to the generality of the foregoing Freight for any additional Carriage undertaken) incurred or suffered by reason thereof, or by reason of any illegal, incorrect, untimely or insufficient declaration, marking, numbering or addressing of the Goods.
4.3 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 fulfilment of all obligations undertaken by the Merchant in this bill of lading
4.4 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, with interiors clean, odour free and in the same condition as received, to the point or place designated by the Carrier, within the time prescribed. Should a Container not be returned in the condition required and/or within the time prescribed in the tariff, the Merchant shall be liable for any detention, loss or expense incurred as a result thereof.
4.5 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 of and/or damage and/or delay to such Containers. Merchants are deemed to be aware of the dimensions and capacity of any Containers released to them.
5.1 The Carrier shall be entitled to sub-contract on any terms whatsoever the whole or any part of the Carriage.
5.2 The Merchant undertakes that no claim or allegation, whether arising in contract, bailment, tort, breach of express or implied warranty or otherwise shall be made against any servant, agent, or Subcontractor of the Carrier, which imposes or attempts to impose upon any of them or any vessel owned or chartered by any of them any liability whatsoever in connection with the Goods or the Carriage of the Goods whether or not arising out of negligence on the part of such Person, and, if any such claim or allegation should nevertheless be made, to indemnify the Carrier against all consequences thereof. Without prejudice to the foregoing every such servant, agent, and Subcontractor shall have the benefit of all Terms and Conditions of whatsoever nature herein contained or otherwise benefiting the Carrier including clause 28 (Law and Jurisdiction), as if such Terms and Conditions including clause 28 (Law and Jurisdiction) were expressly for their benefit and, in entering into this contract, the Carrier, to the extent of such Terms and Conditions, including clause 28 (Law and Jurisdiction), does so on its own behalf, and also as agent and trustee for such servants, agents and Subcontractors.
6. CARRIER'S RESPONSIBILITY: PORT-TO-PORT SHIPMENT
6.1 Where the Carriage is Port-to-Port, then the liability (if any) of the Carrier for loss of or damage to the Goods occurring between the time of loading at the Port of Loading and the time of discharge at the Port of Discharge shall be determined and limited in accordance with any Compulsory Legislation or in any other case in accordance with the Hague Rules Articles 1-8 inclusive only, which Articles shall apply as a matter of contract.
6.2 The Carrier shall have no liability whatsoever for any loss or damage to the Goods while in its actual or constructive possession before loading or after discharge, howsoever caused. Notwithstanding the above, in case and to the extent that any Compulsory Legislation provides to the contrary, the Carrier shall have the benefit of every right, defence, limitation and liberty in the Hague Rules Articles 1-8 as applied by clause 6.1 during such additional compulsory period of responsibility, notwithstanding that the loss or damage did not occur at sea.
6.3 Where US COGSA applies then the provisions stated in the said Act shall govern the liability of the Carrier for any loss or damage to the Goods before loading on the Vessel or after discharge therefrom, as the case may be, during Carriage to or from a container yard or container freight station in or immediately adjacent to the sea terminal at the Port of Loading and/or Discharge. If the Carrier is requested by the Merchant to procure Carriage by an inland carrier in the United States of America and the inland carrier in his discretion agrees to do so, such carriage shall be procured by the Carrier as agent only to the Merchant and such carriage shall be subject to the inland carrier's contract and tariff. If for any reason the Carrier is denied the right to act as agent at these times, his liability for loss damage or delay to the Goods shall be determined in accordance with clause 7 hereof.
6.4 In the event that the Merchant requests the Carrier to deliver the Goods:
a. at a port other than the Port of Discharge; or
b. (save in the USA) at a place of delivery instead of the Port of Discharge, and the Carrier in its absolute discretion agrees to such request, such further Carriage will be undertaken on the basis that the Terms and Conditions are to apply to such Carriage as if the ultimate destination agreed with the Merchant had been entered on the reverse side of this bill of lading as the Port of Discharge or Place of Delivery.
7. CARRIER'S RESPONSIBILITY: MULTIMODAL TRANSPORT
Where the Carriage is Multimodal Transport, the Carrier undertakes to perform and/or in his own name to procure performance of the Carriage from the Place of Receipt or the Port of Loading, whichever is applicable, to the Port of Discharge or the Place of Delivery, whichever is applicable. Save as is otherwise provided for in this bill of lading, the Carrier shall be liable for loss or damage occurring during the Carriage only to the extent set out below:
7.1 Where the stage of Carriage where loss or damage occurred is not known.
The Carrier shall be relieved of liability for any loss or damage where such loss or damage was caused by:
i. an act or omission of the Merchant or Person acting on behalf of the Merchant other than the Carrier, his servant, agent or Subcontractor,
ii. compliance with instructions of any Person entitled to give them,
iii. insufficient or defective condition of packing or marks,
iv. handling, loading, stowage or unloading of the Goods by the Merchant or any Person acting on his behalf,
v. inherent vice of the Goods,
vi. strike, lock out, stoppage or restraint of labour, from whatever cause, whether partial or general,
vii. a nuclear incident,
viii. any cause or event which the Carrier could not avoid and the consequences whereof he could not prevent by the exercise of reasonable diligence.
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 this clause 7.1 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 7.1(a), 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 or events.
c. Limitation of Liability.
Except as provided in clauses 8.2(a), 8.2(b) or 8.3, if clause 7.1 operates, total compensation shall under no circumstances whatsoever and howsoever arising exceed USD 500 per package where Carriage includes Carriage to, from or through a port in the USA and in all other cases 2 SDRs per kilo of the gross weight of the Goods lost or damaged.
7.2 Where the stage of Carriage where the loss or damage occurred is known.
Subject to clause 20, the liability of the Carrier in respect of any loss or damage shall be determined and limited:
a. by the provisions contained in any international convention or national law which provisions:
i. cannot be departed from by private contract to the detriment of the Merchant, and
ii. would have applied if the Merchant had made a separate and direct contract with the Carrier in respect of the particular stage of the Carriage during which the loss or damage occurred and received as evidence thereof any particular document which must be issued if such international convention or national law shall apply; or
b. in case of shipments to or from the USA, by the provisions of US COGSA if the loss or damage is known to have occurred during Carriage by sea to or from the USA or during Carriage to or from a container yard or container freight station in or immediately adjacent to the sea terminal at the Port of Loading or of Discharge in ports of the USA; or
c. by the Hague Rules Articles 1-8 inclusive only where the provisions of clauses 7.2(a) or 7.2(b) do not apply if the loss or damage is known to have occurred during Carriage by sea; or
d. if the loss or damage is known to have occurred during Carriage inland in the USA, in accordance with the contract of carriage or tariffs of any inland carrier in whose custody the loss or damage occurred or, in the absence of such contract or tariff by the provisions of clause 7.1, and in either case the law of the State of New York will apply; or
e. where the provisions of clause 7.2(a), 7.2(b), 7.2(c) and/or 7.2(d) above do not apply, in accordance with the contract of carriage or tariffs of any inland carrier in whose custody the loss or damage occurred or in the absence of such contract or tariff by the provisions of clause 7.1. For the purposes of clause 7.2 references in The Hague Rules Articles 1-8 or any Compulsory Legislation to carriage by sea shall be deemed to include references to all waterborne Carriage and the Compulsory Legislation shall be construed accordingly.
7.3 If the Place of Receipt or Place of Delivery is not named on the reverse hereof the Carrier shall be under no liability whatsoever for loss or damage to the Goods howsoever occurring:
a. if the Place of Receipt is not named on the reverse hereof and such loss or damage arises prior to loading on to the Vessel; or
b. if the Place of Delivery is not named on the reverse hereof, if such loss or damage arises subsequent to discharge from the Vessel, save that where US COGSA applies then the provisions stated in said Act shall govern before loading on to and after discharge from any Vessel and during Carriage to or from a container yard or container freight station in or immediately adjacent to the sea terminal at the Port of Loading and/or Discharge.
7.4 Amendment of Place of Delivery
In the event that the Merchant requests, and the Carrier agrees to amend the Place of Delivery, such amended Carriage will be undertaken on the basis that the Terms and Conditions are to apply until the Goods are delivered to the Merchant at such amended Place of Delivery.
8. COMPENSATION AND LIABILITY PROVISIONS
8.1 Subject always to the Carrier's right to limit liability as provided for herein, if the Carrier is liable for compensation in respect of loss of or damage to the Goods, such compensation shall be calculated by reference to the invoice value of the Goods plus Freight and insurance if paid. If there is no invoice value of the Goods or if any such invoice is not bona fide, such compensation shall be calculated by reference to the value of such Goods at the place and time they are delivered or should have been delivered to the Merchant. The value of the Goods shall be fixed according to the current market price, by reference to the normal value of goods of the same kind and/or quality.
8.2 Save as is provided in clause 8.3:
a. Where the Compulsory Legislation applies hereunder by virtue of clause 6.1 or clause 7.2(a) the Carrier's liability shall in no event exceed the amounts provided in the Compulsory Legislation.
b. Where Carriage includes Carriage to, from or through a port in the USA and US COGSA applies by virtue of clauses 6.1 or 7.2(b) neither the Carrier nor the Vessel shall in any event be or become liable in an amount exceeding USD 500 per Package or customary freight unit.
c. In all other cases, including where the Hague Rules Articles 1-8 inclusive apply pursuant to clauses 6.1 or 7.2(c), compensation shall not exceed the limitation of liability of 2 SDRs per kilo of the gross weight of the Goods lost or damaged.
8.3 The Merchant agrees and acknowledges that the Carrier has no knowledge of the value of the Goods and higher compensation than that provided for in this bill of lading may be claimed only when (i) with the consent of the Carrier, the value of the Goods declared by the Shipper upon delivery to the Carrier has been stated in the box marked "Shipper Declared Value" on the reverse hereof and (ii) extra freight is paid. 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.
8.4 Nothing in this bill of lading shall operate to limit or deprive the Carrier of any statutory protection, defence, exception or limitation of liability authorised by any applicable laws, statutes or regulations of any country. The Carrier shall have the benefit of the said laws, statutes or regulations as if it were the owner of any carrying ship or vessel.
9.1 The Carrier does not undertake that the Goods or any documents relating thereto shall arrive or be available at any point or place at any stage during the Carriage or at the Port of Discharge or the Place of Delivery at any particular time or to meet any particular requirement of any licence, permission, sale contract, or credit of the Merchant or any market or use of the Goods and the Carrier shall under no circumstances whatsoever and howsoever arising be liable for any direct, indirect or consequential loss or damage caused by delay. If the Carrier should nevertheless be held legally liable for any such direct or indirect or consequential loss or damage caused by such alleged delay, such liability shall in no event exceed the Freight paid for the Carriage.
9.2 Save as is otherwise provided herein and subject to any Compulsory Legislation, the Carrier shall under no circumstances be liable for any loss of profit, loss of sales or business, loss of agreements or contracts, loss of anticipated savings, loss or damage to goodwill (in each case whether direct or indirect) or any indirect or consequential loss.
9.3 Save as is otherwise provided herein and subject to any Compulsory Legislation, the Carrier's maximum aggregate liability whatsoever for all events which occur under this bill of lading (other than loss or damage to Goods) will be limited to an amount equal to the Freight paid.
9.4 Once the Goods have been received by the Carrier for Carriage the Merchant shall not be entitled to impede, delay, suspend or stop or otherwise interfere with the Carrier's intended manner of performance of the Carriage or the exercise of the liberties conferred by this bill of lading nor to instruct or require delivery of the Goods at other than the Port of Discharge or Place of Delivery named on the reverse hereof or such other Port or Place selected by the Carrier in the exercise of the liberties herein, for any reason whatsoever including but not limited to the exercise of any right of stoppage in transit conferred by the Merchant's contract of sale or otherwise. The Merchant shall indemnify the Carrier against all claims, liabilities, loss, damages, costs, delay, attorney fees and/or expenses caused to the Carrier, his Subcontractors, servants or agents or to any other cargo or to the owner of such cargo during the Carriage arising or resulting from any stoppage (whether temporary or permanent) in the Carriage of the Goods whether at the request of the Merchant, or in consequence of any breach by the Merchant of this clause, or in consequence of any dispute whatsoever in respect of the Goods (including, but without restriction, disputes as to ownership, title, quality, quantity, information under clause 16.1 or description of and/or payment for the Goods) involving any one or more party defined herein as the Merchant as between themselves or with any third party other than the Carrier, without prejudice to the Carrier's rights under clause 16.2, and the liberties provided for in clauses 21 and 22 shall be available to the Carrier in the event of any such stoppage.
9.5 The Terms and Conditions of this bill of lading shall govern the responsibility of the Carrier in connection with or arising out of the supplying of a Container to the Merchant whether before, during or after the Carriage.
10. NOTICE OF LOSS, TIME BAR
Unless notice of loss or damage and the general nature of such loss or damage be given in writing to the Carrier or his authorised agent at the Place of Delivery (or Port of Discharge if no Place of Delivery is named on the reverse hereof) before or at the time of removal of the Goods into the custody of the Merchant or if the loss or damage is not apparent within three days thereafter, such removal shall be prima facie evidence of the delivery by the Carrier of the Goods as described in this bill of lading. In any event, the Carrier shall be discharged from all liability whatsoever in respect of the Goods unless suit is brought within nine months after their delivery or the date when they should have been delivered.
11. DEFENCES AND LIMITS FOR THE CARRIER
The Terms and Conditions of whatever nature provided for in this bill of lading shall apply in any action against the Carrier for any loss or damage whatsoever and howsoever occurring (and, without restricting the generality of the foregoing, including delay, late delivery and/or delivery without surrender of this bill of lading) and whether the action be founded in contract, bailment or in tort and even if the loss or damage arose as a result of unseaworthiness, negligence, wilful misconduct or fundamental breach of contract.
12. SHIPPER-PACKED CONTAINERS
If a Container has not been packed by the Carrier:
12.1 This bill of lading shall be a receipt only for such a Container;
12.2 The Carrier shall not be liable for loss of or damage to the contents and the Merchant shall indemnify the Carrier against any injury, loss, damage, liability or expense whatsoever incurred by the Carrier if such loss of or damage to the contents and/or such injury, loss, damage, liability or expense has been caused by any matters beyond his control including, inter alia, without prejudice to the generality of this exclusion.
a. the manner in which the Container has been packed; or
b. the unsuitability of the Goods for carriage in Containers; or
c. the unsuitability or defective condition of the Container or the incorrect setting of any thermostatic, ventilation, or other special controls thereof, provided that, if the Container has been supplied by the Carrier, this unsuitability or defective condition could have been apparent upon reasonable inspection by the Merchant at or prior to the time the Container was packed.
12.3 The Merchant is responsible for the packing and sealing of all shipper-packed Containers and, if a shipper-packed Container is delivered by the Carrier with its original seal as affixed by the Shipper intact, the Carrier shall not be liable for any shortage of Goods ascertained at delivery.
12.4 The Shipper shall inspect Containers before packing them and the use of Containers shall be prima facie evidence of their being sound and suitable for use.
13. PERISHABLE CARGO
13.1 Goods, including Goods of a perishable nature, shall be carried in ordinary Containers without special protection, services or other measures unless there is noted on the reverse side of this bill of lading that the Goods will be carried in a refrigerated, heated, electrically ventilated or otherwise specifically equipped Container or are to receive special attention in any way and the Carrier expressly accepts in writing to provide such specifically equipped Container or special attention. The Merchant undertakes not to tender for Carriage any Goods which require refrigeration, ventilation or any other specialised attention without giving written notice of their nature and the required temperature or other setting of the thermostatic, ventilation or other special controls to 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 howsoever arising.
13.2 The Merchant should note that refrigerated Containers are not designed
a. to freeze down cargo which has not been presented for stuffing at or below its designated carrying temperature and the Carrier shall not be responsible for the consequences of cargo being presented at a higher temperature than that required for the Carriage; nor
b. to monitor and control humidity levels, albeit a setting facility exists, in that humidity is influenced by many external factors and the Carrier does not guarantee the maintenance of any intended level of humidity inside any Container.
13.3 The term "apparent good order and condition" when used in this bill of lading with reference to goods which require refrigeration, ventilation or other specialised attention does not mean that the Goods, when received were verified by the Carrier as being at the carrying temperature, humidity level or other condition designated by the Merchant.
13.4 The Carrier shall not be liable for any loss or damage to the Goods arising from latent defects, derangement, breakdown, defrosting, stoppage of the refrigerating, ventilating or any other specialised machinery, plant, insulation and/or apparatus of the Container, vessel, conveyance and any other facilities, provided that the Carrier shall before and at the beginning of the Carriage exercise due diligence to maintain the Container supplied by the Carrier in an efficient state.
14. INSPECTION OF GOODS
The Carrier shall be entitled, but under no obligation, to open and/or scan any Package or Container at any time and to inspect the contents. If it appears at any time that the Goods 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 Container or the Goods, the Carrier may without notice to the Merchant (but as his agent only) take any measures and/or incur any reasonable additional expense to carry or to continue the Carriage thereof, and/or to sell or dispose of the Goods and/or to abandon the Carriage and/or to store them ashore or afloat, under cover or in the open, at any place, whichever the Carrier in his absolute discretion considers most appropriate, which sale, disposal, abandonment or storage shall be deemed to constitute due delivery under this bill of lading. The Merchant shall indemnify the Carrier against any reasonable additional expense so incurred. The Carrier in exercising the liberties contained in this clause shall not be under any obligation to take any particular measures and shall not be liable for any loss, delay or damage howsoever arising from any action or lack of action under this clause.
15. DESCRIPTION OF GOODS
15.1 This bill of lading shall be prima facie evidence of the receipt by the Carrier in apparent good order and condition, except as otherwise noted, of the total number of Containers or other Packages or units entered in the box on the reverse side hereof entitled "Total No. of Containers or Packages received by Carrier".
15.2 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.
15.3 The Merchant warrants to the Carrier that the particulars relating to the Goods as set out on the reverse hereof, including that required under clause 16.1, have been checked by the Shipper on receipt of this bill of lading and that such information and particulars, and any other particulars furnished by or on behalf of the Merchant, are adequate and correct. The Merchant also warrants that the Goods are lawful goods, and contain no contraband, drugs, other illegal substances or stowaways, and that the Goods will not cause loss damage or expense to the Carrier, or to any other cargo during the Carriage.
15.4 If any particulars of any Letter of Credit and/or Import License and/or Sales 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 at the sole risk of the Merchant and 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.
16. SOLAS VERIFIED GROSS MASS REQUIREMENTS
16.1 The Merchant shall provide the Carrier with the total gross mass established using calibrated and certified equipment of each packed Container (FCL) or each package of Goods (LCL) carried pursuant to this bill of lading in accordance with SOLAS and the deadlines established by the Carrier. The Merchant acknowledges and agrees that the Carrier will rely on the accuracy and timeliness of such total gross mass information and use this to comply with its obligations to Subcontractors and any Authority in accordance with SOLAS.
16.2 In the event of any non-compliance by the Merchant with clause 16.1 or where the Carrier reasonably believes the total gross mass information provided by or on behalf of the Merchant to be inaccurate or incomplete, the Carrier may, at its sole discretion and without notice to the Merchant:
a. arrange, at the Merchant's cost and as agent for and on behalf of the Merchant and without liability to the Merchant in accordance with clause 16.1, for the total gross mass of each packed Container (FCL) or each package of Goods (LCL) carried pursuant to this bill of lading to be established by a third party in accordance with SOLAS; or
b. establish itself or through a member of the Carrier Group, at the Merchant's cost, the total gross mass of each packed Container (FCL) or each package of Goods (LCL) carried pursuant to this bill of lading in accordance with SOLAS; or
c. refuse to load the Goods (if the Goods are not yet loaded) without liability to the Shipper or, if the Goods are loaded, arrange at the Merchant's risk and expense for the Goods to be landed and stored, and such landing and storage shall be deemed to constitute due delivery of the Goods under this bill of lading.
17.1 The Merchant shall promptly indemnify the Carrier, the Subcontractors, or any member of the Carrier Group, their respective employees, servants, agents, insurers or reinsurers against all costs (including the costs of investigating and defending any claims), expenses, claims, losses, liabilities, orders, awards, fines, proceedings and judgments of whatsoever nature howsoever assumed, incurred or suffered as a result of or in connection with any of the following:
a. any breach by the Merchant of any of the warranties or obligations undertaken by the Merchant under this bill of lading;
b. any breach by the Merchant of any of the provisions of clause 23;
c. any other cause whatsoever in connection with the Goods for which the Carrier is not responsible;
d. the Carrier becoming liable to any other Person (including to a relevant Authority) and/or incurring additional costs by reason of the Carrier carrying out the Merchant's instructions;
e. the Carrier incurring liability in excess of its liability under the provisions of this bill of lading regardless of whether such liability arises from, or in connection with a breach of contract, negligence, wilful misconduct or breach of duty by the Carrier, its agents, servants or Sub-contractors;
f. delayed, inaccurate or incomplete verified gross mass information provided by or on behalf of the Merchant under clause 16.1 on which the Carrier relies.
18. FREIGHT, EXPENSES AND FEES
18.1 Full Freight shall be payable based on particulars furnished by or on behalf of the Shipper. The Carrier may at any time open the Goods or Container(s) and, if the Shipper's particulars are incorrect then without prejudice to the Carrier's other rights under this bill of lading, the Merchant and the Goods shall be liable for the correct Freight and any expenses incurred in examining, weighing, measuring, or valuing the Goods.
18.2 Full Freight shall be considered completely earned on receipt of the Goods by the Carrier and shall be paid and nonreturnable in any event.
18.3 All sums payable to the Carrier are due on demand and shall be paid in full in United States currency or, at the Carrier's option, in its equivalent in the currency of the Port of Loading or of Discharge or the Place of Receipt or of Delivery or as specified in the Carrier's tariff.
18.4 The Merchant's attention is drawn to the stipulations concerning currency in which the Freight is to be paid, rate of exchange, devaluation, additional insurance premium and other contingencies relative to Freight in the applicable tariff. In the event of any discrepancy between Freight (incl. charges etc.) items in the bill of lading and any Carrier invoices, the latter shall prevail.
18.5 All Freight shall be paid without any set-off, counter-claim, deduction or stay of execution at latest before delivery of the Goods.
18.6 If the Merchant fails to pay the Freight when due he shall be liable also for payment of service fee or interest due on any outstanding sum, reasonable attorney fees and expenses incurred in collecting any sums due to the Carrier. Payment of Freight and charges to a freight forwarder, broker or anyone other than the Carrier or its authorised agent, shall not be deemed payment to the Carrier and shall be made at the Merchant's sole risk.
The Carrier shall have a lien on the Goods and any documents relating thereto, funds held and any other goods in respect of which the Carrier is providing services to the Merchant ("Other Goods") for all sums payable to the Carrier under this contract and for general average contributions to whomsoever due. The Carrier shall also have a general lien against the Merchant on the Goods and any document relating thereto, funds held and any Other Goods, for all sums due from him to the Carrier Group under any other contract. The Carrier may exercise his lien at any time and any place in his sole discretion, whether the contractual Carriage is completed or not. In any event any lien shall extend to cover the cost of recovering any sums due and for that purpose the Carrier shall have the right to sell the Goods by public auction or private treaty, without notice to the Merchant. The Carrier's lien shall survive delivery of the Goods.
20. OPTIONAL STOWAGE, DECK CARGO AND LIVESTOCK
20.1 The Goods may be packed by the Carrier in Containers and consolidated with other goods in Containers.
20.2 Goods, whether packed in Containers or not, may be carried on deck or under deck without notice to the Merchant unless on the reverse side hereof it is specifically stipulated that the Containers or Goods will be carried under deck. If carried on deck, the Carrier shall not be required to note, mark or stamp on the bill of lading any statement of such ondeck carriage. Save as provided in clause 20.3, such Goods (except livestock) carried on or under deck and whether or not stated to be carried on deck shall participate in general average and shall be deemed to be within the definition of goods for the purpose of the Hague Rules Articles 1-8 or any Compulsory Legislation and shall be carried subject to such Rules or Act, whichever is applicable.
20.3 Goods (not being Goods stowed in Containers other than flats or pallets), which are stated herein to be carried on deck 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 or delay arising during the Carriage whether caused by unseaworthiness or negligence or any other cause whatsoever and neither the Hague Rules Articles 1-8 nor any Compulsory Legislation shall apply.
21. METHODS AND ROUTES OF CARRIAGE
21.1 The Carrier may at any time and without notice to the Merchant:
a. use any means of transport or storage whatsoever;
b. transfer the Goods from one conveyance to another including transhipping or carrying the same on a vessel other than the vessel named on the reverse hereof or by any other means of transport whatsoever and even though transhipment or forwarding of the Goods may not have been contemplated or provided for herein;
c. unpack and remove the Goods which have been packed into a Container and forward them via Container or otherwise;
d. sail without pilots, proceed via any route, (whether or not the nearest or most direct or customary or advertised route) at any speed and proceed to, return to and stay at any port or place whatsoever (including the Port of Loading herein provided) once or more often, and in any order in or out of the route or in a contrary direction to or beyond the Port of Discharge once or more often;
e. load and unload the Goods at any place or port (whether or not any such port is named on the reverse hereof as the Port of Loading or Port of Discharge) and store the Goods at any such port or place;
f. comply with any orders or recommendations given by any Authority or any Person or body or purporting to act as or on behalf of such Authority or having under the terms of the insurance on any conveyance employed by the Carrier the right to give orders or directions.
21.2 The liberties set out in clause 21.1 may be invoked by the Carrier for any purpose whatsoever whether or not connected with the Carriage of the Goods, including but not limited to loading or unloading other goods, bunkering or embarking or disembarking any person(s), undergoing repairs and/or dry-docking, towing or being towed, assisting other vessels, making trial trips and adjusting instruments. Anything done or not done in accordance with clause 21.1 or any delay arising therefrom shall be deemed to be within the contractual Carriage and shall not be a deviation.
22. MATTERS AFFECTING PERFORMANCE
If at any time Carriage is or is likely to be affected by any hindrance, risk, danger, delay, difficulty or disadvantage of whatsoever kind and howsoever arising which cannot be avoided by the exercise of reasonable endeavours, (even though the circumstances giving rise to such hindrance, risk, danger, delay, difficulty or disadvantage existed at the time this contract was entered into or the Goods were received for Carriage) the Carrier may at his sole discretion and without notice to the Merchant and whether or not the Carriage is commenced either:
a. Carry the Goods to the contracted Port of Discharge or Place of Delivery, whichever is applicable, by an alternative route to that indicated in this bill of lading or that which is usual for Goods consigned to that Port of Discharge or Place of Delivery. If the Carrier elects to invoke the terms of this clause 22(a) then, notwithstanding the provisions of clause 21 hereof, he shall be entitled to charge such additional Freight as the Carrier may determine; or
b. Suspend the Carriage of the Goods and store them ashore or afloat upon the Terms and Conditions of this bill of lading and endeavour to forward them as soon as possible, but the Carrier makes no representations as to the maximum period of suspension. If the Carrier elects to invoke the terms of this clause 22(b) then, notwithstanding the provisions of clause 21 hereof, he shall be entitled to charge such additional Freight and Costs as the Carrier may determine; or
c. Abandon the Carriage of the Goods and place them at the Merchant's disposal at any place or port, which the Carrier may deem safe and convenient, whereupon the responsibility of the Carrier in respect of such Goods shall cease. The Carrier shall nevertheless be entitled to full Freight on the Goods received for the Carriage, and the Merchant shall pay any additional costs incurred by reason of the abandonment of the Goods. If the Carrier elects to use an alternative route under clause 22(a) or to suspend the Carriage under clause 22(b) this shall not prejudice his right subsequently to abandon the Carriage.
23. DANGEROUS GOODS
23.1 No Goods which are or which may become of a dangerous, noxious, hazardous, flammable, or damaging nature (including radioactive material), or which are or may become liable to damage any Persons or property whatsoever, and whether or not so listed in any official or unofficial, international or national code, convention, listing or table shall be tendered to the Carrier for Carriage without previously giving written notice of their nature, character, name, label and classification (if applicable) to the Carrier and obtaining his consent in writing prior to the Company's receipt of the Goods and without distinctly marking the Goods and the Container or other covering 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 in breach of any of the provisions of this clause, or if in the opinion of the Carrier the Goods are or are liable to become of a dangerous, noxious, hazardous, flammable or damaging nature they may at any time or place be unloaded, destroyed, disposed of, abandoned or rendered harmless without compensation to the Merchant and without prejudice to the Carrier's right to Freight and, the Carrier shall be under no liability to make any general average contribution in respect of such Goods.
23.2 Nothing contained in this clause shall deprive the Carrier of any of his rights provided for elsewhere.
24. NOTIFICATION AND DELIVERY
24.1 Any mention in this bill of lading of parties to be notified of the arrival of the Goods is solely for information of the Carrier. Failure to give such notification shall not involve the Carrier in any liability nor relieve the Merchant of any obligation hereunder.
24.2 The Merchant shall take delivery of the Goods within the time provided for in the applicable tariff. If the Merchant fails to do so, the Carrier may without notice unpack the Goods if packed in Containers and/or store the Goods ashore, afloat, in the open or under cover at the sole risk of the Merchant. Such storage shall constitute due delivery hereunder, and thereupon all liability whatsoever of the Carrier in respect of the Goods or that part thereof shall cease and the costs of such storage shall forthwith upon demand be paid by the Merchant to the Carrier.
24.3 If the Goods are unclaimed within a reasonable time or whenever in the Carrier's opinion the Goods are likely to deteriorate, decay or become worthless, or incur charges whether for storage or otherwise in excess of their value, the Carrier may at his discretion and without prejudice to any other rights which he may have against the Merchant without notice and without any responsibility attaching to him sell, abandon or otherwise dispose of the Goods at the sole risk and expense of the Merchant and apply any proceeds of sale in reduction of the sums due to the Carrier from the Merchant in respect of this bill of lading.
24.4 Refusal by the Merchant to take delivery of the Goods in accordance with the terms of this clause and/or to mitigate any loss or damage thereto shall constitute a waiver by the Merchant to the Carrier of any claim whatsoever relating to the Goods or the Carriage thereof.
24.5 The Carrier may in his absolute discretion receive the Goods as Full Container Load and deliver them as less than Full Container Load and/or as break bulk cargo and/or deliver the Goods to more than one receiver. In such event the Carrier shall not be liable for any shortage, loss, damage or discrepancies of the Goods, which are found upon the unpacking of the Container.
25. BOTH-TO-BLAME COLLISION AND NEW JASON CLAUSE
The Both-to-Blame Collision and New Jason clauses published and/or approved by BIMCO and obtainable from the Carrier or his agent upon request are hereby incorporated herein.
26. GENERAL AVERAGE AND SALVAGE
26.1 General average to be adjusted at any port or place at the Carrier's option, this covering all Goods carried on or under deck. General average on a vessel not operated by the Carrier shall be adjusted according to the requirements of the operator of that vessel.
26.2 Notwithstanding clause 26.1 above, the Merchant shall defend, indemnify and hold harmless the Carrier in respect of any claim (and any expense arising therefrom) of General Average nature which may be made on the Carrier in respect of the Goods and shall provide such security as may be required by the vessel owner or the Carrier to cover the estimated contribution of the Goods and any salvage and special or particular charges thereon. Such security shall if required be submitted to the vessel owner prior to delivery of the Goods.
26.3 The Carrier shall be under no obligation to take any steps whatsoever to collect security for General Average contributions due to the Merchant.
27. VARIATION OF THE CONTRACT
No servant or agent of the Carrier shall have the power to waive or vary any Terms and Conditions unless such waiver or variation is ratified in writing by the Carrier.
28. LAW AND JURISDICTION
Whenever clause 7.2(d) and/or whenever US COGSA applies, whether by virtue of Carriage of the Goods to or from the USA or otherwise, that stage of the Carriage is to be governed by United States law and the United States Federal Court of the Southern District of New York is to have exclusive jurisdiction to hear all disputes in respect thereof. In all other cases, this bill of lading shall be governed by and construed in accordance with English law and all disputes arising hereunder and all non-contractual matters associated with, arising out of or in connection with them shall be determined by the English High Court of Justice in London to the exclusion of the jurisdiction of the courts of another country, save that the Carrier retains the right to bring proceedings against the Merchant in any other court of competent jurisdiction.