AGS GLOBAL FREIGHT INC.

 

 

STANDARD TRADING CONDITIONS OF CONTRACT

 

 

PART I: General Conditions

1. Application

 

Subject to Clause 1.2, all services of the Company “AGS Global Freight aka Air Ground Sea

Global Freight” dba AGS whether gratuitous or not are undertaken subject to these Conditions

and not otherwise and:

 

(a) The provisions of Part I shall apply to all such services.

(b) The provisions of Part II shall only apply to the extent that such services are provided by

     the Company as agents.

(c) The provisions of Part III shall only apply to the extent that such services are provided by

     the Company as principals.

1.2 Where a document is issued by or on behalf of the Company and bears the title of, or includes

      the words, "bill of lading"  (whether or not negotiable), or sea or air "waybill" and provides that

      the Company contracts as carrier, the provisions set out in that document, if inconsistent with

      these Conditions, shall be paramount and prevail over these Conditions to the extent that

      such provisions are inconsistent but no further.

1.3 Any variation, cancellation or waiver of these Conditions (or any of them) must be in writing signed

      by a Director of the Company. No other person has or will be given any authority whatsoever to

      agree to any variation, cancellation or waiver of these Conditions.

 

2. Provision of Services

    All services are provided by the Company ‘AGS Global Freight Inc. aka Air Ground Sea Global Freight Inc.

    ‘as agents only, except in the following circumstances where the Company acts as principal:

(a) where the Company performs any carriage, handling or storage of Goods, but only to the extent

     that the carriage is performed by the Company itself or its servants and the Goods are in the

     actual custody and control of the Company, or

(b) where, prior to the commencement of the carriage of Goods, the Customer in writing demands from

     the Company particulars of the identity, services or charges of persons instructed by the Company to

     perform part or all of the carriage, and the Company fails to give the particulars demanded within 28

     days. However, for the purposes of this sub-clause, the Company shall only be deemed to be contracting

     as a principal in respect of that part of the carriage which the Company fails to give the particulars

     demanded.; or

(c) to the extent that the Company expressly agrees in writing to act as a principal, or

(d) to the extent that the Company is held by a court of law to have acted as a principal.

2.2 Without prejudice to the generality of clause 2.1,

(a) the charging by the Company of a fixed price for any services whatsoever shall not in itself determine

     or be evidence that the Company is acting as an agent or a principal in respect of those services.

(b) the supplying by the Company of its own or leased equipment shall not in itself determine or be evidence

     that the Company is acting as agent or a principal in respect of any carriage, handling or storage of Goods;

(c) the Company acts as an agent where the Company procures a bill of lading, sea or air waybill or other

     document evidencing a contract of carriage between a person, other than the Company, and the Customer

     or Owner;

(d) the Company acts as an agent and never as a principal when providing

     services as a Customs Broker in respect of or relating to customs requirements, taxes, licenses, consular

    documents, certificates of origin, inspection, certificates and other similar services or when obtaining

     insurances for or on behalf of the Customer or relating to the Goods (other than where by law the Company

     is deemed to be an agent of the insurer) or when providing any other services whatsoever for or on behalf

     of the Customer.

2.3 The Company is not a common carrier and will accept no liability as such and it reserves the right

to accept or refuse the carriage of any Goods or any other Service at its discretion. All Services are

performed subject only to these Conditions (and when applicable but subject to clause 21.6, the conditions

on any Bill of Lading or Air Waybill issued by the Company as Principal).

 

3. Definitions

In these conditions:

(a) "Company" is AIR GROUND SEA Global Freight Inc., aka AGS Global Freight Inc. dba AGS

(b) "Customer" means any person at whose request or on whose behalf the Company provides a service;

(c) "Person" includes persons or any body or bodies corporate;

(d) "Owner" includes the owner, shipper and consignee of the Goods and any

      other person who is or may become interested in the Goods and anyone

      acting on their behalf;

(e) "Authority" means a duly constituted legal or administrative person,

      acting within its legal powers and exercising jurisdiction within any

      nation, state, municipality, port or airport;

(f) "Goods" includes the cargo and any container not supplied by or on

      behalf of the Company, in respect of which the Company provides a

      service;

(g) "Container" includes any container, flexitank, trailer, transportable

      tank, flat, pallet or any article of transport used to carry or

      consolidate goods and any equipment of or connected thereto;

(h) "Dangerous Goods" includes goods which are or may become of a dangerous,

       inflammable, radio-active or damaging nature and goods likely to

       harbour or encourage vermin or other pests;

(i) "Hague-Visby-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 as amended by the Visby Protocol of 23rd

     February 1968 and the SDR Protocol of 21st December 1979;

(j) "Incidental matters" means anything done or to be done in relation to

      the Goods or the provision of any services ancillary to the Goods

      including but not limited to moving, storing or leaving the Goods at any

      warehouse, terminal, yard, wharf or other place or area, loading or

      unloading the Goods from any vehicle, vessel or other conveyance,

      stowing or packing the Goods or fumigating, transhipping, inspecting or

      otherwise handling the Goods or anything done in relation thereto.

(k) "Instructions" means a statement of the Customers specific requirements.

(l) "Services" means the whole of the Services provided by the Company to

     the Customer and all matters necessarily related to the provision of the

     Services or ancillary to the provision of the Services.

(m) "Warsaw Convention" means the Convention for the Unification of Certain

       Rules Relating to International Carriage by Air dated 12 October 1929 as

       amended at the Hague, 1955 and supplemented by the Guadalajara

       Convention dated 18 September 1961 as applied respectively.

 

4. Obligations of Customer

4.1 The Customer warrants that it is either the Owner or the authorised agent of

      the Owner of the Goods and that it is authorised to accept and accepts these

      Conditions, not only for itself, but also as agent for and on behalf of the Owner

4.2 The Customer warrants that it has reasonable knowledge of matters affecting the

      conduct of its business, including, but not limited to, the terms of sale and

      purchase of the Goods and all other matters relating thereto.

4.3 The Customer shall give sufficient and executable instructions.

4.4 The Customer warrants that the description and particulars of the Goods are

     complete and correct.

4.5 The Customer warrants that the Goods are properly packed and labelled, except

     where the Company has accepted instructions in respect of packaging and/or

     labeling, which again should comply to the standard norm.

 

5. Special Instructions, Goods and Services

5.1 Unless agreed in writing, the Customer shall not deliver to the Company, or

     cause the Company to deal with or handle, Dangerous Goods.

5.2 If the Customer is in breach of Clause 5.1:

(a) the Customer shall be liable for all loss or damage whatsoever caused

     by or to or in connection with the Goods howsoever arising;

(b) the Customer shall defend, indemnify and hold harmless the Company

     against all penalties, claims, damages, costs and expenses whatsoever

     arising in connection therewith; and

(c) the Company (or any other person in whose custody the Goods may be in

     at the relevant time) may, at the Company's sole discretion, have the

     Goods destroyed or otherwise dealt with. For the purposes of this

     sub-clause, notice is not required to be given to any person of the

     intention to destroy or otherwise deal with the Goods.

5.3 If the Company agrees to accept Dangerous Goods and then it (or any other

      person) reasonably forms the view that those Goods constitute a risk to other

      goods, property, life or health, it may (without notice and without liability)

      have the Goods destroyed or otherwise dealt with at the expense of the Customer

      or Owner.

5.4 The Customer undertakes not to tender for transportation any Goods which

      require temperature control without previously giving written notice of their

      nature and the particular temperature range to be maintained and, in the case

      of a temperature controlled Container stuffed by or on behalf of the Customer,

      the Customer further undertakes that:-

(a) the Container has been properly pre-cooled or pre-heated as appropriate;

(b) the Goods have been properly stuffed in the Container; and

(c) the Container's thermostatic controls have been properly set by the

     Customer.

5.5 If the requirements of Clause 5.4 are not complied with the Company shall not

      be liable for any loss of or damage to the Goods caused by such non-compliance.

5.6 Unless agreed in writing, the Company shall not be obliged to make any

     declaration for the purposes of any statute, convention or contract as to the

     nature or value of any Goods or as to any special interest in delivery or to

     make any declaration as to specific stowage requirements of any Goods.

5.7 Unless agreed in writing or otherwise provided for under the provisions of a

     document signed by the Company, instructions relating to the delivery or

     release of Goods against payment or against surrender of a particular document

     shall be in writing and the Company's liability shall not exceed that provided

     for as per standard clause in respect of miss delivery of Goods.

5.8 Although when agreed in writing that the Goods shall depart by or arrive by a

      particular date, the Company accepts no responsibility for departure or arrival

      dates of Goods as these dates are approximates and can change with or without notice.

 

6. Insurance

6.1 No insurance shall be effected except upon express instructions given in

     writing by the Customer and in effecting any such insurances, the Company shall

     be deemed to be an agent only of the Customer (other than where by law the

     Company is deemed to be an agent of the insurer) and not as an insurer,

     insurance broker or other form of intermediary.

6.2 All insurances effected by the Company are effect as agent only for the

     Customer (other than where by law the Company is deemed to be an agent of the

     insurer) and all such insurances are subject to the usual exceptions and

     conditions of the policies of the insurance company or underwriters taking the

     risk.

6.3 Unless agreed in writing, the Company shall not be under any obligation to

      effect a separate insurance on each consignment but may declare it on any open

      or general policy.

6.4 The Company is an agent only of the Customer in respect of the effecting of

      insurance (other than where by law the Company is deemed to be an agent of the

      insurer) and in any event should the insurers dispute their liability for any

      reason the insured shall have recourse against the insurers only and the

      Company shall not be under any responsibility or liability whatsoever in

      relation thereto, notwithstanding that the premium upon the policy may not be

      at the same rate as that charged by the Company or paid to the Company by the

      customer.

 

7. General Indemnities and Liabilities of the Customer and Owner

7.1 The Customer and Owner shall defend, indemnify and hold harmless the Company

      against all liability, loss, damage, costs and expenses howsoever arising:

(a) from the nature of the Goods, other than to the extent caused by the

     Company's negligence,

(b) out of the Company acting in accordance with the Customer's or Owner's

      instructions, or

(c) from a breach of warranty or obligation by the Customer or arising from

     the negligence of the Customer or Owner.

7.2 Except to the extent caused by the Company's negligence, the Customer and

Owner shall be liable for and shall defend, indemnify and hold harmless the

Company in respect of all duties, taxes, imposts, levies, deposits and outlays

whatsoever levied by any Authority and for all payments, fines, costs,

expenses, loss and damage whatsoever incurred or sustained by the Company in

connection therewith.

7.3 Advice and information, in whatever form it may be given, is provided by the

Company for the Customer only and the Customer shall defend, indemnify and

hold harmless the Company for all liability, loss, damage, costs and expenses

arising out of any other person relying on such advice or information.

7.4 The Customer shall be liable for the loss, damage, contamination, soiling,

detention or demurrage before, during and after the Carriage of property of:

(a) the Company (including, but not limited to, Containers);

(b) the Company's servants, sub-contractors or agents;

(c) independent contractors engaged by the Company for performance of

part or all of the Services;

(d) any person; or

(e) any vessel

caused by the Customer or Owner or any person acting on behalf of either of

them or for which the Customer is otherwise responsible.

7.5 Instructions to collect payment on delivery in cash or otherwise are accepted

by the Company upon and on the condition that the Company in the matter of such

collection will be liable for the exercise of reasonable diligence and care only.

Unless express written instructions are received that the Goods are not to be

delivered without payment, the Company accepts no liability if, upon delivery of

the goods, payment is not made.

 

8. Subcontractors

8.1 The Customer undertakes that no claim will be made against any servant,

sub-contractor or agent of the Company which imposes or attempts to impose upon

any of them any liability whatsoever in connection with the Goods. If any such

claim should nevertheless be made, the Customer undertakes to indemnify the

Company against all consequences thereof.

8.2 Without prejudice to Clause 8.1, every servant, sub-contractor or agent of the

Company shall have the benefit of all provisions herein as if such provisions

were expressly for their benefit. In entering into this contract, the Company,

to the extent of those provisions, does so not only on its behalf, but as agent

and trustee for such servants, sub-contractors and agents.

8.3 The Customer shall defend, indemnify and hold harmless the Company from and

against all claims, costs and demands whatsoever and by whomsoever made or

preferred, in excess of the liability of the Company under these Conditions.

8.4 Without prejudice to the generality of this Clause 8, the indemnity referred to

in Clause 8.3, shall cover all claims, costs and demands arising from or in

connection with the negligence of the Company, its servants, sub-contractors and

agents.

8.5 In this Clause, "sub-contractors" includes direct and indirect sub-contractors

and their respective employees, servants and agents.

 

9. Charges etc.

9.1 The Customer shall pay to the Company in cash, or as agreed, all sums

immediately when due without deduction or deferment on account of any claim,

counterclaim or set-off.

9.2 When the Company is instructed to collect freight, duties, charges or other

expenses from any person other than the Customer, the Customer:

(a) shall remain responsible for these amounts; and

(b) shall pay these amounts to the Company on demand where these amounts

have become due and have not been paid by such other person.

9.3 On all accounts overdue to the Company, the Company shall be entitled to

liquidated damages, such liquidated damages to be calculated at 4 per cent above

the base interest rate of the Company's bank applicable during the periods that

such amounts are overdue.

9.4 The Customer shall be liable for and pay to the Company any additional costs or

expenses the Company may incur and for any loss or damage occasioned either

directly or indirectly to the Company as a result of the Company relying upon

the description and particulars provided by the Customer or by reason of any

illegal, incorrect or insufficient marking, numbering or addressing of the

Goods.

 

10. Liberties and Rights of the Company

10.1 Unless otherwise agreed in writing, the Company shall be entitled to enter

into contracts on behalf of itself or the Customer and without notice to the Customer:

(a) for the carriage of Goods by any route, means or person,

(b) for the carriage of Goods of any description, whether containerised or

not, on or under the deck of any vessel,

(c) for the storage, packing, transhipment, loading, unloading or handling

of Goods by any person at any place whether on shore or afloat and for

any length of time,

(d) for the carriage or storage of Goods in containers or with other goods

of whatever nature,

(e) for the performance of its own obligations, and to do such acts as

the Company reasonably considers may be necessary or incidental to the

performance of the Company's obligations.

10.2 The Company shall be entitled (without incurring any additional liability), but

shall be under no obligation, to depart from the Customer's instructions in any

respect if the Company considers there is good reason to do so in the Customer's

interest.

10.3 The Company may at any time comply with the orders or recommendations given by

any Authority. The responsibility and liability of the Company in respect of the

Goods shall cease on the delivery or other disposition of the Goods in accordance

with such orders or recommendations.

10.4 The Company shall be entitled (but under no obligation) at any time and from time

to time to inspect the Goods and for this purpose to open or remove any Containers.

10.5 If at any time the Company reasonably considers that the carriage of the Goods

should not be undertaken or continued or only continued after effecting any necessary

incidental matters or incurring additional expense or risk, the Company shall be

entitled to:

(a) abandon the carriage of such cargo or to effect such additional incidental

matters and incur such additional expense, as may be reasonably necessary in

order to enable the carriage to be effected or further effected; and

(b) be reimbursed by the Customer for the cost of all such additional incidental

matters and all such additional expense incurred.

10.6 If the Company (or any person whose services the Company makes use of) considers:

(a) the performance of the Company's obligations are likely to be effected by

any hindrance, risk, delay, difficulty or disadvantage whatsoever; and

(b) the hindrance, risk, delay, difficulty or disadvantage cannot be avoided by

reasonable endeavours of the Company or such other person,

the Company may (upon giving notice in writing to the Customer or Owner) treat the

performance of its obligations as terminated and may, at the Customer's expense,

place the Goods or any part of them at the Customer's or Owner's disposal at any

place which the Company deems safe and convenient.

10.7 The notice in writing referred to in Clause 10.6 is not required where it is not

reasonably possible to give such notice.

10.8 Where the Company exercises its rights and obligations under Clause 10.6,

responsibility and liability of the Company in respect of the Goods shall thereupon

cease absolutely.

10.9 Where the Company (or any person whose services the Company makes use of) is

entitled to call upon the Customer or Owner to take delivery of the Goods at a

designated time and place and delivery of the Goods, or any part thereof, is not

taken by the Customer or Owner at the designated time and place the Company (or

such other person) shall be entitled to store the Goods in the open or under cover

at the sole risk and expense of the Customer.

10.10 Notwithstanding Clauses 10.6 to 10.9, the Company shall be entitled (but under no

obligation) without any responsibility or liability to the Customer and Owner, to

sell or dispose of

(a) all Goods which the Company considers cannot be delivered as instructed,

but only upon giving 21 days notice in writing to the Customer, and

(b) without notice, Goods which have perished, deteriorated or altered, or

are in immediate prospect of doing so in a manner which has caused (or may

be reasonably expected to cause) loss or damage to any person or property

or to contravene applicable regulations.

10.11 Where the Company sells or disposes of Goods pursuant to Clause 10.10 the

Customer shall be responsible for any costs and expenses of the sale or disposal.

10.12 The Company shall be entitled to retain and be paid all brokerages, commissions,

allowances and other remunerations customarily retained by or paid to freight

forwarders without notice to the Customer.

10.13. The Company shall have the right to enforce against the Owner and the Customer

jointly and severally any liability of the Customer under these Conditions or to

recover from them any sums to be paid by the Customer which upon demand have not

been paid.

11. Lien

11.1 The Company shall have a particular and general lien on all Goods or documents

relating to Goods in its possession the property of the Customer or Owner for all

sums due at any time from the Customer or Owner (whether those sums are due from

the Customer on those Goods or documents or on any other Goods or documents).

11.2 Where any sum due to the Company from the Customer or Owner remains unpaid,

the Company, on giving 28 days notice in writing to the Customer, shall be entitled

(without liability to the Customer and Owner) to sell or dispose of such Goods or

documents by public auction or by private treaty at the risk and expense of the

Customer and Owner and to apply the proceeds of any such sale or disposal in or

towards the payment of the sums due.

 

12. Containers

12.1 If a Container has not been packed or stuffed by the Company, the Company

shall not be liable for loss of or damage to the contents if caused by:

(a) the manner in which the Container has been packed or stuffed,

(b) the unsuitability of the contents for carriage in Containers, unless the

Company has approved the suitability,

(c) the unsuitability or defective condition of the Container, provided that

where the Container has been supplied by or on behalf of the Company this

paragraph (c) shall only apply if the unsuitability or defective condition

arose:

(i) without any negligence on the part of the Company; or

(ii) would have been apparent upon reasonable inspection by the .

Customer or Owner or person acting on behalf of either of them.

(d) the fact that the Container is not sealed at the commencement of the

Carriage, except where the Company has agreed to seal the Container.

12.2 The Customer shall defend, indemnify and hold harmless the Company against all

liability, loss, damage, costs and expenses arising from one or more of the matters

referred to in Clause 12.1, except for Clause 12.1(c)(i).

12.3 Where the Company is instructed to provide a Container, in the absence of a

written request to the contrary, the Company is not under an obligation to provide

a Container of any particular type or quality.

 

13. General Liability

13.1 Except where otherwise provided in these Conditions, the Company shall not be

liable for any loss or damage whatsoever arising from:

(a) the act or omission of the Customer or Owner or any person acting on their behalf,

(b) compliance with the instructions given to the Company by the Customer,

Owner or any other person entitled to give them,

(c) insufficiency of the packing or labelling of the Goods, except where such

service has been provided by the Company,

(d) handling, loading, stowage or unloading of the Goods by the Customer or

Owner or any person acting on their behalf,

(e) inherent vice of the Goods,

(f) riots, civil commotions, strikes, lockouts, stoppage or restraint of labour

from whatsoever cause,

(g) fire, flood, storm, explosion or theft or

(h) any cause which the Company could not avoid and the consequences

whereof it could not prevent by the exercise of reasonable diligence.

13.2 Subject to Clause 5.8, the Company shall not be liable for loss or damage

howsoever caused (whether or not indirect or consequential) to property other than

the Goods themselves and shall not be liable for any pure economic loss or loss of

profit, delay or deviation howsoever arising.

 

14. Amount of Compensation

14.1 Except in so far as otherwise provided by these Conditions, the liability of the

Company, howsoever arising, shall not exceed the following:

(a) in respect of all claims other than those subject to the provisions of Clause

14.4 whichever is the lesser of:

(i) the value of, or

(ii) the equivalent of US$2.00 per gross kilogram in the currency of .

the loss or damage, (the exchange rate to apply being the rate as at

the date of the delivery of the Goods) of,

the Goods lost, damaged, misdirected, misdelivered or in respect of which a

claim arises.

(b) in respect of claims for delay where not excluded by the provisions of these

Conditions, the amount of the Company's charges in respect of the Goods

delayed.

14.2 The limitation of liability referred to in Clause 14.1 shall apply

notwithstanding that the cause of the loss or damage is unexplained.

14.3 If agreed in writing prior to receipt of the Goods, the Company may accept

liability in excess of the limits set out in these Conditions upon the Customer

agreeing to pay the Company's additional charges for accepting such increased

liability. Details of the Company's additional charges will be provided upon request.

14.4 Compensation shall be calculated by reference to the invoice value of the Goods plus

freight and insurance if paid.

14.5 If there be no invoice value for the Goods, the compensation shall be calculated by

reference to the value of such Goods at the place and time when they were delivered

to the Customer or Owner or should have been so delivered. The value of the Goods

shall be fixed according to the current market price, or, if there be no commodity

exchange price or current market price, by reference to the normal value of goods of

the same kind and quality.

14.6 Unless agreed in writing prior to receipt, the Company will not accept or deal with

bullion, coin, precious stone, jewellery, antiques, works of art or other valuable Goods.

Should any Customer nevertheless delivery any such Goods to the Company or cause

the Company to handle or deal with any such Goods other than in accordance with

prior written agreement, the Company shall be under no liability whatsoever for or

in connection with such Goods howsoever arising.

 

15. Notice of Loss, Time bar

15.1 The Company shall be discharged of all liability unless:

(a) notice of any claim is received by the Company or its agent in writing within

14 days after the date specified in Clause 15.2, or within a reasonable time

after that date if the Customer proves that it was impossible to so notify,

and

(b) suit is brought in the proper forum and written notice thereof received by the

Company within 9 months after the date specified in Clause 15.2.

15.2 For the purposes of Clause 15.1, the applicable dates are:

(a) in the case of loss or damage to Goods, the date of delivery of the Goods,

(b) in the case of delay or non-delivery of the Goods, the date that the Goods

should have been delivered,

(c) in any other case, the event giving rise to the claim.

 

16. General Average

16.1 The Customer shall defend, indemnify and hold harmless the Company in respect

of any claims of a General Average nature, including any claims or demands for

General Average security which may be made on the Company, and the Customer shall

forthwith provide such security as may be required by the Company in this connection.

 

17. Miscellaneous

17.1 Notice

Any notice served by post shall be deemed to have been given on the third day

following the day on which it was posted to the address last known to the Company

to be the address of the recipient of the notice.

17.2 Defences and Limits of Liability

The defences and limits of liability provided in these Conditions shall apply in any

action against the Company whether founded in contract or in tort or howsoever

otherwise founded.

17.3 Legislation

If any legislation is compulsorily applicable to any business undertaken, these

Conditions shall, as regards such business, be read as subject to such legislation

and nothing in these Conditions shall be construed as a surrender by the Company of

any of its rights or immunities or as an increase of any of its responsibilities or

liabilities under such legislation and if any part of these Conditions is held to be

repugnant to such legislation to any extent such part shall as regards such business

be over-ridden to that extent and no further.

17.4 Headings

Headings of clauses or groups of clauses in these Conditions are for indicative

purposes only.

 

18. Governing Law and Jurisdiction

18.1 These Conditions and any claim or dispute arising out of or in connection with .

the services of the Company shall be subject to the law of the State or Territory of

Australia in which the Company has its principal place of business and any such claim

or dispute shall be determined by the Courts of that State or Territory and no other

Court.

18.2 Notwithstanding anything herein contained, the Company shall continue to be

subject to any implied warranty provided by the Trade Practices Act 1974 (as amended)

and to the extent that the said Act is applicable to the contract evidenced by these

Conditions and prevents the exclusion, restriction or modification of such warranty.

18.3 Notwithstanding Clause 18.1, where any claim or dispute arising out of or in

connection with the services of the Company arises in Ontario, such claim or

dispute shall be determined at the Company's option in accordance with Ontario

law and by Ontario Courts of competent jurisdiction.

18.5 When Canadian law has application to these Conditions, all Services provided

by the Company as a carrier (within the meaning of the Carriage of Goods Act  of Canada are

provided at limited carrier's risk in accordance with these Conditions and (other than when

Clause 14.5 applies) the provisions of that Act shall prevail over any inconsistency in these

Conditions to the extent of such inconsistency but no further.

 

PART II: Company As Agent

 

19. Special Liability and Indemnity Conditions

19.1 To the extent that the Company acts as an agent, the Company does not make or

purport to make any contract with the Customer for the carriage, storage or handling

of the Goods nor for any other physical service in relation to them and acts solely

on behalf of the Customer in securing such services by establishing contracts with

third parties so that direct contractual relationships are established between the

Customer and such third parties.

19.2 The Company shall not be liable for the acts and omissions of third parties

referred to in Clause 19.1.

19.3 The Company, when acting as an agent, has the authority of the Customer to

enter into contracts on the Customer's behalf and to do acts which bind the Customer

in all respects notwithstanding any departure from the Customer's instructions.

19.4 Except to the extent caused by the Company's negligence, the Customer shall

defend, indemnify and hold harmless the Company in respect of all liability, loss,

damage, costs or expenses arising out of any contracts made in the procurement of

the Customer's requirements in accordance with Clause 19.1.

 

20. Choice of Rates

20.1 Where there is a choice of rates according to the extent or degree of liability

assumed by persons carrying, storing, or handling the Goods, no declaration of

value (where available) will be made by the Company unless previously agreed in

writing between the Customer and the Company

 

PART III: Company as Principal

21 Special Liability Conditions

21.1 Where the Company contracts as principal for the performance of the Customer's

instructions, the Company undertakes to perform, or in its own name to procure,

the performance of the Customer's instructions and, subject to the provisions of

these Conditions, shall be liable for the loss of or damage to the Goods occurring

from the time that the Goods are taken into its charge until the time of delivery.

21.2 Where:

(a) the Company contracts as a principal and sub-contracts the performance

of the Company's services; and

(b) it can be proved that the loss of or damage to or in respect of the

Goods arose or was caused whilst the Goods were in the care or custody

of the sub-contractor;

 

the Company shall have the full benefit of all rights, limitations and exclusions

of liability available to the sub-contractor in the contract between the Company

and the sub-contractor and in any law, statute or regulation and the liability of

the Company shall not exceed the amount recovered, if any, by the Company from

the sub-contractor.

21.3 Notwithstanding other provisions in these Conditions, if it can be proved where

the loss of or damage to the Goods occurred, the Company's liability shall be

determined by the provisions contained in any international convention or national

law, the provisions of which:

(a) cannot be departed from by private contract, to the detriment of the

claimant, and

(b) would have applied if the claimant had made a separate and direct

contract with the actual provider of the particular service in respect

of that service or stage of carriage where 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.

21.4 Notwithstanding other provisions in these Conditions, if it can be proved that

the loss of or damage to the Goods occurred at sea or on inland waterways and the

provisions of Clause 21.2 do not apply, the Company's liability shall be determined

by the Hague-Visby Rules. Reference in the Hague-Visby Rules to carriage by sea

shall be deemed to include reference to carriage by inland waterways and the

Hague-Visby Rules shall be construed accordingly.

21.5 Notwithstanding the provisions of Clauses 21.2, 21.3 and 21.4, if the loss of or

damage to the Goods occurred at sea or on inland waterways, and the Owner,

Charterer or operator of the carrying vessel is entitled to limit its liability at

law and establishes a limited fund, the liability of the Company shall be limited

to the proportion of such limitation fund as is allocated to the Goods.

21.6 In the event of any inconsistency between these Conditions and the conditions

of any Bill of Lading or Air Waybill issued by or on behalf of the Company as

Principal, the conditions of any such Bill of Lading or Air Waybill shall prevail

to the extent of such inconsistency but no further.

 

22 Both-to-Blame Collision Clause

22.1. The Both-to-Blame Collision Clause as recommended by BIMCO as at the same of the

provision of Services is incorporated into and forms part of these Conditions.

 

23. USA and/or Canada and Additional Responsibility Clause

23.1 With respect to transportation within the USA or Canada, the responsibility of

the Company shall be to procure transportation by carriers (one or more) and such

transportation shall be subject to such carrier's contracts and tariffs and any law

compulsorily applicable. The Company guarantees the fulfillment of such carrier's

obligations under their contracts and tariffs.

23.2 If and to the extent that the provisions of the Harter Act of the USA 1893 would

otherwise be compulsorily applicable to regulate the Company's responsibility for

the Goods during any period prior to loading on or after discharge from the vessel

on which the Goods are to be or have been carried, the Company's responsibility shall

instead be determined by these Conditions. If such provisions are found to be

invalid such responsibility shall be determined by the provisions in the Carriage of

Goods by Sea Act of the USA Approved 1936.

23.3 If and to the extent that the provisions of the Regulations made pursuant to the

Carriage of Goods by Sea Act 1991 (as amended) of the Commonwealth of Australia

(or any amendments to such Regulations) would otherwise be compulsorily applicable

to regulate the Company's responsibility for the Goods during any period prior to

loading on or after discharge from the vessel on which the Goods are to be or have

been carried, the Company's responsibility shall be determined by these Conditions.

If such provisions are found to be invalid such responsibility shall be determined

by the provisions of the said Carriage of Goods by Sea Act.

23.4 If the Hamburg Rules should be held to be compulsorily applicable to any carriage

of goods by sea undertaken by the Company as principal, these Conditions shall be

read subject to the provisions of the Hamburg Rules and any term of these Conditions

that is repugnant to the Hamburg Rules shall be void to the extent of such repugnancy

but no further.

 

24. Air Carriage

24.1 Where the Company acts as a principal in respect of a carriage of Goods by air,

the following notice is hereby given:

If the carriage involves an ultimate destination or stop in a country other than

the country of departure, the Warsaw Convention may be applicable and the

Convention governs and in most cases limits the liability of carriers in respect of

loss of or damage to Goods. Agreed stopping places are those places (other than

the places of departure and destination) shown under requested routing and/or

those places shown in carrier's timetables as scheduled stopping places for the

route. The address of the first carrier is the airport of departure.

24.2 Notwithstanding any other provision of these Conditions, where the Company

acts as a principal in respect of a carriage of Goods by air, the Company's

liability in respect of loss of or damage to such Goods shall be determined in

accordance with the Warsaw Convention.