Terms and Conditions
Lakeway Link AB’s Standard Terms of Business
(Paragraph headings are for ease of reference only and do not form part of these Standard Terms of Business)
Applicability
The provisions set out and referred to in these conditions shall apply to every contract concluded with Lakeway Link AB (“LwL”) for the performance of the Carriage as undertaken by the Carrier, whether evidenced by the issue of a document or not.
Introduction
The purpose of these Standard Terms of Business (”STB”) is to set out the rules of LwL as logistics provider towards its customers.
1. Definitions
1.1 “Article of Transport” includes, unless otherwise indicated, any vehicle, container, trailer, break bulk and similar items used for the Consolidation of the Goods.
1.2 “Carriage” means the whole or any part of the operations and services of whatsoever nature undertaken by the Carrier in relation to the Goods, including but not limited to the loading, unloading, storage, warehousing and handling of the goods.
1.3 “Carrier” means LwL and the party who has undertaken to perform or to procure the performance of the Carriage from the place of receipt or port of loading to the port of discharge or the place of delivery, whichever respectively applies.
1.4 “Charges” includes freight and all expenses and monetary obligations, including but not limited to duties, taxes and dues, incurred by the Carrier and payable by the Merchant.
1.5 “Consolidation” includes stuffing, packing, loading or securing of goods on or within Articles of Transport.
1.6 “Contract of Carriage” means the contract concluded with the Carrier for the performance of the entire transport as undertaken by the Carrier, whether evidenced by the issue of a document.
1.7 ”Customer” means any person, including an individual, corporation or other legal entities for which the Carrier agrees to provide Services.
1.8 “Dangerous and Marine Polluting Goods” means all Goods that have been identified as being dangerous or a marine pollutant whether or not identified in the edition of the IMDG Code current at the time of the Carriage.
1.9 “Goods” means the whole or any part of the cargo and includes any Article of Transport not supplied by or on behalf of the Carrier.
1.10 “Freight Conditions” means the provisions of this contract for the carriage of goods by the Carrier are defined by the Hague Visby Rules and SMC and by ”Conditions of Carriage”, Appendix A, and NSOCC (North Sea Operator’s Claims Conference) Green Card 2011, Appendix B.
1.11 ”Hague-Visby rules” means the International Convention for the Unification of Certain Rules and Law relation to Bills of Lading, signed at Brussels on 25 August 1924 as amended by the protocol signed at Brussels on 23 February 1968 and the protocol in relation to SDRs signed at Brussels on 21 December 1979.
1.12 ”Maritime Code” means the Danish, Finnish, Norwegian or Swedish Maritime Code (collectively referred to as the Scandinavian Maritime Code (SMC).
1.13 “Merchant” includes the shipper, receiver, consignor, consignee, and holder of any document evidencing the Contract of Carriage and the owner of the goods and any person having a legitimate interest in the goods and anyone acting on behalf of any or all of the above mentioned persons.
1.14 ”Standard Terms of Business” (STB) means these Terms and Conditions including the Appendices.
1.15 “SDR” means Special Drawing Right as defined by the International Monetary Fund.
1.16 “Port-to-Port” means Carriage where the Carrier has agreed to undertake sea carriage of the Goods on the basis of Hook-on/Hook-off only and the Carrier´s liability is limited accordingly.
1.17 “Hook-on/Hook-off” means the period in time when the Goods are in the care and custody of the Carrier from the first place of rest in the port/terminal of departure to the first place of rest in the port/terminal of destination and accordingly limits the scope of the Carrier’s liability in “Port-to-Port” Carriage. Where none of the codes apply compulsorily a carriage shall be deemed to be “port-to-port” unless specifically agreed otherwise.
2. Scope of application
2.1 The provisions set out and referred to in these STB shall apply to every specific contract and order concluded with the Carrier for the performance of services as undertaken by the Carrier, whether evidenced by the issue of a document or not.
2.2 Any rights of the Carrier under these STB are in addition to and shall not in any way limit or reduce any right of the Carrier under the Freight Conditions or any applicable law or convention.
3. Compliance
3.1 Each party is responsible for and warrants its compliance with all applicable laws, conventions, rules and regulations, including but not limited to the government regulations of any country to from or through which the goods may be carried, handled or stored.
3.2 For the purpose of customs clearance or other formalities, which have to be completed before delivery of the goods, the Customer shall attach the necessary documents to the relevant transport document or place them at the disposal of the Carrier and shall furnish the Carrier with all the information, which the Carrier requires. The Carrier has no duty to inquire into either the accuracy or the adequacy of such documents and information.
3.3 The Customer is responsible for obtaining any necessary export and/or import licenses or permits and any other licenses and permits as may be required in respect of the goods.
4. Conditions of Carriage
4.1 The performance of the Freight operation is governed by Conditions of Carriage.
4.2 No failure or delay by the Carrier in enforcing any provision of these terms shall be construed as a waiver of that provision or of any other provision of these terms.
4.3 No claim of any kind against the Carrier shall be set off against any payment due and payable to the Carrier under these terms.
4.4 Claims relating to Articles of Transport carried under Conditions of Carriage will be settled in accordance with NSOCC (North Sea Operator’s Claims Conference) Green Card 2011, Appendix B. However nothing contained therein shall be construed as a waiver or surrender of the Carriers’ rights and/or defenses under Conditions of Carriage.
5. Insurance
5.1 No insurance on Goods will be effected except upon receiving explicit written instructions given by the Customer and accepted in writing by the Carrier. All insurances effected by the Carrier in respect of the goods are effected as agents for the Customer and the Carrier assumes no liability whatsoever for having mediated the insurance.
6. Quotations and payments for Services
6.1 The Carrier’s quotation is based on information of the goods supplied by the Customer to the Carrier, or else in circumstances that are deemed by the Carrier as normal for the intended contract. If the circumstances do not indicate otherwise, the Carrier should be able to assume that the goods, which have been handed over to the Carrier are of such a nature and such a relation between weight and volume as is normal for the type of goods in question.
6.2 In the event of increase in price for bunkers, fuel and/or other hydrocarbon oils, the rates for the Services may be adjusted to cover such increase. Furthermore, all rates quoted are subject to changes in applicable rules and regulations, changes in infrastructure or volumes and other such circumstances over which has no influence.
6.3 The Customer has a duty upon request, to pay the Carrier what is due for the contract (freight, remuneration, advance payment, expenses as may be incurred in the performance of the contract, refund of outlays, taxes, duties, VAT and imposts) against appropriate documentation. The Carrier is not obliged to provide a hard copy of the signed transport document to the Customer.
6.4 If the goods have not been delivered for transport, or if an impediment not caused by the Carrier arises, the Carrier is entitled to the agreed charges less any savings and/or compensation for extra costs entailed thereby. Even if the Carrier has given the Customer the right to defer payment until the arrival of the goods at destination, the Customer has nevertheless a duty, when so requested, to pay the Carrier what is due, if, due to circumstances beyond the Carrier reasonable control, the contract cannot be performed as agreed.
6.5 The Carrier has the right to special payment for work rendered which is clearly necessary in addition to what has been explicitly agreed upon. The payment for such work is determined in accordance with the same principles as those applying to the Services under the specific contract.
7. Terms of payment
7.1 Payment for Services rendered shall be received on the Carrier’s bank account no later than the due date of the invoice.
7.2 Overdue amounts will be subject to late payment interests at EURIBOR + 8% per month. The Carrier is also entitled to full compensation of all costs and damages incurred as a consequence of non-payment or late payment for the Services rendered.
7.3 The Customer must notify the Carrier of any objections to an invoice within 8 days of the invoice date. Disputes regarding an invoice shall on no account release the Customer from its obligation to pay on time.
8. Early termination of contract
The Carrier reserves the right to terminate the contract in the event of a change in the ownership of the party to the contract and/or any of its formally affiliated companies. Furthermore, the Carrier reserves the right to terminate the contract, should the Customer not carry the volumes quoted for. In case a contract is terminated for whatever reason, all outstanding amounts falls due.
9. Sub-contracting
The Carrier shall be entitled to subcontract the whole or any part of the Services and, to avoid any doubt, any and all duties whatsoever undertaken by the Carrier.
10. Law and Jurisdiction
The provisions set out in these STB for freight customers shall be governed by and in accordance with Swedish law and any dispute arising under/or in relation hereto shall exclusively be determined by the District Court of Västerås, save for matters relating to unpaid freight and/or related charges which may be pursued before a court or a tribunal in a jurisdiction at the Carrier discretion and the law at such place be then applicable.
11. Miscellaneous
11.1 If any provision of these STB shall be found to be unenforceable but would be valid if any part of it were deleted or modified, the provision shall apply with such modifications as may be necessary to make it valid and effective.
11.2 The benefit of each contract of carriage with the Customer may be assigned by the Carrier.
11.3 In the event of any inconsistency or conflict in the interpretation and or application of Standard Terms of Business whether incorporated in individual contracts or not the wording of Conditions of Carriage shall take precedence save for in matters relating to law and jurisdiction and/or matters governed by mandatory national law.
12. Appendices
Appendix A – Conditions of Carriage
Appendix B – NSOCC – Green Card
APPENDIX A – Conditions of carriage
These conditions must be read in conjunction with Lakeway Link AB’s Standard Terms of Business.
1. Tariff
1.1 The terms of the tariff applicable at the date of shipment are incorporated herein. Copies of the relevant provisions of the tariff are available from the Carrier upon request. In the event of inconsistency between these Freight Conditions and the tariff, the former shall prevail.
2. Paramount Clause
2.1 Notwithstanding anything provided for in these Conditions: if it can be proved where the loss or damage occurred, the Carrier and/or the Merchant shall, as to the liability of the Carrier, be entitled to require such liability to be determined by the provision contained in any convention or national law which provisions:
i. cannot be departed from by private contract to the detriment of the claimant 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 transport where the loss or damage occurred and received as evidence thereof a Bill of Lading or any particular document which must be issued if such international convention or national law shall apply except that under no circumstances shall the Carrier’s liability extend to live animals and/or Goods that are stated to be carried on deck and are so carried.
iii. In so far as no provisions contained in any international convention or mandatory national law apply to the carriage by sea the liability of the Carrier shall be determined by the Hague Rules contained in the International Convention for the Unification of Certain Rules of Law relating to Bills of Lading, signed at Brussels on 25 August 1924 as amended by the Protocol signed at Brussels on 23 February 1968 and the protocol in relation to SDR’s signed at Brussels on 21 December 1979 from the time of commencement of loading in the port of loading, Hook-on, to the point in time when the Cargo is first placed on the quay or the terminal of destination, Hook-off, in the port of discharge. Furthermore all such AoT on deck, as described in this clause, shall be carried under the same liability as stated above.
3. Freight
3.1 Freight shall be deemed earned on receipt of the Goods by the Carrier and shall be paid in any event and is nonreturnable. Pre-payable freight and charges shall be payable at the latest upon receipt of the Goods by the Carrier and freight and charges, if any, payable at destination shall be payable at the latest the date when the Goods are delivered or should have been delivered. Interest at 12 per cent per month compounded shall run from the date when freight and charges are due.
3.2 The Merchants attention is drawn to the stipulations concerning currency in which the freight and charges are to be paid, rate of exchange, devaluation and other contingencies relative to freight and charges in the relevant tariff conditions.
If no such stipulation exists or is applicable then the currency in which freight and charges are quoted is devalued or an alteration in the rate of exchange occurs with the same effect as a devaluation between the date of the Contract of Carriage and the date when the freight and charges are payable, then all freight and charges shall be automatically and immediately increased in proportion to the extent of the devaluation of the said currency.
In case the Carrier has consented to payment in another currency than the above mentioned currency, then all freight and charges shall be subject to the preceding paragraph, be paid at the highest selling rate of exchange for bankers’ sight draft current on the day when such freight and charges are paid. If the banks are closed on the day when the freight and charges are paid, the rate to be used will be the one in force on the last day when the banks were open.
3.3 Costs for EU ETS, bunkers, fuel and/or other hydrocarbon oils, freight rates will be adjusted on a monthly basis in accordance with the published EU ETS clause and BAF clause at www.lakewaylink.com without notice to the Merchant, in order to compensate the Carrier for adjusted chargers for EU ETS and BAF.
3.4 For the purpose of verifying the freight basis, the Carrier reserves the right to have the contents of Articles of Transport inspected in order to ascertain the weight, measurement value or nature of the Goods.
3.5 If the particulars supplied by or on behalf of the Merchant are incorrect, it is agreed that a sum equal to five times the difference between the correct freight and the freight charged, shall be payable as liquidated damages to the Carrier, notwithstanding any other sum having been stated as freight payable.
3.6 The Merchant shall be liable for the payment of all freights, charges and demurrage etc payable at destination, which the Carrier cannot obtain from the receiver.
3.7 All charges shall be paid without any set-off counter claim, deduction or stay of execution whatsoever.
4. Lien
The Carrier shall have a lien on the Goods and any documents relating thereto for all sums of whatsoever kind and nature due at any time to the Carrier from the Merchant and for General Average contributions to whomsoever due and for the costs of recovering the same and also in respect of any previously unsatisfied amounts of the same nature and for the same costs and expenses of exercising such a lien and the Carrier shall have the right to sell the Goods and documents by public auction or private treaty, without further notice to the Merchant and at the Merchant’s expense and without any liability towards the Merchant. Such lien and liability shall remain notwithstanding the Goods have been landed, stored or otherwise dealt with If on the sale of the Goods the proceeds fail to realise the amount due, the Carrier shall be entitled to recover the difference from any of the parties included in the term Merchant.
5. Inspection of Articles of Transport
The Carrier is entitled, but not obliged, to open, at any time, any Article of Transport Consolidated and prepared for conveyance by the Merchant in order to inspect such Article of Transport. If any Article of Transport, as aforesaid, is opened and/or inspected by any Customs or other Government Authority at any time, the costs and expenses of opening and/or inspection, as aforesaid, shall be for the Merchants account and the Carrier shall not be liable for any loss, damage, delay, costs or expenses incurred or suffered by the Merchant by reason thereof and the Merchant shall indemnify the Carrier for all consequences arising from such openings and/or inspections. The Merchant is obliged to correct at his risk and expense any inadequacy or defect found, failing which the Carrier is entitled to treat the transport as terminated and place the Goods at the Merchant’s disposal at any place. In such case the Carrier is entitled to full freight and indemnification as described above in this Clause.
6. Seals
The Carrier will not undertake any checking, recording or reporting with regard to seals on Articles of Transport and the Carrier does not accept any responsibility whatsoever for, or as a consequence of, defective or missing seals on Articles of Transport.
7. Methods and routes of Carriage
7.1 The Carrier is entitled, without notice to the Merchant, to perform the Carriage in any reasonable manner and by any reasonable means, methods and routes whatsoever.
7.2 In the event of carriage by sea, reasonable means, methods and routes includes, but is not limited to, vessels sailing with or without pilots, undergoing repairs, adjusting equipment, dry-docking and assisting vessels in all situations.
8. Sub-contracting
8.1 The Carrier shall be entitled to sub-contract on any terms whatsoever, the whole or any part of the carriage, loading, unloading, storing, warehousing, handling and any and all duties whatsoever undertaken by the Carrier in relation to the Goods.
8.2 For the purposes of the Contract of Carriage and subject to the provisions in these conditions, the Carrier shall be responsible for the acts and omissions of any person whose services he makes use of for the performance of the Contract of Carriage.
9. Carrier’s Consolidation, Carriage of Articles of Transport on or under deck
9.1 Goods may be consolidated by the Carrier in an Articles of Transport. If an Articles of Transport has not been consolidated and prepared for conveyance by the Carrier, the Carrier shall, without prejudice to the rights available to the Carrier not be liable for damage to or loss of the Goods therein nor for any damage to or loss of the Articles of Transport itself and the Merchant shall indemnify the Carrier for any loss, damage or expense incurred by the Carrier, if such loss, damage or expense is attributable to overloading negligent or inadequate consolidation, securing, covering or locking the Articles of Transport, the goods being unsuitable for carriage in the Articles of Transport actually used, the unsuitability or defective condition of the Articles of Transport, unless the Articles of Transport has been supplied by the Carrier and the unsuitability and/or defective condition would have been apparent by reasonable means of checking at the time when the Carrier accepted the Articles of Transport for conveyance.
9.2 Articles of Transport, whether Consolidated by the Carrier or received by the Carrier in a Consolidated condition from the Merchant, may be carried on or under deck without notice.
10. Delivery
10.1 If the Merchant does not take delivery of the Goods within 3 days after the Carrier calls upon him or his agents so to do, the Carrier shall, without further notice to the Merchant be at liberty to store the Goods on behalf of the Merchant and at the Merchant’s sole risk and expense. Subject if requisite to the lien provisions of clause 4 hereof. Such storage shall constitute delivery and the liability of the Carrier in respect of the goods stored shall wholly cease. The costs of such storage, if paid by the Carrier or any agent or sub-contractor of the Carrier, shall be paid, on demand, by the Merchant to the Carrier.
11. Matters affecting performance
11.1 The Carrier shall use reasonable endeavors to complete the Carriage and to deliver the Goods at the place of delivery or the port of discharge.
11.2 If, at any time, the performance of the Contract of Carriage is or will be affected by any hindrance, risk, delay, strike/lockout, difficulty or disadvantage of any kind whatsoever and if by virtue of sub-clause (1) the Carrier has no duty to complete the performance of the Contract of Carriage, whether or not the Carriage has commenced, may elect to:
I. treat the performance of the Contract of Carriage as terminated and place the Goods at the Merchant’s disposal at any place which the Carrier shall deem safe and convenient, or
II. deliver the Goods at the place of delivery or the port of discharge. In any event the Carrier shall be entitled to full Charges for any Goods received for Carriage and additional compensation for extra costs resulting from the circumstances referred to above.
12. Heavy Lifts and break bulk
12.1 All expenses relating to tendering, loading and discharging of Goods that require equipment, gear or appliances not permanently fitted to or available at the quayside or on the Vessel to be for the Merchant’s account.
13. Time bar and notice of loss
14. All liability whatsoever of the Carrier shall cease unless suit is brought within twelve months after delivery of the Goods or the date when the Goods should have been delivered. Unless notice of loss or of damage to the Goods and the general nature of it be given in writing to the Carrier at the place of delivery before or at time of the removal of the Goods into the custody of the person entitled to delivery thereof, or, if the loss or damage be not apparent, within six consecutive days thereafter, such removal shall be prima facie evidence of the delivery by the Carrier of the Goods as described on the receipt.
15. Carrier’s liability for loss of or damage to the Goods
15.1 The Carrier shall be liable for loss or damage to cargo occurring between the commencement of loading operations, Hook-on, and the point in time when the cargo is first placed on the quay to the terminal of destination, at it’s first place of rest, Hook-off.
15.2 The Carrier shall be relieved of liability for any loss or damage if such loss or damage arose or resulted from:
a. any cause or event which the Carrier could not avoid by the exercise of reasonable diligence,
b. act of God, act of war or act of public enemies including riots and civil commotions,
c. arrest or restraint of princes, rulers or people, or seizure under legal process,
d. quarantine restrictions,
e. act or omission of the Merchant, his agent or representative,
f. compliance with the instructions of the person entitled to give them,
g. 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,
h. handling, loading stowage or unloading of the Goods by or on behalf of the Merchant.
i. inherent vice of the Goods.
j. insufficiency or inadequacy of marks or numbers on the Goods.
k. trapping, blocking, strikes, lock-outs, stoppages or restraints of labour from whatever cause whether partial or general.
l. fire, unless caused by the actual fault or privity of the Carrier.
m. any damage caused by third parties, including stowaways/migrants.
n. any cause or event which the Carrier could not avoid the consequence whereof he could not prevent by the exercise of reasonable diligence.
15.3 When the Carrier establishes that in the circumstances of the case, the loss or damage could be attributed to one of the causes, or events, specified in sub-clause 15.2, 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 wholly or partly by one or more of the causes or events.
16. Carriers’ liability for delay, consequential loss etc.
16.1 Times shown in timetables, sailing plans or elsewhere are approximate and not guaranteed. They are not considered to be part of this contract of carriage and the Carrier reserves its right to change these without notice to the Merchant.
16.2 The Carrier shall in no circumstances whatsoever and howsoever arising be liable for direct, indirect or consequential loss or damage caused by delay. Without prejudice to the foregoing, if the Carrier should nevertheless be held legally liable for any such direct, indirect or consequential loss or damage caused by delay, then the Carriers liability shall be limited to the freight for the Carriage or the value of the Goods as determined in clause 19, whichever is the lower.
16.3 Save as is otherwise provided herein, the Carrier shall in no circumstances be liable for direct, indirect or consequential loss or damage arising from any other cause whatsoever or for loss of profits including but not limited to any such losses arising from a delay in delivery.
17. Defences and limits for the Carrier and the Carrier’s Sub-Contractors, agents and servants
17.1 The defences and limits of liability provided for in these Freight Conditions shall apply in any action against the Carrier for loss of or damage to the Goods whether the action be founded in contract, bailment, tort or otherwise.
17.2 Himalaya Clause and Circular Indemnity: the Merchant undertakes that no claim or allegation arising in contract, bailment, tort or otherwise can be made against any servant, agent or sub-contractor of the Carrier which imposes or attempts to impose upon any of them or any vessel owned or chartered by them 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 such person, and if any such claim or allegation shall nevertheless be made, to indemnify the Carrier against all consequences thereof. Without prejudice to the foregoing, every such servant, agent and sub-contractor shall have the benefit of all the terms in the Freight Conditions of whatsoever nature herein contained or otherwise benefiting the Carrier including Clause 3 hereof, the Law & Jurisdiction clause, as if such Freight Conditions (including Clause 3 hereof) were expressly for their benefit and in entering into this contract the Carrier, to the extent of such Freight Conditions, does so not only on its own part, but also as agent and trustee for such servants, agents and sub-contractors.
17.3 In any case the aggregate of all amounts recoverable from the Carrier and his servants, agents or subcontractors, including stevedores, shall in no case exceed the limits provided for in these Freight Conditions
18. The Amount of Compensation
18.1 When the Carrier is liable for compensation in respect of loss of or damage to 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 of Carriage or should have been so delivered.
18.2 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.
18.3 In multimodal transport, where the stage of carriage where loss or damage occurred is not known, compensation shall not exceed 2 SDR’s per kilogram or gross weight of the Goods lost or damaged.
18.4 The Carrier shall be entitled to limit his liability in respect of loss, damage or delay of the Goods carried in an Article of Transport to 667 SDR per unit or 2 SDR per kg, whichever is the highest. In the event of loss, damage or delay to an Article of Transport the Article of Transport shall constitute one unit for purposes of limitation of liability and the Carrier shall be entitled to limit his liability to 667 SDR per Article of Transport.
18.5 Higher compensation may be claimed only when the value of the Goods declared by the Consignor is exceeding the limits laid down in this clause and, with the consent of the Carrier, has been stated in the Document evidencing the Contract of Carriage for the purpose of extending his liability. In this case the value declared shall be substituted for the aforementioned limits.
19. Carrier’s Responsibility
19.1 Where the Carrier issues a document evidencing the Contract of Carriage it shall be prima facie evidence of the receipt by the Carrier of the Goods as therein described in respect of the particulars which the Carrier had reasonable means of checking. In respect of such particulars proof to the contrary shall not be admissible when such document is a negotiable document that has been transferred to a third party acting in good faith.
20. Merchants Responsibility
20.1 The Merchant shall be deemed to have guaranteed to the Carrier the accuracy, at the time the Goods were taken
in charge by the Carrier, of the description and particulars of the Goods, including but not limited to marks, numbers, quantity and weight, as furnished by the Merchant and the Merchant shall indemnify the Carrier against any liabilities, losses, damage, costs and expenses arising or resulting from any inaccuracies in, or inadequacy of, such description and particulars. 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 or from any cause in connection with the Goods for which the Carrier is not responsible.
21. Dangerous & Marine Polluting Goods
21.1 The Merchant is responsible for all regulations, statutory or otherwise, including the latest edition of the International Maritime Dangerous Goods (IMDG) Code, and/or the Memorandum of Understanding for the Transport of Packaged Dangerous Goods in the Baltic Sea (depending on Route/Departure), including packaging and labeling of the Goods and labeling of the Article of Transport.
21.2 Enlarged labels (placards) corresponding to the primary, and if appropriate, subsidiary risk of the Dangerous Goods contained in a cargo unit must be displayed / affixed. These placards must be removed (or hidden by masking) as soon as the cargo unit is empty and free of residue from its previous cargo that presented a risk.
21.3 Where combined transport is involved the European Agreement for the International Carriage of Dangerous Goods by Road (ADR) and Annex 1 (RID) to the contract for International Carriage of Goods by Rail (CIM) or special arrangements made between the contracting parties in respect hereof apply to the appropriate leg.
21.4 Dangerous Goods must be removed from the port of discharge as soon as is practicable unless specific permission has been obtained for the Goods to remain in the port.
21.5 The Merchant undertakes that no Dangerous Goods shall be tendered to the Carrier without his express consent in writing and without appropriate labeling of the goods and the Article of Transport. If any Dangerous Goods are delivered to the Carrier without such written consent and/or labeling or in the opinion of the Carrier are liable to become a risk to the method of transport, other cargoes, or the environment the may at any time be discharged, destroyed or rendered harmless and be disposed of by the Carrier. Such undertaking shall be at the Merchant’s risk and expense, except when General Average is declared.
21.6 The Merchant shall be liable for any damage, loss and expense, howsoever caused, if the foregoing provisions, as applicable, are not complied with.
22. Merchant’s Consolidation, reefer and heating machines
22.1 If an Article of Transport has not been Consolidated and prepared for conveyance by the Carrier. the Carrier shall without prejudice to the rights available to the Carrier, not be liable for damage to or loss of the Goods therein nor for damage to or loss of the Article of Transport itself and the Merchant shall indemnify the Carrier for any loss damage or expense incurred by the Carrier. if such loss. damage or expense is attributable to
a. overloading, negligent or inadequate Consolidation, securing, covering or locking of the Article of Transport:
b. the Goods being unsuitable for carriage in the Article of Transport actually used;
c. the unsuitability or defective condition of the Article of Transport, unless the Article of Transport has been supplied by the Carrier and the unsuitability and/or defective condition would have been apparent by reasonable means of checking at the time when the Carrier accepted the Article of Transport for conveyance.
22.2 The Carrier does not accept liability for the consequences of malfunctioning of refrigeration, heating, atmospheric control or other equipment of whatsoever nature attached to or forming part of the Article of Transport.
23. General Average
23.1 General Average shall be adjusted according to York-Antwerp rules 1974 as amended in 1994 and shall be prepared at Västerås, Sweden, or any other port at the Carrier’s option by an established adjuster to be appointed by the Carrier. This provision shall cover all Goods whether carried on or under deck as well as deck cargo and live animals. The Merchant shall deliver such cash deposit and/or other security as the Carrier may deem sufficient to cover the estimated general average contribution of the Goods before delivery if the Carrier requires, or, if the Carrier does not require, within three months of the delivery of the Goods, whether or not at the time of the delivery the Merchant hade notice of the Carriers lien, if a salving vessel is owned or operated by the Carrier, salvage shall be paid for as fully as if the said salving vessel belonged to strangers.
23.2 If the Carrier delivers the Goods to the Merchant without claiming any average bond or other security for contribution to General Average the Merchant – by receiving the Goods – becomes personally liable for the contribution up to the CIF value of the Goods provided the Carrier notifies the Merchant within three months after receipt by the Merchant of the Goods of his intention to declare General Average.
23.3 The Merchant undertakes, if so requested by the Carrier, to disclose the CIF value of the Goods and the name and address of the Underwriter. Unless the Merchant provides the Carrier with an undertaking from such Underwriter to pay General Average contribution the Merchant shall give the Carrier such other security as he may approve.
23.4 Any disputes howsoever and/or whatsoever arising under or in relation to General Average, including but not limited to, the adjustment thereof, cash deposits, General Average bonds, General Average Guarantees and the collection and/or payment of contributions to General Average shall be subject to Swedish law and shall be subject to the exclusive jurisdiction of the District Court of Gothenburg, provided that nothing contained in this clause shall prevent the Carrier from invoking such other law as may be necessary for the enforcement of the Carrier’s rights.
24. Both-to-Blame Collision Clause and New Jason Clause
24.1 The Both-to-Blame Collision Clause and New Jason Clause as adopted by BIMCO are incorporated herein.
APPENDIX B – NSOCC Green Card 2011 (1st Edition)
Guidelines for the settlement of claims relating to Articles of Transport carried under the Carriers’ Standard Terms of Carriage.
This sixth edition of these Guidelines is issued to indicate to the trade the parameters that have been agreed between the Carriers and Protection & Indemnity (P&I) Clubs, over the years, for the settlement of claims for damage to Articles of Transport (“AoT”) and similar carried under the Carriers’ Standard Conditions of Carriage.
These Guidelines do not vary or prejudice the parties respective legal positions under the Carriers’ Standard Conditions of Carriage in any way. AoT includes, unless otherwise indicated, any vehicle, container, Fat, pallet, trailer, TUV-certified unit, transportable tank and/or similar items used for the consolidation of goods, as well as mobile plant. Trailers and similar road vehicles must comply with the International Standard ISO 9367-1 and ISO 9367-2, in respect of “Lashing and Securing arrangements on road vehicles for sea transportation on ro/ro ships”.
Special attention is drawn to the Carrier’s Standard Conditions of Carriage and nothing contained in these Guidelines shall be construed as a waiver or surrender of any of the carrier’s rights and/or defences. The Carrier shall not undertake any greater liability or responsibility than exists under those standard conditions.
Normal Wear and Tear and Handling Damage
Alleged damage to the AoT is frequently found, on inspection, to be wear and tear. AoT are susceptible to damage despite due care being taken during loading, handling, stowing, storing, and discharge, and terminal operations. Carriers shall not accept such wear and tear and such “handling damage” as a valid claim.
Claim Settlement
The intention of these Guidelines is to establish the basis for an amicable resolution of any claims arising in respect of loss of or damage to an AoT allegedly sustained whilst in the custody of the Carrier. Simplified procedures have been adopted for settlement of valid claims for AoT.
Except where the damaged material is less than 3 months of age, all claim settlements shall be subject to a reduction, in accordance with industry practice to reflect wear and tear depreciation (W&T Clause). Where the damaged material is proven to be less than 3 months of age, loss or damage will be fully reimbursed (Material Lifetime Clause).
Valid Claims
Claims will only be accepted where:
1. it can be clearly established that the loss or damage occurred whilst the AoT was in the custody of the Carrier; and
2. the loss or damage was caused by the fault or neglect on the part of the Carrier, their Subcontractors, their Servants or their Agents; and
3. it is supported by documentary evidence, specifically:
a) Copy invoice or estimate for repair and/ or replacement costs.
b) Written confirmation that the costs paid have not been claimed from or paid by any other party.
Claimants are expected to mitigate the loss at all times. Where any of the specific items detailed in paragraphs A to E below form part of a larger claim, consideration may be given to settlement without the application of the stated limitations in paragraphs A to E.
As a general principle, carriers shall not accept liability for the following:
A: Damage to parts not visible on delivery through reasonable inspection methods, such as video gates and visual manual delivery checks (depending on port facilities).
B: Roof damages except where damage occurs by external impact whilst the AoT was in the custody of the Carrier only if clearly and evidently visible from ground level or, where quay facilities are available for “proper and efficient” roof damage control, as recorded thereon.
C: Decals, Logos and Advertising except for repair or replacement in the immediate damage area.
D: Trailers and similar items
D1: Any damage caused by shifted cargo within or on the AoT.
D2: Tilts & Curtains except holes and tears in tilts and/or curtains (items not subject to the W&T Clause) where they are significant and were caused as a result of tear or chafe against external objects whilst the AoT was in the custody of the Carrier. Examples of such situations, where liability shall not be accepted, are holes and tears as a result of:
a) Tearing or chafing against the framework of, or objects within, the AoT.
b) Tearing or chafing against cargo within the AoT, excessive tension in the canopy due to side boards, stanchions or cargo extending beyond the cargo loading platform.
c) Knife cuts and tilt damages caused by stowaways. Unless the cost of repair exceeds the cost of replacement, holes and tears will not be accepted as justifying the complete renewal of the tilt and/or curtains, even if the damage endangers the legitimacy of a certification policy (such as, but not limited to, a TUV Certificate) In the exceptional case of a justified complete renewal of the tilt, any claim settlement will reflect the depreciated replacement value of the tilt and/or curtains at the time that the damage occurred.
D3: Bumpers, Sidebars and Cargo Lifts touch ramps, bollards and other objects. Any related minor damage shall be treated as fair wear and tear, unless they are fully retracted and secured prior to presentation for shipment.
D4: Buffer blocks which are customarily fitted to protect the AoT, or any parts of it, from frequent contact with hard objects. Any damage shall be deemed to be fair wear and tear.
D5: TIR Wires, Eyelets & Curtain Buckles are in excess of the width of the AoT and are subject to damage in normal use. All damage to these and other such items shall be considered as fair wear and tear.
D6: Tires, flat tires, punctures or damages to the tread of the tires. Damage will only be compensated where there is clear visible impact to the sidewall of the tires and then only according to the following criteria:
a) If the remaining tread is known, compensation shall be calculated pro rata per mm.
b) If the remaining tread is unknown, compensation shall be maximum 50%. However, no liability shall be accepted for any tire with a tread below 4mm or where the tread peels away from the tires.
D7: Spare wheel carriers and storage boxes are often positioned close to the ground and any damage shall be considered as inherently occurring due to their location.
D8: Wheel rims Any damages.
D9: Air suspension bags and related parts Any damages, except where it can be clearly established that the damage occurred whilst the AoT was in the custody of the Carrier.
D10: Mudguards and anti-spray equipment are inherently vulnerable to contact with external objects. Any damage shall be considered fair wear and tear, except where it can be clearly established that the damage occurred whilst the AoT was in the custody of the Carrier.
D11: Loose equipment Loss of or damage to lamps, lamp lenses, reflectors and other loose equipment, such as, but not limited to, removable trailer light boards, spare tires, winding handles, brake couplings, tools, tarpaulin covers, span sets, etc.
D12: Landing legs and stays except where bent by external impact to such an extent that they are no longer able to serve their intended purpose.
D13: Landing legs wheels and feet Any damage to these items having regard to their function and to the heavy stress to which they are regularly subjected, except where it can be clearly established that they were damaged by external impact to such an extent that they are no longer able to serve their intended purpose.
D14: Side board & door hinges and locks Side board & door hinges and locks wear out due to normal handling and corrosion.
D15: Side boards and trailer superstructure Chafing, denting, splitting of side boards (covered side boards are not subject to the W&T Clause) and superstructures, except where it can clearly be established that the damage occurred whilst the AoT was in the custody of the Carrier.
D16: Rear board and rear doors Chafing, denting, splitting of the rear board and rear doors, except where it can be clearly established that the damage occurred whilst the AoT was in the custody of the Carrier.
D17: Aluminum and other light-weight constructions except frame and sub-frame damage caused by external impact occurring whilst the AoT was in the custody of the Carrier.
D18: Curtain-winding and tensioning mechanism except where damage occurs by external impact whilst the AoT was in the custody of the Carrier and caused the system to malfunction.
E: Box, Bulk, Reefer, and Tank, Containers Dents, scratches and any other cosmetic damages to any outer casing, panels, framework, corner posts, and castings, where the normal operation of the unit is not impeded (Cosmetic damage Clause). Malfunction of temperature gauges, valve covers, box lids etc.
Damage to ladders and walkways which does not affect their ability to be used safely.
Temperature settings or the malfunction of thermostats, heating or refrigeration units.
Claims in relation to tank containers shall be subject to the right of inspection of the damage and any claim settlement will reflect the depreciated replacement value of the tank container at the time that the damage occurred.
As approved by the North Sea Operator’s Claims Conference (NSOCC) Members 2010.
Securing of cargo within vehicles and AOT for carriage by sea
The object of multimodal transport is to carry goods from the place of consolidation in AoT to their final destination without interference during the carriage.
It is in the interest of all parties involved for the goods to out-turn at the receivers premises in sound condition and it is therefore essential that the goods are properly stowed and secured in the AoT from the outset. Failure to do so may well be illegal and also cause delay and additional expense for shippers as well as endanger life.
Therefore, it is essential for the goods to be properly stowed and secured in the AoT, to safeguard the goods and the AoT against natural and man-made circumstances that may arise during the carriage. Shippers must comply with stowage guidelines and standards (and any amendments thereto) which have been drawn up by various organizations over the years, including but not limited to:
- The European Standard EN 12195-1 as approved by CEN members (Comité Européen De Normalisation) on 1 September 2003. – The manual “Loading and securing Cargo on Load Carriers” published by the Transport Research Institute (T²K), Stockholm, Sweden.
- Securing of loads on road vehicles. (VDI manual Securing of Loads), VDI 2700 published 2004-11.
- The British Merchant Shipping Notice no.M.1445 of April 1991. It’s associated “Roll On /Roll Off Ships Stowage and Securing of Vehicles Code of Practice” (ISBN 0 11 550995 X) issued by the Department of Transport, Marine Directorate, London, is published by Her Majesty’s Stationary Office and contains lists of related publications.
- The IMDG Code Supplemental (Amdt. 34- 08) titled “Guidelines for the packing of cargo, other than bulk cargo, into or onto cargo transport units (CTUs) applicable to transport operations by all surface and water modes of transport”.
As approved by the North Sea Operator’s Claims Conference (NSOCC) Members 2010.
LwL STB, v.2024.01
