1. DEFINITIONS
“Carrier”: Means “TANCANG SHIPPING LINES”
“Merchant”: Includes the Shipper, Holder, Consignee, Receiver of the Goods, any Person owning or entitled to the possession of the Goods or of this Bill of Lading and anyone acting in behalf of any such Person.
“Holder”: Means any Person for the time being possession of this Bill of Lading to whom the property in the Goods has passed on or by reason of the consignment of the Goods or the endorsement of this Bill of Lading or otherwise.
“Person”: Includes an individual, group, company or other entity.
“Sub-Contractor”: Includes owners and operators of vessels (other, than the Carrier), stevedores, terminal and groupage operators, road and rail transport operators and any independent contractor employed by the Carrier in performance of the Carriage.
“Indemnify”: Includes defend, indemnity and hold harmless.
“Goods”: Means the whole or any part of the cargo received from the Shipper and includes any equipment or container not supplied by or on behalf of the Carrier.
“Container”: Includes any container, trailer, transportable tank, flat or pallet, or any similar article used to consolidate goods and any equipment there-of or connected thereto.
“Carriage”: Means the whole or any part of the operations and services undertaken by the Carrier in respect of the Goods.
“Combined Transport”: Arises if the Place of Receipt and/or the Place of Delivery are indicated on the face hereof in the relevant spaces.
“Port to port shipment”: arises if the Carriage called for by this Bill of Lading is not Combined Transport.
“Freight” includes all charges payable to the Carrier in accordance with the applicable Tariff and this Bill of Lading.
“Hague Rule”: means the provisions of the International Convention for the Unification of Certain Rules relating to Bills of Lading signed at Brussels on 25th August, 1924 and include the amendments by the Protocol signed at Brussels on 23rd February, 1968, but only if such amendments are compulsorily applicable to this Bill of Lading.
2. CARRIER’S TARIFF
The term and conditions of the Carrier’s applicable Tariff are incorporated herein. Particular attention is drawn to the terms and condition therein relating to container and vehicle demurrage. Copies of the relevant provisions of the applicable Tariff are obtainable from the Carrier of his agents upon request. In the case of inconsistency between this Bill of Lading and the applicable Tariff this Bill of Lading shall prevail.
3. WARRANTY
The Merchant warrants that in agreeing to the terms hereof he is, or has the authority of, the Person owning or entitled to the possession of the Goods and this Bill of Lading.
4. SUB-CONTRACTING AND INDEMNITY
(1) The Carrier shall be entitled to sub-contract the Carriage on any terms whatsoever.
(2) The Merchant undertakes that no claim or allegation shall be made against any Person whomsoever by whom the Carriage is performed or undertaken (including all Sub-Contractors of the Carrier), other than the Carrier, which imposes or attempts to impose upon any such Person, or any vessel owned by any such Person, 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 should nevertheless be made, to indemnify the Carrier against all consequences thereof . Without prejudice to the foregoing every such Person shall have the benefit of every right, defence, limitation and liberty of whatsoever nature herein contained or otherwise available to the Carrier as 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 and trustee for such Person.
(3) The provisions of Clause 4(2), including but not limited to the undertakings of the Merchant contained therein, shall extend to claims or allegations of whatsoever nature against other Persons chartering space on the carrying vessel.
(4) The Merchant further undertakes that no claim or allegation in respect of the Goods shall be made against the Carrier by any Person other than in accordance with the terms and conditions of this Bill of Lading which imposes or attempts to impose upon the Carrier any liability whatsoever in connection with the Goods or the Carriage of the Goods, whether or not arising out of negligence on the part of the Carrier and, if any such claim or allegation should nevertheless be made, to indemnify the Carrier against all consequences thereof.
5. CARRIER'S RESPONSIBILITY (Port-to-Port Shipment)
If Carriage is Port-to-Port, the liability (if any) of the Carrier for loss of or damage to the Goods occurring from and during loading onto any seagoing vessel up to and during discharge from that vessel or from another seagoing vessel into which the Goods have been transshipped shall be determined in accordance with any national law making the Hague Rules compulsory applicable to this Bill of Lading or in accordance with US COGSA if applicable pursuant to Clause 26 hereof or in any other in accordance with the Hague Rules. The Carrier shall be under no liability whatsoever for loss of or damage to the Goods, howsoever occurring, if such loss or damage arises prior to loading onto or subsequent to discharge from the vessel. Notwithstanding the above, in case and to the extent that any applicable compulsory law provides to the contrary the Carrier shall have the benefit of every right, defence limitation and liberty contained in the Hague Rule, or the US COGSA if applicable pursuant to Clause 26 hereof as applied by this clause during such additional compulsory period of responsibility, notwithstanding that the loss or damage did not occur at sea.
6.CARRIER'S RESPONSIBILIT (Combined Transport)
If carriage is Combined Transport the Carrier undertakes to perform and/or In his own name to procure performance of the carriage from the Place of Receipt or the Port of Loading, whichever is applicable, to the Port of Discharge or the Place of Delivery, and save as is otherwise provided for in this Bill of Lading, the Carrier shall be liable for loss or damage occurring during the carriage only to the extent set out below.
(1) If the stage of the Carriage during which loss or damage occurred is not known
(a) Exclusion
If the stage of the Carriage during which the loss or damage occurred is not known, the Carrier shall be relieved of liability for any loss or damage if such loss or damage was used by:
- an act of omission of the Merchant
- insufficiency of or defective condition of packing or marking,
- handling, loading, stowage or unloading of the Goods by or on behalf of the Merchant,
- inherent vice of the Goods,
- strike, lock-out, stoppage or restraint of labour, from whatever cause whether partial or general,
- a nuclear incident,
- any cause or event which the Carrier could not avoid and the consequences whereof he could not prevent by the exercise of reasonable diligence.
- compliance with instructions of any Person entitled to give them.
(b) Burden of Proof
The burden of proof that the loss or damage was due to one or more of the causes or events specified in the Clause 6(1) shall rest upon the Carrier. 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 6(1) (a) (ii), (iii) or (iv), it shall be presumed that it was so caused. The Merchant shall, however, be entitled to prove that the loss or damage was not, in fact, caused either wholly or partly by one or more of these causes or event.
(c) Limitation of Liability
Except as provided in Clause 7 (2), 7 (3), and 26, if Clause 6 (1) operates, total compensation shall in no circumstances whatsoever and howsoever arising exceed 2 SDRs per kilo of the gross weight of the Goods lost or damaged. (SDR means Special Drawing Right, as defined by the International Monetary Fund.)
(2) If the stage of the Carriage during which the loss or damage occurred is known
Notwithstanding anything provided for in Clause 6(1 ) and subject to Clauses 15 and 16, if it is known during which stage of the Carriage the loss or damage occurred, the liability of the Carrier in respect of such loss or damage shall be determined:
(a) by the provisions contained in any international convention or national law 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 the Carriage during which the loss or damage occurred and received as evidence thereof any particular document which must be issued in order to make such international convention or national law applicable, or
(b) if no international convention or national law would apply by virtue of Clause 6(2)(a) by the Hague Rules Articles 1-8 inclusive if the loss or damage is known to have med during waterborne Carriage, or
(c) by the provisions of Clause 6(1) if the provisions of Clause 6(2)(a) and (b) above do not apply.
For the purposes of Clause 6(2), references in the Hague Rules to carriage by sea shall be deemed to include references to all waterborne Carriage and the Hague Rules shall be construed accordingly.
(3) If the Place of Receipt or Place of Delivery is not named on the face hereof
Subject to clause 5.
- If the Place of Receipt is not named on the face hereof, the Carrier shall be under no liability whatsoever for loss of or damage to the Goods, howsoever occurring, if such loss or damage arises prior to loading onto the vessel.
- If the Place of Delivery is not named on the face hereof, the Carrier shall be under no liability whatsoever for loss of or damage to the Goods, howsoever occurring, if such loss or damage arises subsequent to discharge from the vessel.
(4) Notice of Loss or Damage
The Carrier shall be deemed prima facie to have delivered the Goods as described in this Bill of Lading 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 at the Place of Delivery (or the Port of Discharge if no Place of Delivery is named on the face hereof) before or at the time of removal of the Goods into the custody of the Person entitled to delivery thereof under this Bill of Lading, or, if the loss or damage is not apparent, within three working days thereafter.
(5)Time-bar
Unless Clause 25 or 26 applies, The Carrier shall be discharged of all liability whatsoever in respect of the Goods, unless suit is brought and notice thereof given to the Carrier within nine month after delivery of the Goods or the date when the Goods should have delivered.
7. SUNDRY LIABILITY PROVISION
(1) Basis of Compensation
Compensation shall be calculated by reference to the value of the Goods at the place and time they are delivered to the Merchant, or at the place and time they should have been delivered. For the purpose of determining the extent of the Carrier's liability for loss of or damage to the Goods, the sound value of the Goods is agreed to be the invoice value plus freight and insurance if paid.
(2) Hague Rules Limitation
If the Hague Rules are applicable by national law, the liability of the Carrier shall in no event exceed to limit provided in the applicable national law. If the Hague Rules are applicable otherwise than by national law, in determining the liability of the Carrier the liability shall in no event exceed 666 SDRs per package or unit.
(3) Ad Valorem
The Merchant agrees and acknowledges that the Carrier has no knowledge of the value of the Goods, and that high compensation than that provide for in Bill of Lading may not be claimed unless with the consent of the Carrier, the value of the Goods declared by the Shipper prior to the commencement of the Carriage is stated on this Bill of Lading and extra Freight paid, if required. In that case, the amount of the declared value shall be substituted for the limits laid down herein. Any partial loss or damage shall be adjusted pro rata on the basis of such declared value.
(4) Delay
The Carrier does not undertake that the Goods shall arrive at the Port of Discharge or Place of Delivery at any particular time or to meet any particular market or use, and the Carrier shall in no circumstances whatsoever and howsoever arising be liable for direct, indirect or consequential loss or damage caused by delay. If this exemption from liability shall be invalid under mandatory law, the liability of the Carrier shall be limited to the value of the freight or when the stage where delay occurred is know to the freight applicable to the relevant stage of transport.
(5) Scope of Application
(a) The terms and conditions of this Bill of Lading shall at all times govern all responsibilities of the Carrier in connection with or arising out of the supply of a Container to the Merchant, not only during the Carriage, but also during the periods prior to and/or subsequent to the Carriage.
(b) The right, defences, limitations and liberties of whatsoever nature provided for in this Bill of Lading shall apply in any action against the Carrier for loss or damage or delay, howsoever occurring and whether the action be founded in contract or in tort.
(c) Save as is otherwise provided for in this Bill of Lading the Carrier shall in no circumstances whatsoever and howsoever arising be liable for direct or indirect or consequential loss or damage or loss of profits.
(6) Inspection by Authorities
If by order of the authorities at any place, a container has to be opened for the Goods to be inspected. The Carrier will not be liable for any loss or damage incurred as a result of ant opening, unpacking, inspection and repacking. The carrier shall be entitled to recover the cost of such transport, opening, unpacking, inspection and repacking from the Merchant.
8. SHIPPER PACKED CONTAINERS
If a Container has not been packed by or on behalf of the Carrier
- The Carrier, shall not be liable for loss or damage to the Goods caused by:
- the manner which the Container has been packed, or
- the unsuitability of the Goods for carriage in the Container supplied, or
- the unsuitability or defective condition of the Container or the incorrect setting of any refrigeration controls thereof, provided that, if the Container has been not supplied by or on behalf of the Carrier, this unsuitability or defective condition could have been apparent upon inspection by the Merchant at or prior to the time when the Container was packed, or
- packing refrigerated Goods, that are not at the correct temperature for carriage.
- The Shipper is responsible for the packing and sealing of all Shipper-Packed Containers and Shipper-Packed Containers is delivered by the Carrier with its original seal at affixed by the Shipper intact, the Carrier shall not be liable for any shortage of Goods ascertained at the delivery.
- 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 in Clause 8(1), save that, if the loss, damage, liability or expense was caused by a matter referred to in Clause 8(1)(c), the Merchant shall not be liable to indemnify the Carrier in respect thereof unless the proviso referred to in that Clause applies.
9. INSPECTION OF GOODS
The Carrier or any person to whom the Carrier has sub-contracted the carriage or any person authorized by the Carrier shall be entitled, but under no obligation, to open any container or package at any time and to inspect the Goods.
l0. CARRIAGE AFFECTED BY CONDITION OF GOODS
It appears at any time that, due to their condition, the Goods cannot safely or properly be carried or carried further, either at all or without incurring any additional expense or taking any measure(s) in relation to the container or the goods, the Carrier may without notice to the Merchant (but as his agent only) take any measure(s) and/or incur any additional expense to carry or to continue the carriage thereof, and/or sell or dispose of the Goods, and/or abandon the carriage and/or store them ashore or afloat, under cover or in the open, at any place, whichever the Carrier in his absolute discretion considers most appropriate, which abandonment, storage, sale or disposal shall be deemed to constitute due delivery under this Bill of Lading. The Merchant shall indemnify the Carrier against any additional expense so incurred.
11. DESCRIPTION OF GOODS
- This Bill of Lading shall be prima facie evidence of the receipt by the Carrier from the Shipper in apparent good order and condition, except as otherwise noted, of the total number of Containers or other packages or units indicated in the box on the face hereof under, total of containers/packages received by the Carrier.
- Except as provided in Clause 11(1) no representation is made by the Carrier as to the weight, contents, measure, quantity, quality, description, condition, marks, numbers or value of the Good, and the Carrier shall be under no responsibility whatsoever in respect of such description or particulars.
- If any particulars of any Letter of Credit and/or Import Licence and/or Sale Contract and/or Invoice or Order number and/or details of any contract to which the Carrier is not a party are shown on the face of the Bill of Lading, such particulars are included solely at the request of the Merchant for his convenience. The Merchant agrees that the inclusion of such particulars shall not be regarded as a declaration of value and in no way increases the Carrier's liability under this Bill of Lading. The Merchant further agrees to indemnify the Carrier against all consequences of including such particulars in this Bill of Lading. The Merchant acknowledges that except when the provisions of Clause 7(3) apply, the value of the Goods is unknown to the Carrier.
12. SHIPPER'S/MERCHANT'S RESPONSIBILITY
(1) All the persons coming within the definition of Merchant in Clause 1 shall be jointly and severally liable to the Carrier for the due fulfilment of all obligations undertaken by the Merchant in this Bill of Lading. Such liability shall include but not be limited to court costs, expenses and reasonable attorney’s fees incurred in collecting charges and sums due to the Carrier.
(2) The Shipper warrants to the Carrier that the particulars relating to the Goods as set out overleaf have been checked by the Shipper on receipt of this Bill of Lading and that such particular, and any other particulars furnished by or on behalf of the Shipper, are adequate and correct. The Shipper also warrants that the Goods are lawful goods and contain no contraband.
(3) The Merchant shall indemnify the Carrier against all claims, loss, damage, fines, and expenses arising or resulting from any breach of any of the warranties in Clause 12(2) hereof or from any other cause in connection with the Goods for which the Carrier is not responsible.
(4) The Merchant shall comply with all regulations or requirements of custom, port and other authorities, and shall bear and pay all duties, taxes, fines, imposts, expenses or losses (including, without prejudice to the generality of the foregoing), freight for any additional carriage undertaken, incurred or suffered by reason of any failure to so comply, or by reason of any illegal, incorrect or insufficient marking, numbering or addressing of the Goods, or discovery of any drugs, narcotics or other illegal substances within Container packed by the Merchant or inside Goods supplied by the Merchant and shall indemnify the Carrier in respect thereof.
(5) If Containers supplied by or on behalf of the Carrier are unpacked at the Merchant's premises, the Merchant is responsible for returning the empty Containers, with interiors brushed and clean, to the point or place designated by the Carrier, his servants or agents, within the time prescribed. Should a Container not be returned within the time prescribed in the Tariff, the Merchant shall be liable for any detention, loss or expenses which may arise from such non-return.
(6) Containers released into the care of the Merchant for packing unpacking or any other purpose whatsoever are at the sole risk of the Merchant whilst in his control. The Merchant shall indemnify the Carrier for all loss and/or damage to such Container Merchant are deemed to be aware of the dimensions of any Containers released to them.
13. FREIGHT
(1) Freight shall be deemed fully earned on receipt of the Goods by the Carrier and shall be paid and non-returnable in any event.
(2) The Merchant's attention is drawn to the stipulations concerning currency in which the Freight is to be paid, rate of exchange, devaluation and other contingencies relative to Freight In the applicable Tariff.
(3) Freight has been calculated on the basis of particulars furnished by or on behalf of the Shipper. If the particulars furnished by or on behalf of the Shipper are incorrect, it is agreed that liquidated damages shall be payable to the Carrier, in accordance with the applicable Tariff.
(4) All freight shall be paid without any set-off, counter-claim, deduction or stay of execution before delivery of the Goods.
14. LIEN
The Carrier shall have a lien on the Goods and any documents relating thereto for all sums payable to the Carrier under this contract and for general average contributions, to whomsoever due. The Carrier shall also have a lien against the current Holder on the Goods and any documents relating thereto for all sums due from him to the Carrier under any other contract. In any event any lien shall extend to cover the cost of recovering the sums due, and for that purpose the Carrier shall have the right to sell the Goods by public auction or private treaty, without notice to the Merchant.
15. OPTIONAL STOWAGE AND DECK CARGO
(1) The Goods may be packed by the Carrier in Containers and consolidated with other Goods in Containers.
(2) Goods, whether or not packed in Containers, may be carried on deck or under deck without notice to the Merchant. All such Goods whether carried on deck or under deck, shall participate in general average and shall be deemed to be within the definition of Goods for the purposes of the Hague Rules or US COGSA and shall be carried subject to those Rules.
(3) Notwithstanding Clause 15(2), in the case of Carriage of Goods which are stated on the face hereof as being carried on deck and which are so carried, The Hague Rules shall not apply and the Carrier shall be under no liability whatsoever for loss, damage or delay, howsoever arising.
16. LIVE ANIMALS
The Hague Rules shall not apply to the Carriage of live animals, which are carried at the sole risk of the Merchant. The Carrier shall be under no liability whatsoever for any injury, illness, death, delay or destruction howsoever arising. Should the Master in his sole discretion consider the any live animal is likely to be injurions to any other live animals or any person or property on board or to cause the vessel to be delayed or impeded in prosecution of the Carriage, such live animal may be destroyed and thrown overboard without any liability attaching to the Carrier. The Merchant shall indemnify the Carrier against all or any extra costs incurred for any reason whatsoever in connection with the Carriage of any live animal.
17. METHODS AND ROUTES OF CARRIAGE
(1) The Carrier may at any time without notice to the Merchant:
(a) use any means of carriage whatsoever
(b) transfer the Goods from one conveyance to another, including but not limited to transhipping or carrying them on another vessel than that named on the face hereof.
(c) unpack and remove the Goods which have been packed into a Container and forward them in a Container or otherwise.
(d) proceed by any route in his discretion (whether not the nearest or most direct or customary or advertised route), at any speed, and proceed to stay at any place or port, whatsoever, once or more often and in any order.
(e) load or unload the Goods, at any place or port (whether or not such port is named overleaf as the Port of Loading or Port of Discharge) and store the Goods at any such place or port.
(f) comply with any orders or recommendations given by any government or authority, any Person acting or purporting to act or on behalf of such government or authority, or having under the terms of any insurance on any conveyance employed by the Carrier the right to give orders or directions.
18. MATTERS AFFECTING PERFORMANCE
If at any time the Carriage is or is likely to be affected by any hindrance, risk, delay, difficulty or disadvantage of any kind (other than the inability of the Goods safely or properly to be carried or carried further) and howsoever arising (even though the circumstances given rise to such hindrance, risk, delay, difficulty or disadvantage existed at the time this contract was entered into or the Goods were received for Carriage), the Carrier (whether or not the Carriage is commenced) may without prior notice to the Merchant and the sole discretion or the carrier either:
(a) 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. If the Carrier elects to invoke the terms of this Clause 18 (a) hereof, he shall be entitled to charge such additional freight as the Carrier may determine, or
(b) Suspend the Carriage of the Goods and store them ashore or afloat upon the terms of this Bill of Lading and endeavour to forward them as soon as possible, but the Carrier makes no representations as to the maximum period of suspension, if the Carrier elects to invoke the terms of this Clause 18 (b) then, he shall be entitled to charge such additional freight as the Carrier may determine, or
(c) Abandon the carriage of the Goods and place them at the Merchants disposal at any place or port which the Carrier may deem safe and convenient, 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 carriage, and the Merchant shall pay any additional costs of the carriage to and delivery and storage at, such place or port.
If the Carrier elects to use an alternative route under Clause 18 (a) or to suspend the carriage under Clause 18 (b) this shall not prejudice his right subsequently to abandon the Carriage.
19. DANGEROUS GOODS
(1) No Goods which are or may become dangerous, inflammable or damaging (including radioactive materials), or which are or may become liable to damage any property whatsoever, shall be tendered to the Carrier for Carriage without his express consent in writing, and without the Container as well as the Goods themselves being distinctly marked on the outside so as to indicate the nature and character of any such Goods and so as to comply with any applicable laws, regulations or requirements. If any such Goods are delivered to the Carrier without such written consent and/or marking, or if in the opinion of the Carrier the Goods are or are liable to become of a dangerous, inflammable or damaging nature, they 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 freight.
(2) The Merchant undertakes that such Goods are packed in a manner adequate to withstand the risks of Carriage having regard to their nature and in compliance with all laws regulations which may be applicable during the Carriage.
(3) Whether or not the Merchant was aware of the nature of the Goods, the Merchant shall indemnify the Carrier against all claims, losses, damages or expenses analog in consequence of the Carriage of such Goods.
(4) Nothing contained in this Clause shall deprive the Carrier of any of his rights provided for elsewhere.
20. NOTIFICATION AND DELIVERY
(1) Any mention herein of parties to be notified of the arrival of the Goods is solely for information of the Carrier, and failure to give such notification shall not involve the Carrier in any liability nor relieve the Merchant of any obligation hereunder.
(2) The Merchant shall take delivery of the Goods within the time provided for in the Carrier’s applicable Tariff (see Clause 2). If the Merchant fails to take delivery of the Goods the Carrier shall be entitled, without notice, to unpack the Goods if packed in containers and/or to 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 the liability of the Carrier in respect of the Goods stored as aforesaid shall wholly cease, and the cost of such storage (if paid or payable by the Carrier or any agent or sub-contractor of the Carrier) shall forthwith upon demand be paid by the Merchant to the Carrier.
(3) If the Merchant fail to take delivery of the Goods within ten days of delivery be coming due under Clause 20 (2) or if in the opinion of the Carrier they are likely to deteriorate, decay, become worthless or incur charges whether for storage of otherwise in excess of their value the Carrier may without prejudice to any other rights which he may have against the Merchant, without notice and without any responsibility whatsoever attaching to him, sell, destroy or dispose of the Goods and apply any proceeds of sale in reduction of the sums due to the Carrier from the Merchant in respect of this Bill of Lading.
(4) Refusal by the Merchant to take delivery of the Goods in accordance with the term of this Clause and/or to mitigate any loss or damage thereof shall constitue a waiver by the Merchant to the Carrier of any claim whatsoever relating to the Goods or the Carriers thereof.
(5) In even of the Carrier agreeing to a request of the Merchant to amend the Place of Delivery stated herein, the term and conditions of this Bill of Lading shall continue to apply, only to the extent provided by the applicable Tariff, until the Goods are delivered by Carrier to the Merchant at the amended Place of Delivery. If the applicable Tariff does not explicitely provide for the continued application of the term and conditions of Bill of Lading then the Carrier shall act as agent only of the Merchant in arranging for delivery of the Goods to the amended Place of Delivery but shall then be under no liability whatsoever for loss damage or delay to the Goods, howsoever arising.
21. FCL MULTIPLE BILLS OF LADING
(1) Goods will only be delivered in a Container to the Merchant if all Bills of Lading in respect of the contents of the Container have been surrendered authorizing delivery to a single Merchant at a single Place of Delivery. In the event that this requirement is not fulfilled the Carrier may unpack the Container and, in respect of Goods for which Bills of Lading have been surrendered, deliver them to the Merchant on an LCL basis. Such delivery shall constitute due delivery hereunder, but will only be effected against payment by the Merchant of LCL Service Charges and any charges appropriate to LCL Goods together with the actual costs incurred for any additional services rendered.
(2) If this is an FCL multiple Bill of Lading (as evidenced by the qualification of the tally acknowledged overleaf to the effect that it is “One of .... part cargoes in the Container"), then the Goods detailed overleaf are said to comprise part of the contents of the Container indicated. If the Carrier is required to deliver the Goods to more than one Merchant and if all or part of the total Goods within the Container consists of bulk Goods or unappropriated, or is or becomes mixed or unmarked or unidentifiable, the Holders of Bills of Lading relating to Goods within the Container shall take delivery thereof (including any damaged portion) and bear any shortage in such proportions as the Carrier shall in his absolute discretion determine, and such delivery shall constitute due delivery hereunder.
22. GENERAL AVERAGE & SALVAGE
(1) In the event of accident, danger, damage or disaster before or after the commencement of the voyage, resulting from any cause whatsoever, due to negligence or not, for which, or for the consequences of which, the Carrier is not responsible, by statute, contract or otherwise, the Merchant shall 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. All expenses in connection with a general average or salvage act to avoid damage to the environment shall always be considered general average expenses.
(2) Any general average on a vessel operated by the Carrier shall be adjusted according to the York/Antwerp Rules of 1974 or any subsequent amendment thereof at any port or place and in any currency at the option of the Carrier. Any general average on a vessel not operated by the Carrier (whether a seagoing or inland waterways vessel) shall be adjusted according to the requirements of the Operator of that vessel. In either case the Merchant shall give such cash deposit 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 so require, within three months of the delivery of the Goods, whether or not at the time of delivery the Merchant had notice of the Carrier's s lien at the time of delivery. The Carrier shall be under no obligation to exercise any lien for general average contribution due to the Merchant.
(3) Conversion into the currency of the adjustment shall be calculated at the rate prevailing on the date of payment for disbursements and on the date of completion of discharge of the vessel for allowances, contributory values, etc.
(4) If a salving vessel is owned or operated by the Carrier, salvage shall be paid for as fully as if the salving vessel or vessels belonged to strangers.
23. BOTH TO BLAME COLLISION CLAUSE
The Both to Blame Collision Clause published by the Baltic and International Maritime Council is hereby incorporated into the Bill of Lading.
24. VARIATION OF THE CONTRACT
No servant or agent of the Carrier shall have the power to waive or vary any of the terms of this Bill of Lading, unless such waiver or variation is in writing and is specifically authorized or ratified in writing by the Carrier.
25. VALIDITY
In the event that anything herein contained is inconsistent with any applicable international convention or national law which cannot be departed from by private contract, the provisions hereof shall to the extent of such inconsistency but no further be null and void.
26. USA CLAUSE PARAMOUNT
(1) If Carriage includes Carriage to, from or through a port in the United States of America, this Bill of Lading shall be subject to the United States Carriage of Goods by Sea Act 1936 (US COGSA), the terms of which are incorporated herein and shall be paramount throughout Carriage by sea and the entire time that the Goods are in the actual custody of the Carrier or his Sub-Contractor at the sea terminal in the United States of America before loading onto the vessel or after discharge there from, as the case may be.
(2) The Carrier shall not be liable in any capacity whatsoever for loss, damage or delay to the Goods whiles the Goods are in the United States of America away from the sea terminal and are not in the actual custody of the Carrier. All these times the Carrier acts as agent only to procure Carriage by Persons (one or more) under the usual term and conditions of those Persons. If for any reason, the Carrier is denied the right to act as agent only at these times, his liability for loss, damage or delay to the goods shall be determined in accordance with Clause 6 hereof.
(3) If this Bill of Lading is accepted by a non-vessel operating common carrier (NVOCC), who has in turn issued other contracts of carriage to third parties, the said NVOCC hereby warrants that all contracts of carriage issued by him in respect of Goods the subject of this Bill of Lading shall incorporate the terms and conditions of this Bill of Lading. The said NVOCC further agrees to indemnify the Carrier, its servants, agents and sub-contractors against all consequences of his failing so to incorporate.
(4) If COGSA applies then the liability of the Carrier shall not exceed US$500 per package or where Goods are not shipped in package, per customary freight unit unless the nature and value of such Goods has been declared by the Merchant before shipment and agreed to by the Carrier and inserted in this Bill of Lading and the applicable Ad Valorem freight rate as and set out in Carrier’s tariff is paid, in which case clause 7 (3) shall apply. For purposes of this clause 26 (4) the term “packages” shall also include containers stuffed and/or packed by the Merchant.
(5) Notwithstanding the provisions of Clause 27, if the place of Receipt, Port of Loading, Port of Discharge or Place of Delivery named herein is in the United States of America, the Merchant shall have the option to refer the claim or dispute to the United States District Court for the Southern District of New York in accordance with the law of the United States of America.
27. LAW AND JURISDICTION
(1) Law of application
Insofar as anything has not been dealt with by the terms and conditions of this Bill of Lading, the law of Vietnam shall apply.
(2) Jurisdiction
All actions under the contract of Carriage evidenced by this Bill of Lading shall be brought before the Economic Court at HoChiMinh City and no other Court shall have jurisdiction with regards to any such action, unless the Carrier appeals to another jurisdiction or voluntarily submits himself thereto.
