Reverse Side of the Sea Waybill
SEA WAYBILL TERMS AND CONDITIONS
1. DEFINITIONS:
In this Sea Waybill the word "Carrier" means UNITED GLOBAL RORO FZCO (“UGR”), including the Vessel used to perform the contract of carriage, her owners, charterers, demise charterers, managers and operators, and anyone acting on behalf of any such person(s); the word “Carriage”, means the whole or any part of the operations, transport and services undertaken by the Carrier in respect of the Goods covered by this Sea Waybill; the word "Charges" shall include freight and all expenses, cost and money obligations incurred and/ or payable by the goods, Merchant , or any of them to the Carrier; the word “Goods” or “Cargo” means the vehicle(s) or cargo described overleaf (whether carried on or under deck, and including in the case of vehicles all its component and mechanical parts comprising the vehicle), and no other cargo is to be shipped inside vehicles or other cargo unless such additional cargo is declared and itemized on the front page of this Sea Waybill and extra freight is paid; the word “Merchant” means and includes the shipper, consignee, consignor, notify party, receiver of the Goods, holder of this Sea Waybill, and any person, corporation, company, or other legal entity, owning or having title to the Goods or entitled to possession or delivery of the Goods or acting as agent or otherwise on behalf of any of the foregoing in relation to the Goods, their obligations being joint and several; the word “Package” means the largest means used to prepare Cargo for transportation, including but not limited to, a skid, pallet, container, bolster, trailer, crate or carton and any piece, article, or shipping unit of any description; the word "Ship" or “Vessel” means the Ocean Vessel named overleaf, and includes any substitute vessel, transhipment vessel, and any craft, lighter or other means of sea or water conveyance owned, chartered or operated by the Carrier used in the performance of this contract of carriage; the word“Sanctions” means any law, regulation, statute, order (including Executive Orders), restriction or prohibition concerning trade, economic or financial sanctions, embargoes or other import/ export restrictive measures implemented, adopted, imposed, administered, enacted or enforced by the United Nations, the European Union, the United Kingdom, the United States, United Arab Emirates or any other government authority including but not limited to any primary or secondary sanctions or and “specially designated nationals” or “blocked persons” lists, or any equivalent lists (collectively “Sanction Lists”) maintained and imposed by the relevant bodies and organizations of the foregoing.
2. SCOPE OF SEA WAYBILL:
This Sea Waybill (including all its terms, conditions, limitations and exceptions, which are all deemed accepted and agreed by the Merchant at the time of the Goods loading and/or shipment) evidences and constitutes the contract of carriage from the moment the Carrier accepts complete custody and control of the Goods at the place of receipt or the port of loading described on the face of this Sea Waybill, until the Carrier releases custody or control of the Goods at the port of discharge or the place of delivery described on the face of this Sea Waybill. All the terms and conditions of this Sea Waybill shall remain in force and apply during the Carriage described in this Sea Waybill on all modes of transportation and storage, including before the Goods are loaded on board any means of transportation, and after the Goods are discharged from any means of transportation, including while the Goods remain in the Carriers custody, care, possession or control and on board any means of transportation.
3. PARAMOUNT CLAUSE:
This Sea Waybill shall be subject to the provisions of the UK’s Carriage of Goods by Sea Act 1971 (as amended) (“UK COGSA”), which shall be deemed to be expressly incorporated herein, and nothing herein contained shall be deemed a surrender or waiver by the Carrier of any of its rights or immunities or an increase of any of its responsibilities or liabilities whatsoever under that Act. If for any reason English law is not applied to the contract of carriage of Goods under this Sea Waybill, this contract shall be governed by the International Convention for the Unification of Certain Rules of Law relating to Bills of Lading signed at Brussels on 25 August 1924 (“the Hague Rules”) as amended by the Protocol signed at Brussels on 23 February 1968 and amended by the 1979 SDR protocol (“the Hague-Visby Rules”). The Carrier shall not be liable as a carrier prior to the loading of the Goods on board the Ship or after the Goods have left the ship's tackle on unloading, or in the event of carriage under FIO terms, prior to the Goods being lashed and secured at the load port and then unlashed at the discharge port. During such periods the provisions of the Hague-Visby Rules shall, where applicable, govern the rights and obligations of the Carrier and the Merchant. The Carrier shall not be liable in any capacity or manner whatsoever for any delay, non-delivery or mis-delivery, or loss of or damage to the Goods occurring while the Goods are not in the actual custody of the Carrier. If any provision of this Sea Waybill be repugnant to the Hague-Visby Rules to any extent, such provision shall be void to that extent but no further.
4. CARRIER'S RIGHTS, LIMITATIONS AND HIMALAYA CLAUSE:
A) The Carrier shall be entitled to the full benefit of, and right to, all limitations of, or exemptions from, liability authorized by any provisions of any country's law, statutes, or regulations which may be pertinent. This shall include, but shall not be limited to, the full benefit of, and right to, all limitations or exemptions from liability authorized by any provisions of sections 4281 to 4286 of the Revised Statutes of the United States and amendments thereto and of any other provision of the laws of the United States. If the Ship is not owned by, or chartered by demise to the company or line by whom this Bill of Lading is issued (as may be the case notwithstanding anything that appears to the contrary), this Bill of lading shall take effect only as a contract with the owner or demise charterer, as the case may be, as principal made through the agency of the said company or line, who act as agents only and shall be under no personal liability whatsoever in respect thereof. If, however, it shall be adjudged that any other than the owner or demise charterer is carrier and/or bailee of the goods all limitations of and exemptions from liability provided by law or by the terms hereof shall be available to such other.
B) HIMALAYA CLAUSE:
(a) For the purposes of this clause, the term “Servant” shall include the owners, managers, and operators of vessels (other than the Carrier); underlying carriers; stevedores and terminal operators; and any direct or indirect servant, agent, or subcontractor (including their own subcontractors), or any other party employed or contracted by or on behalf of the Carrier, or whose services or equipment have been used to perform this contract whether in direct contractual privity with the Carrier or not.
(b) It is hereby expressly agreed that no Servant shall in any circumstances whatsoever be under any liability whatsoever to the Merchant for any loss, damage or delay of whatsoever kind arising or resulting directly or indirectly from any act, neglect or default on the Servant’s part while acting in the course of or in connection with the performance of this contract.
(c) Without prejudice to the generality of the foregoing provisions in this clause, every exemption, limitation, condition and liberty contained herein (other than Art III Rule 8 of the Hague/Hague-Visby Rules if incorporated herein) and every right, exemption from liability, defence and immunity of whatsoever nature applicable to the Carrier or to which the Carrier is entitled hereunder including the right to enforce any jurisdiction or arbitration provision contained herein shall also be available and shall extend to every such Servant of the Carrier, who shall be entitled to enforce the same against the Merchant.
(d) (i) The Merchant undertakes that no claim or allegation whether arising in contract, bailment, tort or otherwise shall be made against any Servant of the Carrier which imposes or attempts to impose upon any of them or any vessel owned or chartered by any of them any liability whatsoever in connection with this contract whether or not arising out of negligence on the part of such Servant. The Servant shall also be entitled to enforce the foregoing covenant against the Merchant; and
(ii) The Merchant undertakes that if any such claim or allegation should nevertheless be made, he will indemnify the carrier against all consequences thereof.
(e) For the purpose of sub-paragraphs (a)-(d) of this clause the Carrier is or shall be deemed to be acting as agent or trustee on behalf of and for the benefit of all persons mentioned in sub-clause (a) above who are his Servant and all such persons shall to this extent be or be deemed to be parties to this contract.
5. SCOPE OF VOYAGE:
The scope of voyage herein contracted for shall include usual or customary or advertised ports of call whether named in this contract of carriage or not and also ports and places in or out of the advertised, geographical, usual or ordinary route or order even though, in proceeding thereto, the Ship may sail beyond the port of discharge 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. Included in the scope of contractual voyage are any and all calls that the Ship may make at any port or place which the Carrier may for any reason deem advisable, expedient or necessary for the purposes of completing or performing the current voyage, or of a prior or subsequent voyage, even though such voyages may overlap and even though such reasons or purposes may include the loading and/or discharging of passengers and/or cargo. The Ship may omit calling at any port or ports or places whether scheduled or not, and may call at the same port or place more than once; may, for matters occurring before loading the goods, known or unknown at the time of such loading, and matters occurring after such loading, either with or without the goods or passengers on board, and before or after proceeding toward the port of discharge, adjust compasses, dry dock, go on ways or to repair yards, shift berths, make trial trips of tests, take on fuel or stores, remain in port sail or dock, with or without pilot or tug, tow and/or be towed, take on or discharge passengers or cargo, lie on bottom in berth, save or attempt to save life or property, whether the property be that of the Carrier or others; and any and all of such things whether done once or more times, are included in the scope of the contractual voyage, and shall not constitute a deviation or departure therefrom whatsoever, even though such acts or omissions, in the absence of the provisions of this Sea Waybill, might be deemed to constitute a deviation or departure.
6. CARRIER'S LIBERTIES:
(A) In any situation whatsoever and wheresoever occurring and whether existing or anticipated before commencement of or during the voyage, which in the sole discretion of the Carrier is likely to give rise to risk of capture, seizure, detention, damage, breach of Sanctions, delay or disadvantage to or loss of the Ship or any her cargo, or to make it unsafe, imprudent, or unlawful for any reason to commence or proceed on or continue the voyage, or to enter or discharge the Goods at the port of discharge, or to give rise to delay or difficulty in arriving, discharging at or leaving the port of discharge or the usual or agreed place of discharge in such port, the Carrier may, before loading or before the commencement of the voyage: require the Merchant or other person entitled thereto, to collect and take delivery of the goods at the port of shipment or transhipment or discharge or loading (as the case may be), and upon failure to do so, may warehouse the Goods without any liability, at the sole risk and expense of the Merchant; alternatively, the Carrier, whether or not proceeding toward or entering or attempting to enter the port of discharge or reaching or attempting to reach the usual place of discharge therein or attempting to discharge the goods there, may in its sole discretion discharge the Goods into depot, lazaretto, craft, or other place; alternatively the Ship may proceed or return, directly or indirectly, to or stop at any port or place whatsoever as the Carrier may consider safe or advisable under the circumstances, and discharge the Goods, or any part thereof, at any such port or place; alternatively the Carrier may retain the Goods on board until the return trip or until such time as the Carrier thinks advisable and discharge the Goods at any place whatsoever as herein provided; alternatively the Carrier may discharge and forward the Goods by any means, including but not limited to rail, water, road, land, or air at the sole risk and expense of the Merchant. When the Goods are discharged from the Ship as herein provided, such discharge shall constitute complete delivery and performance under this contract of carriage and the Carrier shall be freed and discharged from all responsibilities or liabilities in respect of the Goods so discharged, except to notify (whether electronically or by post) the discharge of the Goods directly to the Merchant at such address as may be stated herein. For any action taken by the Carrier or services rendered in respect of the Goods as hereinabove provided, the Carrier shall be entitled to claim reasonable extra compensation to recover its costs and expenses and Merchant shall fully indemnify the Carrier against all and any costs and expenses whatsoever incurred, and shall hold the Carrier harmless against any and all claims, damages, liabilities, penalties, fines, costs, losses, and expenses (including attorney fees) arising out of or related to any action taken by the Carrier under this clause.
(B) The Carrier shall have complete liberty to comply with any orders or directions as to loading, departure, arrival, routes, ports of call, stoppages, quarantine, discharge, destination, delivery or otherwise howsoever given by the government or authority of any nation or any department thereof or any person acting or purporting to act with the authority of such government or of any department thereof, or by any committee or person having, under the terms of the war risk insurance on the ship, the right to give such orders or directions. Delivery or other disposition of the Goods in accordance with such orders or directions shall be deemed due fulfilment of the contractual voyage by the Carrier. Anything done, or not done, in compliance with such orders or directions shall not be deemed a deviation whatsoever. If by reason of, or in compliance with, any such orders or directions the Ship does not proceed to the port or ports originally designated, or to which it may have been ordered pursuant to the terms of this Sea Waybill, the Ship may proceed to any alternative safe port which the Carrier in its sole discretion may select and there discharge the Cargo. Such discharge shall constitute complete delivery and due performance of its obligations under this contract, and the Carrier shall be freed and discharged from any further responsibility or liability in respect of the Goods so discharged except to notify (whether electronically or by post) the discharge of the Goods directly to the Merchant named on this Sea Waybill at such address as may be stated herein. The Ship may sail armed or unarmed and with or without convoy. In addition to all other liberties herein the Carrier shall have the right to withhold or suspend delivery of, reship to, deposit or discharge the Goods at any place whatsoever, fumigate, surrender or dispose of the Goods in accordance with any direction, condition, or agreement imposed upon or exacted from the Carrier by any government or department thereof or any person purporting to act with the authority of either of them. In any of the above circumstances the Goods shall be solely at the Merchant’s risk, responsibility and expense and all expenses and costs so incurred by the Carrier, shall be payable by the owner of the Goods or Merchant, and the Carrier shall be entitled to a lien on the Goods to recover its costs and expenses so incurred.
7. EXCLUSIONS OF CARRIER'S LIABILITY:
The Carrier shall not be liable for any loss or damage, occurring at any time when the Goods are in the actual custody of the Carrier, whether or not such Goods are being carried under a through Sea Waybill, occasioned by faults, errors, act, neglect or default of the master, crew, mariner, pilot, servants of the Carrier, or of any person whomsoever whether in the navigation or in the management of the Ship or otherwise, peril of the sea or other waters or dangers of navigation of whatsoever kind, by collision, stranding, sinking, heeling or overturning of the ship, jettison or wreck; by fire or explosion from any cause on board or on craft or on wharf or on shore or wheresoever occurring; by barratry of the master or crew; by enemies, pirates, robbers or thieves, by land or sea; by theft by any person on board, on craft or on wharf or on shore, whether in the employ of the Carrier or not; by arrest or restraint by princes, rulers, governments or people; by capture, seizure, detention or embargo; by hostilities; by civil commotion, riot, strike or stoppage of labour or labour disturbance, whether the Carrier be a party thereto or not; by fumigation, quarantine or epidemics; by bursting of boilers or by steam, howsoever arising; by breakage of shafting or machinery; by defect, latent or otherwise, in any appliance whether owned by the Carrier or not in any part of the hull, boilers, engines, machinery, equipment or appurtenances of the ship, or by unseaworthiness of the ship, whether existing at time of shipment or at the beginning of the voyage, or otherwise, provided the Carrier has exercised reasonable due diligence to make the ship seaworthy at the commencement of the voyage; by heat, heating, cold, frost, ice, decay, mildew, mould, dampness, fermentation, smoke, dust, coal dust, oil, discoloration, evaporation, smell or taint from or contact with other goods or fuel, putrefaction, rust, water of any kind, sweat, rain or spray, change of character, effects of climate, drainage, leakage, wastage, loss of weight, breakage, checking, splitting, bending, chafing, shrinkage, hook holes, rats, vermin, or by explosion of any of the cargo, whether shipped with or without disclosure of its nature; or for any loss or damage arising from the nature or inherent vice of the Goods or the insufficiency, soiling, injury to, distortion, pressing or bursting of packages, adherence of coverings, or failure to properly protect the Goods, or inaccuracy or obliteration or errors in or insufficiency or absence of marks, numbers, address or description of cargo; or for land damage, including any damage occurring before loading; or for risk of craft, hulk or transhipment; or for any loss or damage caused by the prolongation of the voyage; or for any delay, loss or damage due to any act, default or omission of the administration, either of the Suez Canal or of the Panama Canal or from an interruption or delay of traffic through the Suez Canal or the Panama Canal. This clause shall be construed as an addition to and not in derogation of or in substitution for, any statutory exception or provision in favour of the Carrier.
Any and all warranties or representations of seaworthiness or cargo worthiness in relation to the Vessel or carriage of Cargo, whether express or implied, whether before or after loading, sailing and/or at any stage of the voyage are expressly hereby disclaimed, and the Carrier makes no such warranties or representations in relation such seaworthiness or cargo worthiness.
8. STOWAGE AND DECK CARGO:
Cargo may be loaded on deck with or without express instructions from the Merchant, subject to operational conditions. However, all on deck Cargo is always transported at the Merchant’s and consignee’s sole risk and responsibility. The Carrier expressly disclaims any liability for any loss, damage, or delay arising from on-deck loading howsoever caused, including but not limited to adverse weather conditions, sea state, or other external factors. The Merchant shall fully indemnify and hold harmless the Carrier and Vessel from all claims, costs, or damages arising from on-deck Cargo transportation howsoever caused. The Hague-Visby Rules shall apply to such deck Cargo as if it were stowed below deck. Goods that are customarily carried on deck may be carried on deck without notice to the Merchant and at the Good’s and the Merchant’s sole risk. Goods not customarily carried on deck may be carried on deck at the sole risk of the Goods and the Merchant subject to the above provisions.
9. PERISHABLE CARGO:
Cargo liable to be affected by frost, cold, heat or weather conditions, and all perishable Cargo is received and carried at the sole risk and responsibility of the Merchant, shipper, consignee and owner thereof, but all freight is always payable on goods whether sound or unsound, and any such Cargo becoming decayed or liable to injure other Cargo or the Ship or the destruction of which is ordered by any health or other authority may be destroyed, or disposed of, at the risk and expense of the shipper, consignee and owner of Goods without notice either before or after arrival and the Carrier shall not be liable thereof.
10. MERCHANT’S RESPONSIBILITY FOR GOODS DESCRIPTION, PARTICULARS AND DECLARATIONS:
(A) The Merchant expressly warrants and represents to the Carrier that the particulars, description, details or marks relating to the Goods and the Merchant as set out on the face of this Sea Waybill have been checked by the Merchant, and that such particulars and any other particulars furnished by or on behalf of the Merchant, are adequate and correct. The Merchant also warrants and represents that the Goods are able to move/drive onto or off the Vessel under its own power (if applicable), is in every way fit for sea carriage, are lawful goods, comply with the International Maritime Dangerous Goods (“IMDG”) Code, are not subject to any Sanctions, and contain no contraband, drugs or other illegal substances, items or stowaways and that the Goods will not cause any harm, loss, damage or expense to the Carrier, or to any other cargo.
(B) The Merchant shall be fully liable for and shall fully indemnify the Carrier against all and any injury, loss, delays, fines, attorney fees and/or expenses arising from any breach of any of the provisions in this clause or elsewhere in this Sea Waybill and from any other cause whatsoever in connection with the Merchant for which the Carrier is not liable or responsible or damage of whatsoever nature arising from any inaccuracies, mis-declarations or omissions on any kind in the leading marks, number, quantity, weight, gauge, measurement, contents, nature, IMDG status, quality or value of the Goods, as declared by the Merchant, including but not limited to, in cases of partial loss of or damage to any goods due to the Merchant failing to declare or state the value, any amount in excess of the pro rata portion of the agreed value (see Clause 14) per package, or per customary freight unit, which the Carrier may be required to pay to the Merchant or to any third person.
(C) The Merchant shall comply with all regulations, the IMDG Code and all requirements of customs, ports and other authorities, and shall bear and pay all duties, taxes, fines, expenses or losses accrued or suffered by reason of any failure to so comply.
(D) The Merchant shall be liable for and shall fully indemnify the Carrier against all losses, damages, delays, fines, attorney fees and/or expenses arising from any illegal, incorrect, false, inaccurate or insufficient declarations, descriptions, markings, numberings or addressing of the Goods.
(E) The Merchant shall be liable for all expense of mending, cooperage, bailing, or reconditioning of the goods or packages and gathering of loose contents of packages; also for any payment, expense, fine, dues, duty, tax, impost, loss, damage or detention sustained or incurred by or levied upon the Carrier or the Ship in connection with the goods, howsoever caused, including any action or requirement of any government or governmental authority or person purporting to act under the authority thereof, seizure under legal process or attempted seizure, incorrect or insufficient marking, numbering or addressing of packages or description of the contents, failure of the shipper to procure consular, Board of Health or other certificates to accompany the goods or to comply with laws or regulations of any kind imposed with respect to the goods by the authorities at any port or place, or any act or omission of the Merchant(s).
(F) The Merchant shall notify the Carrier in writing before delivery to the Carrier of any goods of an explosive, inflammable, corrosive noxious or dangerous nature which may cause damage or detriment to the Ship or to other cargo, or which are classified as dangerous or hazardous goods by the laws or regulations of the port of shipment, the port of destination or any intermediate port of call. The packages containing such goods shall be clearly and indelibly marked to show the hazardous nature of their contents and the Merchant shall be liable to indemnify the Carrier with respect to any and all fines, penalties or damages suffered or incurred by the Carrier by reason of the Merchant's failure to so declare and mark the nature of such goods. The attention of Merchant is directed to the laws and regulations of the countries of shipment, destination and call imposing criminal or civil penalties for failure properly to declare, mark and package such goods.
11. SPECIAL STOWAGE AND LIABILITY:
Specially heated or specially cooled stowage is not to be furnished unless contracted for at an increased freight rate. Goods or articles carried in any such compartment are at the sole risk of the Merchant(s) and owner thereof and subject to all the conditions, exceptions and limitations as to the Carrier's liability and other provisions of this Sea Waybill; and further, the Carrier shall not be liable for any loss or damage occasioned by the temperature, risks of refrigeration, defects or insufficiency in or accidents to or explosion, breakage, derangement or failure of any refrigerator plant or part thereof, or by or in any material or the supply or use thereof used in the process of refrigeration unless shown to have been caused by negligence of the Carrier due to aliability for which the Carrier is not by law entitled to exemption.
12. LI-ION BATTERIES, E-VEHICLES AND DANGEROUS GOODS:
The Merchant declares and warrants that all electric vehicles, hybrid vehicles and vehicles containing lithium-ion (“Li-ion”) batteries tendered for carriage are in every way safe and fit for ocean carriage, and have been correctly and properly packed, prepared or made ready in strict compliance with all relevant international and national laws and regulations, including but not limited to the International Maritime Dangerous Goods (“IMDG”) Code. The Merchant shall be fully liable and responsible to correctly and accurately declare and provide to the carrier, all IMDG Cargo declaration forms, labels and information relating to the Cargo before loading, including all related import/export clearance documentation relating to the carriage of new or used batteries. The Carrier shall not be responsible or liable whatsoever for any loss or damage arising from the Cargo containing Li-ion batteries. Upon application, the Carrier shall quote rates based on a higher valuation than that provided for in this Sea Waybill. The Merchant shall sign a separate LOI (letter of indemnity) upon the Carrier request, in connection with the carriage of the foregoing, but in any event, the Merchant shall fully indemnify and hold the Carrier and its agents harmless from all losses, claims, costs, damages and expenses arising from the carriage of any such Goods.
The Carrier shall not under any circumstances be responsible or liable for any type of loss or damages whatsoever arising from the vehicles or Goods own mechanical or electrical defects, fuel leakage, battery discharge or malfunction, or open or unsecured windows/doors/boot.
13. DISCHARGE AND DELIVERY:
(A) The Carrier may, in its sole discretion, commence discharge of Goods immediately on arrival of the Ship at discharge port and may discharge the Goods continuously and in any manner it deems fit, irrespective of weather, by day and night, Sundays and holidays included, all extra expense occasioned by discharging after hours and on Sundays and holidays to be for account of the Merchant, any custom of the port to the contrary notwithstanding. The goods shall be received by the Merchant from ship's tackle as soon as the Ship is ready for discharge and as fast as the Ship can deliver them. In the default thereof, the goods shall be at Merchant’s risk and expense; delivery shall be considered complete and the Carrier will have the option, subject to Carrier's liens, of sending the Goods to storage, warehouse, putting them on lighters or other craft, putting them in possession of authorities, dumping, permitting to lie where landed or otherwise disposing of them, always at the risk and expense of the Merchant, or of ordering the Ship to proceed and of discharging the Goods in any near, safe and accessible port at the Carrier's option, the contract of carriage thereupon to be considered completed and the Carrier to have complied with all of its obligations, full freight being earned and payable, all charges arisen from the moment of departure from the original port of destination of the Goods being for account of the cargo, and the Goods from the moment they leave the ship's tackle to remain entirely at the Merchant’s sole risk and expense. The Merchant shall pay and fully indemnify the Carrier for any loss, damage, fine, charge or expense whatsoever suffered or incurred in so dealing with or disposing of the Goods or by reason of the Merchant's failure or delay in taking possession and delivery as provided herein.
(B) The Carrier's responsibility and liability shall cease as soon as the Goods have left the ship's deck or tackle, or, in the case of bulk liquids, the ship's pipeline connections, or in the case of FIO, as soon as the vehicles are unlashed. The Carrier is not liable or responsible for any obligation in relation of the Goods beyond these points. With respect to any transportation or carriage of the Goods beyond the tackles of the ship, where it is customary or where it is necessary for the Ship to discharge into a local or branch ship, river ship, launch, lighter, surf boat or canoe, the Carrier acts solely as a forwarding agent of the Merchant (even though such further carriage should be at the Carrier's expense) and does not undertake any responsibility or obligation whatsoever regarding the character, condition, cargo worthiness or seaworthiness of any Vessel or craft into which the Goods may be discharged from the ship, nor as to the custody, care or delivery of the Goods after discharge from the ship. In all cases, liability and responsibility of the Carrier in any capacity shall altogether cease, in every respect when taken into the care, possession or custody of customs or other authorities at the port, and all risk and expenses in relation to the Goods shall be on the Merchant.
(C) Except as provided in Clause 6 hereof, the Carrier shall not be obliged to give any notification whatsoever of arrival, discharge or any disposition of or action taken with respect to the Goods, any custom or practice of the port, the Carrier, or others to the contrary notwithstanding and even though the Goods are consigned to order with provision for notice to a named person.
(D) The ship's tally shall be accepted as conclusive and binding unless the Merchant's tally clerks check the Goods in cooperation with the Carrier’s or ship’s appointed representative.
(E) If the Carrier concludes a special written agreement, whether by stamp hereon or otherwise, to deliver the Goods hereby receipted for at a specified dock or wharf at the port of discharge, such agreement shall be construed to mean that the Carrier is to make such delivery only if, in the sole judgment of Carrier, the Ship can safely under her own power proceed to, lie at, and return from said dock or wharf, always afloat at any time of tide, and only if such dock or wharf is available to the Ship immediately the Ship is ready to discharge the goods and that otherwise the Ship shall discharge the Goods under this clause of this Sea Waybill, whereupon Carrier's responsibility shall cease.
14. PACKAGE/CUSTOMARY FREIGHT UNIT LIMITATION:
One single vehicle shall be considered one single freight unit. If Goods are shipped in a container, such single container shall be considered one single unit. Neither the Carrier nor the Vessel shall in any event be or become liable whatsoever for any loss or damage arising from or in connection with the transportation or carriage of Goods exceeding the amounts provided in the Hague Rules or Hague-Visby Rules (whichever are compulsorily applicable), being 666.67 SDR per Package or 2 SDR per kilogram of the goods lost or damaged, whichever is higher. However, if and to the extent the Hague Rules or Hague-Visby Rules (whichever are compulsorily applicable) apply only contractually, the Carrier’s maximum liability shall in no event whatsoever exceed GBP 100 sterling lawful currency per package or unit. It is understood that the meaning of the word "package" includes pieces, articles, and shipping units of any description except goods shipped in bulk. Whenever the value of the goods is less than the agreed value per package or other freight unit, their value in the calculation and adjustment of claims for which the Carrier may be liable shall for the purpose of avoiding uncertainties and difficulties in fixing value be deemed to be the invoice value, plus freight and insurance if paid, irrespective of whether any other value is greater or less. It is hereby expressly agreed that the immunities from, and limitation of, liability that the Carrier has under this Clause shall apply also for the benefit of contract stevedores.
The Merchant agrees, acknowledges and confirms that the Carrier has no knowledge of the value of the Goods. If the Carrier agrees, by written confirmation, that the value of the Goods may be declared by the Shipper upon delivery of the Goods to the Carrier by declaring to the Carrier on the front of this Sea Waybill and subject to any ad valorem charges being paid, in which case, the amount so declared by the Merchant shall be substituted for the maximum limits of the Carrier’s liability, and in no event shall the Carrier be liable for more than the amount of damage actually sustained by the Goods.
Any partial loss or damage shall be adjusted pro rata on the basis of such declared value for avoidance of doubt and notwithstanding, any such declaration, if inserted on the front of the Sea Waybill, shall not be conclusive on the Carrier whatsoever. Notwithstanding and for avoidance of doubt, any reference to an “L/C” (or “LC” or “letter of credit” or LC reference number) inserted on the front of the Sea Waybill, shall not be deemed as any acceptance, agreement or acknowledgement by the Carrier of the value or nature of the Goods, nor shall the Carrier be liable or responsible whatsoever for such declaration or “L/C” reference. Neither the Carrier nor the Ship shall be responsible in any event for loss or damage to or in connection with the transportation of the Goods if the nature or value thereof has been erroneously or knowingly or fraudulently misstated by the Merchant in the Sea Waybill.
15. NOTICE OF CLAIM AND TIME FOR SUIT:
Unless notice of loss or damage and the general nature of such loss or damage be given in writing to the Carrier or his agent at the port of discharge before or at the time of the removal of the goods into the custody of the person entitled to delivery thereof under the contract of carriage, such removal shall be deemed delivery by the Carrier of the goods as described in the Sea Waybill. If the loss or damage is not apparent at the time of discharge, the notice must be given within three days of delivery. In any event the Carrier and the Ship shall be discharged from all liability and claims whatsoever, in respect of any loss or damage relating to the carriage of the Goods, unless suit is brought within one year after the delivery of the Goods or from the date when the Goods should have been delivered.
16. FREIGHT CALCULATION:
Freight shall be payable on actual gross intake weight or measurement or, at Carrier's option, on actual gross discharged weight or measurement. Freight may be calculated on the basis of the particulars of the Goods furnished by the Merchant herein, but the Carrier may at any time weigh, measure and value the goods, open the packages (if any) and examine. In case Merchant 's particulars are found to be erroneous and to have resulted in payment or calculation of freight at less than the rates prescribed by Carrier's tariff(s), the Merchant and Goods shall be jointly and severally liable and responsible for the payment to the Carrier of twice the deficiency in such freight, as well as for the expense incurred in examining, weighing, measuring and valuing such goods, and attorney's fees, if any, reasonably incurred by Carrier in collecting. Full freight shall be paid on damaged or unsound goods. Full freight hereunder to port of discharge and/or destination named herein shall be considered completely earned on shipment whether the freight be stated or intended to be prepaid or to be collected at the destination; and the Carrier shall be entitled to all freight and charges due hereunder, whether actually paid or not, and to receive and retain them irrevocably under all circumstances whatsoever Ship and/or Cargo lost or not lost or the voyage broken up or abandoned. If there shall be a forced interruption or abandonment of the voyage at the port of shipment or elsewhere any forwarding of the Goods or any part thereof shall be at the risk and expense of the Merchant and goods. All unpaid freight and charges shall be paid in full, and without any off-set, counter-claim or deduction, in United States currency or, at Carrier's option in the currency of the port of loading or of the port of discharge in an amount which shall be equivalent to said United States currency at the sight rate of exchange on New York current on the date when the Ship enters Customs at the port of discharge or, in case of non-arrival, on the date when she should have arrived. The Carrier shall have a lien on the goods, which shall survive delivery, for all freight and charges due hereunder and may enforce this lien by public or private sale and without notice. The Merchants shall be jointly and severally liable to the Carrier for the payment of all freight and charges and for the performance of the obligation of each of them hereunder. Notwithstanding the foregoing provisions, in case this Sea Waybill covers the Goods moving between the ports in Europe and Far East on the liner basis, it is agreed that if the particulars furnished by or on behalf of the Merchant are incorrect, a sum equal to five times the difference between the correct freight and the freight charged with maximum double the correct freight less the freight originally charged shall be payable as liquidated damages to the Carrier.
17. TRANSSHIPMENT, FORWARDING, SUBSTITUTE VESSEL:
Whenever the Carrier may deem it advisable or in any case where the Goods are consigned to a point where the Ship does not expect to discharge, the Carrier may, without notice, forward the whole or any part of the Goods before or after loading at the original port of shipment, or any other ports or places even though outside the scope of the voyage or the route to or beyond the port of discharge or the destination of the goods, by any Vessel or other means of transportation by water or by land or by air or by any such means, whether operated by the Carrier or by 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 goods. The Carrier, in making arrangements for any transhipment or forwarding Vessel or means of transportation not operated by the Carrier shall be considered solely the forwarding agent of the Merchant and without any other responsibility whatsoever. The carriage by any transshipment or forwarding carrier shall be subject to all the terms whatsoever in the regular form of Sea Waybill, freight note, contract or other shipping document used at the time by such carrier, whether issued for the Goods or not, and even though such terms may be less favourable to the Merchant or than the terms of this Sea Waybill and may contain more stringent requirements as to notice of claim or commencement of suit and may exempt the on-carrier from liability for negligence. The Merchant expressly authorizes the Carrier to arrange with any such transshipment or forwarding carrier that the lowest valuation of the Goods or limitation of liability contained in the Sea Waybill or shipping document of such carrier shall apply even though lower than the valuation or limitation herein, provided that the Merchant shall not be compelled to pay a rate higher than that applicable to the valuation contained in such Sea Waybill. Pending or during transshipment the Goods may be stored ashore or afloat at the Merchant’s sole risk, responsibility and expense and the Carrier shall not be liable for detention. Lighterage after discharge from the Ship shall be payable by the Merchant.
18.GENERAL AVERAGE AND SALVAGE:
General Average shall be paid and settled according to York-Antwerp Rules of 1974 which shall be deemed incorporated herein, and which shall be adjusted at any port or place by one or more General Average adjuster(s) in the Carrier ‘s sole choice and discretion. The Merchant shall contribute and/or receive contributions in General Average for all Goods shipped under this Sea Waybill. The Merchant shall in any event always be personally liable in respect of contribution whether or not average bond or other security has been demanded. Such security including a cash deposit as the Carrier may deem sufficient to cover the estimated contribution of the Goods and any salvage and special charges thereon, shall, if required, be submitted to the Carrier prior to delivery of the Goods. The Carrier shall have a lien on the Goods for General Average contributions and, also, for all salvage and special charges incurred by the Carrier in respect of the Goods. The Merchant’s contribution to General Average shall be promptly paid to the Carrier or its agent, upon request, even when such average is the result of any fault, neglect or error of the Carrier, Master, Pilot or Crew. Salvage services rendered by another Ship owned by or in the service of the Carrier, shall be paid for as fully as if such Ship were owned by the Carrier.
19.BOTH-TO-BLAME COLLISION AND NEW JASON CLAUSE:
If the Vessel comes into collision with another Vessel as a result of the error, omission, negligence of the other Vessel and any act, omission, error, neglect or default of the Master, Mariner, Pilot or the servants of the Carrier in the navigation or in the management of the Vessel, the Merchant and owners of the Cargo carried hereunder will fully indemnify and hold harmless the Carrier against all loss or liability to the other or non-carrying Vessel or her owners in so far as such loss or liability represents loss of, or damage to, or any claim whatsoever of the Merchant and owners of said cargo, paid or payable by the other or non-carrying Vessel or her owners to the owners or Merchant of said Cargo and set-off, recouped or recovered by the other or non-carrying Vessel or her owners as part of their claim against the carrying Vessel or the Carrier. The foregoing provisions shall also apply where the Carrier, owners, operators, or those in charge of any Vessel or Vessels or objects other than, or in addition to, the colliding Vessels or objects are at fault in respect of a collision or contact.
In the event of accident, danger, damage or disaster before or after the commencement of the voyage, resulting from any cause whatsoever, whether due to error, omission, negligence or not, for which, or for the consequence of which, the Carrier is not responsible, by statute, contract or otherwise, the cargo, Merchant(s) or the owners of the Cargo 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 cargo. If a salving Vessel is owned or operated by the Carrier, salvage shall be paid for as fully as if the said salving Vessel or Vessels belonged to the Carrier. Such deposit as the Carrier, or his agents, may deem sufficient to cover the estimated contribution of the Goods and any salvage and special charges thereon shall, if required, be made by the cargo, , Merchants or owners of the Goods to the Carrier before delivery.
20.LIEN:
The Carrier shall have a lien on the Goods and any documentation related thereto for all sums payable to the Carrier under this contract, including, but not limited to, freight payable according to agreed credit terms and irrespective of whether the pre-paid and/or collect box on the face of this Sea Waybill is filled out, for all freights, dead freight, primages, charges, detention and expenses in connection with the goods; and also for all fines or damages which the ship, lighter or Cargo may incur or suffer by reason of the incorrect or insufficient marking, numbering or addressing of packages, or description of their contents or in any manner on account of the goods. Bills of Lading shall be made out in accordance with the prescriptions and regulations of port, customs or consular authorities; Consular, Board of Health or other certificates or any documents required to accompany the Goods are to be procured by the Merchant, and any detention, charges, or penalties incurred by Carrier and/or cargo, owing to the want or insufficiency of same, are to be borne by the Merchant and/or consignee, and the Carrier shall have a lien therefor on the goods. The Carrier shall also have a lien for any amounts whatsoever becoming payable to the Carrier under the provisions of this Sea Waybill or otherwise in connection with the custody and/or transportation of the goods, although not then ascertained or payable, and also for any other freights, charges or amounts owing by the Merchant or consignee, and for the expense of exercising any liens under this Sea Waybill. All items mentioned in this clause shall be construed to be included in the words "freights and charges" wherever used in this Sea Waybill. The Carrier may exercise any of its liens arising under this Sea Waybill by selling the Goods subject thereto at public auction or private sale, at any port or place and at any time determined upon by the Carrier, in its uncontrolled discretion, without giving notice thereof (such notice being waived), and the Carrier shall apply the proceeds of the sale first to the costs and expenses of the sale and of the exercise of the lien, and secondly, to the payment of all amounts secured by the lien, and the balance, if any, shall be paid over to the party who would, but for the exercise of such lien, have been entitled to the delivery of the Goods against the surrender and delivery of such documents as the Carrier may require; and the Merchant shall pay any deficiency. Notwithstanding any agreement in charter party or other contract to the contrary, the provisions of this Sea Waybill regarding the Carrier’s lien shall prevail and shall take precedence over any such agreement.
21.MATTERS AFFECTING PERFORMANCE:
Without, in any manner or to any extent, limiting the meaning of the conditions contained in this Sea Waybill, it is expressly agreed that it is issued subject to conditions (A) and (B) in this clause. (A) Carrier shall not be liable or responsible for any acts, consequences, damages or losses caused directly or indirectly by existing or threatened war, declared or undeclared, hostilities, warlike operations, civil war and civil commotions, revolutions or the operations of international law, whether such acts, consequences, damages or losses are caused by neutrals or belligerents. Any storage or other charges resulting from detention or interruption in service shall be collected from Merchants or consignees, in addition to the charges provided for herein.
(B) If any port of discharge named in this Sea Waybill, or to which the Ship may properly be ordered, be blockaded or if, owing to any existing or threatened war, hostilities, warlike operations, civil war, civil commotions, revolutions or the operation of international law; (1) entry into any such port of discharge of Cargo intended for any such port should be considered by the Carrier in its discretion dangerous or impossible or (2) if it should be considered by the Carrier in its discretion dangerous or impossible for the Ship to reach such discharging port, the Cargo or such part of it as may be affected, shall be discharged at any safe port which the Carrier may in its discretion decide on; and such discharge shall be deemed to be the fulfilment of the contract or contracts of carriage, so far as Cargo so discharged is concerned. In the event of Cargo being discharged at any such other port, the Carrier shall be entitled to freight as if the discharge had been affected at the port or ports originally designated or to which the Ship may have been ordered pursuant to the terms of this Sea Waybill. All extra expenses or costs incurred in reaching and discharging the Cargo at any such other port shall be paid by the Merchant or owner of the cargo, and the Carrier shall have a lien on the Cargo for such freight and all such expenses or costs so incurred.
22.FIRE:
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. The Carrier shall not be liable for any loss or damage arising from any fire, explosion, or combustion arising from the vehicle’s or Goods own system, engine, batteries, electrical installation, mechanical or electronic system or fuel, and the Merchant fully indemnifies the Carrier for any such loss or damage arising from the vehicle or Goods carried on board the Vessel.
23.DISCRETION IN ADVERSE CONDITIONS:
The Vessel and/or Carriers and/or agents and/or master, in the event of existing, threatening or impending adverse port congestion, weather, sea or ice conditions, and possible earlier closing, than announced, of the St. Lawrence Seaway, or any other port, have sole discretion to decide whether the Vessel shall or shall not proceed to or enter the port of discharge, or, if the Vessel shall have entered the port of discharge whether, if discharging has commenced, the Vessel shall or shall not continue discharging, or, if discharge has not begun, whether the Vessel shall or shall not commence to discharge, and whether the Vessel shall or shall not in any of these events proceed to the nearest convenient liner port and there discharge or complete discharging. Any and all extra expenses and/or risk of forwarding or otherwise in consequence thereof shall be borne entirely by the Merchant.
24.DANGEROUS GOODS:
Whenever Goods of a dangerous or damaging nature are likely to become a danger or cause damage to the ship, other cargo, persons and/or property, in the sole judgment of the Carrier or the Master, such goods, if shipped with knowledge of their nature and character upon prior notification in accordance with this Sea Waybill, may be landed at any port or place or destroyed or rendered innocuous or be otherwise disposed of at the Carrier's or Master's sole discretion without any responsibility or liability to the Carrier and without prejudice to the Carrier's right to freight or other charges payable hereunder. The Merchant shall separately indemnify the Carrier against any kind of loss, damage, detention, expenses, fines or liability directly or indirectly caused to or incurred by the Carrier as a result of the carriage of such goods.
25.SANCTIONS:
Merchant warrants that throughout the duration of this Carriage that: (1) it is not the subject of any Sanctions or Sanction Lists or owned, in whole or in part, by any entity or person subject of same; (2) it shall comply with all Sanctions; and (3) the booking and carriage of the Cargo is not subject to any Sanctions. The Carrier shall have the right, but not the responsibility or liability, at any time and without notice or any liability whatsoever, to immediately suspend or terminate all or part of the Carriage or to refuse to perform or suspend delivery of the Goods, if the Carrier (or the Vessel’s insurers) becomes aware that the Merchant is or may be, in the Carrier’s (or Vessel’s insurers) judgment, in breach of the above warranties (whether as a result of any action and/or omission) or that the Carriage or the Goods poses in the Carrier’s judgment the potential for the imposition of Sanctions against the Carrier or the Merchant, whichever the Carrier in his absolute discretion considers most appropriate. The Carrier shall also be entitled to exercise any and all rights in Clause 6. The Merchant shall fully indemnify, defend and hold harmless the Carrier against any and all damages, liabilities, penalties, fines, costs, losses, and expenses (including attorney fees) arising out of or related to any breach of the above warranties and/or the Carrier exercising its rights pursuant to this clause.
26. DELAY AND CONSEQUENTIAL DAMAGE:
Notwithstanding anything else to the contrary contained herein, the Carrier shall in no circumstances whatsoever and howsoever arising be liable for any direct, indirect or consequential loss or damage arising from any cause whatsoever or for loss of profit or delay, unless the Carrier has agreed in writing to be responsible for the specific damage that occurred. The Carrier does not undertake that the Goods or any documents relating thereto shall arrive or be available at any particular time or to meet any particular requirement of any license, permission, sale contract, or credit of the Merchant or any particular market and thus is not responsible for damages alleged to have been caused by delay. Despite the foregoing provision, if the Carrier is found or adjudged liable by a competent court or tribunal, for damages attributable to delay, such liability shall in no event exceed the freight paid for the delayed Goods.
27.LAW AND JURISDICTION:
The contract of carriage evidenced by or contained in this Sea Waybill shall be governed exclusively by English law and any action or claim against the Carrier, or any dispute, action or claim (including any non-contractual disputes or claims) arising out of or in connection with this Sea Waybill or its subject matter shall be irrevocably subject to and determined exclusively by London arbitration before an arbitration panel of three arbitrators under the LMAA (London Maritime Arbitrators Association) Rules in force at the time. Disputes below USD 100,000 shall be resolved pursuant to the LMAA Small Claims Procedure. Any and all notices and communications in relation to any arbitration proceedings arising in connection with this Sea Waybill or its subject matter (including any communications giving notice of the commencement of such proceedings and/or appointment of an arbitrator) shall be treated as effectively served if sent by e-mail to the e-mail addresses of the Merchant. Notwithstanding, and at the Carrier’s sole option, the Carrier may commence (and shall not be prevented from commencing) any proceedings against the Merchant at a any other court of competent jurisdiction at any place of business of the Merchant, in any number of jurisdictions, whether concurrently or not, to the extent permitted by law, and the Merchant hereby irrevocably and expressly agrees to waive and relinquish any objection to those courts on the grounds of inconvenient forum or otherwise.