Terms and Conditions of Carriage (Air) 

“Carrier” means KING STAR TRANSPORT INTERNATIONAL LIMITED.

 

“Carriage” means the whole of the operations and services undertaken or performed by or on behalf of the Carrier in respect of the Goods.

 

 “Air Carriage” means Carriage which includes transportation of cargo by aircraft.

 

“Sea Carriage” means Carriage which includes transportation of cargo by seagoing vessel.

 

“Terms and Conditions of Carriage” means these terms and conditions that are expressly incorporated into the Bill of Lading or Air Waybill as applicable.

 

“Merchant” includes the shipper, the consignee, the receiver of the Goods, the holder of this Bill of Lading/Air Waybill, any Person owning or entitled to the possession of the Goods or this Bill of Lading/Air Waybill, any Person having a present or future interest in the Goods or any Person acting on behalf of any of the above mentioned Persons.

 

“Goods” includes the cargo supplied by the Merchant and includes any Container not supplied by or on behalf of the Carrier.

 

“Container” includes any container, trailer, transportable tank, lift van, flat, pallet or any similar article of transport used to consolidate goods.

 

“Combined Transport” arises where the Carriage called for by this Bill of Lading/Air Waybill involves carriage of the Goods from Place of Receipt to Place of Delivery (as indicated on the front of the Bill of Lading/Air Waybill) by ocean and/or air one or more inland methods of transport including but not limited to road and rail.

 

“Port to Port Shipment” arises where the Place of Receipt and the Place of Delivery are not indicated on the front of the Bill of Lading/ Air Waybill or if both the Place of Receipt and the Place of Delivery indicated are ports and the Bill of Lading/Air Waybill does not in the nomination of the Place of Receipt or the Place of Delivery on the front hereof specify any place or spot within the area of the port so nominated.

 

“Hague Rules” means the provisions of the international Convention for Unification of certain Rules relating to Bills of Lading signed at Brussels on 25th August 1924.

 

“Hague-Visby Rules” means the Hague Rules as amended by the Protocol signed at Brussels on 23rd February 1968.

 

“COGSA” means the Carriage of Goods by Sea Act of the United States of America approved on 16th April 1936.

 

“COGWA” means the Carriage of Goods by Water Act 1936 of Canada.

 

“Charges” includes freight and all expenses and money obligations incurred and payable by the Merchant.

 

“Shipping Unit” includes freight unit and the term “unit” as used in the Hague Rules and Hague-Visby Rules.

 

“Person” includes an individual, a partnership, a body corporate or other entity.

 

“Montreal Convention” means the Convention for Unification of Certain Rules for International Carriage by air, signed at Montreal on 25 May 1999.

 

“Special Drawing Right (SDR)” means a Special Drawing Right as defined by the International Monetary Fund.

 

“Warsaw Convention” means whichever of the following instruments is applicable to the contract of Carriage: the Convention for the Unification of Certain rules Relating to International Carriage by air opened for signature at Warsaw on 12 October 1929; that Convention as amended at The Hague on 28 September 1955; and that Convention as amended at The Hague 1955 and by Montreal Protocol No. 1,2 or 4 (1975) as the case may be.

 

2    APPLICABILITY OF TERMS AND CONDITIONS

      2.1    Part I and II to apply if Carriage of Goods by Sea Carriage.

 

      2.2    Part I and III to apply if Carriage of Goods by Air Carriage.

 

 

PART I - GENERAL TERMS AND CONDITIONS
3    CARRIER’S TARIFF

The provisions of the Carrier’s applicable Tariff, if any, are incorporated herein. Copies of such provisions are obtainable from the Carrier or his agents upon request or, where applicable, from a government body with whom the Tariff has been filed. In the case of inconsistency between these Terms and Conditions and the applicable Tariff, these Terms and Conditions shall prevail.

4    WARRANTY

 

The Merchant warrants that in agreeing to the terms hereof he is or is the agent of and has the authority of the Person owning or entitled to the possession of the Goods or any Person who has a present or future interest in the Goods.

5    CERTAIN RIGHTS AND IMMUNITIES FOR THE CARRIER AND OTHERS PERSONS

 

5.1    The Carrier shall be entitled to sub-contract on any terms the whole or any part of the Carriage.

 

5.2    The Merchant undertakes that no claim or allegation shall be made against any Person or vessel or aircraft whatsoever, other than the Carrier, including, but not limited to, the Carrier’s servants or agents, any independent contractor and his servants or agents, and all others by whom the whole or any part of the Carriage, whether directly or indirectly, is procured, performed or undertaken, which imposes or attempts to impose upon any such Person or vessel or aircraft any liability whatsoever in connection with the Goods or the Carriage: and if any claim or allegation should nevertheless be made to defend, indemnify and hold harmless the Carrier against all consequences thereof. Without prejudice to the foregoing every such Person and vessel and aircraft shall have the benefit of all provisions herein benefiting the Carrier as if such provisions were expressly for his benefit and in entering into this contract the Carrier, to the extent of these provisions, does so not only on his own behalf but also as agent or trustee for such Persons and vessels and aircraft and such Persons and vessels and aircraft shall to this extent be or be deemed to be parties to this contract.

 

5.3    The Merchant shall defend, indemnify and hold harmless the Carrier against any claim or liability (and any expense arising therefrom) arising from the Carriage of the Goods insofar as such claim or liability exceeds the Carrier’s liability under this Bill of Lading/Air Waybill and the Terms and Conditions of Carriage incorporated herein.

 

5.4    The defences and limits of liability provided for in this Bill of Lading/Air Waybill shall apply in any action against the Carrier whether the action be found in Contract or in Tort.

6    DELAY NOTICE AND TIMEBAR

 

6.1    Delay and Consequential Loss
Save as otherwise provided herein, the Carrier shall in no circumstances be liable for direct, indirect or consequential loss or damage caused by delay or any other cause whatsoever and howsoever caused. Without prejudice to the foregoing, if the Carrier is found liable for delay, liability shall be limited to the freight applicable to the relevant stage of the transport.

 

6.2    Notice of Loss or Damage
The Carrier shall be deemed prima facie to have delivered the Goods as described in the Bill of Lading/ Air Waybill unless notice of loss of, or damage to, the Goods, indicating the general nature of such loss or damage, shall have been given in writing to the Carrier or to his representative before or at the time of removal of the Goods into the custody of the Person entitled to delivery thereof under the Bill of Lading/ Air Waybill or, if the loss or damage is not apparent, within three consecutive days thereafter.

 

6.3    Time-bar
The Carrier shall be discharged from all liability unless suit is brought in the proper forum and written notice thereof received by the Carrier within nine months after delivery of the Goods or the date when the Goods should have been delivered. In the event that such time period shall be found contrary to any convention or law compulsorily applicable, the period prescribed by such convention or law shall then apply but in that circumstance only.

7    MERCHANT’S RESPONSIBILITY

 

7.1    The description and particulars of the Goods set out on the face hereof are furnished by the Merchant and the Merchant warrants to the Carrier that the description and particulars including, but not limited to, of weight, content, measure, quantity, quality, condition, marks, numbers, volume and value are accurate and correct.

 

7.2    The Merchant shall comply with all applicable laws, regulations and requirement of customs, port and other authorities and shall bear and pay all duties, taxes, fines, imposts, expenses and losses incurred or suffered by reason thereof or by reason of any illegal, incorrect or insufficient marking, numbering or addressing of the Goods.

 

7.3    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, regulations and requirements which may be applicable and shall indemnify Carrier for loss or expense due to Merchant’s failure to comply with this provision.

 

7.4    No Goods which are or may become dangerous, inflammable or damaging or which are or may become liable to damage any property or Person whatsoever shall be tendered to the Carrier for Carriage without the Carrier’s express consent in writing following provision of a full declaration in writing of their nature and contents and without the Container or other covering in which the Goods are to be transported being distinctly marked on the outside so as to indicate the nature and character of any such Goods and so as to comply with all applicable laws, regulations and requirements. If any such Goods are delivered to the Carrier without a full declaration in writing, written consent and marking or if in the opinion of the Carrier the Goods are or are liable to become of a dangerous, inflammable or damaging nature, the same may at any time be destroyed, disposed of, abandoned, or rendered harmless without compensation to the Merchant and without prejudice to the Carrier’s right to Charges.

 

7.5    The Merchant shall be liable for the loss, damage, contamination, soiling, detention or demurrage before, during and after the Carriage of property (including, but not limited to, Containers) of the Carrier or any Person or vessel or aircraft (other than the Merchant) referred to in 5.2 above caused by the Merchant or any Person acting on his behalf or for which the Merchant is otherwise responsible.

 

7.6    The Merchant guarantees payment of all Charges for the Carriage due in accordance with Carrier’s Tariff, conditions of Carriage and related regulations, applicable laws (including national laws implementing the Warsaw Convention and the Montreal Convention as applicable), government regulations, orders and requirements.

 

7.7    The Merchant shall defend, indemnify and hold harmless the Carrier against any loss, damage claim, liability or expense whatsoever arising from any breach of the provisions of this clause 7 or from any cause in connection with the Goods for which the Carrier is not responsible.

8    INSPECTION OF GOODS

 

The Carrier or any Person authorised by the Carrier shall be entitled, but under no obligation, to open any Container or package at any time and to inspect the Goods.

9    MATTERS AFFECTING PERFORMANCE

 

9.1    If at any time the Carriage is or is likely to be affected by any hindrance, risk delay, difficulty or disadvantage of any kind (including the condition of the Goods), whensoever and howsoever arising (whether or not the Carriage has commenced) the Carrier may:

 

9.1.1             without notice to the Merchant abandon the Carriage of the Goods and where reasonably possible place the Goods or any part of them at the Merchant’s disposal at any place which the Carrier may deem safe and convenient, whereupon the responsibility of the Carrier in respect of such Goods shall cease;

 

9.1.2             without prejudice to the Carrier’s right subsequently to abandon the Carriage under (9.1.1) above, continue the Carriage.

 

9.2    In any event the Carrier shall be entitled to full Charges on Goods received for Carriage and the Merchant shall pay any additional costs resulting from the above mentioned circumstances.

 

9.3    The liability of the Carrier in respect of the Goods shall cease on the delivery or other disposition of the Goods in accordance with the orders or recommendations given by any government or authority or any Person acting or purporting to act as or on behalf of such government or authority.

10    METHODS AND ROUTE OF TRANSPORTATION

 

10.1    The Carrier may at any time and without notice to the Merchant:

10.1.1             use any means of transport or storage whatsoever; load or carry the Goods on any vessel or aircraft whether named on the front hereof or not; transfer the Goods from one conveyance to another including transhipping or carrying the same on another vessel or aircraft than that named on the front hereof or by any other means of transport whatsoever; at any place unpack and remove Goods which have been stuffed in or on a Container and forward the same in any manner whatsoever; proceed at any speed and by any route in his discretion (whether or not the nearest or most direct or customary or advertised route) and proceed to or stay at any place whatsoever once or more often and in any order, load or unload the Goods from any conveyance at any place (whether or not the place is a port named in the Bill of Lading/ Air Waybill as the intended Port of Loading, Airport of Departure, Port of Discharge or intended Airport Destination); comply with any orders or recommendations given by any government of authority or any Person or body acting or purporting to act as or on behalf of such government or authority or having under the terms of the insurance on the conveyance employed by the Carrier the right to give orders or directions; permit the vessel to proceed with or without pilots, to tow or be towed or to be dry-docked; permit the vessel to carry livestock, Goods of all kinds, dangerous or otherwise, contraband, explosives, munitions or warlike stores and sail armed or unarmed.

 

10.1.2             The liberties set out in 10.1.1 above may be invoked by the Carrier for any purposes whatsoever whether or not connection with the Carriage of the Goods. Anything done in accordance with 10.1.1 above or any delay arising therefrom shall be deemed to be within the contractual Carriage and shall not be deviation of whatsoever nature or degree.

11    DELIVERY OF GOODS

 

If delivery of the Goods or any part thereof is not taken by the Merchant at the time and place when and where the Carrier is entitled to call upon the Merchant to take delivery thereof, the Carrier shall be entitled without notice to remove from a Container the Goods or that part thereof if stuffed in or on a Container and to store the Goods or that part thereof ashore, afloat, in the open or under cover at the sole risk and expense of the Merchant. Such storage shall constitute due delivery hereunder, and thereupon the liability of the Carrier in respect of the Goods or that part thereof shall cease.

12    LIEN

 

The Carrier shall have a lien on Goods and any documents relating thereto for all sums whatsoever due at any time to the Carrier from the Merchant and for General Average contributions (as applicable) to whomsoever due and for the costs of recovering the same and the Carrier shall have the right to sell the Goods and documents by public auction or private treaty, without notice to the Merchant and at the Merchant’s expense and without any liability towards the Merchant.

13    VARIATION OF THE CONTRACT

 

No servant or agent of the Carrier shall have power to waive or vary any of the terms hereof unless such waiver or variation is in writing and is specifically authorised or ratified in writing by a director or officer of the Carrier who has the actual authority of the Carrier so to waive or vary.

14    PARTIAL INVALIDITY

 

If any provision in the Bill of Lading/Air Waybill is held to be invalid or unenforceable by any court or regulatory or self regulatory agency or body, such invalidity or unenforceability shall attach only to such provision. The validity of the remaining provisions shall not be affected thereby and this Bill of Lading/ Air Waybill shall be carried out as if such invalid or unenforceable provision were not contained herein.

15    APPLICABLE LAW

 

This Bill of Lading/ Air Waybill, the contract contained in and/or evidenced hereby, and the rights and obligations of all parties concerned in connection with the Carriage of the Goods hereunder shall be governed by and construed in accordance with English law and any and all claims, suits, proceedings or disputes howsoever arising in connection with such Bill of Lading/ Air Waybill, contract, rights and obligations shall be determined in accordance with English law.

If the Carriage of Goods hereunder is foreign trade to, from or through a port in the United States or if COGSA shall for any reason whatsoever apply compulsorily to the Carriage of the Goods hereunder then this Bill of Lading/ Air Waybill, the contract contained in and/or evidenced hereby, and the rights and obligations of all parties concerned in connection with the Carriage of the Goods hereunder shall be governed by and construed in accordance with United States law and all claims, suits, proceedings or disputes howsoever arising in connection with such Bill of Lading/ Air Waybill, contract, rights and obligations shall be determined in accordance with United States Law.

16​    PERSONAL DATA PROTECTION

 

The Merchant is the “data controller” and the Carrier is the “data processor” in respect of any personal data provided by the Merchant to the Carrier for the contract of carriage and logistics services. The Merchant (i) authorises the Carrier to process any personal data provided to the Carrier or which is made available to the Carrier by the Merchant for the purposes of providing service under this contract of carriage and logistics services and for other purposes including transferring personal data to competent bodies, courts or regulatory authorities, as may be requested; (ii) acknowledges and agrees that the Carrier may transfer the personal data to its affiliates, employees, agents, delegates, sub-processors or competent authorities and/or other available data transfer solutions.

PART II – PROVISIONS APPLICABLE TO CARRIAGE OF GOODS BY SEA

17    CARRIER’S RIGHTS AND RESPONSIBILITIES FOR SEA CARRIAGE

 

17.1    Clause Paramount

17.1.1        Subject to clause 21 below, this Bill of Lading insofar as it relates to Sea Carriage by any vessel whether named herein or not shall have effect subject to the Hague Rules or any legislation making such Rules or the Hague-Visby Rules compulsorily applicable (such as COGSA or COGWA) to this Bill of Lading and the provisions of the Hague Rules or applicable legislation shall be deemed incorporated herein. The Hague Rules (or COGSA or COGWA if this Bill of Lading is subject to U.S. or Canadian law respectively) shall apply to the Carriage of Goods by inland waterways and reference to Sea Carriage in such Rules or legislation shall be deemed to include reference to inland waterways. If and to the extent that the provisions of the Harter Act of the United States of America 1893 would otherwise be compulsorily applicable to regulate the Carrier’s responsibility for the Goods during any period prior to loading on or after discharge from the vessel the Carrier’s responsibility shall instead be determined by the provisions of 17.3 below, but if such provisions are found to be invalid such responsibility shall be subject to COGSA.

 

17.1.2        The Carrier shall be entitled to (and nothing in this Bill of Lading shall operate to deprive or limit such entitlement) the full benefit of, and rights to, all limitations of and exclusions from liability and all rights conferred or authorised by any applicable law, statute or regulation of any country (including, but not limited to, where applicable any provisions of sections 4281 to 4287, inclusive of the Revised Statutes of the United States of America and amendments thereto and where applicable any provisions of the laws of the United States of America) and without prejudice to the generality of the foregoing sale any law, statute or regulation available to the Owner of the vessel(s) on which the Goods are carried.

 

17.2    Port to Port Shipment

The responsibility of the Carrier is limited to that part of the Carriage from and during loading onto the vessel up to and during discharge from the vessel and the Carrier shall not be liable for any loss or damage whatsoever in respect of the Goods or for any other matter arising during any other part of the Carriage even though Charges for the whole Carriage have been charged by the Carrier. The Merchant constitutes the Carrier as agent to enter into contracts on behalf of the Merchant with others for transport, storage, handling or any other services in respect of the Goods prior to loading and subsequent to discharge of the Goods from the vessel without responsibility for any act or omission whatsoever on the part of the Carrier or others and the Carrier may as such agent enter into contracts with others on any terms whatsoever including terms less favorable than the terms in this Bill of Lading.

 

17.3    Combined Transport
Save as is otherwise provided in this Bill of Lading, the Carrier shall be liable for loss of or damage to the Goods occurring from the time that the Goods are taken into his charge until the time of delivery to the extent set out below:

17.3.1        Where the stage of Carriage where the loss or damage occurred cannot be proved by the Merchant:

(a)    The Carrier shall be relieved from liability where such loss or damage was caused by:

         (i)    an act or omission of the Merchant or Person acting on behalf of the Merchant other than the Carrier, his servant, agent or Sub-Contractor;

         (ii)    compliance with the instructions of a Person entitled to give them;

         (iii)    the lack or insufficiency of or defective condition 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;

         (iv)    handling, loading, stowage or unloading of the Goods by or on behalf of the Merchant;

         (v)    inherent vice of the Goods;

         (vi)    strikes or lockout or stoppages or restraints of labour from whatsoever cause whether partial or general;

         (vii)    fire, unless caused by the actual fault or privity of the Carrier for which the Merchant shall have the burden of proof;

         (viii)    a nuclear incident;

         (ix)    any such cause or event which the Carrier could not avoid as a consequence whereof he could not prevent by exercise of reasonable diligence.

 

(b)    The burden of proof that the loss or damage was due to one or more of the causes or events specified in this Clause 17.3.1 will rest upon the Carrier. Save that if the Carrier 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 Clause 17.3.1 (a)(iii),(iv) or (v) it shall be presumed that it was so caused. The Merchant shall, however, be entitled to prove that the loss or damage was not, in fact, caused either wholly or partly by one or more of these causes or events.

 

17.3.2        Where the stage of Carriage where the loss or damage occurred can be proved:

(a)    the liability of the Carrier shall be determined by the provisions contained in any international convention or national law of the country which provisions:

         (i)    cannot be departed from by private contract to the detriment of the Merchant, and

         (ii)    would have applied if the Merchant had made a separate and direct contract with the Carrier in respect of the particular stage of Carriage where the loss or damage occurred and had received as evidence thereof any particular document which must be issued in order to make such international convention or national law applicable.

 

(b)    Where Clause 17.3.2(a) above does not apply, any liability of the Carrier shall be determined by Clause 17.1 and 17.2 if the loss or damage occurred during a sea leg or by Clause 17.3.1 in all other cases.

 

17.4    Limitation

17.4.1        Package or Shipping Unit Limitation

(a)    Where the Hague Rules, Hague-Visby Rules or any legislation making such Rules compulsorily applicable (such as COGSA or COGWA) to the Bill of Lading apply, the Carrier’s liability shall in no event exceed the amounts provided in the national law or in the law thereby made applicable.

(b)    If only the Hague Rules Articles 1 – 8 (excluding Article 3, Rule 8) apply pursuant to Clause 17.1 or Clause 17.3.2(b) then the Carrier’s maximum liability shall in no event exceed US$500 per package or unit.

(c)    Where Carriage includes Carriage to, from or through a port in the United States of America or COGSA applies pursuant to Clause 17.2 or Clause 17.3.2(a) neither the Carrier nor the Vessel shall in any event be liable for any loss or damage to or in connection with the Carriage of the Goods in an amount exceeding US$500 per package or customary freight unit.

(d)    In all other cases compensation shall not exceed the limitation of liability of US$2 per kilo of gross weight of the Goods lost, damaged or in respect of which the claim arises.

 

17.4.2        Ad Valorem: Declared Value of Package or Shipping Unit

The Carrier’s liability may be increased to a higher value by a declaration in writing of the value of the Goods by the Merchant upon delivery to the Carrier of the Goods for shipment, such higher value being inserted on the front of this Bill of Lading in the space provided and, if required by the Carrier, extra freight paid. In such case, if the actual value of the Goods shall exceed such declared value, the value shall nevertheless be deemed to be the declared value and the Carrier's liability, if any, shall not exceed the declared value and any partial loss or damage shall be adjusted pro rata on the basis of such declared value.

 

17.4.3        Compensation

Subject to the Carrier’s right to limit as provided for within this Bill of Lading, the Carrier’s liability shall be calculated by reference to the FOB/FCA invoice value plus freight and insurance, if paid. If there is no such invoice value, the value of the Goods shall be determined according to the value of the Goods at the place and time of delivery to the Merchant or at the place and time when they should have been delivered.

 

17.5    Rust Etc.
It is agreed that superficial rust, oxidation or any like condition due to moisture, is not a condition of damage but is inherent to the nature of the Goods and acknowledgement of receipt of the Goods in apparent good order and condition is not a representation that such conditions of rust, oxidation or the like did not exist on receipt.
 

18    NEGOTIABILITY AND TITLE TO THE GOODS

 

18.1    Bills of Lading are non-negotiable unless made out “to order” in which event they shall be negotiable and shall constitute title to the Goods and the holder shall be entitled to receive or to transfer the Goods herein described.

 

18.2    Bills of Lading shall be prima facie evidence of the taking in charge by the Carrier of the Goods as herein described. However, proof to the contrary shall not be admissible when a Bill of Lading has been negotiable or transferred for valuable consideration to a third party acting in good faith.

19    CONTAINERS

 

19.1    Goods may be stuffed by the Carrier in or on Containers and Goods may be stuffed with other Goods.

 

19.2    The Bill of Lading incorporating these Terms and Conditions of Carriage shall govern the responsibility of the Carrier in connection with or arising out of the supply of a Container to the Merchant, whether supplied before or after the Goods are received by the Carrier or delivered to the Merchant.

 

19.3    If a Container has been stuffed by or on behalf of the Merchant.

 

19.3.1        The Carrier shall not be liable for loss of or damage to the Goods:

         (a)    caused by the manner in which the Container has been stuffed;

         (b)    caused by the unsuitability of the Goods for Carriage in Containers; or

         (c)    caused by the unsuitability or defective condition of the Container provided that where the Container has been supplied by or on behalf of the Carrier, this paragraph (c) shall only apply if the unsuitability or defective condition arose

                 (i)    without any want of due diligence on the part of the Carrier; or

                 (ii)    would have been apparent upon reasonable inspection by the Merchant at or prior to the time when the Container was stuffed.

 

19.3.2        The Merchant shall defend, indemnify and hold harmless the Carrier against any loss, damage, claim, liability or expense whatsoever arising from one or more of the matters covered by 19.3.1 above expect for 19.3.1(c)(i) above.

 

19.4    Where the Carrier is instructed to provide a Container, in the absence of a written request to the contrary, the Carrier in not under an obligation to provide a Container of any particular type or quality.
 

20    TEMPERATURE CONTROLLED CARGO

20.1    The Merchant undertakes not to tender for transportation any Goods which require temperature control without previously giving written notice (and filling in the box on the front of this Bill of Lading as applicable) indicating their nature and particular temperature range to be maintained and in case of a temperature controlled Container stuffed by or on behalf of the Merchant further undertakes that the Container has been properly pre-cooled, that the Goods have been properly stuffed in the Container and that is thermostatic controls have been properly set by the Merchant before receipt of the Goods by the Carrier. If the above requirements are not complied with the Carrier shall not be liable for any loss of or damage to the Goods caused by such non-compliance.

 

20.2    The Carrier shall not be liable for any loss of or damage to the Goods arising from defects, derangement, breakdown, stoppage of: the temperature controlling machinery, plant, insulation or any apparatus of the Container, provided that the Carrier shall before or at the beginning of the Carriage exercise due diligence to maintain the refrigerated Container in an efficient state.

21    DECK CARGO AND LIVESTOCK

21.1    Goods of any description whether containerised or not may be stowed on or under deck without notice to the Merchant and such stowage shall not be a deviation of whatsoever nature or degree. Subject to 21.2 below, such Goods whether carried on deck or under deck shall participate in General Average and such Goods (other than livestock) shall be deemed to be within the definition of Goods for the purposes of the Hague Rules or any legislation making such Rules or the Hague-Visby Rules compulsorily applicable (such as COGSA or COGWA) to this Bill of Lading.

 

21.2    Goods (not being Goods stuffed in or on Containers other than open flats or pallets) which are stated on the front of this Bill of Lading to be carried on deck and which are so carried (and livestock, whether or not carried on deck) are carried without responsibility on the part of the Carrier for loss or damage of whatsoever nature arising during Sea Carriage or inland waterway whether caused by un-seaworthiness or negligence or any other cause whatsoever, the Merchant shall defend, indemnify and hold harmless the Carrier against all and any extra cost incurred for any reason whatsoever in connection with Carriage of such livestock.
 

22    BOTH TO BLAME COLLISION

If the vessel on which the Goods are carried (the carrying vessel) comes into collision with any other vessel or object (the non-carrying vessel or object) as a result of the negligence of the non-carrying vessel or object or the owner of, charterer of or Person responsible for the non-carrying vessel or object, the Merchant undertakes to defend, indemnify and hold harmless the Carrier against all claims by or liability to (and any expense arising therefrom) any vessel or Person in respect of any loss of, or damage to, or any claim whatsoever of the Merchant paid or payable to the Merchant by the non-carrying vessel or object or the owner of, charterer of or Person responsible for the non-carrying vessel or object and set-off, recouped or recovered by such vessel, object or Person(s) against the Carrier, the carrying vessel or her owners of charterers.

23    GENERAL AVERAGE

23.1    The Carrier may declare General Average which shall be adjustable according to the York/Antwerp Rules of 1974 at any place at the option of the Carrier and the Amended Jason Clauses as approved by BIMCO is to be considered as incorporated herein and the Merchant shall provide such security as may be required by the Carrier in this connection.

 

23.2    Notwithstanding 23.1 above, the Merchant shall defend, indemnify and hold harmless the Carrier in respect of any claim (and any expense arising therefrom) of a General Average nature which may be made on the Carrier and shall provide such security as may be required by the Carrier in this connection.

 

23.3    All Charges shall be paid without any set-off, counter-claim, deduction or stay of execution.

PART III - PROVISIONS APPLICABLE TO CARRIAGE OF GOODS BY AIR
24    CARRIER’S RIGHTS AND RESPONSIBILITIES FOR AIR CARRIAGE

24.1    Notice Concerning Carriers’ Limitation of Liability

 

24.1.1        If the Carrier acts as principal in respect of 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 Montreal Convention or the Warsaw Convention may be applicable to the liability of the Carrier in respect of loss of, damage or delay to cargo. Carrier’s limitation of liability in accordance with those Conventions shall be as set out in clause 24 herein unless a higher value is declared. Agreed stopping places (which may be altered by the Carrier in case of necessity) are those places (other than the places of departure and destination) shown under the requested routing and/or those places shown in the Carriers’ timetables as scheduled stopping places for the route”.

 

24.2    Limitation

24.2.1        Carriage is subject to the rules relating to liability established by the Warsaw Convention or the Montreal Convention unless such Carriage is not “international Carriage” as defined therein.

 

24.2.2        To the extent not in conflict with the foregoing, Carriage and other related services performed by the Carrier shall be subject to applicable laws and government regulations, the Terms and Conditions of Carriage, the Carriers’ Tariffs and/or any related rules, regulations and timetables (but not the times of arrival and departure stated therein) which are made part hereof.

 

24.2.3        For Carriage to which the Montreal Convention does not apply, Carrier’s liability limitation for cargo lost, damaged or delayed shall be 19 SDRs per kilogram unless a greater per kilogram monetary limit is provided in any applicable Convention or in Carrier’s Tariffs.

 

24.2.4        For Goods accepted for Carriage the Warsaw Convention and the Montreal Convention permit Merchant to increase the limitation of liability by declaring a higher value for Carriage and paying a supplemental Charge if required.

 

24.2.5        For Carriage to which neither the Warsaw Convention nor the Montreal Convention applies the Carrier shall, in accordance with the procedures set forth in its Terms and Conditions of Carriage and applicable tariffs, permit Merchant to increase the limitation of liability by declaring a higher value for Carriage and paying a supplemental Charge if so required.

 

24.2.6        In case of loss of, damage or delay to part of the cargo, the weight to be taken into account in determining the Carrier’s limit of liability shall be only the weight of the packages concerned.

 

24.2.7        Notwithstanding any other provisions, for “foreign air transportation” as defined by the U.S. Transportation Code:

                  (a)    in the case of loss of, damage or delay to a shipment, the weight to be used in determining Carrier’s limit of liability shall be the weight which is used to determine the Charge for Carriage of such shipment; and

                  (b)    in the case of loss of, damage or delay to a part of a shipment, the shipment weight in (a) shall be prorated to the packages covered by the same Air Waybill whose value is affected by the loss, damage or delay. The weight applicable in the case of loss or damage to one or more articles in a package shall be the weight of the entire package.

 

24.3    Route of Transportation
Carrier undertakes to complete the Carriage with reasonable dispatch. Where permitted by applicable law, tariffs and government regulations, Carrier may use alternative carriers, aircraft or modes of transport without notice but with due regard to the interests of the Merchant. Carrier is authorized by the Merchant to select the routing and all intermediate stopping places that it deems appropriate or to change or deviate from the routing shown on the face hereof.

 

24.4    Notification

24.4.1        Notwithstanding anything to the contrary in these Terms and Conditions of Carriage, receipt by the Person entitled to delivery of the Goods without complaint shall be prima facie evidence that the Goods have been delivered in good condition and in accordance with the terms of the contract of Air Carriage.

 

24.4.2        Notwithstanding anything to the contrary in these Terms and Conditions of Carriage, in the case of loss of, damage or delay to Goods, written notification must be made to the Carrier by the Person entitled to delivery of the Goods. Such written notification must be made:

                  (a)    in the case of damage to the Goods, immediately after discovery of the damage and at the latest within 14 days from the date of receipt of the Goods;

                  (b)    in the case of delay, within 21 days from the date on which the Goods were placed at the disposal of the Person entitled to delivery;

                  (c)    in the case of non-delivery of the Goods, within 120 days from the date of issue of the Air Waybill, or if an Air Waybill was not issued, within 120 days from the date of receipt of the Goods for transportation by the Carrier.

 

24.4.3        If written notification is not made within the time limits specified in 24.4.2 above then no claim may be brought against the Carrier and any such claims shall be time-barred absolutely.

 

24.4.4        Notwithstanding anything to the contrary in these Terms and Conditions of Carriage, any rights to damages against the Carrier relating to loss, damage or delay to cargo during Air Carriage, shall be extinguished unless an action is brought within two years from the date of arrival of the Goods at the destination, or from the date on which the Goods ought to have arrived, or from the date at which the Carriage stopped.

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