RECEIVED by the Carrier in apparent good order and condition (unless otherwise stated herein) the total number or quantity of Containers or other packages or units indicated in the box entitled Carrier’s Receipt for carriage from the Place of Receipt or Port of Loading to the Port of Discharge or Place of Delivery, whichever is applicable, subject to all the terms and conditions, including the law and jurisdiction clause, limitation of liability and declared value clauses, of the current Avalon Freight Service, LLC Bill of Lading (available from the Carrier or its agents). IN ACCEPTING THIS BILL OF LADING THE MERCHANT EXPRESSLY ACCEPTS AND AGREES TO ALL THE TERMS AND CONDITIONS, WHETHER PRINTED, STAMPED OR OTHERWISE INCORPORATED ON THIS SIDE AND ON THE REVERSE SIDE OF THIS BILL OF LADING AND THE TERMS AND CONDITIONS OF THE CARRIER’S APPLICABLE TARIFF AS IF THEY WERE ALL SIGNED BY THE MERCHANT.
If this is a negotiable (To Order / of) Bill of Lading, one original Bill of Lading, duly endorsed must be surrendered by the Merchant to the Carrier (together with outstanding Freight) in exchange for the Goods or a Delivery Order. If this is a non-negotiable (straight) Bill of Lading, the Carrier shall deliver the Goods or issue a Delivery Order (after payment of outstanding Freight) against the surrender of one original Bill of Lading or in accordance with the applicable law at the Port of Discharge or Place of Delivery whichever is applicable.
The following definitions shall apply in this Bill of Lading:
(a) “Carrier” shall mean Avalon Freight Services, LLC; the owners, charterers, operators and crew of the Vessel(s); the Vessel(s); and any connecting or substituted water carrier performing transportation under this Bill of Lading;
(b) “Charges” shall include Freight, demurrage, equipment detention, general average, salvage, and any other money obligations incurred or payable by the Merchant or for the payment of which Carrier has a security interest or maritime lien on the Goods;
(c) “COGSA” shall mean the United States Carriage of Goods by Sea Act, 46 U.S.C. § 30701 et seq. or any amendments thereto;
(d) “Combined Transport” arises if the Carrier has indicated a Place of Receipt and/or a Place of Delivery on the front of this Bill of Lading in the relevant spaces. Combined Transport consists of a Port-to-Port carriage and Inland Transport;
(e) “Container” shall include any container, trailer, transportable tank, flat or pallet, or any similar article used to consolidate Goods and any connected or accessory equipment;
(f) “Freight” shall include the freight and all charges, costs and expenses whatsoever payable to the Carrier in accordance with the applicable Tariff and this Bill of Lading, including storage, per diem and demurrage;
(g) “Goods” shall include the whole or any part of the cargo carried under this Bill of Lading, including any packing, packaging materials, Containers and/or other shipping units or materials, tendered to Carrier for transportation as described on the face of this Bill of Lading;
(h) “Inland Transport” shall mean carriage during Combined Transport other than between the Port of Loading and the Port of Discharge;
(i) “Merchant” shall include the Shipper, Consignee, holder of this Bill of Lading, the receiver of the Goods and any Person owning, entitled to or claiming the possession of the Goods or of this Bill of Lading or anyone acting on behalf of this Person;
(j) “On Board” means that the Goods have been shipped “on board” Carrier’s Vessel or on another mode of transport operated by or on behalf of Carrier for carriage in accordance with this Bill of Lading;
(k) “Person” shall include an individual, corporation, company or any other legal entity;
(l) “Place of Delivery” shall mean the place at which the Carrier has contracted to deliver the Goods, when such place is other than the Port of Discharge;
(m) “Place of Receipt” shall mean the place at which the Carrier has contracted to receive the Goods, when such place is other than the Port of Loading;
(n) “Port-to-Port Carriage” shall mean carriage between the Port of Loading and the Port of Discharge;
(o) “Subcontractor” shall include but is not limited to the owners, charterers, operators and crew of the Vessel(s) other than the Carrier, as well as stevedores, terminals and groupage operators, road and rail transport operators, warehousemen and any independent contractors employed by the Carrier performing the carriage and any direct or indirect Subcontractors, servants and agents thereof whether in direct contractual privity or not; and
(p) “Vessel” shall include the vessel named on the face of this Bill of Lading and any other vessel, feeder vessel, lighter or other watercraft utilized by the Carrier for carriage by sea or otherwise performing transportation under this Bill of Lading.
2. CONTRACTING PARTIES AND WARRANTY. The contract evidenced by this Bill of Lading is between the Carrier and the Merchant. Every Person defined as “Merchant” is jointly and severally liable towards the Carrier for all the various undertakings, responsibilities and liabilities of the Merchant under or in connection with this Bill of Lading and to pay the Freight and/or other Charges due under it without deduction or set-off. The Merchant warrants that in agreeing to the terms and conditions in this Bill of Lading, he is the owner of the Goods or he does so with the authority of the owner of the Goods or of the Person entitled to the possession of the Goods or of this Bill of Lading.
3. CARRIER’S TARIFF. The terms and conditions of the Carrier’s applicable Tariff are incorporated into this Bill of lading. Particular attention is drawn to terms and conditions concerning additional charges including demurrage, per diem, storage expenses and legal fees, etc. A copy of the applicable Tariff can be obtained from the Carrier or its agent upon request and the Merchant is deemed to know and accept such Tariff. A copy of the applicable Tariff is also filed with the California Public Utilities Commission. In the case of any conflict or inconsistency between this Bill of Lading and the applicable Tariff, it is agreed that the applicable Tariff shall prevail.
4. SUBCONTRACTING AND INDEMNITY.
(a) The Carrier shall be entitled to sub-contract on any terms whatsoever the whole or any part of the carriage, including liberty to further sub-contract.
(b) The Merchant undertakes that no claim or allegation whether arising in contract, bailment, tort or otherwise shall be made against any servant, agent, or Subcontractor of the Carrier which imposes or attempts to impose upon any of them or any Vessel owned or chartered by any of 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. If any such claim or allegation should nevertheless be made, the Merchant agrees to indemnify the Carrier against all consequences thereof. Without prejudice to the foregoing, every such servant, agent and Subcontractor shall have the benefit of all terms and conditions of whatsoever nature contained herein or otherwise benefitting the Carrier under this Bill of Lading, as if such terms and conditions were expressly for their benefit. In entering into this contract, the Carrier, to the extent of such terms and conditions, does so on its own behalf and also as agent and trustee for such servants, agents and Subcontractors.
(c) The Merchant further undertakes that no claim or allegation in respect of the Goods shall be made against the Carrier by any Person which imposes or attempts to impose upon the Carrier any liability whatsoever in connection with the Goods or the carriage of the Goods other than in accordance with the terms and conditions of this Bill of Lading, whether or not arising out of negligence or misdelivery on the part of the Carrier, and if any such claim or allegation should nevertheless be made, to indemnify the Carrier against all consequences thereof.
5. CLAUSE PARAMOUNT. The receipt, custody, carriage and delivery of the Goods are governed by the terms and conditions of this Bill of Lading. This Bill of Lading shall have effect subject to the provisions of COGSA, regardless of whether COGSA applies of its own force. The provisions of COGSA are expressly incorporated into this Bill of Lading. The Merchant shall be bound by all the terms and conditions of this Bill of Lading. Carrier shall also have the benefit of the Limitation of Liability Act, 46 U.S.C. § 30501 et seq. and any amendments thereto, and all other statutes of the United States or any other country which may be applicable to grant the Carrier exoneration from or limitation of liability. The provisions of COGSA, except as otherwise provided herein, shall be extended to apply to Goods stowed on deck as provided in Clause 11, before the Goods are loaded on and after the Goods are discharged from the Vessel, and throughout the entire time the Goods are in the actual or constructive custody of Carrier, its servants, agents or Subcontractors. Nothing contained in this Bill of Lading shall be deemed a surrender by the Carrier of any of its rights or immunities or an increase of any of its responsibilities under COGSA. Notwithstanding the foregoing, to the extent that another international convention or national law governing Carrier’s liability is mandatorily applicable, or precludes the application of COGSA in the country in which a court having jurisdiction shall adjudicate a dispute arising out of this Bill of Lading, then such international convention or national law shall to that extent be applied in determining Carrier’s liability in connection with such dispute. The provisions of this Bill of Lading shall govern the relationships between the Merchant, on the one hand, and Carrier, on the other hand and shall supersede any prior booking note, mate’s or dock receipt, or other document to the extent conflicting. The terms and conditions of this Bill of Lading shall be severable. If any term or condition is invalid or unenforceable, or if any breach of or deviation from any provision occurs, such circumstance shall not affect the validity or enforceability of the remaining terms and conditions.
6. FREIGHT. Charges shall be due and payable to Carrier in accordance with the provisions of Carrier’s applicable Tariffs and this Bill of Lading. Freight may be calculated on the basis of information furnished by the Merchant, but Carrier may open containers, packages, or other shipping units and examine, weigh, measure and identify the true nature and quantity of the Goods. If Merchant furnished information is determined to be erroneous and additional freight or other charges are payable, the Merchant and the Goods shall be liable therefore and for any expense incurred by Carrier in examining, weighing and measuring the Goods. Full Freight to the Port of Discharge or Place of Delivery, if indicated, shall be completely earned upon receipt of the Goods by Carrier, whether or not the freight is stated on the front side of this Bill of Lading or intended to be prepaid or collected at destination, and whether or not the Goods are damaged or sound, and said Freight shall be received and retained regardless of whether the Vessel and/or the Goods are lost or not lost or the voyage is broken up or abandoned, or under any other circumstances whatsoever. Carrier shall have a lien on the Goods, which shall survive delivery, for all Charges earned or due under this Bill of Lading or otherwise and may enforce this lien by public or private sale without notice and by all other lawful means. Every Person defined as “Merchant” in this Bill of Lading shall be jointly and severally liable to Carrier for the payment of all Charges, including Freight, as well as for any expenses incurred by Carrier, including attorneys’ fees, in connection with claims or proceedings brought by Carrier for collection of Charges, including Freight, due to Carrier and/or proceedings brought by the Merchant or any third party claiming to have the right to possess the Goods. All Charges shall be paid to Carrier in full without offset, counterclaim or deduction in the lawful currency of the United States.
7. COMBINED TRANSPORT.
(a) If the Carrier undertakes to perform and/or arrange for performance of the carriage of the Goods from (i) the Place of Receipt to the Port of Discharge or the Place of Delivery or (ii) from the Port of Loading to the Place of Delivery, Carrier’s liability, unless otherwise provided in this Bill of Lading, shall be determined in accordance with the provisions of Clauses 5 and 24.
(b) During the period before loading onto the Vessel at the Port of Loading and after discharge from the Vessel at the Port of Discharge, and throughout the entire time the Goods are in the actual or constructive custody of Carrier, its servants, agents or Subcontractors, the Carrier shall be entitled to all rights, defenses, immunities, exemptions, limitations of or exonerations from liability, liberties and benefits contained or incorporated in the contract between the Carrier and any Subcontractor, whether directly or indirectly and who would have been liable to the Merchant as if the Merchant had contracted directly with such person or contained in any compulsory legislation applicable to such person. In no event shall Carrier’s liability under a combined transport bill of lading exceed that determined pursuant to Clauses 5 and 24.
(c) If it cannot be determined at which stage of the carriage the loss or damage occurred, it shall be conclusively presumed to have occurred while the Vessel was at sea and Carrier’s liability shall be determined in accordance with Clauses 5 and 24.
8. SCOPE OF VOYAGE, DELAY AND CONSEQUENTIAL DAMAGES. The scope of voyage herein contracted for may or may not include usual or customary or advertised ports of call whether named in this Bill of Lading or not and may include transport of the Goods to or from any facilities used by the Carrier as part of the carriage, including but not limited to off-dock storage. The Carrier does not promise or undertake to load, carry or discharge the Goods on or by any particular Vessel, date or time or to meet any particular market or in time for any particular use. Advertised sailings and arrivals are only estimated times, and such schedules may be advanced, delayed or cancelled without notice. In no event shall the Carrier be liable for incidental and/or consequential damages or for any delay in scheduled departures or arrivals of any Vessel or other conveyances used to transport the Goods by sea or otherwise. If the Carrier should nevertheless be held legally liable for any such direct or indirect or consequential loss or damage caused by such alleged delay, such liability shall in no event exceed the Freight paid for the carriage.
9. METHODS AND ROUTES OF CARRIAGE. The Carrier may at any time and without notice to the Merchant:
(a) use any means of transport or storage whatsoever;
(b) transfer the Goods from one conveyance to another including transhipping or carrying the Goods on a Vessel other than the Vessel named on the front of this Bill of Lading or by any other means of transport whatsoever, even though transhipment or forwarding of the Goods by such means may not have been contemplated or provided for herein;
(c) sail without pilots, proceed via any route (whether or not the nearest or most direct or customary or advertised route) at any speed and proceed to, return to and stay at any port or place whatsoever (including the Port of Loading herein provided) once or more often, and in any order in or out of the route or in a contrary direction to or beyond the Port of Discharge once or more often;
(d) load and unload the Goods at any place or port (whether or not any such port is named on the front of this Bill of Lading as the Port of Loading or Port of Discharge) and store the Goods at any such port or place, including but not limited to the use of off-dock storage at any port; and
(e) comply with any orders or recommendations given by any government or authority or any Person or body purporting to act as or on behalf of such government or authority or having under the terms of the insurance on any conveyance employed by the Carrier the right to give orders or directions.
The liberties set out above may be invoked by the Carrier for any purpose whatsoever whether or not connected with the carriage of the Goods, including but not limited to loading or unloading other goods, bunkering or embarking or disembarking any Person(s), undergoing repairs and/or drydocking, towing or being towed, assisting other vessels, making trial trips and adjusting instruments. Anything done or not done in accordance with this clause or any delay arising therefrom shall be deemed to be within the contractual carriage and shall not be a deviation.
10. MERCHANT’S WEIGHT, LOAD AND COUNT; MERCHANT’S WARRANTIES.
(a) When Containers or other packages are not packed or loaded by the Carrier, Carrier does not represent to be accurate and is not bound by any description of the value, quantity, weight, condition, or existence of the contents thereof as furnished by or on behalf of the Merchant and identified in this Bill of Lading by use of the phrase “said to contain,” “shipper’s weight load and count” or terms of like meaning, and Carrier in such case shall not be liable for any difference in value, quantity, weight or condition of the Goods furnished by or on behalf of the Merchant and that of the Goods actually delivered.
(b) Carrier shall have no responsibility or liability whatsoever for the packing, loading, securing, shoring and/or stowage of the contents of any Container or other package done by the Merchant, or for loss or damage caused by or resulting from: (i) the manner in which the Goods have been packed, stowed, stuffed or secured in such Containers or other packages by the Merchant, (ii) the unsuitability of the Goods for carriage in such Containers or other packages between the Ports or Places specified in this Bill of Lading, (iii) the unsuitability or defective condition of any such Containers or other packages or the incorrect setting of any refrigeration controls thereof, (iv) packing refrigerated Goods that are not properly pre-cooled to the correct temperature for carriage or before the refrigerated cargo unit has been properly pre-cooled to the correct carrying temperature, or (v) the mechanical or electrical derangement of any instrument, appliance or other Goods furnished by on behalf of the Merchant for carriage. The Merchant shall indemnify the Carrier against any loss, damage, liability or expense whatsoever and howsoever arising caused by one or more of the matters referred to above, including but not limited to damage to other cargo and/or the Vessel;
(c) With respect to Containers or other packages not packed or loaded by Carrier, the Merchant represents and warrants: (i) that the Goods are properly described, marked, secured, and packed in their respective cargo units; (ii) that any cargo units other than Carrier furnished units are seaworthy and physically suitable, sound, and structurally adequate to properly contain and support the Goods during handling and the transportation contemplated by this Bill of Lading, and that such cargo units may be handled in the usual and customary manner without damage to themselves or to their contents, or to the Vessel or its other cargo, or to property, or to persons; (iii) that all particulars furnished to the Carrier with regard to the cargo units and their contents, and the weight of each said cargo unit, are in all respects correct and complete; (iv) that the Goods and/or Merchant-packed Containers or packages are lawful Goods, contain no contraband, drugs, other illegal substances or stowaways, and that any hazardous or potentially dangerous characteristics of the Goods have been fully disclosed by or on behalf of the Merchant and that they will not cause loss, damage or expense to the Carrier, or to any other cargo, Containers, Vessel or Person during the carriage, and (v) that such units are in compliance with all applicable government regulations. The Merchant represents and warrants that they shall timely submit all documentation and information required for the transportation, import, and export of the Goods. The Merchant agrees to indemnify and hold Carrier harmless in respect of any injury to or death of any person, or any loss or damage to the Goods, or to other cargo or to any other property or to the Vessel or to any other vessel, and for all fines, duties, payments or liabilities of any kind, or any other loss or expense, including, but not limited to, lost profits and attorneys’ fees, caused by breach of any of the foregoing representations or warranties or incurred or levied upon Carrier by reason of the Goods being or having been in Carrier’s possession;
(d) The Carrier shall be entitled, but shall be under no obligation, to open and/or scan any Container or package at any time and to inspect, verify and weigh the contents without notice to the Merchant;
(e) If it appears at any time that the Goods cannot safely or properly be carried or carried further, either at all or without incurring any additional expense or taking any measures in relation to the Goods, the Carrier may without notice to the Merchant (but as his agent only) take any measures and/or incur any reasonable additional expense to carry or to continue the carriage of the Goods, and/or to sell or dispose of them and/or to abandon the carriage and/or to store them ashore or afloat, under cover or in the open, at any place, whichever the Carrier in its absolute discretion considers most appropriate, and any sale, disposal, abandonment or storage shall be deemed to constitute due delivery under this Bill of Lading. The Merchant shall indemnify the Carrier against any additional expense so incurred. The Carrier in exercising the liberties contained in this clause shall not be under any obligation to take any particular measures and shall not be liable for any loss, delay or damage howsoever arising from any action or lack of action under this clause.
11. UNDER DECK AND ON DECK STOWAGE. Carrier shall have the right to carry Goods stowed in Containers, vans, trailers, cradles, or portable tanks on deck or below deck without notice to the Merchant and without notation of on deck stowage on the face of this Bill of Lading. Such Goods shall be carried subject to the provisions of Clauses 5 and 24 of this Bill of Lading. All other Goods (including live animals), which are stated on the face of this Bill of Lading to be carried on deck, shall be carried on deck at the Merchant’s sole risk of loss or damage and Carrier shall not be liable for any loss, damage or delay in connection with said Goods from any cause whatsoever.
12. SPECIAL STOWAGE; REFRIGERATION. Goods which require refrigeration, heating or insulation shall not be furnished to Carrier for carriage unless contracted for and specific carrying instructions expressly noted on the front of this Bill of Lading and extra Freight paid. If a contracted carrying temperature is noted on the front of this Bill of Lading, the Merchant shall deliver the Goods to the Carrier at plus or minus 2 degrees Celsius from the contracted carrying temperature, and the Carrier shall exercise due diligence to maintain such supply air temperature, plus or minus 5 degrees Celsius from the contracted carrying temperature, while the Goods are in its possession. IT IS THE MERCHANT’S OBLIGATION TO SET AND/OR CHECK THAT THE TEMPERATURE CONTROLS ON THE CONTAINER OR OTHER PACKAGE ARE AT THE CONTRACTED CARRYING TEMPERATURE AND/OR TO PROPERLY SET THE VENTS AND/OR ANY OTHER TEMPERATURE CONTROL EQUIPMENT. The Carrier has the right but not the obligation to refuse to accept any Goods, whether in a Container or other package loaded by the Merchant or not, for shipment where the Goods are not or were not loaded into the Container or other package within plus or minus 2 degrees Celsius of the contracted carrying temperature. The Carrier shall not be liable for any loss or damage to the Goods arising from any temperature abuse prior to the Carrier’s receipt of the Goods or after the Carrier’s delivery of the Goods, latent defects, breakdown, defrosting, stoppage of the refrigerating or any other specialized machinery, plant, insulation and/or apparatus of the Container or other package and/or any other facilities.
13. MATTERS AFFECTING PERFORMANCE.
(a) If at any time the carriage is or is likely to be affected by any hindrance, risk, danger, delay, difficulty or disadvantage of whatsoever kind and howsoever arising which cannot be avoided by the Carrier by the exercise of reasonable endeavors, (even though the circumstances giving rise to such hindrance, risk, danger, delay, difficulty or disadvantage existed at the time this contract was entered into or the Goods were received for the carriage) the Carrier may at its sole discretion and without notice to the Merchant and whether or not the carriage is commenced either:
(i) carry the Goods to the contracted Port of Discharge or Place of Delivery, whichever is applicable, by an alternative route to that indicated in this Bill of Lading or that which is usual for Goods consigned to that Port of Discharge or Place of Delivery; or
(ii) suspend the carriage of the Goods and store them ashore or afloat upon the terms and conditions of this Bill of Lading and endeavor to forward them as soon as possible, but the Carrier makes no representations as to the maximum period of suspension; or
(iii) abandon the carriage of the Goods and place them at the Merchant’s disposal at any place or port which the Carrier may deem safe and convenient, or from which the Carrier is unable by the exercise of reasonable endeavors to continue the carriage, whereupon the responsibility of the Carrier in respect of such Goods shall cease. The Carrier shall nevertheless be entitled to full Freight on the Goods received for the carriage, and the Merchant shall pay any additional costs incurred by reason of the abandonment of the Goods. If the Carrier elects to use an alternative route under paragraph (i) above or to suspend the carriage under paragraph (ii) above this shall not prejudice its right subsequently to abandon the carriage.
(b) If the Carrier elects to invoke the terms of this clause, then notwithstanding the provisions of Clause 9, the Carrier shall be entitled to such additional Freight and costs as the Carrier may determine.
14. RECONDITIONING, ETC. Carrier reserves the right to recondition, cooper, or restow the Goods whenever necessary for the safety of persons, the Vessel or the Goods or to bring the Goods into conformance with applicable law, and Carrier shall be reimbursed therefor at accessorial labor and equipment rental rates named in any applicable Tariff or, if no such rates apply, at 120% of Carrier’s costs of performing such work.
15. NOTIFICATION AND DELIVERY
(a) Any mention in this Bill of Lading of parties to be notified of the arrival of the Goods is solely for information of the Carrier. Failure to give such notification shall not subject the Carrier to any liability nor relieve the Merchant of any obligation hereunder.
(b) The Merchant shall take delivery of the Goods within the time provided for in the Carrier’s applicable Tariff or as otherwise agreed. If the Merchant fails to do so, the Carrier may without notice unpack the Goods if packed in Containers and/or store the Goods ashore, afloat, in the open or under cover at the sole risk of the Merchant. Such storage shall constitute due delivery hereunder, and thereupon all liability whatsoever of the Carrier in respect of the Goods, including for misdelivery or non-delivery, shall cease and the costs of such storage shall forthwith upon demand be paid by the Merchant to the Carrier.
(c) If the Goods are unclaimed within a reasonable time or whenever in the Carrier’s opinion the Goods are likely to deteriorate, decay or become worthless, or incur charges whether for storage or otherwise in excess of their value, the Carrier may at its discretion and without prejudice to any other rights which it may have against the Merchant, without notice and without any responsibility attaching to it, sell, abandon or otherwise dispose of the Goods at the sole risk and expense of the Merchant and apply any proceeds of sale in reduction of the sums due to the Carrier from the Merchant under or in connection with this Bill of Lading.
(d) Refusal by the Merchant to take delivery of the Goods in accordance with the terms of this clause and/or to mitigate any loss or damage thereto shall constitute an absolute waiver and abandonment by the Merchant to the Carrier of any claim whatsoever relating to the Goods or the carriage thereof. The Carrier shall be entitled to an indemnity from the Merchant for all costs whatsoever incurred, including legal costs, for the cleaning and disposal of Goods refused and/or abandoned by the Merchant.
16. DELIVERY UNDER NEGOTIABLE BILLS OF LADING. If the Goods are consigned “to order” or “to the order of…” on the face of this Bill of Lading, the Goods shall be delivered at the Port of Discharge or Place of Delivery, if indicated, upon surrender of the original bill of lading; provided, however, if the Goods are to be transshipped via a connecting carrier to a destination point beyond the Port of Discharge or Place of Delivery, if indicated, Carrier may, on behalf of the Merchant and acting solely as their agent, arrange for such beyond carriage consistent with instructions received from the Merchant, or the representative of either of them, at the risk and expense of the Goods and/or the Merchant. In such event, Carrier may deliver the Goods to the connecting carrier without surrender of the original, properly endorsed bill of lading, unless instructed otherwise, and shall obtain the connecting carrier’s acknowledgment that delivery of the Goods shall be made only upon surrender of Carrier’s original, properly endorsed bill of lading.
17. UNDELIVERED GOODS. If, for any reason whatsoever, the Merchant refuses or fails to take delivery of the Goods upon their arrival and availability at destination and upon expiration of tariff-prescribed free time or any notice period as set forth in a notice of arrival, availability or demand given by Carrier, Carrier may, without further notice or demand, and in addition to any other legal or equitable remedies, exercise its maritime lien for any charges due at a private or judicial sale of the Goods, or may place the Goods in storage at the risk and expense of the Goods, subject to a lien in favor of Carrier for any charges due.
18. DANGEROUS OR HAZARDOUS GOODS.
(a) The Carrier will not accept any Goods of a dangerous or hazardous nature without prior written notice of their full and true particulars and the Carrier’s written approval to carry them. When the Merchant delivers Goods of a dangerous or hazardous nature to the Carrier, the Merchant shall fully inform the Carrier in writing of the precise and accurate details of the Goods, and special precautions or handling required for the Goods. Such Goods shall be distinctly marked on the outside of the Container as well as on the outside of the packaging inside the Container so as to indicate the nature thereof and the marking must comply with the requirements of any applicable regulations, including regulations contained in any relevant international treaty or convention.
(b) The Merchant shall be fully liable for and shall indemnify, hold harmless and defend the Carrier, its servants, agents and Subcontractors and any third party for all loss, damage (including, but not limited to, consequential damages such as lost profits and expenses related to Carrier’s inability to use its vessels and equipment), delay, personal injury, death or expenses including fines and penalties, and all reasonable legal expenses and costs caused to the Carrier, the Vessel, any cargo, and other property, whether on board or ashore, arising from such Goods and/or from the breach of this clause, whether or not the Merchant was aware of the nature of such Goods. Nothing contained in this clause shall deprive the Carrier of any of its rights provided for elsewhere.
19. CARRIER’S LIEN. The Carrier, its servants or agents shall have a lien on the Goods and any document relating thereto for all Charges, including Freight, and for General Average contributions to whomsoever due. The Carrier, its servants or agents shall also have a lien against the Merchant on the Goods and any document relating thereto for all sums due from the Merchant to the Carrier under any other contract. The Carrier may exercise its lien at any time and any place in its sole discretion, through the action of any servant, agent or Subcontractor, whether the contractual carriage is completed or not. The Carrier’s lien shall also extend to cover the cost and legal expense of recovering any sums due. The Carrier shall have the right to sell any Goods liened by public auction or private sale, without notice to the Merchant. Nothing herein shall prevent the Carrier from recovering from the Merchant the difference between the amount due to the Carrier and the net amount realized by such sale.
20. GENERAL AVERAGE AND SALVAGE. General Average shall be adjusted, stated and settled, according to York/Antwerp Rules, 1994, except Rule XXII thereof, at such port or place in the United States as may be selected by Carrier, and as to matters not provided for by these Rules, according to the laws and usage at the Port of Los Angeles, California. In such adjustment, disbursements in foreign currencies shall be exchanged into legal tender of the United States at the rate prevailing on the dates made and allowances for damage to cargo claimed in foreign currency shall be converted at the rate prevailing on the last day of discharge at the port or place of final discharge of such damaged cargo from the Vessel. A general average guarantee and/or bond and such additional security as may be required by Carrier must be furnished before delivery of the Goods. Such cash deposit as Carrier may deem sufficient as additional security for the contribution of the Goods and for any salvage and special charges thereon shall, without prejudice to the ultimate liability of the parties, be made by the Goods or the Merchant to Carrier before delivery. Such deposits shall, at the option of Carrier, be payable in legal tender of the United States and be remitted to the general average adjuster. When so remitted, the deposit shall be held in a special account at the place of adjustment in the names of the adjuster pending settlement of the general average, and refunds or credit balances, if any, shall be paid in legal tender of the United States.
In the event of accident, danger, damage or disaster, before or after commencement of the voyage resulting from any cause whatsoever, whether due to negligence or not, for which, or for the consequence of which, the Carrier is not responsible by statute, contract, or otherwise, the Goods and the Merchant shall, jointly and severally, contribute with the Carrier in General Average to the payment of any sacrifices, losses, or expenses of a General Average nature that may be made or incurred, and shall pay salvage and special charges incurred in respect of the Goods, as determined by an independent General Average adjuster duly appointed by the Carrier, and his determination as to liability for General Average contribution and his computation for the same shall be final and binding on all parties to the venture. If a salving ship is owned or operated by the Carrier, salvage shall be paid for as fully and in the same manner as if such salvaging ship or ships belonged to strangers. Such deposit as the Carrier or its agents may deem sufficient to cover the estimated contribution of the goods and any salvage and special charges thereon shall, if required, be made by the Goods, Shippers, Consignees or owners of the Goods to the Carrier before delivery.
21. BOTH TO BLAME COLLISION CLAUSE. If the Vessel comes into collision with another ship as a result of the negligence of the other ship and any act, neglect or default of the master, mariner, pilot or the servants of the Carrier in the navigation or in the management of the Vessel, the owners of the Goods carried hereunder will indemnify the Carrier against all loss or liability to the other or non-carrying ship or her owners in so far as such loss or liability represents loss of, or damage to, or any claim whatsoever of the owners of said Goods, paid or payable by the other or non-carrying ship or her owners to the owners of said Goods and set-off, recouped or recovered by the other or non-carrying ship or her owners as part of their claim against the Vessel or Carrier. The foregoing provisions shall also apply where the owners, operators or those in charge of any ship or ships or objects other than, or in addition to, the colliding ships or objects are at fault in respect of a collision or contact.
22. NOTICE OF CLAIMS AND TIME BAR.
(a) Notice of loss or damage to Goods shall be given in writing to the Carrier or its agent at the Port of Discharge or Place of Delivery before or at the time of delivery. If the loss or damage is not apparent before or at the time of delivery, notice must be given within three (3) days of delivery to the Merchant or its agent. Claims shall be submitted in writing addressed by the Merchant to the Carrier.
(b) The Carrier, its agents, servants and Subcontractors and the Vessel shall be discharged from all liability whatsoever for loss, damage, or expense on any theory of recovery, including, but not limited to, negligence, breach of contract, tort, violation of statute, law or regulation, strict liability, delay, misdelivery, conversion or otherwise, unless suit is brought within one year after delivery of the Goods or the date when the Goods should have been delivered.
23. LAW & JURISDICTION. This Bill of Lading shall be governed by the general maritime law of the United States, and all claims, suits, proceedings or disputes arising under or in relation to this Bill of Lading shall be brought in and be subject to the sole and exclusive jurisdiction of the United States District Court for the Central District of California.
24. LIMITATION OF CARRIER’S LIABILITY; AGREED VALUE.
(a) Subject always to the Carrier’s right to limit liability as provided for in Clause 5, if 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 invoice value of the Goods, plus Freight and insurance if paid. If there is no invoice value of the Goods or if any such invoice is not bona fide, such compensation shall be calculated by reference to the market value of such Goods at the place and time they are delivered or should have been delivered to the Merchant. The market value of the Goods shall be fixed according to the current market price, by reference to the normal value of goods of the same kind and/or quality.
(b) Neither the Carrier nor the Vessel shall in any event be or become liable in an amount exceeding US$500 per package, or in case of Goods not shipped in packages, US$500 per customary freight unit.
(c) The Merchant agrees and acknowledges that the Carrier has no knowledge of the value of the Goods. Higher compensation than that provided for in this Bill of Lading may be claimed only when, with the written confirmation of the Carrier, the value of the Goods declared by the Shipper upon delivery to the Carrier has been stated by the Carrier in the box marked “Declared Value” on the front of this Bill of Lading and ad valorem charges paid. In that case, the amount of the Declared Value shall be substituted for the limits provided in this Bill of Lading. Any partial loss or damage shall be adjusted pro rata on the basis of such Declared Value.
(d) (Nothing in this Bill of Lading shall operate to limit or deprive the Carrier of any statutory protection, defense, exemption or limitation of liability authorized by any applicable laws, statutes or regulations of any country or which would have been applicable in the absence of any of the terms set out in this Bill of Lading. The Carrier shall have the benefit of the said laws, statutes or regulations as if it were the owner of the Vessel.
(e) When any claim is paid by the Carrier to the Merchant, the Carrier shall be automatically subrogated to all rights of the Merchant against any third party. The Merchant shall sign a subrogation receipt, release and indemnity immediately when requested by the Carrier.
(f) In no event shall Carrier be liable for more than the amount of damage actually sustained, nor shall Carrier be liable for loss of or damage to any Goods not identified in the transportation documents furnished to Carrier nor shall Carrier be liable for incidental or consequential damages arising from any cause whatsoever (even if Carrier has been advised of the possibility of the same).
25. VALUABLE GOODS. Carrier shall not be liable to any extent for any loss or damage to or in connection with the transportation of Goods of extraordinary value, including but not limited to precious metals, gold or silver plated articles, precious stones, jewelry, trinkets, watches, clocks, glass, china, coins, bills, securities, printings, engravings, pictures, stamps, maps, papers, silks, furs, lace, and similar items of high value and small size, unless the true nature and value of the Goods have been declared in writing by the Shipper before receipt of the Goods by the Carrier, and the same is inserted in this Bill of Lading and an appropriate ad valorem freight in accordance with the applicable Tariff is paid.
26. LIVE ANIMALS. Live animals, including, but not limited to, birds, reptiles and fish, are received and carried at the Merchant’s sole risk of accident or mortality, and carried without any responsibility or liability whatsoever on the part of the Carrier for loss or damage of whatsoever nature or delay arising during the carriage whether caused by unseaworthiness or negligence or any other cause whatsoever and COGSA shall not apply.