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BILL OF LADING – TERMS AND CONDITIONS
(a) Except as otherwise provided herein this Bill of Lading shall have effect subject to the provisions of the Carriage of Goods by Sea Act of the United States of America (COGSA) approved April 16, 1936, which shall be deemed to be incorporated herein. The provisions stated in said Act ( except as otherwise specifically provided herein) shall govern before loading on and after discharge from the vessel and throughout the entire time the Goods are in the custody of the carrier.
If COGSA is not applicable, the International Convention for the Unification of Certain Rules Relating to Bills of Lading, dated at Brussels, 25 August, 1924 (Hague Rules) as amended by the Protocol to Amend the International Convention, signed at Brussels on 23 February, 1968 (Hague-Visby Rules) willgovern. The applicable Hague, Visby, COGSA rule shall apply through the time when the Goods are in the actual or constructive custody of the Carrier, (b) The Carrier shall be entitled to the full benefit of and right to all limitations of, or exceptions from liability authorized by any provision of Sections 4281 to 4288 inclusive, of the Revised Statutes of the United States and amendments thereto and of any other provisions of the laws of the United States or of any other country whose laws shall apply.
(a) “Carrier” means the Carrier named on the face side hereof, the vessel, her owner, Master, operator, demise charterer and if bound hereby, the time charterer, and any substitute Carrier whether the owner, operator, charterer or Master shall be acting as carrier or bailee, (b) “Vessel” means and includes the ocean vessel on which the Goods are shipped, named on the face hereof, or any substitute vessel, also any feedership, ferry, barge, lighter or any other watercraft used by the Car- rier in the performance of this contract, (c) “Merchant” means and includes the shipper, the consignee, the receiver, the holder of this bill of lading, the owner of the Goods or person entitled to the possession of the Goods and the servants or agents of any of these, (d) “Charges” means and includes freight and all expenses and money obligations incurred and payable by the Merchant, (e) “Goods” means and includes the cargo received from the shipper and described on the face side hereof and any Container not supplied by or on behalf of the Carrier, (f) “Container” means and includes any container, van, trailer, transportable tank, flat, pallet or any similar article of transport, (g) “Person” means and includes any individual, corporation, partnership or other entity as the case may be. (h) “Participating
Carrier or carriage” means and shall include any other water, land or air carrier performing any stage of the Combined Transport.
The carrier shall be entitled to sub-contract on any terms the whole or any part of the carriage, loading, unloading, storing, warehousing, handling and any and all duties whatsoever undertaken by the Carrier in relations to the Goods. As to through transportation, the Carrier undertakes to procure such services as necessary and shall have the right at its sole discretion to contact any mode of land, sea or air transportation and to arrange participation by other Carriers to accomplish the combined transport from place of receipt to place of delivery. Whenever any stage of the combined transport is accomplished by any land or air Carrier or any other water carrier, each such stage shall be controlled according to any law compulsorily applicable to such stage and according to the contracts, rules and tariffs of each participating Carrier, the same as if such contracts, rules and tariffs were fully set forth herein. It is understood and agreed that other than the said Carrier no person whatsoever (including the Master, officers and crew of the vessel, all agents and all subcontractors) is or shall be deemed to be liable with respect to the goods as carrier, bailee or otherwise howsoever, in contract or in tort. If, however, it should be adjudged that any other than said carrier is under any responsibility with respect to the Goods, all limitations or exonerations from liability provided by law or by the terms hereof shall be available to such other persons as herein described. In contracting for the foregoing exemptions, limitations and exonerations from liability, the Carrier is acting as agent and trustee for and on behalf of all persons described above, all of whom shall to this extent be deemed to be a party to this contract evidenced by this Bill of Lading, it being always understood that said beneficiaries are not entitled to any greater or further exemptions, limitations or exonerations from liability than those that the Carrier has under this Bill of Lading in any given situation.
Subject to all rights, privileges and limitations of and exonerations from liability granted to the ocean carrier under this Bill of Lading or by law, any liability by the respective participating carriers for loss or damage to the Goods or packages carried hereunder shall be governed by the following: (a) If loss or damage occurs while the goods or packages are in the custody of the ocean carrier, only the ocean carrier shall be responsible therefor, and any liability of the ocean carrier shall be determined by the terms and conditions of this Bill of Lading and any law compulsorily applicable, (b) If loss or damage occurs while the Goods or packages are in the custody of a participating domestic or foreign Carrier, only the participating domestic or foreign Carrier(s) shall be responsible therefor, and any liability of such participating domestic or foreign Carrier(s) shall be determined, in respective order, by the terms, conditions and provisions of the applicable participat- ing domestic or foreign Carrier’s Bill(s) of Lading, whether issued or not, tariff(s) and law compulsorily applicable in the circumstances, (c) Notwithstanding subdivision (a) and (b) hereof, it is contemplated that the Goods or packages will from time to time be carried in through transportation that will include inland transportation within the United States by Railroad, Truck and sea carriage by one or more of the other Carriers above denned. (When used on or endorsed on
this Bill of lading the words “on board” shall mean and include on board the original carrying Vessel when the Goods or packages are being transported from a foreign port or place to the continental United States, but when the Goods or packages are being transported from the continental United States to a foreign port or place “on board” shall mean and include on board a rail car operated by the originating carrier and enroute by rail to the port of loading for loading on board the Carrier’s or participating Carrier’s vessel.) (d) If loss or damage occurs after receipt of the Goods or packages hereunder, and it cannot be determined from
the records of the ocean Carrier or participating domestic or foreign Carrier(s) whether such damage or loss occurred during ocean domestic or foreign carriage, it shall be conclusively presumed that the loss or damage occurred on board the vessel and while the Goods or packages were in the custody of the ocean Carrier, (e) At all times when the Goods or packages are in the custody of the above mentioned participating domestic or foreign Carriers, such Carriers shall be entitled to all the rights, defenses, exceptions from or limitations of liability and immunities of whatsoever nature referred to or incorporated herein applicable or granted to the Carrier as herein defined, to the full extent permitted to such domestic and foreign Carriers under this Bill(s) of Lading, tariffs incorporated herein and any other laws applicable or relating thereto, provided however, that nothing contained in this Bill of Lading shall be deemed a surrender by these domestic or foreign Carri- ers of any of their rights and immunities or an increase of any of their limitations of and exoneration from liability under their said Bill(s) of Lading, tariffs or laws applicable or relating to said carriage, (f) In making any arrangement for transportation by participating domestic or foreign Carriers of the Goods or packages carried hereunder, either before or after ocean carriage, it is understood and agreed that the ocean Carrier acts solely as agent of the Merchant, without any other responsibility whatsoever, and it assumes no responsibility as Carrier for such domestic or foreign transportation, (g) Notice of loss or damage and claim against the ocean Carrier, where applicable, shall be given to the ocean Carrier and suit commenced as provided for in Clauses 27 and 28 hereof. Notice of loss or damage against the participating domestic or foreign Carrier(s) where applicable, shall be filed with the participating domestic or foreign Carrier(s) and suit commenced
as provided for in the terms, conditions and provisions of said Carrier(s) Bill(s) of Lading or by law applicable thereto. It is understood by the Merchant that such terms conditions and provisions as they pertain to notice of and claim for, loss or damage and commencement of suit, contain different requirements than those requirements pertaining to ocean Carriage as contained in Notice of Loss and Time Bar section hereof.
The goods carried hereunder are subject to all the terms and provisions of Carrier’s applicable Tariff or Tariffs on file with the federal Maritime Commission or any other regulatory body which governs a particular portion of this carriage, and the terms and provisions of the said Tariff or Tariffs are hereby incorporated herein as part of the Terms and Condition of this Bill of Lading. Copies of the relevant provisions of the applicable Tariff or Tariffs are obtainable from the Carrier, Federal Maritime Commission or other regulatory body upon request. In the event of any conflict between the terms and provisions of such Tariff or Tariffs and the Terms and Conditions of this Bill of Lading, this Bill of Lading shall prevail.
The merchant warrants that in agreeing to the Terms and Conditions hereof, he is, or has the authority of the person owning or entitled to the possession of the Goods and this Bill of Lading.
The Carrier shall be entitled but under no obligation to open any Container at any time and to inspect the contents. If it thereupon appears that the contents of any part thereof cannot safely or properly be carried or carried further, either at all or without incurring any additional expense or taking any measures in relation to the Container or its contents or any part thereof, the Carrier may abandon the transportation thereof and/or take any measures and/or incur any reasonable ad- ditional expenses to carry or to continue the carriage or to store the same ashore, afloat, under cover or in the open, at any place, which 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.
Carrier may containerize any Goods or packages. Containers may be stowed on deck or under deck and when so stowed shall be deemed for all purposes to be stowed under deck, including for General Average and U.S. Carriage of Goods by Sea Act. 1936 and similar legislation. Deck cargo (except goods carried in containers on deck) and live animals are received and carried solely at Merchant’s risk (including accident or mortality of animals) and the Carrier shall not in any event be liable for any loss or damage thereto arising or resulting from any matter mentioned in the United States Carriage of Goods by Seas Act or from any other cause whatsoever not due to the fault of the Carrier, any warranty of seaworthiness in the premises being hereby waived, and the burden of proving liability being in all respects upon the Merchant. Except as provided above, such shipments shall be deemed Goods and shall be subject to all terms and provisions of this Bill of Lading relating to Goods.
Special containers with heating or refrigeration units will not be furnished unless contracted for expressly in writing at time of booking and, when furnished, may entail an increased freight rate or change. Shippers shall advise Carrier of desired temperature range when delivering Goods to Carrier, and Carrier shall exercise due diligence to maintain the temperature within a reasonable range while the containers are in its custody or control. The Carrier does not however accept any responsibility for the functioning of heated or refrigerated containers not owned or leased by Carrier.
The scope of the voyage herein contracted for shall include usual or customary or advertised ports of call whether named in this contract or not, also ports in or out of the advertised geographical or usual route or order, even though in proceeding thereto, the vessel may sail beyond the port of discharge named herein or in a direction contrary thereto or return to the original port, or depart from the direct or customary route and includes all canals, straits, and other waters. The vessel may call at any port for the purposes of the current, prior or subsequent voyages. The vessel may omit calling at any port whether scheduled or not and may call at the same port more than once, may discharge the goods during the first or subsequent call at the port of discharge, may for matters occurring before or after load- ing, and either with or without the goods on board, and before or after proceeding towards the port of discharge, adjust compasses, drydock with or without cargo on board, stop for repairs, shift berths, make trial trips or test, take fuel or stores, remain in port, be on bottom, aground or at anchor, sail with or without pilots, tow and be towed, and save or attempt to save life or property, and all of the foregoing are included in the contract voyage. The vessel may carry contraband, ex- plosives, munitions, warlike stores, hazardous cargo, and sail armed or unarmed, and with or without convoy. The Carrier’s sailing schedules are subject tochange without notice both as to the sailing date and date of arrival. If this is a Through Bill of Lading, no Carrier is bound to transport the shipment by any particular train, truck, aircraft, vessel or other means of convey ance/or in time for any particular market or otherwise. No carrier shall be liable for delay.
If at any time the performance of the contract evidenced by this Bill of Lading is or is likely to be affected by any hindrance, risk, delay, difficulty, or disadvantage of whatsoever kind which cannot be avoided by the exercise of reasonable endeavors, the Carrier (whether or not the transport is commercial) may without notice to the Merchant treat the performance of this contract as terminated and place the Goods or any part of 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 and charges on Goods received for transportation and the Merchant shall pay any additional costs of carriage to and delivery and storage
at such place or port.
If the Carrier makes a special agreement, whether by stamp hereon or otherwise, to deliver the Goods at a specified dock or place, it is mutually agreed that such agreement shall be construed to mean that the Carrier is to make such delivery only if, in the sole judgment of the Carrier the vessel can get to be at, and leave said dock or place always safely afloat and only if such dock or place is available for immediate receipt of the Goods and that otherwise provided in this Bill of Lading, whereupon all responsibility of Carrier shall cease.
The port authorities are hereby authorized to grant a general order for discharging immediately upon arrival of the vessel and the Carrier without giving notice either on arrival or discharge, may immediately upon arrival of the vessel at the designated destination, discharge the goods continuously, Sundays and holidays included, at all such hours by day or by night as the Carrier may determine no matter what the state of the weather or custom of the port may be. The Carrier shall not be liable in any respect whatsoever if heat or refrigeration or special cooling facilities shall not be furnished during loading or discharge or any part of the time that the good are upon the wharf, craft or other loading or discharging place. Landing and delivery charges and pier dues shall be at the expense of the Goods unless included in the freight herein provided for. If the Goods are not taken away by the consignee by the expiration of the next working day after the goods are at his disposal, the Goods may, at Carrier’s option and subject to the Carrier’s lien be sent to store or warehouse or be permitted to lie where landed, but always
at the expense and risk of the Goods. The responsibilities of the Carrier in any capacity shall altogether cease and the Goods shall be considered to be delivered and at their own risk and expense in every respect when taken into the custody of Customs or other Authorities, or into that of any municipal or government concessionaire or depository. The Carrier shall not be required to give any notification of disposition of the Goods, except as may be otherwise provided in this Bill of Lading.
At ports or places where, by local law, authorities, or custom, the Carrier is required to discharge cargo to lighters or other craft where it has been so agreed, or where wharves are not available which the ship can get to, be at, or leave always safely afloat, or where conditions prevailing at the time tender discharge at a wharf dangerous, imprudent, or likely to delay the vessel, the Merchant shall promptly furnish lighters or other craft to take delivery alongside the ship the risk and expense of the Goods. If the Merchant fails to provide such lighters or other craft, Carrier, acting solely as agent for the Merchant, may engage such lighters, or other craft, at the risk and expense of the Goods. Discharge of the Goods into such lighters or other craft shall constitute proper delivery, and any further responsibility of Carrier with respect to the goods shall thereupon terminate.
The Carrier shall have liberty to comply with any order or directions or recommendations in connection with this transport under this contract of carriage given by any Government or Authority or anyone acting or purporting to act on behalf of such Government or Authority, or having, under the terms of the mortgage or insurance on the vessel or other transport, the right to give such orders, directions or recommendations. Discharge or delivery of the Goods in accordance with the said order, directions or recommendations shall be deemed a fulfillment of the contract. Any extra expense incurred in connection with the exercise of the Carrier’s liberty under this clause shall be paid by the Merchant in addition to freight and charges.
In any situation whatsoever and wheresoever occurring and whether existing or anticipated before commencement of or during the combined transport, which in the judgment of the Carrier or the Master is likely to give rise to risk if capture, seizure, detention, damage, delay or disadvantage or loss to the Carrier of any part of the Goods to make it unsafe, imprudent or unlawful for any reason to receive, keep, load, or carry the goods, or commence or proceed on or continue the transport or to enter or discharge the goods or disembark passengers at the port of discharge, or the usual or agreed or intended place of discharge or delivery, or to give rise to delay, or difficulty in proceeding by the usual or intended route, the Carrier or the Master may decline to receive, keep, load or carry the Goods or may devan the container(s) contents or any part thereof and may require the Merchant to take delivery of the Goods at the place of receipt or any other point in the combined trans- port and upon failure to do so, may warehouse the Goods at the risk and expense of the Goods, or the vessel, whether or not proceeding toward or entering or at- tempting to enter a port of discharge, or reaching or attempting to reach a usual place of discharge therein or attempting to discharge the shipment may discharge the Goods and/or devan the contents of any container(s) at another port, lighter craft, other place or may forward or transship them as provided in this Bill of Lading, or the Carrier or the Master may retain the Goods, vanned or unvanned, on board until the return of the vessel to the port of loading or to the port of discharge or until such time as the Carrier or the Master thinks advisable and discharge the Goods at any place whatsoever as herein provided. The Carrier or Master is not required to give notice of such devanning or of discharge of the Goods or of the forwarding thereof as herein provided. When the Goods are discharged from the ship as herein provided, such shall be at the risk and expense of the Goods. Such discharging shall constitute compete delivery and performance under this contract and the Carrier shall be free from any further responsibility, unless it be shown that any loss or damage to the Goods arose from Carrier’s negligence in the discharge and delivery as herein provided, the burden of establishing such negligence being on the Merchant. For any service rendered to the Goods as herein above provided or for any delay or expense to the vessel caused as a result thereof, the Carrier shall be entitled to a reasonable extra compensation, and shall have a lien on the goods for such charges. Notice of disposition of the Goods shall be mailed to shipper or consignee named in this Bill of Lading. Goods shut out from the vessel named herein for any cause may be forwarded on a subsequent vessel of this type or, at Carrier’s option, on a vessel of another type or by other mode of transportation.
Whenever the Carrier or Master may deem it advisable, or in any case where goods are destined for port(s) or place(s) at which the vessel or participating carriers will not call the Carrier may, without notice forward the whole or any port of the shipment, before or after loading at the original port of shipment, or any other place or places even though outside the scope of the voyage or the route to or beyond the of discharge or the destination the Goods, by water, by land, or by air, or by any combination thereof, whether operated by the Carrier or others and whether departing or arriving or scheduled to depart or arrive before or after the ship expected
to be used for the transportation of the shipment. The Carrier may delay forwarding awaiting a vessel or conveyance in its own service shipment is delivered to another Carrier or to a lighter. Port Authority, warehouseman or other bailee for transshipment, the liability of this Carrier shall absolutely cease when the Goods are Goods again come into its exclusive possession and the responsibility of this Carrier during any such period shall be that of an agent of the Merchant and this Carrier shall be without any other responsibility whatsoever. The carriage by any transshipping or on Carrier and all transshipment or forwarding shall be subject to all the terms whatsoever in the regular form of bill of lading, consignment note, contract or other shipping document at the time by the Carrier performing such transshipment or forwarding.
Notwithstanding the foregoing, the Carrier shall neither be liable therefor, nor concluded as to, the correctness of any such marks, descriptions or representations. When any cargo unit owned or leased by Carrier is packed or loaded by shipper or is agent, or discharged by consignee or its agent, shipper, consignee, receiver, holder of this Bill of Lading, owners of the Goods and person entitled to the possession of the Goods shall be and remain liable, jointly and severally, for any loss or damage to the cargo unit during such loading or discharge, howsoever occurring, until the cargo unit is returned to Carrier’s custody and, at tariff rates, for any delay beyond the time allowed for such loading or discharge, and for any loss, damage or expense incurred by Carrier as a result of the failure to return the cargo unit to the Carrier in the same sound condition and state of cleanliness as when received by shipper. Such loss, damage, expense or delay shall constitute lien on the Goods. Where a cargo unit is to be unpacked or unloaded by consignee or its agent, consignee or its agent shall promptly unpack or unload such cargo unit and take delivery of its contents, irrespective of whether the Goods are damaged or not Carrier shall not be liable for loss or damage caused to the Goods by or during such unpacking or unloading.
When containers, vans, trailers, transportable tanks, flats, palletized units, and all other packages (all hereinafter referred to generically as “cargo units”) are not packed or loaded by Carrier, such cargo units shall be deemed shipped as “Shipper’s weight, load and count.” Carrier has no reasonable means of checking the quantity, weight, condition or existence of the contents thereof, does not represent the quantity, weight, condition or existence of such contents, as furnished by the shipper and inserted in this Bill of Lading to be accurate, and shall not be liable for nonreceipt or misdescription of such contents. Carrier shall have no liability for ) the securing and/or stowage of contents of such cargo units or for loss or damage caused thereby or resulting therefrom, or for the physical suitability or structural adequacy of such cargo units properly to contain their contents. The Merchant represents, guarantees and warrants that the goods are properly described, marked, packed and suitable for transport; that they are shipped in compliance with all applicable laws and statutes; that they are not hazardous in any way to other cargo, persons or conveyances; and the Merchant agrees to indemnify defend and hold harmless carrier for any and all damage, loss, expense, fine, penalty, personal injury or death resulting from a breach of said representations, guarantees and warranties, even without fault of the Merchant. Merchant shall be responsible for any loss, damages, expense or delay to a container or cargo unit supplied by carrier and carrier shall have a lien on goods for same.
Carrier shall have a general lien on any and all property (and documents relating thereto) of Merchant in its possession, custody or control or en route, for all claims for charges, expenses or advances incurred by Carrier in connection with any shipments of Merchant. Carrier may sell at public auction or private sale, upon 10 days written notice, registered mail to Merchant, the goods, wares and/or merchandise or so much as may be necessary to satisfy such lien and the costs of recovery, including the value of management time and effort, and apply the net proceeds of such sale to the payment of the amount due Carrier. The surplus, if any, from such sale shall be transmitted to Merchant, and Merchant shall be liable for any deficiency in the sale.
Freight shall be payable, at Carriers option, on actual gross intake weight or measurement or on actual gross discharge weight or measurement or on a value or other basis. Freight may be calculated on the basis of the particulars of the Goods furnished by the shipper herein. Full freight shall be paid on damaged and unsound goods. Full freight hereunder to place of delivery named herein and advanced charges (including on-Carrier’s) shall be considered completely earned on receipt of the Goods by the Carrier, whether the freight be stated or intended to be prepaid or to be collected at destination, and the Carrier shall be entitled to all freight and charges, extra compensation, demurrage, detention, General Average, claims and any other payments made and liability incurred with respect to the Goods, whether actually paid or not, and to receive and retain them irrevocably under all circumstances whatsoever vessel, conveyance and/or cargo lost, damaged or otherwise, or the combined transport changed, frustrated or abandoned. In case of forced abandonment or interruption of the combined transport for any cause, any forwarding of the goods or any part thereof shall be at the risk and expense of the Goods. All unpaid charges shall be paid in full, without any offer, counterclaim or deduction in the currency of the place of receipt, or, at Carrier’s option, in the currency of the place of delivery at the demand rate of New York exchanges as quoted on day of arrival of the Goods at the place of delivery. The Merchant shall be jointly and severally liable to the carrier for the payment of all freight charges and the amount due to the Carrier, and for any failure of either or both to perform his or their obligations under the provisions of this Bill of Lading, and they shall indemnify the Carrier against, and hold it harmless from, all liability, loss, damage and expense which the Carrier may sustain or incur arising or resulting from any such failure
of performance by the Merchant. Any person, firm or corporation engaged by any party to perform forwarding services with respect to the cargo shall be considered the exclusive agent of the Merchant for all purposes and any payment of freight to such person, firm or corporation shall not be considered payment to the Carrier in any event. Failure of such person, firm or corporation to pay any part of the freight to the Carrier shall be considered default by the Merchant in the payment of the freight. The carrier shall have a lien on the Goods, and freight money and any documents relating thereof, which shall survive delivery, for all freight charges and damages of any kind whatsoever, and for the costs of recovering same, including expenses incurred in preserving this lien, and may enforce this lien by public or private sale and without notice. The shipper, consignee, receiver, holder of this Bill of Lading, owner of the Goods and person entitled to the possession of the Goods and their principals shall be jointly and severally liable to the Carrier for the payment of all freight charges and damages as aforesaid and for the performance of the obligations of each of them hereunder.
Neither the Carrier nor any corporation owned by, subsidiary to or associated or affiliated with the Carrier shall be liable to answer for or make good any loss or damage to the goods occurring at any time and even though before loading on or after discharge from the ship, by reason or by means of any fire whatsoever, unless such a fire shall be caused by its design or neglect, or by its actual fault or privity. In any case where this exemption is not permitted by law, Carrier shall not be liable for loss or damage by fire unless shown to have been caused by Carrier’s negligence.
(a) General average to be adjusted, stated and settled at port or place elected by Carrier or its connecting carrier according to York Antwerp Rules 1994 or any amendment thereto and as to matters not provided for by these Rules, according to the laws and usages of the place of adjustment, and in the currency selected by Carrier. The general average statement shall be prepared by the adjusters appointed by Carrier. Average agreement or bond and such cash deposit as Carrier may deem sufficient to cover the estimated contribution of Goods and any salvage and special charges thereon and any other additional securities as Carrier may require shall be furnished by Merchant to Carrier before delivery of Goods, (b) Carrier shall be under no obligation to exercise any lien for general average contribution due to Merchant, (c) In the event of accident, danger, damage or disaster before or after commencement of the voyage, resulting from any cause whatsoever, whether due to negligence or not, for which, or for the consequence of which. Carrier is not responsible by statute, contract or otherwise. Goods and Merchant shall jointly and severally contribute with Carrier in general average to the payment of any sacrifices, loss or expenses of a general average nature that may be made or incurred, and shall pay salvage and special charges incurred in respect of Goods. If a salving ship is owned or operated by Carrier, salvage shall be paid for as fully and in
the same manner as if such salving ship belonged to strangers, (d) The both-to-Blame Collision Clause as adopted by the Baltic and International Maritime Counsel (BIMCO) is incorporated here by this reference, (e) For unforeseen charges not compensable in General Average, the Merchant shall reimburse the Carrier for such charges.
Unless otherwise mandated by compulsorily applicable law, Carrier’s liability for compensation for loss of or damage to goods shall in no case exceed the amount of US$500 per package or per customary freight unit, unless Merchant, with the consent of Carrier, has declared a higher value for the goods in the space provided on the front of this Bill of Lading and paid extra freight per Carrier’s tariff, in which case such higher value shall be the limit of Carrier’s liability. Any partial loss or damage shall be adjusted pro rata on the basis of such declared value. Where a container is stuffed by Shipper or on its behalf, and the container is sealed when received by Carrier for shipment, Carrier’s liability will be limited to US$500 with respect to the contents of each such container, except when the Shipper declares the value on the face hereof and pays additional charges on such declared value as stated in Carrier’s tariff. The freight charged on sealed containers when no higher valuation is declared by the Shipper is based on a value of US$500 per container. However, Carrier shall not, in any case, be liable for an amount greater than the actual loss to the person entitled to make the claim. Carrier shall have the option of replacing lost goods or repairing damaged goods.
(a) Unless notice of loss or damage and the general nature of such loss or damage be submitted to Carrier in written at the port of discharge or place of delivery before or at the time of delivery of Goods or, if the loss or damage be not apparent, within 3 days after delivery. Goods shall be deemed to have been delivered as described in this Bill of Lading, (b) In any event whatsoever. Carrier shall be discharged from all liability in respect of non-delivery, misdelivery, delay, loss or dam- age unless suit is brought within one year after delivery of Goods or the date when Goods should have been delivered, (c) Notwithstanding above (b), with respect of any non-delivery, misdelivery, delay, loss or damage which may have occurred during other than Water Carriage, Merchant must file a claim with Carrier within 9 months after delivery of Goods or the date when Goods should have been delivered. Failing of claim on time will be discharge Carrier from all liability therefor.
Gold, silver, specie, bullion or other valuables, including those named or described in Sec. 4281 of the Revised Statues of the United States, will not be received by the Carrier unless their true character and value are disclosed to the Carrier and a special written agreement therefore has been made in advance, and will not, in any case, be loaded or landed by the Carrier. No such valuables shall be considered received by or delivered to the Carrier until brought aboard the ship by the shipper and put in the actual possession of and a written receipt therefore is given by the Master or other officer in charge.
It is agreed that superficial rust, oxidation or any like condition due to moisture or condensation, is not a condition of damage but is inherent to the nature of the cargo, and acknowledgment of receipt of the Goods in apparent good order and condition is not a representation that such conditions of rust, oxidation and the like did not exist onreceipt.
Nothing in this Bill of Lading shall operate to deprive the Carrier of any statutory protection or exemption from, or limitation of, liability, contained in the laws of the United States, or in the laws of any other country which may be applicable. This Bill of Lading shall be construed according to the laws of the United States and the Merchant agrees that any suits against the carrier shall be brought in the United States District Court for the Central District of California. The terms of this Bill of Lading shall be separable, and if any part of term hereof shall be held invalid, such holding shall not affect the validity or enforceability of any other part or term hereof. These terms and conditions are the complete agreement between the parties and may not be changed except by a writing signed by both parties.
SOLAS WEIGHT CERTIFICATION:
Merchant acknowledges that it is required to provide a signed weight verification setting forth the weights obtained on weighing equipment that meets national certification and calibration requirements for all cargo that is to be tendered to steamship lines. Merchant agrees that Carrier is entitled to rely on the accuracy of such weight verification and to counter-sign or endorse it as Carrier’s own weight verification to the steamship line carrying the cargo. The Merchant agrees that it shall indemnify and hold the Carrier harmless from any and all claims, losses, penalties or other costs resulting from any incorrect or questionable verification of the weight provided by Merchant or its agent or contractor on which the Carrier relies.
NOTICE CONCERNING CARRIER’S LIMITATION OF LIABILITY
If the carriage involves an ultimate destination or stop in a country other than the country of departure, the Montreal Convention or the Warsaw Convention may be applicable to the liability of the Carrier in respect of loss of, damage or delay to cargo. Carrier’s limitation of liability in accordance with those Conventions shall be as set forth in subparagraph 4 unless a higher value is declared.
CONDITIONS OF CONTRACT
1. In this contract and the Notices appearing hereon:
CARRIER includes the air carrier issuing this air waybill and all carriers that carry or undertake to carry the cargo or perform any other services related to such carriage. SPECIAL DRAWINGRIGHT (SDR) is a Special Drawing Right as defined by the International Monetary Fund. WARSAW CONVENTION means whichever of the following instruments is applicable to the contract of carriage: the Convention for the Unification of Certain Rules Relating to International Carriage by Air, signed at Warsaw, 12 October 1929; that Convention as amended at The Hague on 28 September 1955; that Convention as amended at The Hague 1955 and by Montreal Protocol No. 1, 2, or 4 (1975) as the case may be. MONTREAL CONVENTION means the Convention for the Unification of Certain Rules for International Carriage by Air, done at Montreal on 28 May 1999.
The agreed stopping places (which may be altered by Carrier in case of necessity) are those places, except the place of departure and place of destination, set forth on the face hereof or shown in Carrier’s timetables as scheduled stopping places for the route. Carriage to be performed hereunder by several successive Carriers is regarded as a single operation.
For carriage to which the Montreal Convention does not apply, Carrier’s liability limitation for cargo lost, damaged, or delayed shall be 19 SDR’s per kilogram unless a greater per kilogram monetary limit is provided in any applicable Convention or in Carrier’s tariffs or general conditions of carriage.
Any exclusion or limitation of liability applicable to Carrier shall apply to Carrier’s agents, employees, and representatives and to any person whose aircraft or equipment is used by Carrier for carriage and such person’s agents, employees and representatives.
Carrier undertakes to complete the carriage with reasonable dispatch. Where permitted by applicable laws, tariffs and government regulations. Carrier may use alternative carriers, aircraft or modes of transport without notice but with due regard to the interests of the shipper. Carrier is authorized by the shipper to select the routing and all intermediate stopping places that it deems appropriate or to change or deviate from the routing shown on the face hereof.
Receipt by the person entitled to delivery of the cargo without complaint shall be prima facie evidence that the cargo has been delivered in good condition and in accordance with the contract of carriage.
Shipper shall comply with all applicable laws and government regulations of any country to or from which the cargo may be carried, including those relating to the packing, carriage or delivery of the cargo, and shall furnish such information and attach such documents to the air waybill as may be necessary to comply with such laws and regulations. Carrier is not liable to shipper and shipper shall indemnify Carrier for loss or expense due to shipper’s failure to comply with this
No agent, employee or representative of Carrier has authority to alter, modify or waive any provisions of this contract.
CUSTOMS BROKER AGREEMENT
It is agreed that Customs Broker Terms and Conditions (the “Terms”) shall govern the dealings between FNS Customs Brokers, Inc. (the “Company”) and Customer for all Custom Brokerage services. It is expressly understood that these Terms do not cover or apply to any rights, obligations, terms or conditions of the freight forwarding, warehousing, brokering, or other services that the Company has provided or may provide to the Customer, and that those separate services shall be governed by their respective terms and conditions which are provided separately.
Company will provide the following customs brokerage services to Customer, when requested by Customer:
Additional services may be mutually agreed between both Parties in writing on a case-by-case basis.
Where the claim arises from activities other than those relating to customs business, USD $75 per shipment or transaction, or where the claim arises from activities relating to “Customs business,” USD $75 per entry or the amount of brokerage fees paid to Company for the entry, whichever is less;
Any dispute or difference of any nature whatsoever arising out of or in relation to this Agreement on any manner incidental thereto or any claim, cross-claim, counter-claim or set off regarding any right, liability, act or omission of any of the Parties hereto shall be mutually settled in an amicable way. In the event the Parties fail to settle a dispute in an amicable way within sixty (60) calendar days after the date such dispute has been notified by the other party, such dispute shall be submitted to and determined by arbitration administered by the International Centre for Dispute Resolution of the American Arbitration Association in accordance with its International Arbitration Rules. The number of arbitrators shall be one. The venue of arbitration shall be Los Angeles and where applicable, California law shall govern the substantive issues arising from the dispute. The arbitration proceeding shall be conducted and the award shall be rendered in the English language and the award rendered by the arbitrator shall be final and binding upon the Parties. The decision and award may be enforced in any tribunal in any country that is party to the New York Convention. The arbitrator shall award the prevailing party its reasonable legal fees and costs (including arbitration costs) incurred in connection with the arbitration. Notwithstanding any provision to the contrary in this Agreement, the Parties’ obligation under this Article to arbitrate shall not preclude either Party from making a request to a court for interim protections or equitable relief. The Parties shall be entitled to an injunction or injunctions to prevent breaches of this Agreement and to enforce specifically the terms and provisions of this Agreement.
22.1. Notices. Any notice required or permitted to be given hereunder shall be in writing, and may be given by personal service, registered airmail, or email. Any notice so given shall be deemed to be received, if sent by airmail, upon receipt or five (5) days after posting, whichever is earlier, or if sent by email, one (1) business day after transmission. For notices transmitted by email, proof of successful delivery shall be kept by the sender, and such proof shall be produced to the recipient as soon as it is requested by the recipient. All notices shall be given at the following addresses, emails:
22.2. Entire Agreement. This Agreement constitutes the final agreement between the Parties. It is the complete and exclusive expression of the Parties’ agreement on the subject matter of this Agreement. All prior and contemporaneous negotiations and agreements in writing or made orally between the Parties on the subject matter of this Agreement are expressly merged into and superseded by this Agreement. Any amendment or modification to this Agreement shall not be effective unless made in writing and signed by authorized representatives of the Parties.
22.3. Confidentiality, Proprietary Information. Each Party agree that it will not, without the prior written consent of the other Party, use, copy or disclose to any third party the confidential information, marked confidential in writing, or notified after being disclosed to the former Party as being confidential, of the other Party. Confidential information includes, but is not limited to, tariffs, customer information, marketing strategies, revenue structure, and financial information which a Party may learn in the course of conducting business under this Agreement. This obligation shall survive the termination or expiration of this Agreement. The breaching Party shall be liable for any damage or loss that the non-breaching Party may suffer arising from the breaching Party’s breach of its obligation with regard to non-breaching Party’s confidential information under this Agreement.
The Parties agree and understand that they have or may gain confidential and proprietary information and trade secrets (“Proprietary Information”) of the other Party during the term of this Agreement. The Parties agree that all Proprietary Information of one Party known or obtained by the other shall be kept confidential and shall not be disclosed or permitted to be disclosed to any third party without prior written authorization from the other Party or unless otherwise required by law. Proprietary Information shall include, but not be limited to, technical information including computer software and systems, reports, SOP, quotes, pricing and financial information, and management information systems.
22.4. Severability. If any one or more of the provisions contained in this Agreement is declared invalid, illegal or unenforceable in any respect under any applicable law, the validity, legality and enforceability of the remaining provisions contained herein shall not in any way be affected or impaired thereby, and in such case, the Parties hereto shall obligate themselves to reach the purpose of the invalid provision by a new, valid and legal stipulation.
22.5. Force Majeure. Neither Party, nor any subcontractor utilized to provide Services/Additional Services under this Agreement, will be liable to the other Party for failing to perform or discharge any obligation of this Agreement where such failure is caused directly or indirectly by any matter beyond the control of the Party that is not performing, including, without limitation, the following: acts of God, acts of war (whether civil or otherwise), acts of public enemies, acts of terrorism or terrorist attacks, governmental orders relating to the foregoing, insurrections, riots, sabotage, earthquakes, storms, floods, hurricanes, weather, embargoes, authority of laws, labor disputes, strikes, lockouts, job actions, boycotts, fires, explosions, or failure in electrical power, heat, light, air conditioning, or communications equipment, closing of public highways, government interference and other causes beyond the affected Parties’ control. Prior to claiming excuse of performance hereunder, the Party to be excused shall provide written notice to the other Party of the event or condition giving rise to such excuse. During the existence of any of the aforementioned conditions, the obligations of the Parties hereunder shall be suspended for the duration of same. Upon cessation of the condition(s) enumerated above, the obligations of the Parties hereunder shall resume.
22.6. Successors and Assigns. The rights and obligations of each Party may not be assigned by either Party without the prior written consent of the other Party. Any assignment made without the other Party’s consent shall be null and void.
22.7. No Modification or Amendment Unless Written. These terms and conditions of service may only be modified, altered or amended in writing signed by authorized representatives of both Customer and Company; any attempt to unilaterally modify, alter or amend same shall be null and void.
PROPERTY BROKER TERMS AND CONDITONS
It is agreed that Property Broker Terms and Conditions (the “Terms”) shall govern the dealings between FNS, Inc. (the “Broker”) and Shipper for all Broker services. It is expressly understood that these Terms do not cover or apply to any rights, obligations, terms or conditions of the freight forwarding, customs brokerage, warehousing, or other services that the Broker has provided or may provide to the Shipper, and that those separate services shall be governed by their respective terms and conditions which are provided separately.
Shipper is not restricted from tendering freight to other brokers, freight forwarders, third-party logistic providers, or directly to motor carriers. Broker is not restricted from arranging transportation of freight for other parties.
Each party shall indemnify, defend and hold harmless the other party, its affiliated entities and the officers, directors, shareholders, employees, agents, successors and assigns of the other party from and against any and all losses, costs, expenses, claims, demands, liabilities, investigations, suits, actions or judgments (including all reasonable attorney’s fees and reasonable expenses) arising out of injuries to or the death of any person or persons, or arising out of the loss or damage to the property of any person or persons, including the property of Shipper (excluding loss or damage to Shipper’s property covered elsewhere in these Terms) to the extent caused by or resulting from the willful misconduct or a negligent act or omission of the party or any of its agents, subcontractors, or employees arising out of the performance of these Terms. Each party assumes no liability under this section for any occurrence arising out of the negligent acts or omissions of the other party. The party seeking indemnification shall promptly notify the indemnifying party of any claim and shall fully cooperate with the indemnifying party, its insurance company and its legal counsel in its defense of such claim(s). Both parties shall have joint control of the major defense and strategy, and settlement of the claim.
Neither party, nor any Subcontractor utilized to provide Services under these Terms, will be liable to the other for failing to perform or discharge any obligation of these Terms where such failure is caused by acts of God, acts of war (whether civil or otherwise), acts of public enemies, acts of terrorism or terrorist attacks, governmental orders relating to the foregoing, insurrections, riots, sabotage, earthquakes, floods, weather, acts of God, embargoes, authority of laws, labor disputes, strikes, lockouts, job actions, boycotts, fires, explosions, or failure in electrical power, heat, light, air conditioning, or communications equipment, closing of public highways, government interference, epidemics, and other causes beyond the affected parties’ control.
Shipper shall provide Broker and the Subcontractors with complete, accurate and timely information regarding the Goods to be transported or stored. Shipper shall indemnify, defend and hold harmless Broker and the Subcontractors, their officers, employees, agents and insurers, against all claims, liabilities, losses, fines, reasonable attorney fees and other expenses arising out of or caused by incomplete, inaccurate and/or untimely information being provided by Shipper to Broker and/or the Subcontracts regarding the Goods to be transported or stored.
It is understood between Broker and Shipper that Broker is not an agent for Shipper or Subcontractor and shall remain at all times an independent contractor. Shipper does not exercise or retain any control or supervision over Broker, its operations, employees, or Subcontractor. Broker does not exercise or retain any control or supervision over Subcontractor, its operations, employees or Shipper.
WAREHOUSE SERVICES TERMS AND CONDITIONS
It is agreed that Warehouse Services Terms and Conditions (the “Terms”) shall govern the dealings between FNS, Inc. (the “Warehouseman”) and Customer for all warehousing and storage services. It is expressly understood that these Terms do not cover or apply to any rights, obligations, terms or conditions of the freight forwarding, customs brokerage, or other services that Warehouseman has provided or may provide to the Customer, and that those separate services shall be governed by their respective terms and conditions which are provided separately.
Unless otherwise made known to Warehouseman in writing and accepted by Warehouseman, Customer warrants that the Goods are not considered hazardous materials and/or dangerous goods at the time the Goods are tendered to Warehouseman. Customer warrants that the Goods shall be limited to the permissible materials and quantities in the then current regulations, and agrees to properly classify the Goods, to accurately describe the Goods, and to provide Warehouseman with all necessary or useful information for the safe storage and handling of the Goods including but not limited to, whenever applicable, Material Safety Data Sheets and/or Product Safety Data Sheets. If Customer breaches any of the foregoing warranties related to tender of hazardous materials or dangerous goods, or otherwise delivers any such unfit Goods to Warehouseman, Warehouseman shall be entitled to exercise all available remedies including the immediate destruction or removal of the Goods from the warehouse without notice to Customer. In the event of the foregoing breach of Customer warranties, Customer shall be liable for all expenses costs, losses, damages, fines, penalties or other expenses of any sort incurred by Warehouseman in connection with the removal, or destruction, or handling of the Goods and shall indemnify Warehouseman against all amounts, liabilities, claims, or damages arising in connection with the Goods.
CTPAT Statement of Management Support
The Customs Trade Partnership Against Terrorism (“CTPAT“) is a voluntary program in which members of the international trade community partner with US Customs and Border Protection (“CBP“) to strengthen international supply chain security and improve US border security. CTPAT participants must establish and maintain security processes to protect their supply chains from terrorist infiltration and other illegal activities that threaten US security. In doing so, CTPAT members take an active role in working with the US government to combat terrorism and other criminal activities.
FNS, Inc. (“Company“) has been a certified participant in the CTPAT program since October 22, 2007. All levels of the Company’s management, including its senior executives, are fully committed to the CTPAT program and ensuring the integrity of the Company’s international supply chain. It is essential that we protect our supply chain from criminal activities, such as drug trafficking, terrorism, human smuggling, and illegal contraband. This is critical not only for the safety of our employees and contractors and the success of our business, but also the safety of our customers, vendors, visitors to our facilities, and other business partners.
Accordingly, it is the policy of the Company to:
Ensuring supply chain security requires the vigilance and cooperation of all departments within our Company. Every officer, director, employee, contractor, and agent of the Company must comply with both the CTPAT MSC, as it applies to their role within the Company, and the Company’s Supply Chain Security Policy at all times. We all must play a part in securing our supply chain and preventing it from being compromised by terrorist organizations and other criminal activities.
Dong Eon Kim
Chief Financial Officer
Last Modified: 10.25.2021
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