SOPHIMEX, DZX, BJAX, ORNX as the Carrier
The using of this document is subject to your acceptance, without restriction, to the following terms and conditions.
The Carrier can at any time, and without notification, modify these legal terms. The utilization of this document implies your acceptance of these modifications, and therefore we invite you to update regularly your knowledge of these legal terms.
Information and data given by this document can be modified and updated without notification. The carrier can also at any time improve or modify this document without notification. You are consequently invited to contact our office.
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“Carriage” means the whole or any part of the operations and services undertaken by the carrier in respect of the Goods.
“Carrier” means the Party on whose behalf the Bill of lading is issued.
“Combined Transport” arises if the Place of Receipt and/or the Place of Delivery are indicated on the face hereof in the relevant spaces.
“Container” includes any container, trailer, transportable tank, lift van, pallet or any similar article of transport used to consolidate goods.
“Goods” means the whole or any part of the cargo received from the shipper and includes any equipment or 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 and includes the amendments by the Protocol signed at Brussels on 23rd February, 1968, but only if such amendments are compulsory applicable to this Bill of Lading.
“Indemnify” includes defend, indemnify and hold harmless.
“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 any such Person.
“On board” means on board any mode of transportation used or procured by the Carrier, including rail, road, water and air transport.
“Person” includes an individual, group, a body corporate or other entity.
“Port to Port” arises if the Carriage is not Combined Transport.
“Charges” includes freight and all expenses and money obligations incurred and payable by the Merchant.
“Sub-contractor” includes owners and operators of vessels (other than the Carrier), stevedores, terminal and groupage operators, Underlying Carriers, road and rail transport operators and any independent contractor employed by the Carrier in performance of the Carriage.
“Underlying Carrier” includes any water, rail, motor, air or other carrier utilised by the Carrier for any part of the transportation covered by the Bill of Lading.
“US COGSA” means the United States Carriage of Goods by Sea Act, 46 U.S.C. sec.1300 et seq.as enacted 1936.
The terms and conditions of the Carrierâ??s applicable Tariff are incorporated herein. Particular attention is drawn to the terms and conditions therein relating to Container and vehicle demurrage. Copies of the relevant provisions of the applicable Tariff are obtainable from the Carrier or his agents upon request. In the case of inconsistency between this Bill of Lading and the applicable Tariff, this Bill of Lading shall prevail.
The Merchant warrants that in accepting this Bill of Lading he is, or has the authority of, the Person owning or entitled to the possession of the Goods and this Bill of Lading.
NEGOTIABILITY AND TITLE TO THE GOODS
(1) This Bill of Lading shall be non-negotiable unless made out â??to orderâ? in which event it shall be negotiable and shall constitute title to the Goods and the holder shall be entitled to receive or to transfer the Goods herein described.
(2) This Bill of Lading shall prima facie evidence of the taking in charge by the Carrier of the Goods as herein described.
However, proof to the contrary shall not be admissible when this Bill of Lading has been negotiated or transferred for valuable consideration to a third party acting in good faith.Â
CARRIERâ??S RESPONSIBILITY AND CLAUSE PARAMOUNT
(1) Port-to-Port Shipment â?? When loss or damage has occurred between the time of loading of the Goods by the Carrier, or any Underlying Carrier, at the Port of Loading and the time of discharge by the Carrier, or any Underlying Carrier, at the Port of Discharge, the responsibility of the Carrier shall be determined in accordance with the Hague Rules or any national law making the Hague Rules, or any amendments thereto, compulsorily applicable to this Bill of Lading. The Carrier shall be under no liability whatsoever for loss of or damage to the Goods, howsoever occurring, if such loss or damage arises prior to loading on to or subsequent to the discharge from the Vessel carrying the cargo. Notwithstanding the foregoing, in theÂ event that any applicable compulsory law provides to the contrary, the Carrier shall have the benefit of every right, defense, limitation and liberty in the Hague Rules as applied by this Clause during such additional compulsory period of responsibility, notwithstanding that the loss or damage did not occur at sea. In the event that this Bill of Lading covers shipments to or from the United States then COGSA shall be compulsory applicable. The provisions set forth in COGSA shall (except as may be otherwise specifically provided herein) also govern before the Goods are loaded on and after they are discharged from theÂ Vessel provided, however, that the Goods at said times are in the actual custody of the Carrier or any Sub-Contractor.
(2) Combined Transport
- With respect to rail or road Carriage within a State other than the United States, then liability shall be determined in accordance with the internal law of such State and/or any International Convention that is compulsorily applicable by the laws of such State. In the absence of such laws or convention then the provisions of Clause 6 (2) (f) will apply.
With respect to road Carriage between countries in Europe liability shall be determined in accordance with the Convention on the Contract for the International Carriage of Goods by Road (CMR), dated May 19, 1956 ; and during rail Carriage between countries in Europe according to the International Agreement on Railway Transports (CIM), dated February 25, 1961 (or any amendments to this Convention or Agreement).
- With respect to road Carriage between countries in Europe liability shall be determined in accordance with the Convention on the Contract for the International Carriage of Goods by Road (CMR), dated May 19, 1956 ; and during rail Carriage between countries in Europe according to the International Agreement on Railway Transports (CIM), dated February 25, 1961 (or any amendments to this Convention or Agreement).
- With respect to Combined Transportation from, to or within the United States when the Goods are in the custody of the Carrier, or any Underlying Carrier, such Combined Transport will be governed by the provisions of Clause 6 (1).
- In the event Clause 6 (1) is held inapplicable to such Combined Transportation from, to or within the United States, then Carrierâ??s liability will be governed by, and be subject to, the terms and conditions of the Underlying Carriers Bill of Lading and/or, where applicable, the ICC Uniform Bill of Lading together with the Underlying Carrierâ??s tariff which shall be incorporated herein as if set forth at length. Notwithstanding the foregoing, in the event there is a private contract of Carriage between the Carrier and any Underlying Carrier, such Combined Transportation will be governed by the terms and conditions of said contract which shall be incorporated herein as if set forth at length and copies of said contract(s) shall be available to the Merchant at any office of the Carrier upon request.
- Except as provided in Clause 6 (2) (c) and (d) supra, the Hague rules as per Clause 6 (1) shall apply to Combined Transport outside the United States where COGSA is not compulsory applicable.
- The Carrier shall nevertheless be relieved of liability for loss or damage occurring during the Carriage if such loss or damage was caused by any cause or event which Carrier could not avoid and the consequences whereof he could not prevent by the exercise of reasonable diligence. Carrierâ??s maximum liability under this Sub-Section 6 (2) (f) shall be one Euro per kilo of the Goods lost or damaged.
(3) Subrogation – When the Carrier pays any claims to the Merchant, the Carrier shall be automatically subrogated to all rights of the Merchant against all others, including Underlying Carriers, on account of such loss or damage.
(4) Conflict of Laws – Except where superceded by the provisions of Clause 6 hereof, in the event that two or more International Conventions and/or domestic laws are applicable to this Contract of Carriage whether by law or by the terms of this Bill of Lading, the Merchant and the Carrier agree that the International Convention or domestic law in effect in the Country where suit is brought shall be applicable.Â
(1) Delay Consequential Loss – Save as otherwise provided herein, the Carrier shall in no circumstances be liable for direct, indirect or consequential loss or damage caused by delay or any other cause whatsoever and howsoever caused. Without prejudice to the foregoing, if the Carrier is found liable for delay, liability shall be limited to the freight applicable to the relevant stage of the transport.
(2) Package or Shipping Unit Limitation – Where the Hague Rules or any legislation making such rules compulsorily applicable (such as COGSA) to this Bill of Lading apply, the Carrier shall not, unless a declared value has been noted in accordance with (3) below, be or become liable for any loss or damage to or in connection with the Goods in an amount per package or shipping Unit in excess of the package or shipping Unit limitation as laid down by such Rules or legislation. Such limitation amount according to COGSA is US$5OO. If no limitation amount is applicable under such Rules or legislation, the limitation shall be US$500.
(3) Ad Valorem: Declared Value of Package or Shipping Unit – The Merchant agrees and acknowledges that the Carrier has no knowledge of the value of the Goods, and that compensation higher than that provided for in this Bill of Lading may not be claimed unless, with the consent of the Carrier, the value of such Goods is declared by the Shipper prior to the commencement of the Carriage and is stated in writing on this Bill of Lading and extra Freight is paid. In such a 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. In any event, the compensation shall not exceed the actual commercial value of the Goods.
(4) Definitions of Package or Shipping Unit – Where a container is used to consolidate Goods and such Container is stuffed by the Carrier, the number of packages or shipping units stated on the face of this Bill of Lading in the box provided shall be deemed the number of packages or shipping units for the purpose of any limit of liability per package or shipping unit provided in any international conventions or national law relating to the carriage of Goods by sea. Except as aforesaid the Container shall be considered the package or shipping unit. The words “shipping unit” shall mean each physical unit or piece of cargo nog shipped in a package, including articles or this of any description whatsoever, except Goods shipped inÂ bulk and irrespective of the weight or measurement unit employed in calculating freight charges. As the Good in bulk, the limitations applicable thereto shall be the limitation provided in such convention or law that may be applicable, and in no event shall anything herein be shipped construed to be a waiver of limitation as to Goods shipped in bulk.
(5) Rust, etc. – It is agreed that superficial rust, oxidations or any like condition due to moisture, is not a condition of damage but is inherent to the nature of the Goods and acknowledgement of receipt of the Goods in apparent good order and condition is not a representation that such conditions of rust, oxidation or the like did not exist on receipt.
(6) Notice of Loss or Damage – The Carrier shall be deemed prima facie to have delivered the Goods as described in this Bill of Lading unless notice of loss of, or damage to, the Goods, indication the general nature of such loss or damage shall have been given in writing to the Carrier or to his representative at the place of delivery before or at time of removal of the Goods into the custody of the person entitled to delivery thereof under this Bill of Lading or, if the loss or damage is not apparent within three (3) consecutive days thereafter.
(7) Time-Bar – The Carrier shall be discharged of all liability unless suit is brought in the proper form and written notice thereof received by the Carrier within nine months after delivery of the Goods or the date when the Goods should have been delivered. In the event that such time period shall be found contrary to any convention or law compulsorily applicable, the period prescribed by such convention or law shall than apply but in that circumstance only.
(1) The description and particulars of the Goods set out on this bill of lading are furnished by the Merchant and the Merchant warrants to the Carrier that the description and particulars including, but not limited to, of weight, content, measure, quantity, quality, condition, marks, numbers and value are correct.
(2) The Merchant shall comply with all applicable laws, regulations and requirements of customs, port and other authorities and shall bear and pay all duties, taxes, fines imposts, expenses and losses incurred or suffered by reason thereof or by reason of any illegal incorrect or insufficient marking, numbering or addressing of the Goods.
(3) The Merchant undertakes that the Goods are packed in a manner adequate to withstand the ordinary risks of Carriage haven regard to their nature and in compliance with all laws, regulations and requirements that may be applicable.
(4) No goods which are not may become dangerous, inflammable or damaging or which are or may become liable to damage any property or person whatsoever shall be tendered to the Carrier for Carriage without the Carrierâ??s expresses consent in writing and without the Container or other covering in which the Goods are to be transported and the Goods being distinctly marked on the outside so as to indicate the nature and character of any such articles and so as to comply with all applicable laws, regulations and requirements if any such articles are delivered to the Carrier without such written consent and marking or if in the opinion of the Carrier the articles are liable to become of a dangerous, inflammable or damaging nature, the same may at any time be destroyed, disposed of, abandoned, or rendered harmless without compensation to the Merchant and without prejudice to the Carrierâ??s right to Charges.
(5) The Merchant shall be liable for the loss, damage, contamination, soiling, detention or demurrage before, during and after the Carriage of property (including, but not limited to, containers) of the Carrier or any person or vessel (other than the Merchant) referred to in 5(2) above caused by the Merchant or any person action on his behalf or of which the Merchant is otherwise responsible.
(6) The Merchant shall defend, indemnify and hold harmless the Carrier against any loss, damage, claim, liability or expense whatsoever arising from any breach of the provisions of this clause 7 or from any cause in connection with the Goods for which the Carrier is not responsible.
DESCRIPTION OF GOODS
(1) This Bill of Lading shall be prima facie evidence of the receipt by the Carrier from the Shipper in apparent good order and condition, except as otherwise noted, of the total number of Containers or other packages or units indicated in the box on the face hereof entitled “Total No of Containers/Packages received by the Carrier”.
(2) Except as provided in Clause 9 (1), no representation is made by the Carrier as to the weight, contents, measure, quantity, quality, description, condition, marks numbers or value of the Goods, and the Carrier shall be under no responsibility whatsoever in respect of such description or particulars.
(3) If any particulars of any Letter of Credit and/or Import Licence and/or Sale Contract and/or Invoice or order number and/or details of any contract to which the Carrier is not a party are shown on the face of this Bill of Lading, such particulars are included solely at the request of the Merchant for his convenience. The Merchant agrees that the inclusion of such particulars shall not be regarded as a declaration of value and in no way increases the Carrierâ??s liability under this Bill of Lading. The Merchant further agrees to indemnify the Carrier against all consequences of including such particulars in this Bill of Lading.
(4) The Merchant acknowledges that, except when the provisions of Clause 7 (3) apply, the value of the Goods is unknown to the Carrier.
(1) Goods may be stuffed by the Carrier in or on Containers and Goods may be stuffed with other Goods.
(2) The terms of this Bill of Lading shall govern the responsibility of the Carrier in connection with arising out of the supply of a Container to the Merchant, whether supplied before or after the Goods are received by the Carrier or delivered to the Merchant.
(3) If a Container has been stuffed by or on behalf of the Merchant:
a. The Carrier shall not be liable for loss of damage to the Goods,
- caused by the manner in which the Container has been stuffed;
- caused by the unsuitability of the Goods for Carriage in Containers;
- caused by the unsuitability or defective condition on the Container provide that where the Container has been supplied by or on behalf of the Carrier, this paragraph (iii) shall only apply if the unsuitability or defective condition arose (a) without any want of due diligence on the part of the carrier or (b) would been apparent upon reasonable inspection by the Merchant at or prior to the time when the Container was stuffed;
- if the Container is not sealed at the commencement of the Carriage except where the Carrier has agreed to seal the container. (b) the Merchant shall defend, indemnify and hold harmless the Carrier against any loss, damage, claim, liability or expense whatsoever from one or more of the matters covered by (a) above except for (a) (iii) above.
b. Where the Carrier is instructed to provide a Container in the absence of a written request to the contrary, the Carrier is not under an obligation to provide a Container of any particular type or quality.Â
ACKNOWLEDGEMENT OF WEIGHT, QUALITY MARKS, etc.
The Carrier, his Agents and servants shall not in any circumstances whatsoever be under any liability for insufficient packing or inaccuracies, obliteration or absence of marks, numbers, addresses or description, nor for misdelivery due to marks or countermarks or numbers, nor for failure to notify the Consignee of the arrival of the Goods, any custom of the port to the contrary notwithstanding.
TEMPERATURE CONTROLLED CARGO
(1) The Merchant undertakes not to tender for transportation any Goods which require temperature control without previously giving written notice (and filing in the box on the front of Bill of Lading if this Bill of Lading has been prepared by the Merchant or a person acting on his behalf) of their nature and particular temperature range to be maintained and in the case of a temperature controlled container stuffed by or on behalf of the Merchant further undertakes that the container has been properly precooled, that the Goods have been properly stuffed in the container and that its thermostatic controls have been properly set by the Merchant before receipt of the Goods by the Carrier. If the above requirements are not complied with the Carrier shall not be liable for any loss of or damage to the Goods caused by such non-compliance.
(2) The Carrier shall not be liable for any loss of or damage to the Goods arising from defects, derangement, breakdown, stoppage of the temperature controlling machinery, plant, insulation or any apparatus of the Container, provided that the Carrier shall before or at the beginning of the Carriage exercise due diligence to maintain the refrigerated Container in an efficient state.
MATTERS AFFECTING PERFORMANCE
(1) If at any time the Carriage is or is likely to be affected by any hindrance, risk, delay, difficulty or disadvantage of any kind (including the condition of the Goods), whensoever and howsoever arising (whether or not the Carriage has commenced) the Carrier may ;
- without notice to the Merchant abandon the Carriage of the Goods and where reasonably possible place the Goods or any part of them at the Merchant’s disposal at any place which the Carrier may deem sage and convenient, whereupon the responsibility of the Carrier in respect of such Goods shall cease;
- without prejudice to the Carrier’s right subsequently to abandon the Carriage under (a) above, continue the Carriage. In any event Carrier shall be entitled to full Charges on goods received for Carriage and the Merchant shall pay any additional costs resulting from the above-mentioned circumstances.
(2) The liability of the Carrier in respect of the Goods shall cease on the delivery or other disposition of the Goods in accordance with the orders or recommendations given by any government or authority or any person or purporting to act as or on behalf of such government or authority.
METHODS AND ROUTE OF TRANSPORTATION
(1) The Carrier may at any time and without notice to the Merchant: use any means of transport or storage whatsoever; load or carry the Goods on any vessel whether named on the front hereof or not; transfer the Goods from one conveyance to another including transhipping or carrying the same on another vessel than that named on the front hereof or by any other means of transport whatsoever: at any place unpack and remove Goods which have been stuffed in or on a Container and forward the same in any manner whatsoever; proceed at any speed and by any route in his discretion (whether or not the nearest or most or customary or advertised route) and proceed to or stay at any place whatsoever once or more often and inÂ any order; load or unload the Goods from any conveyance at any place (whether or not the place is a port named on the front hereof as the intended Port of Loading or intended Port of Discharge); comply with any order or recommendations given by any government or authority or any person or body acting or purporting to acts or on behalf of such government or authority or having under the terms of the insurance on the conveyance employed by the Carrier the right to give orders or directions; permit the vessel to proceed with or without pilots, to tow or be towed or to be dry-docked; permit the vessel to carry livestock, Goods of all kinds dangerous or otherwise, contraband, explosives, munitions or warlike stores and sail armed or unarmed.
(2) The liberties set out in (1) above be invoked by the Carrier for any purposes whatsoever whether or not connected with the Carriage of the Goods. Anything done in accordance with (1) above or any delay arising therefrom shall be deemed to be within the contractual Carriage and shall not be a deviation or whatsoever nature or degree.
NOTIFICATION AND DELIVERY
(1) Any mention herein 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) The Merchant shall take delivery of the Goods as soon as reasonably practicable and in any event within the time provided for in the Carrierâ??s applicable Tariff (see Clause 2). If the Merchant fails to do so the Carrier shall be entitled, without notice, to unpack the Goods if packed in Containers and/or to 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 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 theÂ Carrier.
(3) If the Merchant fails to take delivery of the Goods within ten days of delivery becoming due under Clause 14 (2), 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 any responsibility whatsoever attaching to him, sell, destroy or dispose of the Goods 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.
(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.
(5) In the event of the Carrier agreeing to a request of the Merchant to amend the Place of Delivery stated herein, the terms and conditions of this Bill of Lading shall continue to apply, only to the extent provided by the applicable Tariff, until the Goods are delivered by the Carrier to the Merchant at the amended Place of Delivery. If the applicable Tariff does not explicitly provide for the continued application of the terms and conditions of the Bill of Lading then the Carrier shall act as agent only of the Merchant in arranging for delivery of the Goods to the amended Place of Delivery but shall then be under no liability whatsoever for loss, damage or delay to the Goods, howsoever arising.
If the vessel on which the Goods are carried (the Carrying vessel) comes into collision with any other vessel or object (the non-carrying vessel or object) as a result of the negligence of the non-carrying vessel or Object or the owner of, charterer of or person responsible for the non-carrying vessel or object, the Merchant undertakes to defend, indemnify and hold harmless the Carrier against all claims by or liability to (and any expense arising therefrom) any vessel or person in respect of any loss of, or damage to, or any claim whatsoever of the Merchant paid or payable to the Merchant by the non-carrying vessel or object or the owner of, charterer of or person responsible for the non-carrying vessel or object and set-off,Â recouped or recovered by such vessel object or person(s) against the Carrier, the carrying vessel or her owners or charterers.
(1) The Carrier may declare General Average which shall be adjustable according to the York/Antwerp Rules of 1974 at any place at the option of the Carrier and the Amended Jason Clause as approved by BIMCO is to be considered as incorporated herein and the Merchant shall provide such security as may be required by the Carrier in this connection.
(2) Notwithstanding (1) above, the Merchant shall defend, indemnify and hold harmless the Carrier in respect of any claim (and any expense arising there from) of a General Average nature which may be made on the Carrier and shall provide such security as may be required by the Carrier in this connection.
(3) The Carrier shall be under no obligation to take any steps whatsoever to collect security for General Average contributions due to the Merchant.
(1) Charges 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 Charges have been calculated on the basis of particulars furnished by or on behalf of the Merchant. The Carrier shall be entitled to production of the commercial invoice for the Goods or true copy thereof and to inspect, reweigh, remeasure and revalue the Goods and if the particulars are found by the Carrier to be incorrect the Merchant shall pay the Carrier the correct Charges (credit being given for the Charges charged) and the costs incurred by the Carrier in establishing the correct particulars.
(3) All Charges shall be paid without any set-off counter-claim, deduction or stay of execution.
(4) Interest at 2% over the Liber rate shall be paid on any Freight primage and charges remaining unpaid after due date of payment.
The Carrier shall have a lien on Goods and any documents relating thereof for all sums whatsoever due at any time to the Carrier from the Merchant and for General Average contributions to whomsoever due and for the costs of recovering the same and the Carrier shall have the right to sell the Goods and documents by public auction or private treaty, without notice to the Merchant and at the Merchant’s expense and without any liability towards the Merchant.
CARRIERâ??S LIBERTIES IN THE EVENT OF WAR, ARMED CONFLICTS …
The vessel shall have liberty to comply with any orders, direction of recommendations as to departure arrival routes, ports of call, stoppages, destination, delivery of otherwise howsoever given by the Government of the Nation under whose flag the vessel sails or any department thereof, or by any committee or person having under the terms war risk insurance on the ship the right to give such orders, direction or recommendation anything is done or is not done the same shall not be deemed a deviation and delivery in accordance with such orders, direction or recommendations shall be a fulfilment of the contract voyage and the Freight shall be payable accordingly.
DECK CARGO (AND LIVESTOCK)
(1) Goods of any description whether containerised or not may be stowed on or under deck without notice to the Merchant and such stowage shall not be a deviation of whatsoever nature or degree. Subject to (2)- below, such Goods whether carried on or under deck shall participate in General Average and such goods (other than livestock) shall be deemed to be within the definition of Goods for the purposes of the Hague Rules or any legislation making such Rules or the Hague-Visby Rules compulsorily applicable (such as COGSA) to this Bill of Lading.
(2) Goods which are stated on the front of this Bill of Lading to be carried on deck and which are so carried (and livestock, whatever or not carried on deck) are carried without responsibility on the part of the Carrier for loss or damage of whatsoever nature arising during carriage by sea or inland waterway whether caused by unseaworthiness or negligence or any other cause whatsoever. The Merchant shall defend, indemnify and hold harmless the Carrier against all and any extra cost incurred for any reason whatsoever in connection with carriage of livestock.
(1) 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 specially equipped Container or are to receive special attention in any way. The Merchant undertakes not to tender for transportation any Goods that require refrigeration without giving written notice of their nature and the required temperature setting of the thermostatic controls before receipt of the Goods by the Carrier in case of refrigerated Container(s) packed by or on behalf of the Merchant. The Merchant undertakes that the Goods have been properly stowed in the Container and that the thermostatic controls have been adequately set by him before receipt of the Goods by the Carrier and, if necessary, that the cargo has been pre-chilled before the loading into the Container. The Merchantâ??s attentions is drawn to the fact that refrigerated Containers are not designed 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 presented at a higher temperature than that required for the transportation. 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.
(2) The term “apparent good order and condition” when used in this bill of lading with reference to Goods which require refrigeration does not mean that the Goods, when received were verified by the Carrier as being at the designated carrying temperature.
(3) The Carrier shall in no event be held liable for damage to cargo due to condensation.
INSPECTION BY AUTHORITIES
If by order of the authorities at any place, a Container 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 re-packing. The Carrier shall be entitled to recover the cost of such opening, unpacking, inspection and re-packing from the Merchant.
CARRIAGE AFFECTED BY CONDITION OF GOODS
If it appears at any time that, due to their condition, the Goods cannot safely or properly be carried or carried further, either at all or without incurring any additional expense or taking any measure(s) in relation to the Container or the Goods the Carrier may without notice to the Merchant (but as his agent only) take any measure(s) and/or incur any additional expense to carry or to continue the Carriage thereof, and/or sell or dispose of the Goods, and/or abandon the Carriage and/or 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 abandonment, storage, sale or disposal shall be deemed to constitute due delivery under this Bill of Lading. The Merchant shall indemnify the Carrier against any additional expense so incurred.
SUB-CONTRACTING AND INDEMNITY
(1) The Carrier shall be entitled to sub-contract the Carriage on any terms whatsoever.
(2) The Merchant undertakes that no claim or allegation shall be made against any Person whomsoever by whom the Carriage is performed or undertaken (including all Sub-Contractors of the Carrier), other than the Carrier, which imposes or attempts to impose upon any such Person, or any vessel owned by any such Person, 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 Person shall have the benefit of every right, defense, limitation and liberty of whatsoever nature herein contained or otherwise available to the Carrier as if such provisions were expressly for his benefit;Â and in entering into this contract, the Carrier, to the extent of these provisions, does so not only on his own behalf but also as agent and trustee for such Persons.
(3) The provisions of Clause 27 (2), including but not limited to the undertakings of the Merchant contained therein, shall extend to claims or allegations of whatsoever nature against other Persons chartering space on the carrying vessel.
(4) Nothing herein contained shall be construed to limit or to relieve any beneficiaries of this Clause from liability to the Carrier for acts arising or resulting from their fault or neglect.
(5) The Merchant further undertakes that no claim or allegation in respect of the Goods shall be made against the Carrier by any Person other than in accordance with the terms and conditions of this Bill of Lading which imposes or attempts to impose upon the Carrier 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 the Carrier and, if any such claim or allegation should nevertheless be made, to indemnify the Carrier against all consequences thereof.
VARIATION OF THE CONTRACT
No servant or agent of the carrier shall have power to waive or vary any of the terms hereof unless such waiver or variation is in writing and is specifically authorised or ratified in writing by a director or officer of the Carrier who has actual authority of the Carrier so to waive or vary.
In the event that anything herein contained is inconsistent with any applicable international convention or national law that cannot be departed from by private contract, the provisions hereof shall to the extent of such inconsistency but no further be null and void.
LAW AND JURISDICTION
(1) Law of application –Insofar as anything has not been dealt with by the terms and conditions of this Bill of Lading, the law of France shall apply.
(2) Jurisdiction – All actions under the contract of Carriage evidenced by this Bill of Lading shall be brought before the Tribunal of Commerce at Marseilles and no other Court shall have jurisdiction with regards to any such action, unless the Carrier appeals to another jurisdiction or voluntarily submits himself thereto.