1. DEFINITIONS
“Bill of Lading” means the present document whether called Bill of Lading or by any other name.
“Carriage” means the whole or any part of the carriage, loading, unloading, handling and any and all other services whatsoever undertaken by the Carrier in relation to the Goods.
“Carrier” means the Party on whose behalf this Bill of Lading is issued.
“Container” includes any container (including but not limited to open top container), lift van, flat rack, platform, trailer, transportable tank, ISO tank, flexitank, pallet or any other similar article used to consolidate the Goods and any connected equipment.
“Consignee” Mean the party named as Consignee on the face of this bill of lading in the relevant space.
“Consolidation” includes stuffing, packing, loading or securing goods on or within containers and Consolidate shall be construed accordingly.
“Freight” includes all charges payable to the Carrier in accordance with the applicable Tariff and this bill of lading.
“Goods” means the whole or any part of the cargo received by the Carrier from the Shipper and includes any packaging and any equipment or Container not supplied by or on behalf of the Carrier (but excludes any Container supplied by or on behalf of the Carrier).
“Hague Rules” means the provisions of the International Convention for the Unification of Certain Rules relating to bills of lading signed at Brussels on 25th August 1924.
“Holder” means any Person for the time being in possession of this Bill of Lading to or in whom rights of suit and/or liability under this bill of lading have been transferred or vested.
“Merchant” includes the Shipper, Holder, Consignee, Receiver of the Goods, any Person owning or entitled to the possession of the Goods or of this Bill of Lading and anyone acting on behalf of such Person.
“Combined Transport” arises if the Place of Receipt and/or the Place of Delivery are indicated on the face of this document in the relevant spaces are included more than one mode of transport.
“Ocean Transport” means the same as Port-to-Port Shipment.
“Package” Where a Container is loaded with more than one package or unit, the packages or the shipping units enumerated in this document as packed in such container and entered in the appropriate box on this document, are each deemed a Package.
“Person” includes an individual, corporation, or other legal entity.
“Subcontractor” includes, but is not limited to, owners, charterers and operators of vessels (other than the Carrier), stevedores, terminal and/or groupage operators, road and rail transport operators, warehousemen, longshoremen, customs inspection stations, port authorities, pilots and any independent contractors employed by the Carrier performing the Carriage and any direct or indirect sub-contractors, servants or agents thereof, whether in direct contractual privity with the Carrier or not.
“Terms and Conditions” means all terms, rights, defences, provisions, conditions, exceptions, limitations and liberties hereof.
“US COGSA” means the Carriage of Goods by Sea Act, as per applicable laws in India.
“Vessel” means any water borne craft used in the Carriage under this bill of lading which may be a feeder vessel or an ocean vessel.
The terms and conditions of the Carrier’s applicable Tariff are incorporated herein. Attention is drawn to the terms therein relating to free storage time and to container and vehicle demurrage or detention. Copies of the relevant provisions of the applicable Tariff are obtainable from the Carrier upon request. In the case of inconsistency between this bill of lading and the applicable Tariff, the bill of lading shall prevail.
3. WARRANTY, REMITTANCE AND ACCEPTANCE OF THE BILL OF LADING
The Bill of Lading shall be sent or released to the Merchant at its sole risk, expense and responsibility and shall be construed remitted to the Merchant upon sending. In accepting this Bill of Lading, the Merchant agrees to be bound by all stipulation, exceptions, Terms and Conditions on the face and back hereof, whether written, typed, stamped or printed, as fully, as if signed by the Merchant. The Merchant warrants that in agreeing to the Terms and Conditions hereof he is, or has the authority to contract on behalf of, the Person owning or entitled to possession of the Goods and this bill of lading. The Merchant further agrees that all agreements or Freight engagements for and in connection with the Carriage of the Goods are superseded by the Bill of Lading, including any previous engagements between the Merchant and the Carrier, its agents, Sub-Contractors, employees, captains or Vessels.
4.1 The Carrier shall be entitled to sub contract on any terms whatsoever the whole or any part of the Carriage.
4.2 The Merchant undertakes that no claim or allegation, Whether arising in contract, bailment, tort or otherwise shall be made against any servant, agent, or Subcontractor of the Carrier which imposes of attempts to impose upon any of them or any vessel owned or chartered by any of them any liability whatsoever in connection with the Goods or the Carriage of the Good whether or not arising out of negligence on the part of such Person, And, if any such claim or allegation should nevertheless be made, to indemnify the Carrier against all consequences thereof. Without prejudice to the foregoing, every such servant, agent, and Subcontractor shall have the benefit of all Terms and Conditions of whatsoever nature herein contained or otherwise benefiting the Carrier including clause 27 hereof, the law and jurisdiction clause, as if such Terms and Conditions, does so on its own behalf, and also as agents and trustee for such servants, agents and Subcontractors.
4.3 The provisions of the second sentence of clause 4.2 including but not limited to the undertaking of the Merchant contained therein, shall extend to all claims or allegations of whatsoever nature against other Persons chartering space on the carrying vessel.
4.4 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.
5. CARRIER’S RESPONSIBILITY: Port-to-Port Shipment
5.1 Where the Carriage is Port-to-Port, Then the liability (if any) of the Carrier for loss of or damage to the Goods occurring between the time of loading at the Port of Loading and the time of discharge at the Port of Discharge, shall be determined in accordance with any national law making the Hague Rules compulsorily applicable to this bill of lading (Which will be COGSA for shipment to or from India) or in any other cases in accordance with the Hague Rules Articles 1-8 inclusive (excluding Article 3 Rule 8) only.
5.2 The Carrier shall have no liability whatsoever for any loss or damage to the Goods, howsoever caused, if such loss or damage arises before acceptance by the Carrier of custody of the Goods or after the Carrier tendering the cargo for delivery. Notwithstanding the above, to the extent any applicable compulsory law provides to the contrary, the Carrier shall have the benefit of every right, defence, limitation and liberty in The Hague Rules as applied by clause 5.1 during such additional compulsory period of responsibility, notwithstanding that the loss or damage did not occur at sea.
5.3 Where COGSA applies, then the provisions stated in the said Act shall govern before loading on the vessel or after discharge therefrom, as the case may be, during Carriage to or from a container yard or container freight station in or immediately adjacent to the sea terminal at the Port of Loading and/or Discharge. If the Carrier is requested by the Merchant to procure Carrier by an inland carrier and the inland carrier is his discretion agrees to do so, Such carriage shall be procured by the Carrier as agents only to the Merchant and such carriage shall be subject to the inland Carrier’s contracts and tariff. If for any reason the Carrier is denied the right to act as agent only to the Merchant and such carriage shall be subject to the inland Carrier’s contract and tariff. If for any reason Carrier is denied the right to act as agent at these times, his liability for loss damage or delay to the Goods shall be determined in accordance with clause 6 hereof..
5.4 In the event that the Merchant requests the Carrier to deliver the Goods: (a) at a port other than the port of Discharge or (b) at a place of delivery instead of the Port of Discharge, and the Carrier in its Absolute discretion agrees to such request, such further Carriage will be undertaken on the basis, that the Terms and Conditions of this bill of lading are to apply to such Carriage, as if the ultimate destination agreed with the Merchant had been entered on the face of this bill of lading as the Port of Discharge or Place of Delivery
6. CARRIER’S RESPONSIBILITY – “COMBINED TRANSPORT”
Where the Carriage is “Combined Transport”, the Carrier undertakes to perform and/or in his own name to procure performance of the Carriage from the Place of Receipt or the Port of Loading, whichever is applicable, to the Port of Discharge or the Place of Delivery, whichever is applicable, The Carrier shall have no liability whatsoever for loss or damage to the Goods occurring before acceptance by the Carrier of custody of the Goods or after the Carrier tendering the Goods for delivery at the applicable points, and, the Carrier shall be liable for loss or damage occurring during the Carriage only to the extent set out below:
6.1 Where the stage of Carriage where loss or damage occurred is not known.
(a)Exclusions: The Carrier shall be relieved of liability for any loss or damage where such loss or damage was caused by:
(i) an act or omission of the Merchant or Person acting on behalf of the Merchant other than the Carrier, his servant, agent or Subcontractor, (ii) compliance with instructions of any Person entitled to give them. (iii) insufficient or defective condition of packing or marks, (iv) handling, loading, stowage or unloading of the Goods by the Merchant or any Person acting on his behalf, (v) inherent vice of the Goods, (vi) strike, lock out, stoppage or restraint of labour, from whatever cause, whether partial or general, (vii) a nuclear incident, (viii) any cause or event which the Carrier could not avoid and the consequences whereof he could not prevent by the exercise of reasonable diligence.
(b) Burden of Proof: The burden of proof that the loss or damage was due to one or more of the cause(s) or event(s) specified in clause 6.1 shall rest upon the Carrier, save that if the Carrier establishes that, in the circumstances of the case, the loss of damage could be attributed to one or more of the causes or events specified in clause 6.1(a)(iii), (iv) or (v), it shall be presumed that it was so caused. The Merchant shall, however, be entitled to prove that the loss or damage was not, in fact, caused either wholly or partly by one or more of these causes or events.
(c)Limitation of liability: Except as provided in clauses, 7.2(a), (b) or 7.3, if clause 6.1 operates, total compensation shall under no circumstances whatsoever and howsoever arising exceed in all cases 2USD per kilo of the gross weight of the Goods lost or damaged.
6.2 Where the stage of Carriage where the loss or damage occurred is known: Notwithstanding anything provided for in clause 6.1 and subject to clause 10, the liability of the Carrier in respect of such loss or damage shall be determined:
(a) by the provisions container in any international convention or national law which provisions: (i) cannot be departed from by private contract to the detriment of the Merchant, and (ii) would have applied if the Merchant had made a separate and direct contract with the Carrier in respect of the particular stage of the Carriage during which the loss or damage occurred and received as evidence thereof any particular document, which must be issued if such international convention or national law shall apply;
(b) by the Hague Rules Articles 1-8 inclusive (excluding Article 3 Rule 8) only, where the provisions of clauses 6.2(a) or (b) do not apply if the loss or damage is known to have occurred during Carriage by sea; or
(c) where the provision of clause 6.2(a), (b), and/or (c) above do not apply, in accordance with the contract of carriage or tariffs of any inland carrier in whose custody the loss or damage occurred or in the absence of such contract or tariff by the provisions of clause 6.1.For the purpose of clause 6.2 references in the Hague Rules to carriage by sea shall be deemed to include references to all waterborne Carriage and the Hague Rules shall be construed accordingly.
6.3 if the Place of Receipt or Place of Delivery is not named on the face of the document the Carrier shall be under no liability whatsoever for the loss or damage to the Goods howsoever occurring:
(a) if the Place of Receipt is not named on the face of document hereof and such loss or damage arises prior to loading on to the vessel; or
(b) if the Place of Delivery is not named on the face of the document, if such loss or damage arises subsequent to discharge from the vessel, save that where COGSA applies then the provisions stated in said Act shall govern before loading on to and after discharge from any vessel and during Carriage to or from a container yard or container freight station in or immediately adjacent to the sea terminal at the Port of Loading and/or Discharge.
6.4 Amendment of Place of Delivery, In the event that the Merchant requests, and the Carrier agrees to amend the Place of Delivery, such amendment Carriage will be undertaken on the basis that the Terms and Conditions of this bill of lading are to apply, until the Goods and delivered to the Merchant at such amended Place of Delivery.
7. COMPENSATION AND LIABILITY PROVISIONS
7.1 Subject always to the Carrier’s right to limit liability as provided for herein, if the Carrier is liable for compensation in respect of loss of or damage to the Goods, such compensation shall be calculated by reference to the value of the Goods plus Freight and insurance if paid., If there is no invoice value of the Goods or if any such invoice is not bona fide, such compensation shall be calculated by reference to the value of such Goods at the place and time they are delivered or should have been delivered to the Merchant. The value of the Good shall be fixed according to the current market price, by reference to the normal value of Goods of the same kind and/or quality.
7.2 Save as is provided in clause 7.3:(a) Where the Hague Rules apply hereunder by national law by virtue of clause 5.1 or clause 6.2(a) the Carrier’s liability shall in no event exceed the amounts provided in the applicable national law. If the Hague Rules Article 1-8 inclusive (excluding Article 3 Rule 8) only apply pursuant to clauses 5.1 or 6(c) the Carrier’s maximum liability shall in no event exceed USD 100 per Package or unit. (b) In all cases compensation shall not exceed the limitation of liability of 2 USD per kilo as provided in clause 6.1(c).
7.3 The Merchant agrees and acknowledges that the Carrier has no knowledge of the value of the Goods and higher compensation than that provided for in this bill of lading may be claimed only when, with the consent of the Carrier, the value of the Goods declared by the Shipper upon delivery to the Carrier has been stated in the box marked “Declared Value” on the reverse of this bill of lading and extra freight paid. In that case, the amount of the such 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.
7.4 Nothing in this bill of lading shall operate to limit or deprive the Carrier of any statutory protection, defence, exception or limitation of liability authorised by any applicable laws, statutes or regulations of any country. The Carrier shall have the benefit of the said laws, statutes or regulations as if it were the owner of any carrying Vessel.
7.5 When any claims are paid by the Carrier to the Merchant, the Carrier shall be automatically subrogated to all rights of the Merchant against all other third party, including Underlying Carriers and Sub-Contractors, on account of such loss or damage.
8. GENERAL
8.1 The Carrier does not undertake that the Goods or any documents relating thereto shall arrive or be available at any point or place at any stage during the Carriage or at the Port of Discharge or the Place of Delivery at any particular time or to meet any particular requirement of any licence, permission, sale contract, or credit of the Merchant or any market or use of the Goods and the Carrier shall under no circumstances whatsoever and howsoever arising be liable for any direct, indirect or consequential loss or damage caused by delay. If the Carrier should nevertheless be held legally liable for any such direct or indirect or consequential loss or damage caused by such alleged delay, such liability shall in no event exceed the Freight paid for the Carriage.
8.2 Save as is otherwise provided herein, the Carrier shall in no circumstances be liable for direct or indirect or consequential loss or damage arising from any other cause whatsoever or for loss of profits.
8.3 Once the Goods have been received by the Carrier for Carriage the Merchant shall not be entitled neither to impede, delay, suspend or stop or otherwise interfere with the Carrier’s intended manner of performance of the Carriage or the exercise of the liberties conferred by this bill of lading nor to instruct or require delivery of the Goods at other than the Port of Discharge or Place of Delivery named on the face of the document or such other Port or Place selected by the Carrier in the exercise of the liberties herein, for any reason whatsoever including but not limited to the exercise of any right of stoppage in transit conferred by the Merchant’s contract of sale or otherwise. The Merchant shall indemnify the Carrier against all claims, liabilities, losses, damages, costs, delays, attorney fees and/or expenses caused to the Carrier, his Subcontractors, servants or agents or to any other cargo or to the owner of such cargo during the Carriage arising or resulting from any stoppage (whether temporary or permanent) in the Carriage of the Goods whether at the request of the Merchant, or in consequence of any breach by the Merchant of this clause, or in consequence of any dispute whatsoever in respect of the Goods (including, but without restriction, dispute as to ownership, title, quality, quantity or description of and/or payment for the Goods) involving any one or more party defined herein as the Merchant as between themselves or with any third party other than the Carrier and the liberties provided for in clauses 20 and 21 shall be available to the Carrier in the event of any such stoppage. The Merchant Shall be responsible for all costs and payments of whatsoever nature (including without limitation fines, storage charges and duties) levied upon the carrier or for transshipment expenses for or in connection with the goods or charged against the goods in respect of clearing the goods and containers in or out any port of country.
8.4 The Terms and Conditions shall govern the responsibility of the Carrier in connection with or arising out of the supplying of a Container to the Merchant whether before, during or after the Carriage.
9. NOTICE OF LOSS, TIME BAR
Unless notice of loss or damage and the general nature of such loss or damage be given in writing to the Carrier or his agents at the Place of Delivery (or Port of Discharge if no Place of Delivery is named on the face of the document) before or at the time of removal of the Goods into the custody of the Merchant or if the loss or damage is not apparent within three days thereafter, such removal shall be prima facie evidence of the delivery by the Carrier of the Goods as described in this bill of lading. In any event, the Carrier shall be discharged from all liability whatsoever in respect of the Goods unless suit it brought in the proper forum 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.
10. Defences and Limits for the Carrier
The Terms and Conditions of whatever nature provided for in this bill of lading shall apply in any action against the Carrier for any loss or damage whatsoever and howsoever occurring (and, without restricting the generality of the foregoing, including delay, late delivery and/or delivery without surrender of this bill of lading) and whether the action be founded in contract, bailment or in tort and even if the loss, damage or delay arose as a result of unseaworthiness, negligence or fundamental breach of contract.
11. SHIPPER-PACKED CONTAINERS: If a Container has not been packed by the Carrier:
11.1 This bill of lading shall be a receipt only for such a Container;
11.2 The Carrier shall not be liable for loss of or damage to the contents and the Merchant shall indemnify the Carrier against any injury, loss, damage, liability or expense whatsoever incurred by the Carrier if such loss of or damage to the contents and/or such injury, loss, damage, liability or expense has been caused by any matter beyond his control including, inter alia, without prejudice to the generality of this exclusion:
(a) the manner in which the Container has been packed; or (b) the unsuitability of the Goods for carriage in Containers; or (c) the unsuitability or defective condition of the Container; or the incorrect setting of any thermostatic, ventilation, or other special controls thereof, provided that, if the Container has been supplied by the Carrier, this unsuitability or defective condition could have been apparent upon reasonable inspection by the Merchant at or prior to the time the Container was packed.
11.3 The Merchant is responsible for the packing and sealing of all shipper-packed Containers and, if a shipper-packed Container is delivered by the Carrier with any original seal intact, the Carrier shall not be liable for any shortage of Goods ascertained at delivery.
11.4 The Shipper shall inspect Containers before packing them and the use of Containers shall be prima facie evidence of their being sound and suitable for use.
12. PERISHABLE CARGO
12.1 Goods, including Goods of a perishable nature, shall be carried in ordinary Containers without special protection, services or other measures unless there is noted on the face of this bill of lading, that the Goods will be carried in a refrigerated, heated, electrically ventilated or otherwise specifically equipped Container or are to receive special attention in any way.
12.2 The Carrier shall not be liable for any loss or damage to the Goods for whatsoever reason, when goods are carried in normal dry-van containers in “one Door Open containers” as per Merchant’s requirement. Such limitation pertaining to carriage in “one door open status” may be endorsed on such carriage, including loss/damage to the cargo and/or the containers, until returned of empty containers back to Carrier in sound condition.
13. Temperature controlled Cargoes
13.1 The Merchant Undertakes no to tender the carriage any Goods which require temperature control without previously giving written notice (and filing in the box on the front of this bill of lading if this bill of lading has been prepared by the Marchant 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 Consolidated by or on behalf of the Merchant further undertakes that the Container has been properly pre-cooled, that the Goods have been properly Consolidated in the Container and that its thermostatic controls have been properly set by the Merchant before receipt of the Goods by the Carrier.
13.2 If the above requirements and not complied with the Carrier shall not be liable for any loss of or damage to the Goods caused by such non-compliance.
13.3 The Carrier shall not be liable for any loss of or damage to the Goods arising from any defects, derangement, breakdown, defrosting, stoppage of the temperature, controlling machinery, plant, insulation and/or any apparatus of the Container, Vessel, conveyance and any other facilities, provided that the Carrier shall before and at the beginning of the Carriage exercise due diligence to maintain the refrigerated Container in an efficient state.
13.4 The Merchant Should note that, Refrigerated Containers are not designed:
(a) to Freeze down cargo which has not been presented for stuffing at or below its designated carrying temperature and the Carrier shall not be responsible for the consequences of the cargo being presented at the higher temperature than that required for the Carriage; nor
(b) To monitor and control humidity levels, albeit a setting facility exists, in that humidity is influenced by many external factors and the Carrier does not guarantee the maintenance of any intended level of humidity inside the Container.
13.5 The term “apparent good order and condition” when used in this bill of lading with reference to goods which require refrigeration, ventilation or other specialised attention does not mean that the Goods, when received were verified by the Carrier as being at the Carrying temperature, humidity level or other condition designated by the Merchant.
14. INSPECTION OF GOODS
The Carrier shall be entitled, but under no obligation, to open and/or scan any package or Container at any time and to inspect the contents. If it appears at any time that the Goods cannot safely or properly be carried or carried further, either at all or without incurring any additional expense or taking any measures in relation to the Container or the Goods, the Carrier may without notice to the Merchant (but as his agent only) take any measures and/or incur any reasonable additional expense to carry or to continue the Carriage thereof, and/or to sell or dispose of the Goods and/or to abandon the Carriage and/or to store them ashore or afloat, under cover or in the open, at any place, whichever the Carrier in his absolute discretion considers most appropriate, which sale, disposal, abandonment or storage shall be deemed to constitute due delivery under this bill of lading. The Merchant shall indemnify the Carrier against any reasonable additional expense so incurred. The Carrier in exercising the liberties contained in this clause shall not be under any obligation to take any particular measures and shall not be liable for any loss, delay or damage howsoever arising from any action or lack of action under this clause.
15. DESCRIPTION OF GOODS
15.1 This bill of lading shall be prima facie evidence of the receipt by the Carrier in apparent good order and condition, except as otherwise noted, of the total number of Containers or other packages or units indicated in on the face of the Bill of Lading.
15.2 No representation is made by the Carrier as to the weight, contents, measure, quantity, quality, description, condition, marks, numbers or value of the Goods and the Carrier shall be under no responsibility whatsoever in respect of such description or particulars.
15.3 The Shipper warrants to the Carrier that the particulars relating to the Goods as set out on the face of the bill of lading have been checked by the Shipper on receipt of this bill of lading and that such particulars, and any other particulars furnished by or on behalf of the Shipper, are adequate and correct. The Shipper also warrants that the Goods are lawful goods, and contain no contraband, drugs or other illegal substances or stowaways, and that the Goods will not cause loss, damage or expense to the Carrier, or to any other cargo during carriage.
15.4 If any particulars of any letter of credit and/or import license and/or sales contract and/or invoice or order number and/or details of any contract to which the Carrier is not a party are shown on the face of this bill of lading, such particulars are included at the sole risk of the Merchant and for his convenience. The Merchant agrees that the inclusion of such particulars shall not be regarded as a declaration of value and in no way increases Carrier’s liability under this bill of lading.
16. MERCHANT’S RESPONSIBILITY
16.1 All of the Persons coming within the definition of Merchant in clause 1, including any principal of such Person, shall be jointly and severally liable to the Carrier for the due fulfilment of all obligations undertaken by the Merchant in this bill of lading.
16.2 The Merchant shall be liable for and shall indemnify the Carrier against all loss, damage, delay, fines, attorney fees and/or expenses arising from any breach of any of the warranties in clause 15.3 or elsewhere in this bill of lading and from any other cause whatsoever in connection with the Goods for which the Carrier is not responsible.
16.3 The Merchant shall comply with all regulations or requirements of customs, port and other authorities, with the provisions of applicable anticorruption laws, including but not limited to the United Nations Convention against Corruption (2005), the U.S Foreign Corrupt Practices Act of 1977, the UK Bribery Act of 2010, with the applicable economic sanctions regulations, including but not limited to the ones published by the United States, European Union and United Nations. The Merchant further represents and warrants that it is not listed or detained/controlled by an entity listed by the United States, European Union, or United Nations as a “Blocked Person”, “Denied Person”, “Specially Designated National”. The Merchant shall bear and pay all duties, taxes, fines, imposts, expenses or losses (including, without prejudice to the generality of the foregoing, Freight for any additional Carriage undertaken) incurred or suffered by reason of any failure to so comply, or by reason of any illegal, incorrect or insufficient marking, numbering or addressing of the Goods, or the discovery of any drugs, narcotics or other illegal substances within Containers packed by the Merchant or inside Goods supplied by the Merchant or any stowaways discovered inside the Container and shall indemnify the Carrier in respect thereof.
16.4 If Containers supplied by or on behalf of the Carrier are unpacked by or for the Merchant, the Merchant is responsible for returning the empty Containers, with interiors clean, odour free and in the same condition as received, to the point or place designated by the Carrier, within the time prescribed. Incase the containers are not cleaned to a satisfactory condition or if the container is found damage then the cost of cleaning/repairs shall be to the account of the Merchant. Should a Container not be returned in the condition required and/or within the time prescribed in the Tariff, the Merchant shall be liable for any detention, loss or expense incurred as a result thereof.
16.5 Containers released into the care of the Merchant for packing, unpacking or any other purpose whatsoever are at the sole risk of the Merchant until redelivered to the Carrier. The Merchant shall indemnify the Carrier for all loss of and/or damage and/or delay to such Containers, and all liability claims from third parties or costs or fines resulting from Merchant’s use of such Containers. Merchants is liable for any expenses and consequences resulting from overweight/dimension/capacity.
16.6 Merchant shall be responsible and liable for any failure to take delivery of any goods transported under this Bill of Lading, and any expenses, costs, consequences, fines, dues, taxes penalties, levies will remain entirely the responsibility of the Merchants, including and notwithstanding any and all responsibility towards authorities as a result of the failure to take delivery. The Merchant will not be absolved of the responsibility and the costs levied to return containers utilized for the transport of the Merchant’s goods as agreed prior to the carriage. If containers are sold as part of the cargo, the Merchant will compensate the Carrier for the loss of replacing those containers if supplied by the Carrier.
17. FREIGHT – EXPENSES AND FEES
17.1 Full Freight shall be payable based on particulars furnished by or on behalf of the Shipper. The Carrier may at any time open the Goods or Container(s) and, if the Shipper’s particulars are incorrect the Merchant and the Goods shall be liable for the correct Freight and any expenses incurred in examining, weighing, measuring, or valuing the Goods.
17.2 Full Freight shall be considered completely earned on receipt of the Goods by the Carrier and shall be paid and non returnable in any event.
17.3 All sums payable to the Carrier, are due on demand and shall be paid in full in United States currency or, at the Carrier’s option, in its equivalent in the currency of the Port of Loading or of Discharge or the Place of Receipt or of Delivery or as specified in the Carrier’s Tariff.
17.4 The Merchant’s attention is drawn to the stipulations concerning currency in which the Freight is to be paid, rate of exchange, devaluation, additional insurance premium and other contingencies relative to Freight in the applicable Tariff. In the event of any discrepancy between Freight (incl. charges etc) items in the bill of lading and any Carrier invoices, the latter shall prevail.
17.5 All Freight shall be paid without any set off, counter claim, deduction or stay of execution at latest before delivery of the Goods.
17.6 If the Merchant fails to pay the Freight when due he shall be liable also for payment of service fee and/or interest due on any outstanding and/or overdue sum reasonable attorney fees and expenses incurred in collecting any sums due to the Carrier. Payment of Freight and charges to a freight forwarder, broker or anyone other than the Carrier or its authorised agent, shall not be deemed payment to the Carrier and shall be made at the Merchant’s sole risk.
17.7 Despite the acceptance by the Carrier of instructions to collect Freight, duties, fees, demurrage/detention and costs and expenses from the shipper or consignee or any other Person, then, in the absence of evidence of payment (for whatever reason) by such shipper or consignee or other Person when due, the Merchant shall remain responsible for and for the payment of such Freight, duties, fees, demurrage/detention and costs and expenses on receipt of evidence of demand within the meaning of clause 17.3.
18. LIEN
The Carrier shall have a lien on the Goods and any documents relating thereto for all sums whatsoever due at any time to the Carrier under this contract and for general average contributions to whomsoever due. The Carrier shall also have a lien against the Merchant on the Goods and any document relating thereto for all sums due by the Merchant to the Carrier under any other contract whether or not related to this Carriage. The Carrier may exercise his lien at any time and at any place in his sole discretion, whether the contractual Carriage is completed or not. In any event any lien shall (a) survive the delivery of the Goods and (b) extend to cover the cost of recovering any sums due and for that purpose 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.
19. OPTIONAL STOWAGE, DECK CARGO AND LIVESTOCK
19.1 The Goods may be packed by the Carrier in Containers and consolidated with other Goods in Containers.
19.2 Goods, whether packed in Containers or not, may be carried on deck or under deck without notice to the Merchant unless on the face of the Bill of Lading, it is specifically stipulated that the Containers or Goods will be carried under deck. If carried on deck, the Carrier shall not be required to note,mark or on the bill of lading any statement of such on-deck carriage. Save as provided in clause 19.3, such Goods (except livestock), carried on or under desk and whether or not stated to be carried on desk shall participate in general average and shall be deemed to be within the definition of goods for the purpose of the Hague Rules or COGSA and shall be carried subject to such Rules or Act, whichever is applicable.
19.3 Goods (not being Goods stowed in Containers other than flats or pallets) which are stated herein to be carried on deck and livestock, whether or not carried on deck, are carried without responsibility on the part of the Carrier for loss or damage of whatsoever nature or delay arising during the Carriage whether caused by unseaworthiness or negligence or any other cause whatsoever and neither the Hague Rules nor COGSA shall apply.
20. METHODS AND ROUTES OF CARRIAGE
20.1 The Carrier may at any time and without notice to the Merchant: (a) use any means of transport or storage whatsoever;(b) transfer the Goods from one conveyance to another including transshipping or carrying the same on a Vessel other than the Vessel named on the face hereof or by any other means of transport whatsoever and even though transshipment or forwarding of the Goods may not have been contemplated or provided for herein;(c) unpack and remove the Goods which have been packed into a Container and forward them via Container or otherwise;(d) sail without pilots, proceed via any route, (whether or not the nearest or most direct or customary or advertised route) at any speed and proceed to, return to and stay at any port or place whatsoever (including the Port of Loading herein provided) once or more often, and in any order in or out of the route or in a contrary direction to or beyond the Port of Discharge once or more often; (e) load and unload the Goods at any place or port (whether or not any such port is named on the face hereof as the Port of Loading or Port of Discharge) and store the Goods at any such port or place; (f) comply with any orders or recommendations given by any government or authority or any Person or body or purporting to act as or on behalf of such government or authority or having under the terms of the insurance on any conveyance employed by the Carrier the right to give orders or directions.
20.2 The liberties set out in clause 20.1 may be invoked by the Carrier for any purpose whatsoever whether or not connected with the Carriage of the Goods, including but not limited to loading or unloading other goods, bunkering or embarking or disembarking any person(s), undergoing repairs and/or drydocking, towing or being towed, assisting other vessels, making trial trips and adjusting instruments. Anything done or not done in accordance with clause 20.1 or any delay arising therefrom shall be deemed to be within the contractual Carriage and shall not be a deviation.
21. MATTERS AFFECTING PERFORMANCE
If at any time Carriage is or is likely to be affected by any hindrance, risk, danger, delay, difficulty or disadvantage of whatsoever kind and howsoever arising which cannot be avoided by the exercise of reasonable endeavours, (even though the circumstances giving rise to such hindrance, risk, danger, delay, difficulty or disadvantage existed at the time, this contract was entered into or the Goods were received for Carriage) the Carrier may at his sole discretion and without notice to the Merchant and whether or not the Carriage is commenced either:
(a) Carry the Goods to the contracted Port of Discharge or Place of Delivery, whichever is applicable, by an alternative route to that indicated in this bill of lading or that which is usual for Goods consigned to that Port of Discharge or Place of Delivery. If the Carrier elects to invoke the terms of this clause 21(a) then, notwithstanding the provisions of clause 20 hereof, he shall be entitled to charge such additional Freight as the Carrier may determine; or (b) Suspend the Carriage of the Goods and store them ashore or afloat under these Terms and Conditions and endeavour to forward them as soon as possible, but the Carrier makes no representations as to the maximum period of suspension. If the Carrier elects to invoke the terms of this clause 21(b) then, notwithstanding the provisions of clause 20 hereof, he shall be entitled to charge such additional Freight and costs as the Carrier may determine; or (c) Abandon the Carriage of the Goods and place them at the Merchant’s disposal at any place or port, which the Carrier may deem safe and convenient, whereupon the responsibility of the Carrier in respect of such Goods shall cease. The Carrier shall nevertheless be entitled to full Freight on the Goods received for the Carriage, and the Merchant shall pay any additional costs incurred by reason of the abandonment of the Goods. If the Carrier elects to use an alternative route under clause 21(a) or to suspend the Carriage under clause 21(b) this shall not prejudice his right subsequently to abandon the Carriage.
22. DANGEROUS GOODS
22.1 No Goods which are or which may become of a dangerous, noxious, hazardous, flammable, or damaging nature (including radioactive material) or which are or may become liable to damage any Persons or property whatsoever, and whether or not so listed in any official or unofficial, international or national code, convention, listing or table shall be tendered to the Carrier for Carriage without previously giving written notice of their nature, character, name, label and classification (if applicable) to the Carrier and obtaining his consent in writing and without distinctly marking the Goods and the Container or other covering on the outside so as to indicate the nature and character of any such Goods and so as to comply with any applicable laws, regulations or requirements. If any such Goods are delivered to the Carrier without obtaining his consent and/or such marking, or if in the opinion of the Carrier the Goods are, or are liable to become of a dangerous, noxious, hazardous, flammable or damaging nature, they may at any time or place be unloaded, destroyed, disposed of, abandoned or rendered harmless without compensation to the Merchant and without prejudice to the Carrier’s right to Freight and, the Carrier shall be under no liability to make any general contribution in respect of such Goods.
22.2 The Merchant warrants that such Goods are packed in a manner adequate to withstand the risks of Carriage having regard to their nature and in compliance with all laws, regulations or requirements which may be applicable to the Carriage.
22.3 The Merchant shall indemnify the Carrier against all claims, liabilities, loss, damage, delay, costs, fines and/or expenses arising in consequence of the Carriage of such Goods, and/or arising from breach of any of the warranties in clause 22.2 including any steps taken by the Carrier pursuant to clause 22.1 whether or not the Merchant was aware of the nature of such Goods.
22.4 Nothing contained in this clause shall deprive the Carrier of any of his rights provided for elsewhere.
23. NOTIFICATION, DISCHARGE AND DELIVERY
23.1 Any mention in this bill of lading of parties to be notified of the arrival of the Goods is solely for information of the Carrier. Failure to give such notification shall not involve the Carrier in any liability nor relieve the Merchant of any obligation hereunder.
23.2 The Merchant shall take delivery of the Goods within the time provided for in the Carrier’s applicable Tariff. If the Merchant fails to do so, the Carrier may without notice unpack the Goods if packed in containers and/or store the Goods ashore, afloat, in the open or under cover at the sole risk of the Merchant. Such storage shall constitute due delivery hereunder, and thereupon all liability whatsoever of the Carrier in respect of the Goods or that part thereof shall cease and the costs of such storage shall forthwith upon demand be paid by the Merchant to the Carrier.
23.3 If the Carrier is obliged to discharge the Goods into the hands of any customs, port or other authority, such discharge shall constitute due delivery of the Goods to the Merchant under this bill of lading.
23.4 If the Goods are unclaimed within a reasonable time of thirty days from date of arrival at destination, or whenever in the Carrier’s opinion the Goods are likely to deteriorate, decay or become worthless, or incur charges whether for storage or otherwise in excess of their value, the Carrier may at his discretion and without prejudice to any other rights which he may have against the Merchant, without notice and without any responsibility attaching to him sell, abandon or otherwise dispose of the Goods at the sole risk and expense of the Merchant and apply any proceeds of sale in reduction of the sums due to the Carrier by the Merchant in respect this bill of lading..
23.5 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.
23.6 The Carrier may in his absolute discretion receive the Goods as Full Container Load and deliver them as less than Full Container Load and/or as break bulk cargo and/or deliver the Goods to more than one receiver. In such event the Carrier shall not be liable for any shortage, loss, damage or discrepancies of the Goods, which are found upon the unpacking of the Container.
24. BOTH TO BLAME COLLISION CLAUSE
The Both-to-Blame Collision and New Jason clauses published and/or approved by BIMCO and hereby incorporated New Jason clause: In the event of accident damage danger 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 consequences of which the Carrier is not responsible by statute, contract or otherwise. The Goods and merchants jointly and severally, shall contribute with the Carrier in general average to the payment of any sacrifices, losses or expenses of a general average nature that may be made or incurred and shall pay salvage and special charges incurred in respect of the Goods if a salvaging vessel is owned or operated by the Carrier salvage shall be paid for as fully and in the same manner as if such salvaging vessel or vessels belong to strangers.
25. GENERAL AVERAGE AND SALVAGE
25.1 The Carrier may declare General average which shall be at any port or place at the Carrier’s option and shall be adjustable according to the York Antwerp Rules 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.
25.2 Notwithstanding (1) above, the Merchant shall indemnify the Carrier in respect of any claim (and any expense arising there from) of a General average nature which was be made on the Carrier and shall provide such security as may be required by the Carrier in this connection.
25.3 The Carrier shall be under no obligation to take any steps whatsoever to collect security for General Average contributions due to the Merchant.
26. VARIATION OF THE CONTRACT: No servant or agent of the Carrier shall have the power to waive or vary any Terms and Conditions of this bill of lading unless such waiver or variation is in writing and is specifically authorised or ratified in writing by the Carrier.
26.1 Partial Invalidity: In any provision in this bill of lading is held to be invalid or unenforceable by any Court of regulatory or self regulatory agency or body, such invalidity or unenforceability shall attach only to such provision. The validity of the remaining provisions shall not be affected thereby and this bill of lading contract shall be carried out as if such invalid or unenforceable provision were not contained herein.
27. LAW AND JURISDICTION: Whenever US COGSA applies, whether by virtue of Carriage of the Goods to or from the United States of America or otherwise, or losses occur during inland Carriage within the United State of America, this bill of lading is to be governed by United States law and the United States Federal Court of the Southern District of New York is to have exclusive jurisdiction to hear all disputes hereunder. In all other cases, all actions against the Carrier under the contract of carriage evidenced by this Bill of Lading, shall be brought before the courts in India and shall be governed and construed in accordance with Indian laws and all disputes arising hereunder, shall be determined by the Indian Courts, to the exclusion of the courts of any other country.
The Carrier shall nevertheless be entitled, in its absolute and sole discretion, to bring legal proceedings against the Merchant, For claims of any nature, under the contract of carriage, either directly or through the Carrier’s agents, in any other courts of competent jurisdiction. Such legal proceedings brought by the Carrier in any one of more Jurisdictions, shall not preclude legal proceedings by it, in any other jurisdiction, whether concurrent or not.