MAERSK SPECIAL CARGO (SPC) TERMS – IN-GAUGE CARGO

1. Application of Terms

1.1 These Carrier Special Cargo Terms ("SPC Terms") govern the ocean transportation of Special Cargo and shall be read with the terms incorporated under clause 3.2.

1.2 These SPC Terms govern the Services performed by Maersk under this Agreement.

1.3 The Carrier may amend these SPC Terms at any time by publishing the amended terms at https://terms.maersk.com or by giving notice to the Customer.

2. Definitions

2.1 Capitalised terms used but not defined in these SPC Terms have the meanings given in the Maersk Ocean Fixed Terms and the Maersk Ocean Seasonal Terms (each as incorporated under clause 3.2), or the terms incorporated therein.

2.2 For the purposes of these SPC Terms, the terms “Goods”, “Transport Document”, “Authority”/ “Authorities”, “Subcontractor” and “Applicable Conventions” shall have the meanings given in the Maersk Ocean Fixed or Maersk Ocean Seasonal Terms, or the terms incorporated therein. References to “Merchant”, “Container” and “Freight” in those terms shall be read as references to “Customer”, “Equipment” and “Charges” respectively.

2.3 The following capitalised terms shall have the meanings set out below:

“Affiliate” means any entity that, directly or indirectly, controls, is controlled by, or is under common control with a Party; provided that “Affiliate” shall not include any direct or indirect shareholder of A.P. Møller - Mærsk A/S (company number 22756214, Esplanaden 50, 1263 Copenhagen K, Denmark) or any of their respective other direct or indirect subsidiaries or investments.

"Agreement" means the legally binding agreement entered into by the Parties consisting of the Contract Output and these SPC Terms, together with any other documents or terms incorporated by reference.

"Booking Confirmation" means written or electronic confirmation issued by the Carrier to the Customer or its Affiliate, following acceptance of a booking request: (a) confirming that the requested carriage is operationally feasible; (b) setting out the booking details, including vessel, voyage, routing and Equipment allocation; (c) specifying the confirmed Rates and Charges applicable to the booking; and (d) incorporating any additional terms. A Booking Confirmation may be communicated in any manner the Carrier determines. The legal effect of a Booking Confirmation is set out in clause 4.1.

"Cargo Information" means the description of the Goods in the Booking Confirmation, including: (a) the cargo description and commodity type; (b) the gross weight; (c) the number and type of Equipment required; (d) any special handling requirements; and (e) any other information reasonably required by the Carrier.

“Charges” means all amounts payable by the Customer to the Carrier in connection with the Services, including Rates, surcharges, fees, and detention and demurrage.

“Carrier” means A.P. Møller - Mærsk A/S, or such other Carrier entity as is specified in the Contract Output or Booking Confirmation.

“Carrier Group” means A.P. Møller - Mærsk A/S and its Affiliates.

“Contract of Carriage” means any contract of carriage, and any agreement for value-added services (VAS), evidenced by a Transport Document and any Booking Confirmation, whether or not such Transport Document has been physically issued, provided that the Goods have been accepted for carriage and the Customer is entitled to demand a Transport Document. These SPC Terms shall apply in full unless expressly excluded or modified in writing by the Carrier.

“Compulsory Legislation” means any mandatory statute, law, regulation, order, rule or requirement of any Authority.

"Contract Output" means a document setting out the key commercial terms of this Agreement, including the Parties’ details, the term, the rates, the port pairs and any other specific terms agreed between the Parties.

"Customer" means any individual or entity for whom the Carrier agrees to provide or arrange a Service, including the shipper, holder, consignee, receiver, any party owning or entitled to possession of the Goods, and any person acting on behalf of any such party.

"Equipment" means flat racks, open tops, and other transport units supplied by the Carrier for the carriage of Special Cargo under these SPC Terms.

“Equipment Drop-Off Point” means the location for the return of Equipment as specified in the Booking Confirmation or as otherwise notified by the Carrier.

“In-Gauge” means cargo that, when loaded, remains within the internal dimensions of the Equipment, including any applicable width and height limits specified by the Carrier.

“Party” means the Carrier or the Customer, and “Parties” means both of them.

"Rates" means the rates applicable to the Services, as specified in the Booking Confirmation and as adjusted pursuant to clause 5. The final Rates shall be as set out in the applicable invoice issued by the Carrier.

"Services" means the ocean transportation of Special Cargo and any inland, pre-carriage, on-carriage or other ancillary services provided by the Carrier under this Agreement, each of which (where provided) shall be regarded as an extension of, and ancillary to, the ocean transportation Service.

"Special Cargo" means In-Gauge cargo carried in Equipment under this Agreement.

3. Scope, Incorporated Terms and Legal Capacity

3.1 Scope

These SPC Terms govern the ocean transportation of Special Cargo and shall be read with the terms incorporated under clause 3.2. Any inland, pre-carriage or on-carriage leg shall be provided at the Carrier’s option as an extension of the ocean Service, on such terms as the Carrier may determine.

3.2 Incorporated Terms

This Agreement comprises the following documents, in the following order of priority (highest to lowest) and subject always to any Compulsory Legislation:

(i) these SPC Terms;
(ii) Maersk Ocean Fixed and Maersk Ocean Seasonal Terms;
(iii) the Contract Output.

In the event of conflict, the higher-ranked document shall prevail. These SPC Terms shall amend any existing service contract or Contract of Carriage to the extent necessary to give effect to this order of precedence.

3.3 Services on Other Terms

(a) Where the Customer avails any other non-ocean services under this Agreement, such services shall be provided on the applicable service-specific terms notified to the Customer by the Carrier. The Customer will receive confirmation of the applicable terms, service scope and pricing prior to commencement of such services, which may be communicated via a separate service confirmation, rate card, or other documentation issued by the Carrier.

(b) For non-ocean services, the order of priority in clause 3.2 shall not apply. In the event of inconsistency between any service-specific terms for non-ocean services and these SPC Terms, the service-specific terms shall prevail to the extent of the inconsistency.

(c) The Carrier shall notify the Customer of the rates and charges applicable to non-ocean services prior to or at the time of service confirmation. Final charges shall be as set out in the applicable invoice issued by the Carrier.

3.4 Legal Capacity

(a) The Carrier shall provide all Services as carrier, except in the following circumstances, in which the Carrier acts as agent:

(i) to the extent that the Carrier expressly agrees in writing to act as agent;
(ii) where the Carrier procures a Transport Document between a third-party carrier and the Customer; or
(iii) when dealing with Authorities on behalf of the Customer in relation to customs requirements, taxes, licences, consular documents, certificates of origin, inspection certificates, documentation management and other similar services.

(b) Where the Carrier acts as carrier or principal, the Carrier may perform the Services itself or subcontract any part of the Services, on any terms, to any Subcontractor or member of the Carrier Group.

(i) the Carrier has the express authority of the Customer to enter into contracts with third parties on the Customer’s behalf as may be necessary or desirable to fulfil the Services, and to do such acts as may be necessary to bind the Customer under such contracts;
(ii) the Carrier acts solely on behalf of the Customer in securing contracts with third parties, such that the direct contractual relationship is between the Customer and such third parties; and
(iii) the Carrier shall not be liable for the acts or omissions of such third parties.

(d) Neither the charging of fixed Charges, the consolidation of Goods, nor the supply of Equipment shall determine whether the Carrier is acting as agent or carrier.

(e) Any Affiliate of the Carrier may perform Services, issue invoices and exercise the Carrier’s rights under this Agreement. References to the Carrier include any such Affiliate where the context permits.

4. Making a Booking, Booking Amendments and Cancellations

4.1 The ocean transportation Service commences upon the Carrier’s issuance of a Booking Confirmation to the Customer. The issuance of a Booking Confirmation constitutes acceptance of the booking request and formation of a binding Contract of Carriage for the Services specified therein, on the terms of this Agreement. The ocean transportation Service ends upon discharge at the destination port.

4.2 The Carrier shall process booking requests in accordance with the standard ocean booking process. Where actual cargo details differ from those submitted with the booking request, the Carrier shall notify the Customer and may adjust the booking accordingly.

4.3 The Carrier may amend the routing where operational circumstances so require, which may affect transit time and Charges. If no alternative routing is available, the Carrier may cancel the booking on notice to the Customer.

5. Pricing and Variation

5.1 All Rates and Charges are calculated by reference to the Carrier’s applicable tariff for ocean freight services and other services, as published or notified by the Carrier from time to time.

5.2 The Rates and Charges set out in the Booking Confirmation are estimates that may be adjusted in accordance with this clause 5 due to:

(a) surcharges applicable under the Carrier’s tariff or changes to the Carrier’s published tariff;
(b) changes in the Carrier’s operating cost resulting from market conditions, fuel costs, currency fluctuations, regulatory changes, or other similar circumstances.

5.3 The Carrier shall notify the Customer of any material change to the Rates and Charges applicable to a booking.

5.4 The final Charges payable by the Customer for all Services (including ocean transportation, inland, pre-carriage, on-carriage, and any ancillary services) shall be as set out in the applicable invoice issued by the Carrier, calculated in accordance with this clause 5. The invoice shall constitute the single definitive source for final Charges.

5.5 If the booking request does not accord with the information forming the basis of the Booking Confirmation, the Carrier may cancel or amend the booking and shall not be liable for any losses arising to the Customer.

5.6 The following provisions shall apply following the issuance of a Booking Confirmation:

(a) if the Customer requests a booking amendment, the Carrier may, but has no obligation to, accommodate such request, subject to capacity and equipment availability;
(b) if the Customer cancels a booking, fails to load any Goods within any specified time limits, or fails to pick up any Equipment within any cut-off time for loading (each such occurrence, a Booking Failure):
- (i) the Customer may be required to pay any applicable detention and demurrage Charges (in accordance with clause 6.2(v)), and any other sums arising from the Booking Failure; and
- (ii) no free time will be applicable to any Booking Failure, and detention or demurrage (or both, as applicable) shall be calculated from the time of the Equipment pick-up until the time when such Equipment is returned.

6. Customer Warranties and Undertakings

6.1 Customer Warranties

In addition to the warranties set out in the Maersk Ocean Fixed or Maersk Ocean Seasonal Terms, or the terms incorporated therein, which shall apply mutatis mutandis, the Customer warrants that:

(i) the description and particulars of the Goods are current, complete and accurate, including: (a) marks, numbers, quantity, weight and dimensions; (b) details of any pre-existing or required lashing, protection or storage; and (c) handling instructions, including any special precautions required;
(ii) the Goods are properly and sufficiently packed, marked, labelled, stuffed, secured and stowed in a manner appropriate to the characteristics of the Goods, applicable industry standards and port/terminal requirements;
(iii) the Goods do not include any goods listed by the Carrier as prohibited or restricted, or any goods prohibited by the law of any Authority where the Services are provided; and
(iv) neither the provision of the Services nor any related payment or transaction will expose the Carrier, its officers, employees, agents or insurers to any sanctions or breach of applicable law.

6.2 Equipment

(i) The Carrier shall use reasonable endeavours to provide such Equipment as may be agreed with the Customer in the Contract Output, subject to availability and operational requirements.
(ii) If the Customer fails to pick up the Equipment in accordance with this clause, the Carrier reserves the right to cancel any bookings affected by such failure.
(iii) The Customer shall return the Equipment to the Equipment Drop-Off Point within the applicable free time period. The Equipment shall be returned clean, dry, empty, odourless and free from stains or damage, save for (i) any matter noted and accepted upon pick-up, and (ii) normal wear and tear.
(iv) The Customer may request an alternative Equipment Drop-Off Point. The Carrier may, in its sole discretion and subject to payment of additional Charges, collect the Equipment from such alternative location.
(v) Detention and demurrage Charges shall apply at the rates set out in the Contract Output or, in the absence of rates in the Contract Output, as published at https://terms.maersk.com/dnd. The terms available at https://terms.maersk.com/dnd shall apply.

6.3 Cargo Information

(a) Before the Goods and/or Equipment are loaded onto a vessel, the Customer shall verify in writing to the Carrier the gross mass of any Equipment as required by the Applicable Conventions, together with any other Cargo Information requested by the Carrier.

(b) If the Customer fails to comply with sub-clause (a), the Carrier may decline to load the affected Goods and shall be entitled to charge a fee for any additional costs incurred.

7. Liability and Indemnity

7.1 Liability for loss of or damage to the Goods shall be determined and limited in accordance with the Maersk Ocean Fixed or Maersk Ocean Seasonal Terms, or the terms incorporated therein, and the relevant Transport Document. To the extent not governed by those terms or any Transport Document, the remainder of this clause 7 shall apply.

7.2 The Customer shall defend, indemnify and hold harmless the Carrier, its Subcontractors and its Affiliates from and against all liabilities, losses, damages, costs (including the costs of investigating and defending any claims), expenses, awards and fines of whatever nature and howsoever arising, suffered or incurred in connection with:

(i) the nature of the Goods;
(ii) the Carrier acting in accordance with the Customer’s instructions;
(iii) any breach of any warranty, undertaking or obligation given or assumed by the Customer under the Agreement;
(iv) any act or omission of the Customer; and
(v) any duties, taxes, imposts, levies, deposits or outlays levied by any Authority in respect of the Goods or the Agreement, together with all related liabilities, payments, fines, costs, expenses, loss and damage, except to the extent caused by the Carrier’s negligence.

7.3 Save for liability arising from the negligence or wilful misconduct of the Carrier (or its servants, agents or Subcontractors), the Carrier excludes all liability under this Agreement to the fullest extent permitted by law, including any loss arising from the Customer’s failure to provide accurate Cargo Information or comply with clause 6.1.

7.4 Any liability of the Carrier for negligence as described in clause 7.3 above shall not exceed:

7.4.1. the limit prescribed in any relevant Transport Document; or
7.4.2. if no such limit is prescribed, or if no Transport Document has been issued, the cap on liability set out below:
- (A) For claims for loss of or damage to the Goods, the Carrier’s liability, howsoever arising and notwithstanding that the cause may be unexplained, shall not exceed the lower of:
  - (I) the value of the relevant Goods;
  - (II) the reasonable cost of repair, in the case of damage; or
  - (III) 2 Special Drawing Rights (SDR) per kilogram of the relevant Goods.
- (B) For claims for loss of or damage to other property owned or leased by the Customer (including Equipment or premises), the Carrier’s liability shall not exceed the lower of:
  - (I) the value of such property; and
  - (II) the reasonable cost of repair, in the case of damage.
- (C) For claims for delivery to an incorrect person or destination, the Carrier’s liability shall not exceed the cost of carriage of the Goods to the correct destination by sea.
- (D) For all other claims arising out of or in relation to the Services or the Goods, the Carrier’s liability shall not exceed the lower of:
  - (I) the amount of the Carrier’s Charges in respect of the Services in relation to which the claim arose; and
  - (II) any agreed sub-cap set out in the Contract Output.
- (E) If, notwithstanding anything contained in this Agreement, the Carrier is found liable for delay, its liability shall in no circumstances exceed fifty percent (50%) of the Carrier’s Charges in respect of the relevant Service(s) in relation to which the claim arose.
- (F) Notwithstanding sub-clauses (A) to (E) above, the Carrier’s aggregate liability under this clause 7 in respect of any event, or events arising from a common cause, shall not exceed 75,000 SDR.

7.5 The Carrier shall not be liable for any loss of profit, loss of sales or business, loss of agreements or contracts, loss of anticipated savings, loss or corruption of data or information, loss of or damage to goodwill (whether direct or indirect), or any indirect or consequential loss.

7.6 The Customer is advised to obtain, at its own cost, appropriate insurance cover if it considers the limits of liability set out in these SPC Terms to be inadequate.

7.7 The defences, exclusions and limits of liability set out in these SPC Terms shall apply in any action, whether founded in contract, tort, bailment, breach of express or implied warranty, negligence, wilful misconduct or otherwise.

7.8 Nothing in these SPC Terms shall exclude or limit the Carrier’s liability for death or personal injury caused by its negligence, fraudulent misrepresentation, or any other act or omission for which liability may not lawfully be excluded or limited.

7.9 Without prejudice to the foregoing, all Affiliates, Subcontractors, agents, employees and servants of the Carrier, together with all of their respective subcontractors, employees, directors, officers and agents (the “Relevant Third Parties”), shall have the benefit of all provisions of these SPC Terms as if such provisions were expressly for their benefit. In entering into the Agreement, the Carrier does so (to the extent of such provisions) not only on its own behalf, but also as agent and trustee for the Relevant Third Parties.

8. Valuation

8.1 For the purposes of clause 7:

(i) the value of the Goods is the ex-works invoice value, plus Charges and insurance if paid, plus any customs duty or tax incurred on the Goods in respect of their carriage and not recoverable from any Authority;
(ii) if there is no ex-works invoice value for the Goods, compensation shall be calculated by reference to the value of such Goods at the place and time at which they were, or should have been, delivered in accordance with the Customer’s instructions. The value of the Goods shall be determined by reference to the current commodity exchange price or, if there is no such price, the current market price, or, failing that, the normal value of goods of the same kind and quality;
(iii) the value of the Customer’s property (other than Goods) is:
- (A) if leased by the Customer, its lease value; or
- (B) if owned by the Customer, its market value at the place where the loss or damage occurred.

8.2 By special arrangement in writing between the Carrier and the Customer, and subject to payment of additional Charges, a higher value may be claimed from the Carrier, not exceeding the value of the Goods or the agreed value, whichever is the lesser.

9. Entire Agreement

This Agreement (including the documents incorporated by reference) constitutes the entire agreement between the Parties and supersedes all prior agreements, representations and understandings between the Parties relating to its subject matter.

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