Cargo Insurance (contracts)
Interpretation
1. In these Conditions:
(a) "Authority" means any duly constituted legal or administrative Person, which exercises jurisdiction or has authority within any nation, state, municipality, port, or airport.
(b) “Beneficiary” means the Person (including the Customer or any mortgagees or lenders) who holds a legal, financial and insurable interest in the loss of or damage to the Goods.
(c) "Charges" means any costs, fees, expenses, commissions, duties, penalties, taxes, surcharges or charges payable to the Company in respect of the Services and in accordance with the applicable tariff (if any) or the Insurance pursuant to these Conditions.
(d) "Company" means the Person who contracts to supply the Services.
(e) "Conditions" means these Cargo Insurance (Contracts) terms as may be amended from time to time in accordance with the terms hereof and any other terms applicable to the Services provided.
(f) "Customer" means any Person with whom the Company contracts to provide or arrange a Service, and includes the shipper, holder, consignee, receiver of the Goods, any Person holding an insurable interest in the Goods and anyone acting on behalf of or as principals of such Person apart from the Company, including but not limited to freight forwarders.
(g) "Dangerous Goods" means Goods, which are or may become dangerous, hazardous, noxious (including radioactive materials), inflammable, explosive or which are or may become liable to damage any property or person whatsoever.
(h) "Goods" means the whole or any part of the cargo and any packaging (excluding shipping containers) accepted from the Customer, including Dangerous Goods, in respect of which the Company provides Services excluding any Project Cargo.
(i) "Information" means data, messages, advice, and information (including electronic data) in any form.
(j) "Instructions" means a statement of the specific requirements for the Services from the Customer, an Authority or any other Person entitled to give them for or on behalf of the Customer.
(k) “Insurance” means the cargo insurance for physical loss of or damage to the Goods and insurable expenses that the Company procures and settles premium for in its own name as policyholder and that names the Beneficiary as the party holding the risk in the Goods and rights to any receivables of a covered loss.
(l) “Insurance Company” means any company, broker or agent licensed by the applicable Authority to enter an Insurance contract and pay out any indemnities under the Insurance contract to the Beneficiary.
(m) "Person" includes an individual, corporation, or other legal entity.
(n) “Project Cargo” means (i) any items (including packing) with weight in excess of 47.3 Metric Tons, (ii)or any item(s) (including packing) that cannot be unitized in a 40ft unit (Closed container, Open-top or flat-rack etc.), thus having dimensions in excess of 14.2 m length and/or 4.44 m wide and/or 4.0 m (for Open Top container 4.2 m) high, or (iii) any items which because of its weight and/or volume requires the use of a special conveyance
(o) “Service Contract” means the service contract for the carriage of cargoes entered into between the Company and the Customer (or by affiliates of the Company and the Customer), in respect of which these Conditions are to apply.
(p) "Services" means the whole or any part of any physical, management, agency, business process services and/or activities of whatsoever nature undertaken by the Company or any Subcontractor in respect of the Customer or Goods, including but not limited to loading, packing, stuffing, transporting, carriage, unloading, unpacking, de-stuffing, warehousing, storage and any other operations and services of whatsoever nature undertaken by or performed by or on behalf of the Company in relation to the Goods and cargo management services and related documentary, customs and information technology processes.
(q) "Subcontractor" includes charterers and operators of vessels (other than the Company), stevedores, terminal and groupage operators, road rail and air transport operators, forwarding agents, warehousemen, and any independent contractors and agents employed by the Company in the performance of the Services and any direct or indirect subcontractors, servants and agents thereof, whether in direct contractual privity or not.
(r) “War and Strike Risks” means any perils Insured against cf. 7.1.
2. In these Conditions:
2.1. Headings of clauses or groups of clauses in these Conditions are for convenience only and do not affect the interpretation of these Conditions.
2.2. Should any clause, or part of a clause, be found to be void or unenforceable, the remainder of these Conditions and the clause shall remain unaffected.
2.3. The singular includes the plural and vice versa (unless the context otherwise requires).
2.4. Any words following the word "including" shall be interpreted without limitation to the generality of the preceding words.
2.5 Any words pertaining to insurance terms, exclusions or warranties are references to the Insurance that Company shall keep in force with an Insurance Company and shall not in any way or form be construed as an insurance contract between Company and the Customer or bestow any obligation on the Company to satisfy the Insurance.
2.6 Any exclusions or warranties mentioned herein pertaining to the Insurance shall not limit Company from obtaining wider insurance terms than specified.
3. Application
3.1 Upon entry by the Customer and Company into any contracts or agreements which incorporate these Conditions or any other terms and conditions which incorporate these Conditions, the Company shall contract and keep in force Insurance in accordance with the terms of these Conditions with an Insurance Company for any and all Goods during the period that such Goods are in the Company’s or any Subcontractor’s custody, pursuant to the scope of the Services with a limitation on liability agreed at a “per container” amount between the Customer and the Company at the time of entering into the relevant Service Contract, but in no circumstances exceeding USD 5,000,000 per bill of lading or USD 250,000 per container for jewellery, fine arts, bottled spirits, precious and semi-precious stones and precious metals, whichever is lower or as otherwise agreed by the Company in writing.
3.2 Such Insurance may, but shall not be required to, include coverage for ancillary transport incidental to the Services outside the custody of the Company or Subcontractors.
4. Conditions precedent
4.1 The Insurance shall contain, and the Customer agrees to adhere to, the following terms which are or will be conditions precedent to coverage under the Insurance:
- 4.1.1 Unless packed by the Company, the Customer will take all reasonable steps to ensure that the Goods are in sound condition and are suitably prepared and packed at commencement of transit. Such steps shall include packing the Goods in such a manner that the Customer has a reasonable expectation that, should all of the Goods of such sort to be shipped under the Service Contract were to be shipped with such packing, then all of those Goods would arrive at the final destination in sound condition; and
- 4.1.2 The Customer will, as soon possible after becoming aware of an event or circumstances that may give rise to a claim under the Insurance, give notice of loss in accordance with the instructions provided by the Company, to Customer.
- If the Company does not provide instructions to the Customer regarding the giving of any notice of loss as aforementioned, the Customer must notify the Company immediately upon becoming aware of any actual, threatened, or potential event or circumstances which do or may give rise to a claim under the Insurance.
5. Cargo “all-risk” insurance terms
5.1 The Company shall use reasonable endeavours to contract Insurance on 'all-risk' terms (i.e. identical or materially similar to 'Institute Cargo Clauses (A) CL 382 01/01/2009') subject to the nature of the Goods and the risk and insurance market conditions, if reasonably obtainable. If such coverage is not reasonably obtainable, the Company shall use reasonable endeavours to contract and keep in force Insurance on the best terms reasonably obtainable.
5.2 The deductible for the Insurance shall be nil unless otherwise agreed between the Company and the Customer. If a deductible is agreed, Customer shall be solely and fully responsible for any deductibles or self-insured retentions under the Insurance. Notwithstanding anything else provided under these Conditions, the Company shall not be obliged to compensate the Customer in relation to a deductible or self-insured loss when the Customer has agreed to such deductible.
5.3 The Company shall provide the Customer with a certificate of insurance upon request.
6. General Insuring exclusions and warranties
6.1 The Insurance may include any warranty or exclusion (i) related to the nature of the Goods or the risk, or (ii) that is customary or (iii) that may be reasonably required due to the insurance market conditions despite not being named in these Conditions or any other sales material of the Company including but not limited to:
- • wilful misconduct of the Customer;
- • ordinary leakage, ordinary loss in weight or volume, or ordinary wear and tear;
- • inherent vice or nature of the Goods;
- • delay, even though the delay be caused by a covered risk;
- • insolvency or the financial default of the owners, managers, charterers or operators of a vessel where, at the time of loading of the Goods on board the vessel, the Customer was aware, or in the ordinary course of business ought to have been aware, that such insolvency or financial default could prevent the normal prosecution of the voyage.
6.2 Used Goods:
For used Goods cover will exclude damage to Goods attributable to any of the following: rust, oxidization, discolouration, scratching, denting, marring, chipping, electrical and mechanical derangement.
6.3 Dangerous Goods:
For Insurance to cover Dangerous Goods, all Dangerous Goods must be declared to the Company and packed and shipped in accordance with UN specifications, IMDG codes, and other relevant regulatory requirements, as applicable.
6.4 Variation in temperature for non-temperature regulated containers:
For any Goods shipped in a non-temperature regulated container, loss or damage from temperature variations is excluded.
6.5 Aircraft, watercraft, vehicles and personal effects/ household goods:
6.5.1 For any aircraft, watercraft, vehicles and personal effects/ household goods, the Insurance will exclude coverage for loss or damage caused by freezing of water in the radiator or coolant system and the Insurance shall be subject to a Second-Hand Replacement Clause for used vehicles.
6.5.2 For Insurance coverage to be provided in respect of any aircraft, watercraft, vehicles and personal effects/ household goods, such goods shall:
- (i) have been professionally packed, blocked and braced;
- (ii) be warranted free from any risks attaching whilst under own power, other than during direct loading and unloading, and
- (iii) be either subject to a pre-shipment condition report or the Insurance conditions will exclude damage attributable to rust, oxidization, discolouration, scratching, denting, marring, chipping unless caused by an Insured peril.
6.5.3 Loss of or damage to automobiles shall be covered by the Insurance from the time the automobile is handed over to the Company for shipment and shall cease upon discharge of the automobile from the overseas carrying vessel, unless the automobile is transported in door-to-door containers in which case Insurance coverage shall remain in place until arrival at the final destination.
6.6 Temperature regulated Goods:
For any temperature regulated Goods, the Insurance shall not apply to loss or damage caused by any non-mechanical issue arising out of a shipping container or validated package or temperature-controlled environment being insufficient at the time of packing to comply with manufacturer’s temperature requirements and temperature tolerance for the specific Goods to be shipped.
7. War and Strike Risk
7.1 The Company shall use reasonable endeavours to contract and keep in force Insurance during the period that Goods are in transit onboard any vessel or airplane in the Company’s or any Subcontractor’s custody pursuant to the scope of Company’s Services on terms identical or materially similar to Institute War Clauses (Cargo). CL. 385, 01.01.2009 and Institute Strikes Clauses (Cargo) CL. 386, 01.01.2009. subject to the nature of the Goods, the conveyance, the risk and insurance market conditions, if reasonably obtainable, up to the value agreed between the Customer and the Company, but in no circumstances exceeding limits stated in Clause 3.1.
7.2 Any coverage of War and Strike Risks provided may be terminated in full or in part with twenty-four (24) hours’ written (telegraphic, telefaxed or electronic) notice sent to the Company by the Insurance Company. The Company shall endeavour to notify the Customer as soon as reasonably possible of such termination of War and Strike Risks coverage. Such termination shall not affect any War and Strike Risks which have already attached prior to the termination of the War and Strike Risks coverage (in whole or in part) taking effect.
7.3 Any War or Strike Risks Insurance provided pursuant to this Clause 7 will immediately cease if such Insurance includes a Five Power War Clause, which is triggered. The Company is not obligated, nor required to give Customer notice of the triggering of any Five Power War Clause or consequent any cessation of coverage.
7.4 The Company shall provide the Customer with a certificate of Insurance upon request.
8. Voyage clause
8.1 Unless the Company expressly agrees in writing prior to the commencement of the carriage of the Goods, risk of loss or damage to the Goods arising out of transit to, from or within the following territories shall be excluded from the Insurance: Cuba, Iran, Iraq, Liberia (timber), Myanmar, North Korea, Sierra Leone (diamonds), Sudan, Syriaand any other country where local legislation decrees that insurance must be effected locally or where the Insurance may be subject to sanctions by the United Nations, The European union, United States of America, Canada, or the United Kingdom.
9. Settlement of Charges:
9.1 Any statement made by the Company to the Customer as to the premium charged by the Insurance Company shall be to the gross premium excluding taxes, levies and local tariffs unless otherwise stated.
9.2 The Insurance Company may at any time change, alter or modify their premiums in accordance with the Insurance terms. Where premiums are changed, the Company shall notify the Customer and no such increase shall be charged to the Customer without prior notice.
9.3 The Company shall charge the Customer all Charges levied by the Insurance Company and in the event of late settlement by Customer, the Company may attempt to cancel the Insurance without further notice to the Customer.
10. Referrals
10.1 Shipments of Goods which exceed the value limits referred to in Clause 3.1 and/or which involve an excluded risk or territory require express pre-approval to be given by the Company, prior to the receipt of the Goods by the Company for carriage.
10.2 It is the sole responsibility of the Customer to request the Company to contract Insurance for Goods which falls outside the scope contemplated by these Conditions.
10.3 Where any Insurance coverage for the Goods which falls outside the contemplated scope of these Conditions is contracted by the Company the Marine Cargo (Ad-hoc) terms shall apply, available at: https://terms.maersk.com/.
11. Risk Information
11.1 The Customer warrants that it shall, in reasonable time prior to the provision of the Services, and at no cost to the Company, provide and disclose all material Information which a reasonable insurer would deem relevant in deciding to underwrite the relevant risks, including any details relating to the Beneficiary. Failure to provide any such material Information may invalidate any Insurance and the Customer shall indemnify the Company against any and all liability arising out of or relating to breach of this warranty by the Customer.
11.2 The Customer warrants that all Information provided by the Customer to the Company in relation to the Insurance is accurate, correct, and complete and the Customer shall indemnify the Company against any and all liability arising out of or relating to breach of this warranty by the Customer.
12. Termination
The Company may immediately terminate these Conditions and the Insurance if:
12.1 The Customer becomes insolvent, enters into liquidation (apart from solvent liquidation for the purposes of amalgamation or reconstruction) or is dissolved or declared bankrupt or has a receiver, administrator or administrative receiver appointed over all or a substantial part of its assets, or makes a general assignment for the benefit of or enters into an arrangement with its creditors in lieu thereof, or takes or suffers similar action; or
12.2 The performance of this Agreement would be in breach of any sanction, prohibition or restriction under United Nations resolutions or the trade or economic sanctions, laws or regulations of the European Union, United Kingdom or United States of America, or Canada.
13. Disclaimer
13.1 The Company is not a professional insurance advisor, broker or insurer and does not advise on the adequacy of sums, deductible, or coverage of the Insurance and any actions or information provided by the Company to the Customer cannot be construed as such advice. The Customer shall retain the sole risk of adequacy and suitability of the Insurance.
13.2 Where applicable for any placement, solicitation or marketing the insurance broker shall be Marsh McLennan or partner as applicable. For full list of broker details, please see below.
13.3 These Conditions shall be in addition to and not replace any other applicable terms to the Services provided by the Company. To the extent of any inconsistency, such other terms shall prevail apart from 14. Liability
13.4 The Customer acknowledges and agrees that the Company may hold separate risk and financial interests in the contracting of the Insurance.
14. Liability
14.1 The Company shall, under no circumstance whatsoever, be liable under this Agreement to the Customer for: (1) any indirect, consequential, special or punitive damages; or (2) whether direct or indirect, any: loss caused by events outside of the Company’s reasonable control; loss of profit or revenue; loss of use; loss of business, goodwill or reputation, delay or any other similar losses whatsoever.
14.2 Notwithstanding anything else to the contrary in this agreement, the Company shall in no circumstances be liable to the Customer in any amount exceeding the limitation of liability figure at Clause 3.1 of this Agreement. Where no value can be established according to Clause 3.1 of this Agreement the limit shall be the ex-works price of the Goods in respect of which the insurance is sought. At no time shall Company liability exceed USD 5,000,000 per claim or series of claims arising from the same common cause.
14.3 The Customer shall have no right to bring any claim against the Company whatsoever (and the Company shall have no obligation to pay to Customer) in respect of any loss or damage that is or is intended to be covered by the Insurance, including any deductible accepted by the Customer.
15. Law & Jurisdiction
15.1 These Conditions, and all non-contractual matters associated with, arising out of or connected with them, shall be governed by and interpreted in accordance with English law and the parties agree that the English courts have exclusive jurisdiction to adjudicate any dispute which arises in connection with these Conditions and all non-contractual matters associated with, arising out of or connected with them, save that the Company retains the right to bring proceedings against the Customer in any other court of competent jurisdiction.
15.2 These Conditions are intended solely for the benefit of the parties, and nothing in these Conditions shall be construed as conferring any benefit, right or remedy on any other person, whether under the Contracts (Rights of Third Parties) Act 1999, any other statute, at common law or in equity. This clause shall not be construed as preventing the Insurance from conferring benefits, rights or remedies on any other person.
Broker list.
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