Samskip Logistics Bill of Lading / Seawaybill conditions
"Bill of Lading" means the Bill of Lading issued for the Carriage.
"Carriage" means the whole or any part of the operations and services undertaken by Samskip in respect of the Goods covered by these Conditions.
"Samskip" means the corporate entity within the Samskip group of companies mentioned in the quotation, transport order, booking confirmation and/or Bill of Lading, which company will act as carrier or freight forwarding agent within the meaning of Clause 5 hereof.
"Charges" includes freight and all charges, dues, costs, expenses and money obligations incurred and payable by the Merchant.
"Combined Transport" arises when a Place of Receipt and/or Place of Delivery is/are completed on the face of the Bill of Lading or, if no Bill of Lading is issued, is/are indicated by the Merchant in its instructions to Samskip.
"Conditions" means these terms and conditions for transport.
"Container" includes but is not limited to any container, open top, platform, single unit vehicle, articulated-unit vehicle, trailer, semi-trailer, secu-box, cassette, huckepack trailer, van, swap body, train wagon, transportable tank, flat or pa I let or any other unit or similar article to consolidate Goods and any equipment thereof or connected thereto.
"DCC" means Dutch Civil Code.
"Goods" means the whole or any part of the cargo accepted from the Merchant and includes any Containers not supplied by or on behalf of Samskip.
"Hague Rules" means the provisions of the International Convention for the Unification of Certain Rules relating to Bills of Lading signed at Brussels on 25th August, 1924 as amended by the Protocol
signed at Brussels on 23rd February, 1968 and by the SDR Protocol (1979).
"Holder" means any Person for the time being in possession of the Bill of Lading to whom the property in the Goods has passed on or by reason of the consignment of the Goods or the transfer or the endorsement of the Bill of Lading or otherwise.
"Machinery" means any refrigerating, heating, electrically ventilating or any other machinery, plants or apparatus attached to or fit in any Container.
"Means of Transport" means the Vessel and/or any other means of transport (which may include without limitation: vehicle, train or barge) used for the Carriage.
"Merchant" includes, jointly and severally, the shipper, the receiver, the consignee, the Holder, any Person owning or entitled to the possession of the Goods or of the Bill of Lading and anyone acting, whether as servant or agent or otherwise, for any of the.
"Person" includes an individual, group, company or other entity.
"Place of Delivery" means the final destination of the Goods as set out in the Bill of Ladingor, if no Bill of Lading is issued, as indicated by the Merchant in its instructions to Samskip.
"Place of Receipt" means any place as set out in the Bill of Lading where the Goods are taken over for Carriage by Samskip.
"Port of Discharge" means any port (mentioned in the Bill of Lading or, if no Bill of Lading is issued, as indicated by the Merchant in its instructions to Samskip) at which Goods are unloaded from the Vessel.
"Port of Loading" means any port (mentioned in the Bill of Lading or, if no Bill of Lading is issued, as indicated by the Merchant in its instructions to Samskip.) at which the Goods are loaded on the Vessel.
"Port-to-Port Shipment” arises when the Carriage is not Combined Transport.
"SDR" means Special Drawing Rights as defined by the International Monetary Fund and applied by the SDR Protocol (1979). "SDR Protocol (1979)" means the Protocol signed at Brussels on 21st December 1979 to amend the Hague Rules.
"Servants" shall include any of Samskip's and/or the Vessel's respective, registered owners, agents, sub-agents, servants, crew, employees, charterers, sub-charterers, road and rail transport operators, and independent contractors and sub-contractors of any tier whether or not employed directly or indirectly by or on behalf of Samskip in performance of the Carriage.
"Tariff" means Samskip's applicable tariff for the Carriage.
"US COGSA" means the Carriage of Goods by Sea Act of the United States of America approved on 16th April 1936.
"Vessel" means the vessel named in the Bill of Lading and any substituted vessel which may be, without limitation, any kind of vessel.
The terms of the Tariff are incorporated herein. Copies of the relevant provisions of the Tariff are obtainable from Samskip or its agents upon request. In the case of inconsistency between the Conditions and the Tariff the Conditions shall prevail except with respect to the calculation of freight and other charges, in which case the Tariff shall prevail.
3. Merchant's warranty
(a) The Merchant warrants that in agreeing to the Conditions he is, or has the authority of, the Person owning or entitled to the possession of the Goods and the Bill of Lading.
(b) The Merchant warrants to Samskip that the particulars relating to the Goods as set out overleaf have been checked by the shipper on receipt of the Bill of Lading and that such particulars and any other particulars furnished by or on behalf of the shipper are correct and complete in all material respects and no representation of any nature as to such particulars, in favor of any person, is made, either directly, or by implication by Samskip.
(c) The Merchant warrants that the Goods are in a condition and packed in a manner adequate to withstand the ordinary risks of the Carriage contemplated for in the Bill of Lading having regard to their nature and in compliance with all laws, regulations and requirements which may be applicable.
Samskip shall be entitled to sub-contract on any terms the whole or any part of the Carriage, loading, unloading, storing, warehousing, handling and, without limitation, any and all other duties whatsoever undertaken by Samskip in relation to the Goods.
5. Samskip acting as Carrier or as Agent
5.1 Samskip as Carrier
To the extent that Samskip acts as carrier for the performance of the Carriage, Samskip undertakes to perform or to procure the Carriage in its own name.
5.2 Samskip as Agent
(a) To the extent that Samskip acts as an agent within the meaning of Article 8:60 DCC, Samskip does not make or purport to make any contract with the Merchant 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 Merchant in securing such services by establishing contracts with third parties so that direct
contractual relationships are established between the Merchant and such third parties (making such contracts for such services on the terms and subject to the limitation of liability in use by such third parties).
(b) Samskip shall not be liable for any acts or omissions of such third parties as referred to in sub- Clause 5.2(a) above.
(c) When acting as an agent Samskip has the authority of the Merchant to enter into contracts on Merchant's behalf and to do such acts so as to bind the Merchant by such contracts and acts in all respects notwithstanding any departure from the Merchant's instructions.
(d) Except to the extent caused by Samskip's negligence, the Merchant shall defend, indemnify and hold harmless Samskip in respect of any liabilities, loss, damage, costs, expenses, fines or penalties (incl. VAT debts) arising out of any contracts made in the procurement of the Merchant's
requirements in accordance with this Clause 5.2.
(e) All activities of Samskip acting as the Merchant's forwarding agent are performed subject to the Dutch Forwarding Conditions of the Fenex (Netherlands Association for Forwarding and Logistics), latest edition, but excluding the arbitration Clause contained therein (Art. 23).
6. Samskip's Responsibilities: Port-to-Port Shipment
If Samskip acts as carrier and the Carriage is a Port-to-Port Shipment, the liability (if any) of Samskip for loss of or damage to the Goods occurring between the time when the Goods are loaded on to the Vessel and the time the Goods are discharged from that Vessel or from another Vessel into which the Goods have been transshipped shall be determined in accordance with any national law making the
Hague Rules compulsorily applicable to the Bill of Lading, or in any other case in accordance with the Hague Rules. Notwithstanding the above, Samskip shall be under no liability whatsoever for loss of or damage to the Goods, howsoever occurring, when such loss or damage arises prior to loading on or subsequent to discharge from the Vessel. If Samskip agreed to arrange terminal handling activities for the Merchant, Clause 7 hereof shall apply to these activities.
7. Combined Transport
7.1 Samskip's Responsibilities: Combined Transport
If Samskip acts as carrier and the Carriage is Combined Transport, Samskip undertakes the performance and/or in its own name to procure performance of the Carriage from the Place of Receipt or the Port of Loading, whichever is applicable, to the Port of Discharge or the Place of
Delivery, whichever is applicable, and, save as otherwise provided in the Bill of Lading or these Conditions, the Carrier shall be liable for loss of or damage to the Goods occurring during the Carriage to the extent set out below and elsewhere in these conditions. Articles 8:40 and 8:41 DCC shall not apply to Combined Transport.
Samskip shall be relieved of liability for any loss or damage if such loss or damage was caused by:
(i) an act or omission, wrongful act or neglect, of the Merchant;
(ii) the lack of, or defective conditions of packing in the case of Goods which, by their nature, are liable to wastage or to be damaged when not packed or when not properly packed;
(iii) insufficiency of or defective or inadequacy condition of packing or marking or numbers on the Goods, covering or unit loads,
(iv) handling, loading, stowage or unloading of the Goods by or on behalf of the Merchant;
(v) inherent vice of the Goods;
(vi) strike, lock-out, stoppage or restraint of labor;
(vii) a nuclear incident;
(viii) any cause or event, which Samskip could not avoid and the consequences whereof he could not prevent by the exercise of reasonable diligence.
(b) Burden of Proof
The burden of proof that the loss or damage was due to one or more of the causes or events specified in Clause 7(l)(a) shall rest upon Samskip, save that when Samskip establishes that, in the circumstances of the case, the loss or damage could be attributed to one or more of the causes or events specified in Clause7(l)(a) under (ii), (iii) or (iv), it shall be presumed that it was so caused. The Merchant shall, however, be entitled to prove that the loss or damage was not, in fact, caused either wholly or partly by one or more of these causes or events.
7.2 Combined Transport: Period of Liability
(a) If the Place of Receipt is not named on the face of the Bill of Lading Samskip shall be under no liability whatsoever for loss of or damage to the Goods, howsoever occurring, if such loss or damage arises prior to loading into the Means of Transport. If the Place of Delivery is not named on the face of the Bill of Lading, Samskip shall be under no liability whatsoever for loss of or damage to the Goods, howsoever occurring, when such loss or damage arises subsequent to discharge from the Means of Transport. If Samskip agreed to arrange terminal handling activities for the Merchant, this Clause 7 hereof shall also apply to these activities.
(b) If the Carriage is Combined Transport, the period of liability of Samskip commences at the time when Samskip takes over effective control of a II of the Goods in order to have the Goods loaded into the Means of Transport in order to perform the Carriage.
(c) If the Carriage is Combined Transport, the period of liability of Samskip ends at the time of delivery to the consignee or receiver whose name is mentioned on the Bill of Lading or, if no Bill of Lading is issued, the consignee or receiver indicated by the Merchant in its instructions.
(d) The period of liability of Samskip also ends by the refusal by the consignee or receiver at the Delivery Point to take delivery of the Goods.
(e) Clause 11 hereof shall apply to all Carriages, including Combined Transport.
8. The Amount of Compensation
(a) Subject to Clauses 6,7 and 29 and paragraphs (b), (c) and (d) of this Clause 8, when Samskip is liable for compensation in respect of loss of or damage to Goods, such compensation shall be calculated by reference to the invoice value of the Goods, any partial loss or damage to be calculated on a pro rata basis.
(b) If there is no invoice value of the Goods, such compensation shall be calculated by reference to the value of such Goods at the place and time they are delivered to the Merchant in accordance with the contract or should have been so delivered. The value of the Goods shall be fixed according to the commodity exchange price or, if there be no such price, 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.
(c) Unless otherwise expressly agreed herein compensation shall not exceed SDR 2 per kilogram of gross weight of the Goods lost or damaged, unless the value of such Goods has been declared by the Merchant before shipment and inserted on the face of the Bill of Lading in the space captioned "Description of Goods" and extra freight is paid on such declared value if required.
(d) In case value has been declared in accordance with this Clause, any partial loss or damage shall be adjusted pro rata on the basis of such declared value.
(e) Save as otherwise provided herein, Samskip shall in no circumstances whatsoever or howsoever be liable for any direct or indirect or consequential loss, damage or costs or for loss of profits.
Samskip shall never be liable for damage or loss which does not qualify as damage to or loss of Goods. In any case the liability of Samskip for any loss or damage or claim whatsoever shall be limited to EUR 50,000.- as a maximum, unless otherwise provided herein.
(f) Samskip does not undertake to deliver the Goods at the Port of Discharge or Place of Delivery at any particular time or to meet any particular market or use. All departure, arrival and voyage times given by or on behalf of Samskip are estimates only and cannot be guaranteed. Samskip without prior notice may change sailing schedules and timetables. Samskip shall in no circumstances whatsoever be liable for any direct, indirect or consequential loss or damage caused by delay. In the event Samskip nevertheless is liable for delay, its liability shall be limited to a maximum of five (5) per cent of the freight paid or payable for the Carriage of the Goods delayed.
9. Notice of Loss, Time Bar
(a) Unless notice of loss or damage and the general nature of such loss or damage be given in writing to Samskip or its agents at the Port of Discharge or the Place of Delivery as the case may be before or at the time of removal of the Goods into the custody of the Merchant such removal shall be prima facie evidence of the delivery by Samskip of the Goods as described in the Bill of Lading. If the loss or damage is not apparent, then notice must be given in writing within three days of the delivery.
(b) In any event, Samskip shall be discharged from any liability unless suit is brought, and notice thereof given, within nine months after delivery of the Goods or the date when the Goods should have been delivered.
10. Methods and Routes of Transportation
(a) Samskip and its Servants may at any time and without notice to the Merchant;
(i) use any Means of Transport or storage whatsoever;
(ii) transfer the Goods from one Means of Transport to another including transshipping or carrying the same on another Means of Transport than the Vessel named overleaf and even though transshipment or forwarding of the Goods may not have been contemplated or provided for herein;
(iii) sail without pilots, proceed via any route, at any speed, proceed to, return to and stay at any port or place whatsoever (including the Port of Loading herein provided) in any order in or out of the route or in a contrary direction to or beyond the Port of Discharge once or oftener for bunkering or loading or discharging cargo or embarking or disembarking any person(s) whether in connection with the present a prior or subsequent voyage or without limitation any other purpose whatsoever, and before giving delivery of the Goods at the Port of Discharge or the Place of Delivery herein provided and with liberties as aforesaid leave and then return to and discharge the Goods at such port, tow or be towed, make trial trips, adjust compasses, or instruments or repair or dry-dock, with or without cargo on board;
(iv) unpack and remove the Goods which have been packed into an Container and/or forward the same in Containers or otherwise as Samskip in its sole discretion may decide;
(v) load and unload the Goods at any port(s) or place(s) (whether or not any such port is named overleaf as the Port of Loading or Port of Discharge) and store the Goods for any period at any such port(s) or place(s).
(vi) stow the Goods on the Means of Transport as received, or, at Samskip's option, by means of a Container.
(b) Anything done or not done in accordance with sub-Clause (a) or any delay arising therefrom shall be deemed to be within the contractual Carriage and shall not be a deviation.
11. Loading, Discharging and Delivery
(a) The Merchant or his agent shall tender the Goods at the Place of Receipt latest 12 hours before time indicated in the Bill of Lading, which includes outside ordinary working hours notwithstanding any custom of the port. Failure to comply with this sub-Clause 11 (a) shall relieve Samskip from any obligation to load Merchant's Goods.
(b) The Merchant or his agent shall take delivery of the Goods immediately upon arrival of the Goods at the Place of Delivery, not later than three (3) days after arrival of the Vessel, whether during or outside ordinary working hours, notwithstanding any custom of the port, if so required by Samskip. Otherwise Samskip shall be at liberty to discharge and store the Goods at any place and any such discharge or storage, including into custody of customs or any other authority, to be deemed a true fulfillment of the Carriage.
(c) Failure to take immediate delivery of the Goods shall make the Merchant liable for costs incurred
by Samskip, unless otherwise stated in the Contract.
(d) If the Goods are unclaimed within ten running days of delivery becoming due under this Clause or if in the opinion of Samskip they are likely to deteriorate, decay, become worthless or incur charges whether for storage or otherwise, Samskip may, at his discretion and subject to his lien and without notice and without any responsibility whatsoever attaching to him, sell, destroy or otherwise dispose of the Goods in the mannerSamskip deems most advantageous in each individual case at the sole risk and expense of the Merchant and in case of sale apply any proceed of sale in reduction of the sums due to Samskip from the Merchant.
12. Optional Stowage
(a) Goods may be stowed, without notice to the Merchant, on deck generally, and, in addition and without limitation, on or in the poop, forecastle, deckhouse, shelter deck, passenger space, bunker space, orany other covered-in space commonly used in the trade for the carriage of goods, and Goods so stowed shall be deemed to be stowed under deck for all purposes, includinggeneral average. The Hague Rules, or (when applicable) US COGSA as incorporated herein, shall be applicable to such Carriage of Goods so stowed.
(b) Containers and Goods which are stated on the face of the Bill of Lading to be carried on deck at shipper's, or Merchant's, risk, are carried without responsibility on the part of Samskip for loss or damage of whatsoever nature arising during Carriage by sea whether caused by unseaworthiness or negligence or any other cause whatsoever.
(c) Live animals and plants are carried at the sole risk of the Merchant. In the case of live animals, Samskip shall be under no liability whatsoever for any injury, illness, death, delay or destruction howsoever arising even though caused or contributed to by the act, neglect or default of Samskip or by the unseaworthiness or unfitness of any Means of Transport, craft, Container or other place existing at any time.
13. Government directions, War, Epidemics, Ice, Strikes etc.
(a) The Master, and/or Samskip and its Servant, shall have liberty to comply with any orders, directions or recommendations as to loading, departure, routes, ports of call, stoppages, destination, arrival, discharge, delivery or in any other ways whatsoever given by any government or any person or body acting or purporting to act with the authority of such government or by any committee or person having under the terms of the hull risks insurance on the Vessel the right to give any orders, directions or recommendations.
(b) If in the opinion of the Master or Samskip or its Servant the venture is made unsafe, unlawful or inadvisable by the imminence or existence of war, warlike operations, hostilities, acts of terrorists, piracy, riots, civil unrest, seizure or blockades the Goods may be discharged at the Port of Loading or at any other port considered safe and convenient by the Master or Samskip or its Servant
(c) If on account of any hindrance, risk, delay, difficulty, or disadvantage of any kind and howsoever arising (even though the circumstances giving rise to such hindrance, delay, difficulty or disadvantage existed at the time this contract was entered into or the Goods were received for Carriage) and including, but without limitation, actual or threatening epidemic, quarantine, ice, strike, lockout, labor troubles, interdict, congestion or difficulties in loading or discharge, the Master or Samskip or its Servant at any time is in doubt as to whether the Vessel can, safely and without delay, leave the Port of Loading or reach or enter the Port of Discharge or there discharge in the usual manner or proceed thence on the voyage, the Goods may be discharged at the Port of Loading or any port they or either of them may consider safe and convenient or otherwise dealt with pursuant to the liberties and powers contained in Clause 13.
(d) In the cases referred to in a II the preceding paragraphs under this Clause, Samskip may at any time postpone, suspend or cancel the contract even before the Goods have been received and/or loaded and/or Bill of Lading issued. The discharge of any Goods under the provisions of this Clause and/or the conclusion of the venture consequent upon compliance with any orders or directions referred to above, whether the Goods are discharged or not, shall be deemed a fulfilment of the contract.
(e) The Merchant shall be liable for all additional freight and demurrage and all charges and expenses incurred by the Master, Samskip or its Servant acting as above.
(f) Consignees shall be informed, if possible, but without liability on the part of Samskip regarding cases referred to in this Clause.
14. Merchant's liability. Compliance with Local Laws and Indemnity
(a) The Merchant shall be liable for and shall defend, indemnify, and hold harmless Samskip and the
Vessel against any payment, expenses, fines, dues, duty, tax, impost, loss, damage or detention, sustained or incurred by or levied upon Samskip, its Servantor the Vessel in connection with the Goods for any cause whatsoever, including but not limited to their nature, quality or condition (whether known to Samskip, its Servantor Master or not) and any breach of warranty under these Conditions, and also for 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 Merchant to procure consular, safety or health authority, customs, 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. If for any reason whatsoever the Goods are refused for importation the Merchant shall be liable for and shall pay return freight and charges thereon.
(b) The Merchant undertakes that no claim or allegation, whether arising in contract, bailment, tort, negligence or otherwise, shall be made against the Servants which imposes or attempts to impose upon them or any vessel owned or chartered by the Servants any liability whatsoever in connection with the Goods or the Carriage of the Goods whether or not arising out of negligence on the part of the Servants. If any such claim or allegation should nevertheless be made, Merchant undertakes to defend, indemnify and hold Samskip harmless from all consequences thereof, including Samskip's or Servants' costs. Without prejudice to the foregoing, Servants shall have the benefit of all the terms, Conditions, exceptions and limitations of the contract for this Carriage as if these terms, Conditions etc. were expressly for their benefit; and in entering into the contract for this Carriage, Samskip, to
the extent of these terms, Conditions etc., does so not only on its own behalf but also as agent and trustee for the Servants.
(c) The provisions of Clause 14(a), including but not limited to the undertakings of the Merchant contained therein, shall extend to claims or allegations of whatsoever nature against another Person chartering space on the carrying Vessel.
(d) The Merchant further undertakes that no claim or allegation which imposes or attempts to impose upon Samskip any liability whatsoever in connection with the Goods or the Carriage of the Goods shall be made against Samskip by any Person other than in accordance with the Carriage, whether or not arising out of negligence on the part of Samskip. If any such claim or allegation should nevertheless be made, Merchant undertakes to defend, indemnify and hold Samskip harmless from and against all consequences thereof, including Samskip's or Servants' costs.
15. Temperature controlled cargo
(a) Goods, including Goods of a perishable nature, may be carried in dry general purpose Containers or ordinary compartments in the Means of Transport without special protection, services or other measures unless there is noted on the front side of the Bill of Lading and/or expressly contracted in writing at the time of booking that the Goods will be carried in refrigerated, heated, electrically
ventilated or otherwise specifically equipped Containers or compartments or are to receive special attention in anyway.
(b) The Merchant undertakes not to tender for transportation any Goods which require temperature control without previously giving written notice of their nature and carrying temperature to be maintained and in case of a temperature controlled Container packed by or on behalf of the Merchant, further warrants and undertakes that the Goods have been properly, and at such correct
temperature, and ventilation, if required, stowed in the Container and that its thermostatic controls and air vents have at all material times been appropriately set by him before receipt of the Goods by Samskip. If the above requirements are not complied with, Samskip shall not be liable for any loss of or damage to the Goods, howsoever arising.
(c) The term "apparent good order and condition” when used in the Bill of Lading with reference to Goods which require temperature control, ventilation or other specialized attention does not mean that the Goods, when received were verified by Samskip or its Servant as being at the carrying temperature, humidity level or other condition designated by the Merchant.
(d) Samskip does not warrant that the Container or compartment of the Means of Transport will be properly ventilated, refrigerated or heated throughout the carriage, nor shall Samskip be liable for any loss of or damage to the Goods arising from latent defects, derangement, breakdown or stoppage of the temperature control machinery, plant, insulation and/or any apparatus of the Container or other Means of Transport and any other facilities whatsoever, provided that Samskip or its Servant shall before or at the beginning of the Carriage exercise due diligence to maintain the thermostatic controls at the temperature range, if any, noted on the Bill of Lading.
(e) The Merchant releases and indemnifies Samskip and its Servants from and against any claims, losses and expenses whatsoever in respect of any loss, deterioration or damage to the Containers, its Machinery or to the Goods provided by the Merchant or its agent or servant, which arises from or as a consequence of:
(i.) failure by the Merchant to provide or delay in providing a suitable electricity supply to operate the Machinery or failure to provide suitable electrical or other equipment to enable the electricity supply of the Vessel or the terminal to be connected to the Machinery, or;
(ii.) refusal to connect the Vessel's or terminal's electricity supply to the Machinery and Samskip shall in this respect have an absolute right to refuse to permit such a connection if Samskip considers, at its sole discretion, that the Container or its Machinery is unsuitable for connection with electricity supply of the Vessel or the terminal or would be unsafe if so connected, or;
(iii.) failure by the Merchant to timely provide Samskip with clear and adequate written instructions including but not limited to temperature settings, operating instructions and accurate details regarding the electrical or fuel supply connections of the Machinery, irrespective of Samskip having asked for such instructions or not, or;
(iv.) failure by the Merchant to check the Machinery and that it is properly and exactly set before receipt of the Container(s) by Samskip.
(f) Samskip shall have no liability whatsoever if such refrigerated or heated Goods are not carried in compliance to any carrying temperature designated in writing by the Merchant or otherwise, unless the Merchant proves that the Goods are physically damaged due to the non-compliance with such temperature instructions.
(g) Whenever Samskip provides any Machinery attached to a Container with fuel, in order to allow it to keep operating during the Carriage, and/or checks the temperature data as they appear from the setting and the thermostat of the said Machinery, then this shall be done at the sole responsibility of the Merchant. Samskip shall thus not be liable for any damage resulting from the fact that Samskip does not provide such fuel or provides not enough fuel and/or does not check such temperature data or checks them incorrectly and/or does not provide the Merchant with the results of such check.
16. Dangerous Goods
(a) The Merchant undertakes not to tender for transportation any Goods which are of a dangerous, inflammable, radio-active, or damaging nature without previously giving written notice of their nature to Samskip, marking the Goods and the Container or other covering on the outside as required by any laws or regulations which may be applicable during the Carriage.
(b) The Merchant undertakes that the Goods are packed in a manner adequate to withstand the ordinary risks of Carriage having regard to their nature and in compliance with all laws or regulations which may be applicable during the Carriage.
(c) If the requirements of paragraphs (a) and (b) are not complied with the Merchant shall defend, indemnify and hold harmless Samskip against all loss, damage or expense arising out of the Goods being tendered for transportation or handled or carried by Samskip.
(d) Goods which are or at any time become dangerous, inflammable, radioactive or damaging may at any time or place, be unloaded, destroyed, or rendered harmless without compensation, and if the Merchant has not given notice of their nature to Samskip under (a) above, Samskip shall be under no liability to make any genera I average contribution.
The Merchant warrants that there will be no arms, stowaways, contraband or any other illegal drugs, cigarettes, alcohol or other unlawful merchandise stowed in the Goods or in/on the Containers. The Merchant shall indemnify and hold harmless Samskip and its Servants for any and all Charges or other costs, liabilities, fines, penalties Samskip may suffer as a result of the Merchant breaching its warranty hereunder and irrespective whether the Merchant acted in good faith or not.
18. Metal Products
The term "apparent good order and condition" when used in the Bill of Lading with reference to iron, steel, or metal products does not mean that the Goods, when received, were free of visible rust or moisture. If the Merchant so requests, a substitute Bill of Lading will be issued omitting the above definition and setting forth any notations as to rust or moisture which may appear on the mate's or tally clerk's receipts
19. Both to Blame Collision Clause
The Both-to-Blame Collision and New Jason Clauses published and/or approved by BIMCO and obtainable from Samskip or its agents upon request are hereby incorporated herein.
20. General Average and Salvage
(a) general average shall be adjusted, stated and settled according to York Antwerp Rules of 1994 at any port or place at the option of Samskip, whether declared by Samskip or a Servant, in respect of all cargo, whether carried on or under deck. The Merchant shall give such cash deposit or other security as Samskip may deem sufficient to cover the estimated general average contribution of the Goods before delivery if Samskip requires, or, if Samskip does not so require, within three months of the delivery of the Goods, whether or not at the time of delivery the Merchant had notice of Samskip's lien. Samskip shall be under no obligation to exercise any lien for general average contribution due to the Merchant. In the event of accident, danger, damage or disaster before or after commencement of the voyage resulting from any cause whatsoever due to negligence or not, for which, or for the consequences of which, Samskip is not responsible by statute, contract or otherwise, the Goods and the Merchant shall contribute with Samskip in general average to the payment of any sacrifices, losses or expenses of a general average nature that may be made or incurred, and shall pay salvage and special Charges incurred in respect of the Goods.
(b) In the event of the Master considering that salvage services are needed, the Merchant agrees that the Master shall act on its behalf to procure such services to the Goods. The Merchant shall pay salvage and special charges incurred in respect of the Goods and shall give such cash deposit or other security as Samskip may deem sufficient to cover the estimated salvage and special charges contribution of the Goods before delivery if Samskip requires. If a salving ship is owned or operated by Samskip salvage shall be paid for as fully as if such salving ship belonged to strangers.
Samskip shall not 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 Means of Transport by reason or by means of any fire whatsoever unless such fire shall be caused by its actual fault or privity.
(a) Goods may be stowed by Samskip or its Servants in Containers and/or consolidated with other Goods in Containers. Containers whether stowed as aforesaid or received in a stowed condition from the Merchant may be carried on or under deck without notice to the Merchant and, subject always to Clause 12(b), if they are so carried the Hague Rules, or (when applicable) US COGSA as incorporated herein, shall be applicable notwithstanding carriage on or under deck and the Goods and/or
Containers shall contribute in general average and/or salvage whether carried on or under deck.
(b) If a Container has not been stowed, filled, packed, stuffed or loaded by Samskip or its Servant, the Bill of Lading shall be a receipt only for such a Container and Samskip shall not be liable for loss of or damage to the contents and the Merchant shall defend, indemnify and hold harmless Samskip against any loss, damage, liability or expense incurred by Samskip, if such loss, damage, liability or expense has been caused by;
(i) the manner in which the Container has been stowed, filled, packed, stuffed or loaded; or
(ii) the unsuitability of the contents for carriage in Containers; or
(iii) the unsuitability or defective condition of the Container arising without any want of due diligence on the part of Samskip or its Servant to make the Container reasonably fit for the purpose for which it is required; or
(iv) the unsuitability or defective condition of the Container which would have been apparent upon reasonable inspection by the Merchant at or prior to the time when the Container was stowed, filled, packed, stuffed or loaded; or
(v) packing Goods which need temperature control, including refrigerated Goods that are not at the correct temperature for carriage hereunder.
(c) The Merchant shall inspect Containers before packing them and the use of Containers shall be prima facie evidence of the Containers being sound and suitable for use.
(d) Samskip and its Servants shall be entitled, but under no obligation, to open any Container at any time and to inspect the contents. If it thereupon appears that the contents or any part thereof cannot safely or properly be carried or carried further, either at all or without incurring any additional expense or taking any measures in relation to the Container or its contents or any part thereof,
Samskip or its Servant may abandon transportation thereof and/or take any measures and/or incur any reasonable additional expense to carry or to continue the Carriage or to store the same ashore or afloat under cover or in the open, at any place, which storage shall be deemed to constitute due delivery under these Conditions. The Merchant shall indemnify Samskip against any reasonable additional expense so incurred.
(e) Where the Goods in respect of which Bills of Lading have been issued form part of an LCL shipment which has been consolidated into a Container on behalf of either the Merchant or Samskip, Samskip shall have liberty to unpack such Container in order to effect delivery of the said Goods.
(f) Where a Container owned or leased by Samskip or its Servant is unpacked at the Merchant's premises the Merchant is responsible for returning the Container with interior brushed and cleaned to the Port of Discharge, Place of Delivery or to the point designated by Samskip or its Servants, forthwith or within the prescribed time. The Merchant shall be liable for hire, cleaning costs, demurrage, loss and expenses which may result from any failure or delay in return of the Container. In case the Merchant does not return a Container within the time stipulated by Samskip shall have the right to retrieve the Container himself from the Merchant without notice at Merchant's risk and cost.
(g) The Merchant shall be liable for any loss of or damage to Container and other equipment while in the custody of the Merchant for whatever purpose. The Merchant shall indemnify and hold Samskip harmless for all loss ofand/or damage and/or delay to such Container and other equipment.
(h) The Conditions shall govern the responsibility of Samskip in connection with or arising out of the supply of a Container to the Merchant whether before or after the Goods are received by Samskip or its Servant for transportation or delivery to the Merchant.
23. Freight; Payment of Charges
(a) Freight shall be payable on actual gross intake weight or measurement, or at Samskip'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 Samskip may at any time open any Containerand examine, weigh, measure and value the Goods. In case Merchant's particulars are found
to be erroneous and additional freight is payable, the Goods shall be liable for any expense incurred in examining, weighing, measuring and valuing the Goods. Full freight shall be paid on damaged or unsound Goods. Full freight hereunder shall be considered completely earned on receipt of the Goods by Samskip or its Servant, and Samskip shall be entitled to all freight and Charges due hereunder, whether actually paid or not, and to receive and retain them under all circumstances whatsoever, the Means of Transport and/or Goods lost or not lost.
(b) The Merchant shall be liable for all expenses of sorting, mending, cooperage, baling or reconditioning of Goods and/or packages containing the Goods and gathering of loose cargo and/or contents of packages resulting from insufficiency of packing or from excepted perils.
(c) Goods once shipped cannot be taken away by the Merchant except upon Samskip's consent and against payment of full freight and compensation for any damages sustained by Samskip through such taking away.
(d) The Merchant shall bear and pay all tonnage dues, shed dues, harbor dues, customs dues and charges, wharfage charges and other dues and Charges payable in respect of the Goods after leaving ship's tackle.
(e) Each Merchant shall be jointly and severally liable to Samskip for the payment of the Charges and for the performance of the obligations of each of them hereunder. All sums payable to Samskip are due on demand and shall be paid in full and without any off set, counterclaim or deduction. Any error in freight or other Charges or in the classification of Goods is subject to correction, and if on
correction the freight or Charges are higher Samskip may collect the additional amount from the Merchant.
(f) Despite the acceptance by Samskip of instructions to collect the Charges from the shipper or consignee or any other Person, then, in the absence of evidence of payment by such shipper or consignee or other Person when due, the Merchant shall remain fully responsible for the payment of such Charges to Samskip on demand.
(g) Any remarks in regard to the Charges or other items in Samskip's invoice shall be made promptly and no later than thirty days after the date of the invoice. Otherwise, the invoice shall be considered correct.
(h) The Merchant shall defend, indemnify and hold harmless Samskip against all and any cost incurred by Samskip in exercising its rights under this Clause.
24. Demurrage during Carriage by Vessels
Samskip shall be paid demurrage by the Merchant at the daily rate of EUR 1.50 (one and a half euro) per ton of the Vessel's gross tonnage if any delay to the Vessel is caused by the Merchant. The demurrage shall be pro rata for any part of a day and payable day by day. Each Merchant shall be liable towards Samskip for a proportionate part of the demurrage due, based upon the total freight on the Goods to be loaded or discharged at the port in question. No Merchant shall be liable in demurrage for any delay arising or in connection with Goods belonging to other Merchants.
Samskip shall have a lien on the Goods and any documents relatingthereto, inclusive of any Container owned or leased by the Merchant, for:
(i) all sums payable to Samskip under the contract for this Carriage,
(ii) all sums due from the Merchant to Samskip under any other contract, whether connected with Carriage or not, and
(iii) general average and/or salvage contributions to whomsoever due.
The lien shall in any event extend to cover the costs and expenses of exercising such a lien and for that purpose Samskip shall have the right to sell the Goods and documents by public auction or private sale in the manner Samskip deems most advantageous without notice to the Merchant and without any responsibility whatsoever attaching to Samskip. The Merchant agrees that no valuation of the Goods will be carried out before such sale. If on sale of the Goods the proceeds fail to cover the amount due and the costs and expense incurred, Samskip shall be entitled to recover the difference from the Merchant. The Merchant shall defend, indemnify and hold harmless Samskip against all and any cost incurred by Samskip in exercising its rights under this Clause.
26. ISPS Code
The Merchant shall provide Samskip with its full style contact details and any other information Samskip deems necessary in order to comply with the International Code for the Security of Ships and of Port Facilities and the relevant amendments to Chapter XI of SOLAS (ISPS Code) in relation to the Vessel. Any delay resulting from Merchant's failure to comply with this Clause shall count as demurrage as referred to in Clause 24 of these Conditions.
27. Non-Waiver and Validity
(a) Nothing in these Conditions shall operate to deprive Samskip from any statutory protection or any defence, right, liberty, immunity, exemption or limitation provided elsewhere in these Conditions and irrespective whether any action against Samskip be founded in contract, bailment, tort, negligence or otherwise and even if the loss, damage or delay arose as a result of unseaworthiness, negligence or fundamental breach of contract. Insofar as any provision contained in these Conditions is (partly) inconsistent with mandatory law, the (parts of the) provisions of these Conditions shall to the extent of such inconsistency but no further be null and void.
(b) No interest shall be allowed on any claim against Samskip up to the time of the rendition of judgment.
28. USA Clause paramount
(a) If Carriage includes Carriage to, from or through a port in the United States of America, these Conditions shall be subject to the US COGSA, the terms of which are incorporated herein and shall be paramount throughout Carriage by Sea (except as provided in Clause 12(b)) and the entire time that the Goods are in the actual custody of Samskip or his sub-contractor at the sea terminal before loading onto the Vessel or after discharge therefrom as the case may be.
(b) Samskip shall not be liable in any capacity whatsoever for the loss, damage or delay of or to the Goods while the Goods are in the United States of America away from the sea terminal and are not in the actual custody of Samskip. At these times Samskip acts as agent only to procure Carriage by a third party (one or more) under the usual terms and conditions of such third party. If for any reason Samskip is denied the right to act as agent only at these times, its liability for loss, damage or delay to the Goods shall be determined in accordance with Clauses 6,7,8 and 9 hereof.
(c) If the Bill of Lading and these Conditions are accepted by a non-vessel operating common carrier (NVOCC) or by a groupage agent acting as a NVOCC, who has in turn issued other contracts of carriage to third parties, the said NVOCC hereby warrants that all contracts of carriage issued by him
in respect of Goods the subject of the Conditions shall incorporate the Conditions and, where necessary, be in accordance with the Tariffs, whether of Samskip or the NVOCC, required to be filed with the appropriate authorities. The said NVOCC further agrees to defend, indemnify and hold harmless Samskip and its Servants, against all consequences of his failing so to incorporate.
(d) As allowed by US COGSA, the liability of Samskip and/or Vessel shall not exceed the amount set forth in Clause 8(c) hereof, unless the value of the Goods has been declared on the face of the Bill of Lading and extra freight paid on such declared value if required.
29. Law and Jurisdiction
(a) Except as provided in Clause 28 (USA Clause paramount), the Carriage will be governed by, and all disputes, claims, controversies or disagreements in relation to or arising out of this contract (including the formation, existence, validity, enforceability, performance, or termination of this contract and, in particular, the validity of the arbitration clause under Clause 29(c)) shall be resolved in accordance with, the laws of the Netherlands.
(b) All disputes, claims, controversies, and disagreements in relation to or arising out of the contract for this Carriage, or the subject matter of the contract for this Carriage, shall be subject to the exclusive jurisdiction of the Court of Rotterdam, the Netherlands, with the exception of those
disputes which are specifically excluded under Clause 29(c) and (d) below.
(c) If the CMR Convention is deemed to be applicable to (part of) the Carriage, all disputes, claims, controversies, and disagreements in relation to or arising out of that (part of) the Carriage, including actions with regard to indemnity, shall be exclusively submitted to arbitration in Rotterdam, the Netherlands, under the TAMARA Arbitration Rules. The number of arbitrators shall be one and the arbitrator shall be appointed by the arbitration tribunal. The language to be used in the arbitral proceedings shall be the Dutch language. The arbitration tribunal shall apply the provisions of the CMR Convention if this Convention is deemed to be applicable. The CMR Convention shall then be interpreted by the arbitration tribunal in accordance with the settled case-law of the Dutch Courts.
(d) If any law or convention is deemed to be mandatorily applicable to (part of) the Carriage, which does not allow for an exclusive jurisdiction clause, Clause 29 (b) shall be considered to be a nonexclusive jurisdiction clause.