Part 1: General Conditions
1.1 Subject to Clause 1.2, all Services of the Company whether gratuitous or not are undertaken subject to these terms and conditions and not otherwise and:
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 terms and 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 terms and conditions.
1.4 The terms and conditions set out herein shall prevail over the terms and conditions set out in any document used by the Customer, the Owner or any other person having an interest in the Goods and purporting to have a contractual effect.
1.5 The Customer shall give the Company not less than fourteen (14) days prior written notice of any proposed change of ownership of the Customer or any change in the Customer’s name and/or any other change in the Customer’s details (including but not limited to, changes in the Customer’s address, facsimile number, or business practice). The Customer shall be liable for any loss incurred by the Company as a result of the Customer’s failure to comply with this clause.
2.1 All Services are provided by the Company as agents only, except in the following circumstances where the Company acts as principal:
2.2 Without prejudice to the generality of clause 2.1.
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).
3.1 In these conditions:
4.1 The Customer warrants that it is either the Owner or the authorized agent of the Owner of the Goods and that it is authorized 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 labelling.
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:
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:-
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 in respect of misdelivery of Goods.
5.8 Unless 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. Nor shall the Company be responsible for any charges arising out of any delay, including but not limited to, any delay due to the provision of incorrect documentation to any Customs Service, Quarantine Inspection Service or to any other relevant or equivalent authority.
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 effected 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.
7.1 The Customer and Owner shall defend, indemnify and hold harmless the Company against all liability, loss, damage, costs and expenses howsoever arising:
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;
...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.
8.1 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.
9.1 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. Unless otherwise stated in writing, all freight and charges are prepaid. Payment is due on the date of invoice.
9.2 When the Company is instructed to collect freight, duties, charges or other expenses from any third party, the Customer:
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 If any account remains overdue after fourteen (14) days then an amount of the greater of twenty dollars ($20.00) or ten percent (10%) of the amount overdue (up to a maximum of $200) shall be levied for administration fees which sum shall become immediately due and payable.
9.5 In the event that the Customer’s payment is dishonoured for any reason the Customer shall be liable for any dishonour fees incurred by the Company.
9.6 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.
10.1 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:
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:
10.6 If the Company (or any person whose Services the Company makes use of) considers:
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
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. The Customer shall indemnify the Company from and against all costs and disbursements incurred by the Company in pursuing such sums including legal costs on a solicitor and own client basis and the Company’s collection agency costs.
10.14 Without prejudice to any other remedies the Company may have, if at any time the Customer is in breach of any obligation (including those relating to payment) the Company may suspend or terminate the supply of Services to the Customer and any of its other obligations under the terms and conditions. The Company will not be liable to the Customer for any loss or damage the Customer suffers because the Company exercised its rights under this clause.
10.15 The failure by the Company to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect the Company’s right to subsequently enforce that provision.
11.1 The Customer and/or the Guarantor/s agree for the Company to obtain from a credit reporting agency a credit report containing personal credit information about the Customer and Guarantor/s in relation to credit provided by the Company.
11.2 The Customer and/or the Guarantor/s agree that the Company may exchange information about the Customer and the Guarantor/s with those credit providers either named as trade referees by the Customer or named in a consumer credit report issued by a credit reporting agency for the following purposes:
11.3 The Customer consents to the Company being given a consumer credit report to collect overdue payment on commercial credit (Section 18K(1)(h) Privacy Act 1988).
11.4 The Customer agrees that personal credit information provided may be used and retained by the Company for the following purposes and for other purposes as shall be agreed between the Customer and the Company or required by law from time to time:
11.5 The Company may give information about the Customer to a credit reporting agency for the following purposes:
12.1 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).
12.2 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.
13.1 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:
13.2 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 13.1, except for Clause 13.1(c) (i).
13.3 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.
13.4 For Full Container Loads (FCL) by sea the Customer’s entitlement to use the container(s) ends at the terminal of arrival. The Company shall however (but strictly as set out in this clause) allow the Customer to use the Container(s) for the purposes of transporting the Customer’s goods away from the terminal for unpacking on the following understanding:
Accordingly in consideration of the Company’s agreement to make the Container(s) available the Customer beyond the terminal gate, the Customer agrees to indemnify the Company for all charges, fees, or any other liability of whatsoever nature (including without limitation, interest charges and any legal costs) directly or indirectly arising from the use of the Container(s) beyond the terminal gate by the Customer, or by all or any agents, acting on the Customer’s behalf either directly or indirectly.
14.1 Except where otherwise provided in these Conditions, the Company shall not be liable for any loss or damage whatsoever arising from:
14.2 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.
15.1 Except in so far as otherwise provided by these Conditions, the liability of the Company, howsoever arising, shall not exceed the following:
15.2 The limitation of liability referred to in Clause 15.1 shall apply notwithstanding that the cause of the loss or damage is unexplained.
15.3 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.
15.4 Compensation shall be calculated by reference to the invoice value of the Goods plus freight and insurance if paid.
15.5 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.
15.6 Unless agreed in writing prior to receipt, the Company will not accept or deal with bullion, coin, precious stone, jewellery, antiques, and works of art or other valuable Goods. Should any Customer nevertheless deliver 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.
16.1 The Company shall be discharged of all liability unless:
16.2 For the purposes of Clause 16.1, the applicable dates are:
17.1 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.
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.
18.2 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.
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.
Headings of clauses or groups of clauses in these Conditions are for indicative purposes only.
19.1 These Conditions and any claim or dispute arising out of or in connection with the Services of the Company shall be subject to the laws of New Zealand and to the exclusive jurisdiction of the courts of New Zealand.
19.2 All Services provided by the Company which are subject to the Carriage of Goods Act 1979 (as amended) of New Zealand are provided at limited carrier’s risk (other than when Clause 15.5 applies) and the provisions of that Act shall prevail over any inconsistency in these Conditions to the extent of such inconsistency but no further.
Part 2: Company as Agent
20.1 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.
20.2 The Company shall not be liable for the acts and omissions of third parties referred to in Clause 20.1.
20.3 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.
20.4 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 20.1.
21.1 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 3: Company as Principal
22.1 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.
22.3 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:
22.4 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 22.2 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.
22.5 Notwithstanding the provisions of Clauses 22.2, 22.3 and 22.4, 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.
22.6 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.
23.1 The Both-to-Blame Collision Clause as recommended by BIMCO as at the same time of the provision of Services is incorporated into and forms part of these Conditions.
24.1 With respect to transportation within Australia, 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.
24.2 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.
24.3 If and to the extent that the provisions of the Carriage of Goods by Sea Act 1991 of the Commonwealth of Australia 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 in the Carriage of Goods by Sea Act 1991.
24.4 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.
25.1 Where the Company acts as a principal in respect of a carriage of Goods by air, the following notice is hereby given:
25.2 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 Montreal Convention.