Terms & Conditions of Service
These terms and conditions of service constitute a legally binding contract between Princess Cargo Corp. and the “Customer”. In the event the Company renders services and issues a document containing Terms and Conditions governing such services, the Terms and Conditions set forth in such other document(s) shall govern those services.
1. Definitions.
(a) “Company” shall mean Princess Cargo Corp. subsidiaries, related companies, agents and/or representatives;
(b) “Customer” shall mean the person for which the Company is rendering service, as well as its principals, agents and/or representatives,
including, but not limited to, shippers, importers, exporters, carriers, secured parties, warehousemen, buyers and/or sellers, shipper’s agents, insurers and underwriters, break-bulk agents, consignees, etc. It is the responsibility of the Customer to provide notice and copy(s) of these terms and conditions of service to all such agents or representatives;
(c) “Documentation” shall mean all information received directly or indirectly from Customer, whether in paper or electronic form;
(d) “Ocean Transportation Intermediaries” (“OTI”) shall include an “ocean freight forwarder” and a “non-vessel operating carrier”;
(e) “Third parties” shall include, but not be limited to, the following: “carriers, truckmen,
cart men, lighter men, forwarders, OTIs, customs brokers, agents, warehousemen and others to which the goods are entrusted for transportation, cartage, handling and/or delivery and/or storage or otherwise”.
2. Company as agent. The Company acts as the “agent” of the Customer for the purpose of performing duties in connection with the entry and release of goods, post entry services, the securing of export licenses, the filing of export and security documentation on behalf of the Customer and other dealings with Government Agencies: as to all other services, Company acts as an independent contractor.
3. Limitation of Actions.
(a) Unless subject to a specific statute or international convention, all claims against the Company for a potential or actual loss, must be made in writing and received by the Company, within 90 days of the event giving rise to claim; the failure to give the Company timely notice shall be a complete defense to any suit or action commenced by Customer.
(b) All suits against Company must be filed and properly served on Company as follows:
(i) For claims arising out of ocean transportation, within 1 year from the date of the loss;
(ii) For claims arising out of air transportation, within 2 year from the date of the loss;
(iii) For claims arising out of the preparation and/or submission of an import entry(s), within 75 days from the date of liquidation of the entry(s);
(iv) For any and all other claims of any other type, within 2 years from the date of the loss or damage.
4. No Liability for The Selection or Services of Third Parties and/or Routes. Unless services are performed by persons or firms engaged pursuant to express written instructions from the Customer, Company shall use reasonable care in its selection of third parties, or in selecting the means, route and procedure to be followed in the handling, transportation, clearance and delivery of the shipment; advice by the Company that a particular person or firm has been selected to render services with respect to the goods, shall not be construed to mean that the Company warrants or represents that such person or firm will render such services nor does Company assume responsibility or liability for any actions(s) and/or inaction(s) of such third parties and/or its agents, and shall not be liable for any delay or loss of any kind, which occurs while a shipment is in the custody or control of a third party or the agent of a third party; all claims in connection with the Act of a third party shall be brought solely against such party and/or its agents; in connection with any such claim, the Company shall reasonably cooperate with the Customer, which shall be liable for any charges or costs incurred by the Company.
5. Quotations Not Binding. Quotations as to fees, rates of duty, freight charges, insurance premiums or other charges given by the Company to the Customer are for informational purposes only and are subject to change without notice; no quotation shall be binding upon the Company unless the Company in writing agrees to undertake the handling or transportation of the shipment at a specific rate or amount set forth in the quotation and payment arrangements are agreed to between the Company and the Customer.
6. Reliance On Information Furnished.
(a) Customer acknowledges that it is required to review all documents and declarations prepared and/or filed with U.S. Customs & Border Protection, other Government Agency and/or third parties, and will immediately advise the Company of any errors, discrepancies, incorrect statements, or omissions on any declaration or other submission filed on Customers behalf;
(b) In preparing and submitting customs entries, export declarations, applications, security filings, documentation and/or other required data, the Company relies on the correctness of all documentation, whether in written or electronic format, and all information furnished by Customer; Customer shall use reasonable care to ensure the correctness of all such information and shall indemnify and hold the Company harmless from any and all claims asserted and/or liability or losses suffered by reason of the Customer’s failure to disclose information or any incorrect, incomplete or false statement by the Customer or its agent, representative or contractor upon which the Company reasonably relied. The Customer agrees that the Customer has an affirmative non-delegable duty to disclose any and all information required to import, export or enter the goods.
7. Declaring Higher Value to Third Parties. Third parties to whom the goods are entrusted may limit liability for loss or damage; the Company will request excess valuation coverage only upon specific written instructions from the Customer, which must agree to pay any charges therefore; in the absence of written instructions or the refusal of the third party to agree to a higher declared value, at Company’s discretion, the goods may be tendered to the third party, subject to the terms of the third party’s limitations of liability and/or terms and conditions of service.
8. Insurance. Unless requested to do so in writing and confirmed to Customer in writing, Company is under no obligation to procure insurance on Customer’s behalf; in all cases, Customer shall pay all premiums and costs in connection with procuring requested insurance.
9. Disclaimers; Limitation of Liability.
(a) Except as specifically set forth herein, Company makes no express or implied warranties in connection with its services;
(b) In connection with all services performed by the Company, Customer may obtain additional liability coverage, up to the actual or declared value of the shipment or transaction, by requesting such coverage and agreeing to make payment therefore, which request must be confirmed in writing by the Company prior to rendering services for the covered transaction(s).
(c) In the absence of additional coverage under (b) above, the Company’s liability shall be limited to the following:
(i) where the claim arises from activities other than those relating to customs business,$ 50.00 per shipment or transaction, or
(ii) where the claim arises from activities relating to “Customs business,” $ 50.00 per entry or the amount of brokerage fees paid to Company for the entry, whichever is less;
(d) In no event shall Company be liable or responsible for consequential, indirect, incidental, statutory or punitive damages, even if it has been put on notice of the possibility of such damages, or for the acts of third parties.
10. Advancing Money. All charges must be paid by Customer in advance unless the Company agrees in writing to extend credit to customer; the granting of credit to a Customer in connection with a particular transaction shall not be considered a waiver of this provision by the Company.
11. Indemnification/Hold Harmless. The Customer agrees to indemnify, defend, and hold the Company harmless from any claims and/or liability, fines, penalties and/or attorneys’ fees arising from the importation or exportation of customers merchandise and/or any conduct of the Customer, including but not limited to the inaccuracy of entry, export or security data supplied by Customer or its agent or representative, which violates any Federal, State and/or
other laws, and further agrees to indemnify and hold the Company harmless against any and all liability, loss, damages, costs, claims, penalties, fines and/or expenses, including but not limited to reasonable attorney’s fees, which the Company may hereafter incur, suffer or be required to pay by reason of such claims; in the event that any claim, suit or proceeding is brought against the Company, it shall give notice in writing to the Customer by mail at its address on file with the Company.
12. C.O.D. or Cash Collect Shipments. Company shall use reasonable care regarding written instructions relating to “Cash/Collect on Deliver (C.O.D.)” shipments, bank drafts, cashier’s and/or certified checks, letter(s) of credit and other similar payment documents and/or instructions regarding collection of monies but shall not have liability if the bank or consignee refuses to pay for the shipment.
13. Costs of Collection. In any dispute involving monies owed to Company, the Company shall be entitled to all costs of collection, including reasonable attorney’s fees and interest at 15 % per annum or the highest rate allowed by law, whichever is less unless a lower amount is agreed to by Company.
14. General Lien and Right to Sell Customer’s Property.
(a) Company shall have a general and continuing lien on any and all property of Customer coming into Company’s actual or constructive possession or control for monies owed to Company with regard to the shipment on which the lien is claimed, a prior shipment(s) and/or both;
(b) Company shall provide written notice to Customer of its intent to exercise such lien, the exact amount of monies due and owing, as well as any on-going storage or other charges; Customer shall notify all parties having an interest in its shipment(s) of Company’s rights and/or the exercise of such lien.
(c) Unless, within thirty days of receiving notice of lien, Customer posts cash or letter of credit at sight, or, if the amount due is in dispute, an acceptable bond equal to 110% of the value of the total amount due, in favor of Company, guaranteeing payment of the monies owed, plus all storage charges accrued or to be accrued, Company shall have the right to sell such shipment(s) at public or private sale or auction and any net proceeds remaining thereafter shall be refunded to Customer.
15. No Duty to Maintain Records For Customer. Customer acknowledges that pursuant to Sections 508 and 509 of the Tariff Act, as amended, (19 USC §1508 and 1509) it has the duty and is solely liable for maintaining all records required under the Customs and/or other Laws and Regulations of the United States; unless otherwise agreed to in writing, the Company shall only keep such records that it is required to maintain by Statute(s) and/or Regulation(s), but not act as a “record keeper” or “recordkeeping agent” for Customer.
16. Obtaining Binding Rulings, Filing Protests, etc. Unless requested by Customer in writing and agreed to by Company in writing, Company shall be under no obligation to undertake any pre- or post Customs release action, including, but not limited to, obtaining binding rulings,advising of liquidations, filing of petition(s) and/or protests, etc.
17. Preparation and Issuance of Bills of Lading. Where Company prepares and/or issues a bill of lading, Company shall be under no obligation to specify thereon the number of pieces, packages and/or cartons, etc.; unless specifically requested to do so in writing by Customer or its agent and Customer agrees to pay for same, Company shall rely upon and use the cargo weight supplied by Customer.
18. No Modification or Amendment Unless Written. These terms and conditions of service may only be modified, altered or amended in writing signed by both Customer and Company; any attempt to unilaterally modify, alter or amend same shall be null and void.
19. Compensation of Company. The compensation of the Company for its services shall be included with and is in addition to the rates and charges of all carriers and other agencies selected by the Company to transport and deal with the goods and such compensation shall be exclusive of any brokerage, commissions, dividends, or other revenue received by the Company from carriers, insurers and others in connection with the shipment. On ocean exports, upon request, the Company shall provide a detailed breakout of the components of all charges assessed and a true copy of each pertinent document relating to these charges. In any referral for collection or action against the Customer for monies due the Company, upon recovery by the Company, the Customer shall pay the expenses of collection and/or litigation, including a reasonable attorney fee.
20. Severability. In the event any Paragraph(s) and/or portion(s) hereof is found to be invalid and/or unenforceable, then in such event the remainder hereof shall remain in Full force and effect. Company’s decision to waive any provision herein, either by conduct or otherwise, shall not be deemed to be a further or continuing waiver of such provision or to otherwise waive or invalidate any other provision herein.
21. Governing Law; Consent to Jurisdiction and Venue. These terms and conditions of service and the relationship of the parties shall be construed according to the laws of the State of Florida Without giving consideration to principals of conflict of law. Customer and Company
(a) Irrevocably consent to the jurisdiction of the United States District Court and the State courts of Florida.
(b) agree that any action relating to the services performed by Company, shall only be brought in said courts;
(c) consent to the exercise of in personam jurisdiction by said courts over it, and
(d) Further agree that any action to enforce a judgment may be instituted in any jurisdiction.
©Approved by the National Customs Brokers and Forwarders Association of America, Inc. (Revised 07/09)
Proud partner of:
RECEIVED FOR SHIPMENT from the MERCHANT in apparent good order and condition unless otherwise stated herein, the GOODS mentioned on the face of this Bill of Lading to be transported as provided herein, by any mode of transport for all or any part of the Carriage, SUBJECT TO ALL THE TERMS AND CONDITIONS appearing on the face and back hereon and in the CARRIER’S applicable Tariff(s) and/or Service Agreements, to which the Merchant agrees by accepting this BILL OF LADING.
1. DEFINITIONS
a) Bill of Lading” as used herein includes conventional bills of lading, as well as electronic, express and laser bills of lading, sea waybills and all like documents, howsoever generated, covering the Carriage of Goods hereunder, whether or not issued to the Merchant.
b) “Carriage” means the whole of the operations and services undertaken or performed by or on behalf of the Carrier with respect to the Goods.
c) “Carrier” means the Company name on the face side hereof and on whose behalf this Bill of Lading was issued, whether acting as carrier or bailee.
d) “Charges” means the freight, dead freight, demurrage and all expenses and money obligations incurred and payable by the Merchant and or imposed on the Goods.
e) “Container” means any container ( closed or open top), van, trailer, flatbed, transportable tank, railroad car, vehicle, flat, flat rack, pallet, skid, platform, cradle, sling-load or any other article f transport and any equipment associated or appurtenant thereto.
f) “Goods” means the cargo received from the shipper and described on the dace side hereof and any Container not supplied by or behalf of the Carrier.
g) “Merchant” means the shipper, consignee, receiver, holder of this Bill of Lading, owner of the cargo or person entitled to the possession of the cargo and the servants and agents of any of these, all of whom shall be jointly and severally liable to the Carrier for the payment of all Charges, and for the performance of the obligations of any of them under this Bill of Lading.
h) “ On Board” or similar words endorsed on this Bill of Lading means that in a Port to Port movement, the Goods have been loaded on board the Vessel or ae in the custody of the actual ocean carrier, and in the event of intermodal transportation, if the originating carrier is an inland or coastal carrier, means that the Goods have been loaded on board rail cars or another mode of transport at the Place of Receipt and/
i) “Participating carrier” means any other carrier by water, land or air, performing any stage of the Carriage, including inland and coastal carriers, whether acting as sub-carrier, connecting carrier, substitute carrier or bailee.
j) “Person” means an individual, a partnership, a body corporate or any other entity of whatsoever nature.
k) “Vessel” means the ocean vessel named on the face side hereof, and any substitute vessel, feeder ship, barge, or other means of conveyance by water used in whole or in part by the Carrier to fulfill this contract
2. CARRIER’S TARIFFS
The Goods carried hereunder are subject to all the terms and conditions of the Carrier’s applicable tariff(s) and or Service Agreements which, if required, are on file with a regulatory body whose rules govern all or a particular portion of the Carriage and said terms and conditions are hereby incorporated herein as part of the Terms and Conditions of this Bill of Lading. Copies of the relevant provisions of the applicable tariff(s) are obtainable from the Carrier or concerned regulatory body upon request. In the event of any conflict between the terms and conditions of such tariff(s) and the Terms and Conditions of this Bill of Lading, this Bill of Lading shall prevail.
3. WARRANTY/ACKNOWLEDGMENT
The Merchant warrants that in agreeing to the Terms and Conditions hereof, it is, or is the agent and has the authority of, the owner or person entitled to the possession of the Goods or any person who has a present or future interest in the Goods.
The Merchant acknowledges that the Carrier is a non-vessel operating common carrier (“NVOCC”), and that it neither owns nor charters vessels, as a result of which the Carrier or any sub-carrier, connecting carrier or substitute carrier (which may be a NVOCC) will be required t contract with an actual ocean carrier to accomplish the Carriage contemplated by this Bill of Lading and does so as agent to Merchant.
The Merchant further acknowledges that by identifying the carrying Vessel on the face side hereof, it knows or can determine the name of the actual ocean carrier and the terms and conditions of the actual ocean carrier’s bill of lading and applicable tariff(s) and agrees to be bound thereby.
4. RESPONSIBILITY
a) Except where the Carriage covered by this bill of Lading is to a or from a port locality where there is in force a compulsorily applicable ordinance or statute of a nature similar to the International Convention for the Unification of Certs in Rules Relating to Bills of Lading, dated at Brussels, August 25, 1924, the provisions of which cannot be departed from, and suit or other proceeding is instituted and litigated in such locality, this Bill of Lading shall have effect subject to the Carriage of Goods by Sea Act of the United Stated (“COGSA), approved April 16, 1936, and nothing herein contained, unless otherwise stated, shall be deemed a surrender by the Carrier of any of its rights, immunities, exemptions, limitations or exonerations or an increase of any of its responsibilities or liabilities under COGSA or, as the case may be, such compulsorily applicable ordinances or statutes. The provisions of COGSA or such compulsorily applicable ordinances or statutes ( except as otherwise specially provided herein) shall govern before loading on and after discharge from the vessel and throughout the entire time the Carrier is responsible for the Goods, containers or other packages. In the absence of compulsorily applicable legislation, COGSA shall apply.
b) The Carrier shall not be liable in any capacity whatsoever for any delay, non-delivery, mis-delivery or other loss or damage to or in connection with the Goods or Containers or other packages occurring at any time contemplated under subdivision a) of this Clause.
c) The Carrier shall, irrespective of which law is applicable under subdivision a) of this Clause.
d) The rights, defenses, exemptions, limitations of and exonerations from liability and immunities of whatsoever nature provided for in this Bill of Lading shall apply in any action or proceeding against the Carrier, its agents and servants and/or any Participating carrier or independent contractor.
5. THROUGH TRANSPORTATION
When either the Place of Receipt or Place of Delivery set forth herein is an inland point or place other than the Port of Loading (Through Transportation basis), the Carrier will procure transportation to or from the sea terminal and such inland point(s) or place(s) and,
notwithstanding anything in the Bill of Lading contained, but always subject to Clause 4 hereof, the Carrier shall be liable for loss or damage of whatsoever nature and howsoever arising to the following extent, but no further:
a)Upon proof that the loss or damage arose during a part of the Carriage herein made subject to COGSA or other compulsorily applicable legislation, as set forth in Clause 4.a) hereof, said legislation shall apply; or
b) Upon proof that the loss or damage not falling within a) above, but concerning which the law of any country, state or subdivision thereof contains provisions that are compulsorily applicable and would have applied if the Merchant had made a separate and direct contract with the Carrier, a Participating carrier or independent contractor, as referred to in Clause 4.a) relative to a particular stage of transport or other handling wherein the loss or damage occurred and received as evidence thereof a particular receipt or other document, then the liability of the Carrier, Participating carrier and independent contractor shall be subject to the provisions of such law.
c) If it should be determined that the Carrier bears any responsibility for loss or damage occurring during the care, custody and/or control of any Participating carrier or independent contractor, and be subject to law compulsorily applicable to their bills of lading, receipts, tariffs and/or law applicable thereto, then the Carrier shall be entitled to all rights, defenses, immunities, exemptions, limitations of and exonerations from liability of whatsoever nature accorded under such bill of lading, receipt, tariff and/ot applicable law, provided however, that nothing contained herein shall be deemed a surrender by the Carrier of any of its rights, defenses and immunities or an increase of any of its responsibilities or liabilities under this Bill of Lading, the Carrier’s applicable tariff or laws applicable or relating to such Carriage.
d)Except as herein above provided, the Carrier shall have no liability for damage to the Goods.
6. SUBCONTRACTING: BENEFICIARIES
a) The Carrier shall be entitled to subcontract on any terms the whole or any part of the Carriage, loading, unloading, storing, warehousing, handling and any and all duties whatsoever undertaken by it in relation to the Goods or Containers or other packages or any other goods.
b) It is understood and agreed that if it should be adjudged that any person or entity other than or in addition to the Carrier is under any responsibility with the respect to the Goods or any other goods, regardless of the port or place where any loss or damage shall occur and without regard to whether the Goods covered hereby or any other goods are being handled or are damaged directly or indirectly during any handling, and even if the Goods or other goods are transported on free in, stowed and/or free out terms, all exemptions, limitations of and exonerations from liability provided by law or by the Terms and Conditions hereof shall be available to all agents, servants, employees, representatives, all Participating ( including inland and coastal) carriers and all stevedores, terminal operators, warehousemen, crane operators, watchmen, carpenters, ship cleaners, surveyors and all independent contractors whatsoever. In contracting for the foregoing exemptions, limitations of and exonerations from liability, the Carrier is acting as agent and trustee for and or behalf of all persons described above, all of whom shall to this extent be deemed to be a party
to the contract evidenced by this Bill of Lading, regardless for whom acting or by whom retained and paid, it being always understood that said beneficiaries are not entitled to any greater or further exemptions, limitations of or exonerations from liability, the Carrier is acting as agent and trustee for and on behalf of all persons described above, all of whom shall to this extent de deemed to be a party to the contract evidence by this Bill of Lading, regardless for whom acting
or by whom retained and paid, it being always understood that that said beneficiaries are not entitled to any greater or further exemptions, limitations of or exonerations form liability than those that the Carrier has under this Bill of Lading in any given situation.
c) The Carrier undertakes to procure such services as necessary and shall have the right at its sole discretion to select any mode of land, sea or air transport and to arrange participation by other carriers to accomplish the total or any part of the Carriage from Port of Loading to Port of Discharge or from Place of Receipt to place of Delivery, or any combination thereof, except as may be otherwise provided herein.
d) The Merchant agrees that the Carrier shall be deemed to be a beneficiary of the actual ocean carriers bill of lading and of all exemptions, limitations of and exonerations from liability therein contained even though the Carrier acts as agent of the Merchant in contracting with the actual ocean carrier or any beneficiaries thereof or hereof.
e) No agent or servant of the Carrier or other person or class named in subdivision b) hereof shall have power to waive or vary any of the Terms and Conditions hereof unless such waiver or variation is in writing and is specifically authorized or ratified in writing by an officer or director of the Carrier having actual authority to bind the Carrier to such waiver or variation
7. MERCHANT’S RESPONSIBILITY/DESCRIPTION OF GOODS
a) The description and particulars of the Goods set out on the face hereof or any description, particular or other representation appearing on the Goods or documents relating thereto are furnished by the Merchant and the Merchant warrants to the Carrier that the description, particulars and any representation made including, but not limited to, weight, content, measure, quantity, quality, condition, marks, numbers and value are correct.
b) The Merchant warrants that it has complied with all applicable laws, regulations and requirements of Customs, Port and other Authorities and shall bear and pay all duties, taxes, fines, imposts, expenses and losses incurred or suffered by reason thereof or by reason of any illegal, incorrect or insufficient marking, numbering, addressing or any other particular relative to the Goods.
c) The Merchant further warrants that the Goods are packed in a manner adequate to withstand the ordinary risks of Carriage having regard to their nature and in compliance with all laws, regulations and requirements which may be applicable.
d)No Goods which are or may become dangerous, inflammable or damaging or which are or may become liable to damage any property or person whatsoever shall be tendered to the Carrier for Carriage without the Carrier’s prior express consent in writing and without the Container to other covering in which the Goods are to be transported being distinctly marked on the outside thereof so as to indicate the nature and character of any such articles and so as to comply with all applicable laws, regulations and requirements, if any such articles are delivered to the Carrier without such written consent and marking or if in the opinion of the Carrier the articles are or are to become of a dangerous, inflammable or damaging nature, the same may at any time be destroyed, disposed of, abandoned or rendered harmless without compensation to the Merchant and without prejudice to the Carrier’s right to Charges.
e) The Merchant shall be liable for all loss or damage of any kind whatsoever, including but not limited to contamination, soiling, detention and demurrage before, during and after the Carriage of property (including but not limited to Containers) of the Carrier or any person or vessel ( other than the Merchant) caused by the Merchant or any person acting on its behalf or for which the Merchants is otherwise responsible.
f) The Merchant and the Goods themselves shall be liable for and shall indemnify the Carrier, and the Carrier shall have a lien on the Goods for all expenses of mending, repairing, fumigating, repacking, coopering, baling, reconditioning of the Goods and gathering of loose contents, also for expenses for repairing Containers damaged while in the possession of the Merchant, for demurrage on Containers and any payment, expense, fine, dues, duty, tax, import, loss, damage or detention sustained or incurred by or levied upon the Carrier, Vessel or any action or requirement of any government or governmental authority or person purporting to act under the authority thereof, seizure under legal process or attempted seizure, incorrect or insufficient marking, numbering or addressing of Containers or other packages or descriptions of the contents, failure of the Merchant to procure consular, Board of Health or other certificates to accompany the Goods r to comply with laws or regulations or any kind imposed with respect to the Goods by the authorities at any port of place or any act or omission of the Merchant. The Carrier’s lien shall survive delivery and may be enforced by private or public sale and without notice.
g) The Merchant shall defend, indemnify and hold harmless the Carrier, any Participating carrier, independent contractor, their agents and servants, against any loss, damage, claim, liability or expense whatsoever arising from any breach of the provisions of this Clause 7, or from any cause in connection with the Goods for which the Carrier is not responsible.
8. CONTAINERS
a) Goods may be stowed by the Carrier in or on Containers, and maybe stowed with other goods. Containers, whether stowed by the Carrier or received fully stowed, may be carrier on or under deck without notice, and the Merchant expressly agrees that the cargo stowed in a Container and carried on deck is considered for all legal purposes to be cargo stowed under deck. Goods stowed in Containers on deck shall be subject to the legislation referred to in Claude 4. hereof and will contribute in General Average and receive compensation in General Average, as the case may be .
b) The Terms and Conditions of the Bill of Lading shall govern the responsibility of the Carrier with respect to supply of a container to the Merchant.
c) If a Container has been stuffed by or on behalf of the Merchant, the Carrier, any Participating Carrier, all independent contractors and all persons rendering any service whatsoever hereunder shall not be liable for any loss or damage to the Goods, Containers or other packages or to any other goods caused (1) by the manner in which the Container has been stuffed and its contents secured, (2) by the unsuitability of the Goods for Carriage in Containers or for the type of Container requested by and furnished to the Merchant, or (3) condition f the Container furnished, which the Merchant acknowledges has been inspected by it or on its behalf before stuffing and sealing.
d) The Merchant shall defend, indemnify and hold harmless the Carrier, any Participating carrier, independent contractor, their agents and servants, against any loss, damage, claim, liability or expense whatsoever arising from one or more of the matters covered by a), b) and/or c) above.
9. CONTAINERS WITH HEATING OR REEFER APPARATUS.
Containers with temperature or atmosphere control apparatus for heating, refrigeration, ventilation or otherwise will not be furnished unless contracted for expressly in writing at time of booking bad, when furnished, may entail increased Charges. In the absence of an express request, is shall be conclusively presumed that the use of a dry container is appropriate for the
Goods, Merchant must provide Carrier with desired temperature range in writing at time of booking and insert same in the face side of the Bill of Lading, and where so provided. Carrier is to exercise due diligence to maintain the temperature within a reasonable range while the Containers are in its care, custody and/or control or that of any Participating carrier or independent contractor. The Carrier does not accept any responsibility for the functioning of temperature or atmosphere- controlled Containers not owned or leased by Carrier or for latent defects not discoverable by the exercise of due diligence.
Where the Container is stuffed or partially stuffed by or on behalf of the Merchant, the Merchant warrants that is has properly pre-cooled or pre-heated as the case may be the Container, that the Goods have been properly stuffed and secured within the Container and that the temperature controls have been properly set prior to delivery of the Container to the Carrier and any Participating carrier, independent Contractor, their agents and servants. The Merchant accepts responsibility for all damage or loss of whatsoever nature resulting from a breach of any of these warranties, including but not limited to other cargo consolidated in the Container with the Merchant’s goods or to any other cargo, property or person damaged or injured as a result thereof, and the Merchant agrees to defend, indemnify and hold the Carrier, Participating carriers and independent contractors, their agents and servants, harmless from and against all claims suits, proceedings and all other consequences thereof regardless of their nature and merit.
10. OPTION OF INSPECTION
The Carrier and any Participating carrier shall be entitled, but under no obligation, to open any Container at any time and to inspect the contents. If it thereupon appears that the contents or any part thereof cannot safely or properly be carried or carried further, either at all or without incurring any additional expense, the Carrier and Participating carrier may abandon the transportation thereof and/or take any measures and/or incur any reasonable additional expenses to continue the Carriage or to store
the Goods, which storage shall be deemed to constitute due delivery under this Bill of Lading. The Merchant shall indemnity the Carrier, any Participating carrier, independent contractor, their agents and servants, against any reasonable additional Charges so incurred.
11. DECK CARGO
Deck Cargo ( except that carried in Containers on deck) and live animals are received and carried solely at Merchant’s risk ( including accident or mortality of animals), and the Carrier will not be in any event be liable for any loss or damage for or form which he is exempt, immune or exonerated by applicable law, or from any other cause whatsoever not due to the fault of the Carrier, any warranty of seaworthiness in the premises being hereby waived, and the burden of providing liability being in all respects upon the Merchant. Except as may be otherwise provided, such shipments shall be deemed Goods and shall be subject to all Terms and Conditions of this Bill of Lading.
12. METHODS AND ROUTES OF TRANSPORTATION
With respect to the Goods or Containers or other packages, the Carrier may at any time and without notice to the Merchant:
a)use any means of transports ( water, land and/or air) or storage whatsoever;
b) forward, transship or retain on board or carry on another vessel or conveyance or by any other means of transport than that named on the reverse side thereof,
c) carry Goods on or under deck at its option;
d) proceed by any route in its sole and absolute discretion and whether the nearest, most direct, customary or advertised route or in or out of geographical rotation;
e) proceed to or stay at any place whatsoever once or more often and in any order or omit calling at any port, whether scheduled or not.
f)store, vanned or devanned, at any place whatsoever, ashore or afloat, in the open or covered; g) proceed with or without pilots; h) carry livestock, contraband, explosives, munitions, warlike stores, dangerous or hazardous Goods or Goods of any and all kinds; i) dry-dock or stop at any unscheduled or unadvertised port for bunkers, repairs or for any purpose whatsoever; j) discharge and require the Merchant to take delivery, vanned or devanned;
k) comply with any orders, directions or recommendations given by any government or authority or by any person or body acting or purporting to act with the authority of any government or authority or having under the terms of the insurance on the Vessel or other conveyance employed by the Carrier the right to give such orders, directions or recommendations l)take any other steps or precautions as may appear reasonable to the Carrier under the circumstances, The liberties set out in subdivisions a) through) may be invoked for any purposes whatsoever even if not connected with the Carriage
covered by this Bill of Lading, and any action taken or omitted to be taken and any delay arising there from, shall be deemed to be within the contractual and contemplated Carriage. And not be an reasonable deviation. In no circumstance whatsoever shall the Carrier be liable for direct, indirect or consequential loss or damage caused by delay.
13. MATTERS AFFECTING PERFORMANCE
In any situation whatsoever and wheresoever occurring and whether existing or anticipated before commencement of, during or after the Carriage, which in the judgment of the Carrier is likely to give rise to any hindrance, risk, capture, seizure, detention, damage, delay, difficulty or disadvantage or loss to the Carrier or any parts of the Goods, or make it unsafe, imprudent, impracticable or unlawful from any reason to receive, keep, load, carry or discharge them or any part of them or commence or continue the Carriage or disembark passengers at the Port of Discharge or of the usual or intended place of discharge or deliver, or to give rise to danger, delay or difficulty of whatsoever nature in proceeding by the usual or intended route, the Carrier and any Participating carrier, independent contractor, their agents and servants, without notice to the Merchant, may decline to receive, keep, load, carry or discharge the Goods, or may discharge the Goods and may required the Merchant to tale delivery and, upon failure to do so, may warehouse them at the risk and expense of the Merchant and Goods or may forward or transship them as provided in this Bill of Lading, or the Carrier may retain the Goods on board until the return of the Vessel to the Port of Loading or to the Port of Discharge or any other point to until such time as the Carrier deems advisable and thereafter discharge them at any place whatsoever. In such event, as herein provided, such shall be at risk and expenses of the Merchant and the Goods, and such action shall constitute complete delivery and performance under this contract, and the Carrier shall be free from any further responsibility. For any service rendered as herein above provided or for any delay or expense to the Vessel or Carrier caused as a result thereof, the Carrier shall, in addition to full Charges, be entitled to reasonable extra compensation. And shall have a lien on the Goods for same. Notice of disposition of the Goods shall be sent to the Merchant named in this Bill of Lading within a reasonable time thereafter. All actions taken by the Carrier hereunder shall be deemed to be within the contractual and contemplated Carriage and not be an unreasonable deviation.
14. DELIVERY
If delivery of the Goods or Containers or other packages or any part thereof is not taken by the Merchant when and where and at such time and place as the Carrier is entitled to have the Merchant take delivery, whether or of the Goods are damaged, they shall be considered to have been delivered to the Merchant, and the Carrier may, as its option, subject to its lien and without notice, elect to have some remain where they are or, if containerized, devanned and sent to a warehouse or other place, always at the risk and expense of the Merchant and Goods. If the Goods are stowed within a Container owned or leased by the Carrier, the Carrier may, at its option, subject to its lien and without notice, elect to have same remain where they are not sent to a warehouse or other place, always at the risk and expense of the Merchant and Goods. At ports or places where by local law, authorities or customs, the Carrier is required to discharge cargo to lighters or other craft o where it has been so agreed or where wharves are not available which the Vessel can get to, be at, lie at, or leave, always safely afloat, or where conditions prevailing at the time render discharge at a wharf dangerous, imprudent or likely to delay the Vessel, the Merchant shall promptly lighters or other craft to take delivery alongside the Vessel at the risk
and expense of the Merchant and the Goods. If the Merchant fails to provide such lighters or other craft, Carrier , acting solely as agent for the Merchant, may engage such lighters or other craft at the risk and expense of the Merchant and the Goods. Discharge of the Goods into such lighters or other craft shall constitute proper delivery, and further responsibility or Carrier with respect to the Goods shall thereupon terminates.
15. CHARGES, INCLUDING FREIGHT.
The Charges payable hereunder have been calculated on the basis of particulars furnished by or on behalf of the Merchant. The Carrier shall, at any time, be entitled to inspect, reweigh, remeasure or revalue the contents and, if any of the particulars furnished by the Merchant are found to be incorrect, the Charges shall be adjusted accordingly, and the Merchant shall be responsible to pay the correct Charges and all expenses incurred by the Carrier in checking said particulars or any of them. Charges shall be deemed earned on acceptance of the Goods or Containers or other packages for shipment by or on behalf of the Carrier and shall be paid nu the Merchant shall remain responsible for all Charges, regardless whether the Bill of Lading states, in words or symbols that it is “Prepaid”, “ To be Prepaid” or “ Collect”.
In arranging for any services with respect to the Goods, the Carrier shall be considered the exclusive agent of the Merchant for all purposes, any payment of Charges to other than the Carrier shall not, in any event, be considered payment to the Carrier. The Merchant shall defend, indemnify and hold the Carrier, any Participating carrier, independent contractor, their agents and servants, harmless form and against all liability, loss, damage and expense which may be sustained or incurred relative to the above.
16. CARRIER’S LIEN.
The Carrier shall have a lien on the Goods, inclusive of any Container owned or leased by the Merchant, as well as on any Charges due any other person, and any documents relating thereto, which lien shall survive delivery, for all sums due under this contract or any other contract or undertaking to which the Merchant was party or otherwise involved, including, but not limited to, General average contributions, savage and the cost of recovering such sums, inclusive of attorney’s fees. Such lien may be enforced by the Carrier by public or private sale at the expense of and without notice to the Merchant. The Merchant agrees to defend, indemnify and hold the Carrier, any Participating carrier, independent contractor, their agents and servants, harmless from and against al liability, lost, damage or expense which may be sustained or incurred by the Carrier relative to the above and the Merchant agrees to submit to the jurisdiction of any court, tribunal or other body before whom the Carrier may be brought, whether said proceeding is of a civil or criminal nature.
17. BULK CARGO
The weight or quantity of any bulk cargo inserted in this Bill of Lading is the weight or quantity as ascertained by a third party other than the Carrier, and Carrier makes no representation with regard to the accuracy thereof. This Bill of Lading shall not be deemed evidence against the Carrier of receipt of bulk cargo of the weight or quantity so inserted in this Bill of Lading.
18. GOLD, SILVER, ETC.
Gold, Silver, specie, bullion or other valuables, including those named or described ins Sec. 181, Title 46, U.S. Code, will not be receive by the Carrier unless their true character and value are
disclosed to the Carrier and a special written agreement there for has been made in advance, and will not, in any case, be loaded or landed by the Carrier. No such valuables shall be considered received by or delivered to the Carrier until brought abroad the ship by the shipper and put in the actual possession of, and a written receipt therefor is given by, the Master or other officer in charge. Such valuables will only be delivered by the Carrier aboard the ship on presentation of proper documentation and upon such delivery the Carrier’s responsibility shall cease. If delivery is not so taken promptly after the ship’s arrival at Port of Discharge, said valuables may be retained aboard and landed or carried on, solely at the risk and expense of the valuables and Merchant.
19. RUST
It is agreed that superficial rust, oxidation or any like condition due to moisture, is not a condition of damage but is inherent to the nature of the Goods. Acknowledgement of receipt of the Goods in apparent good order and condition is not a representation that such conditions of rust, oxidation or the like did not exist on receipt.
20. GENERAL AVERAGE
a) If General Average is declared, it shall be adjusted according to the York/Antwerp Rules of 1994 and all subsequent amendments thereto from time to time made, at any place at the option of the carrier and the Amended Jason Clause as approved by BIMCO is to be considered as incorporated herein, and the Merchant shall provide such security as may be required in this connection. b) Notwithstanding a)above, the Merchant shall defend, indemnify and hold harmless the carrier and any Participating carrier, their agents and servants, in respect of any claim ( and any expense arising therefrom) of a General Average nature which may be made against the Carrier and/or any Participating carrier and shall provide such security as may be required to this connection c) Neither the Carrier nor any Participating carrier shall be under any obligation to take any steps whatsoever to collect security for General Average contributions due to the Merchant.
21. LIMITATION OF LIABILITY
Except as otherwise provided in this Clause or elsewhere in this Bill of Lading, in case of any loss or damage to or in connection with cargo exceeding in actual value the equivalent of $500 lawful money of the United Stated, per package, or in case of cargo not shipped in packages, per shipping unit, the value of the cargo shall be deemed to be $500 per package or per shipping unit. The Carrier’s liability, if any, shall be determined on the basis of a value of $500 per package or per shipping unit or pro rata in case of partial loss or damage, unless the nature of the cargo and valuation higher than $500 per package or per shipping until shall have been declared by the Merchant before shipment and inserted in this Bill of Lading, and extra freight paid if required. In such case, if the actual value of the cargo per package or per shipping unit shall exceed such declared value, the value shall nevertheless be deemed to be declared value and the Carrier’s liability, if any, shall not exceed the declared value.
The words “ shipping unit” shall mean each physical unit or piece of cargo not shipped in a package, including articles or things of any description whatsoever, except cargo shipped in bulk, and irrespective of the weight or measurement unit employed in calculating freight and related charges. As to cargo shipped in bulk, the limitation applicable thereto shall be the limitation provided in Section 1304(s) of COGSA, or such other legislation, convention or law as may be
compulsorily applicable, and in no event shall anything herein be constructed as a waiver of limitation as to cargo shipped in bulk. Where a Container is not stuffed by or on behalf of the Carrier or the parties characterize the Container as a package or a lump sum freight is assessed, in any of these events, each individual such Container, including in each instance its contents, shall be deemed a single package and Carrier’s liability limited t $500 with respect to each such package, except as otherwise provided in this Clause or elsewhere in this Bill of Lading with respect to each such package. In the event this provision should be held invalid during that period in which compulsory legislation shall apply of its own force and effect, such as during the tackle-to-tackle period, it shall nevertheless apply during all non-compulsory periods such as, but not limited to, all periods prior to loading and subsequent to discharge from the Vessel for which the Carrier remains responsible. Where compulsorily applicable legislation provides a limitation less than $500 per package or shipping unit, such lesser limitation shall apply not nothing herein contained shall be construed as a waiver of limitation less than $500. Further, where a lesser monetary limitation s applicable, such as during handling by a Participating carrier or independent contractor and damage occurs during its or their period of care, custody, control and/or responsibility, the Carrier shall be entitled to avail itself of such lesser limitation.
22. NOTICE OF CLAIM: TIME FOR SUIT.
As to any loss or damage presumed to have occurred during the Carrier’s period of responsibility, the Carrier must be notified in writing of any such loss or damage or claim before or at the time of discharge/removal of the Goods by the Merchant or, if the loss or damage is not then apparent, within 3 consecutive days after discharge/delivery or date when the Goods should have been discharged/delivered. If not so notified, discharge, removal or delivery, depending upon the law applicable, shall be prima facie evidence of discharge/delivery in good order by the Carrier of such Goods. In any event, the Carrier shall be discharged from all liability of whatsoever nature unless suit is brought within 1 year after delivery of the Goods or date when the Goods should have been delivered, provided however, that if any claim should arise during a part of the transport which is subject by applicable law and/or contract to a shorter period for notice of claim or commencement of suit, any liability whatsoever of the Carrier shall cease unless proper claim is made in writing and suit is brought within such shorter period.
Suit shall not be deemed “brought” unless jurisdiction shall have been obtained over the Carrier by service of process or by an agreement to appear. In the event this provision should be held invalid during that period in which compulsory legislation shall apply of its own force and effect, such as during the tackle-to-tackle Carrier remains responsible for the Goods.
23. LAW AND JURISDICTION
a) Governing Law shall be in accordance with Clause 4, hereof, b) Jurisdiction.
All disputes in any way relating to this Bill of Lading shall be determined by the United States District Court for the City of Miami. To the exclusion of the jurisdiction of any other courts in the United States or the courts of any other country PROVIDED ALWAYS that the Carrier may in its absolute and sole discretion invoke or voluntarily submit to the jurisdiction of any other court which, but for the terms of this Bill of Lading, could properly assume jurisdiction to hear and determine such disputes, but such shall not be constitute a waiver of the terms of this provision in any other instance.
24. NON-WAIVER AND SEPARABILITY
Nothing in this Bill of Lading shall operate to deprive the Carrier of any statutory protection or any defense, immunity, exemption, limitation of or exoneration from liability contained in the laws of the United States, or of any other country whose laws may be applicable. The Terms and Conditions of this Bill of Lading ( including all the terms and conditions of the carrier’s applicable tariff or tariffs, incorporated herein by virtue of Clause 2 above) shall be separable, and if any part of term hereof shall be held invalid, such holding shall not affect the validity or enforceability of any other part of term hereof.
NOTE
” If the carriage involves an ultimate destination or stop in a country other than the country of departure, the Montreal Convention or the
Warsaw Convention may be applicable to the liability of the Carrier in respect of loss of, damage or delay to cargo.”
Carrier’s limitation
of liability in accordance with those Conventions shall be as set forth in subparagraph 4 unless a higher value is declared.
Limitation of Liability If not governed by the Warsaw Convention, the CMR, or any other international treaties, laws, other
governmental regulations, orders, or requirements.
PRINCESS CARGO CORP
Maximum liability for loss, damage, delay, shortage, mis-delivery, non-delivery, misinformation, or failure to provide information in connection with your shipment is limited by this AirWaybill to US$100 per shipment or US$9.07 per pound (US$20.00 per kilogram) (or the equivalent in local currency), whichever is greater.
AWB CONDITIONS OF CONTRACT
1. In this contract and the Notices appearing hereon:
CARRIER includes the air carrier issuing this air waybill.
PRINCESS CARGO CORP and all carriers that carry or undertake to carry the cargo or perform any other services related to such carriage.
SPECIAL DRAWING RIGHT(SDR) is a Special Drawing Right as defined by the International Monetary Fund.
WARSAW CONVENTION means whichever of the following instruments is applicable to the contract of carriage:
The Convention for the Unification of Certain Rule Relating to International Carriage by Air, signed at Warsaw, 12 October 1929;
That Convention as amended at The Hague on 28 September 1955;
That Convention as amended at The Hague 1955 and by Montreal Protocol No. 1, 2, or 4 (1975) as the case maybe.
MONTREAL CONVENTION Means the Convention for the Unification of Certain Rules for International Carriage by Air, done at Montreal on 28 May 1999.
2./2.1 Carriage is subject to the rules relating to liability established by the Warsaw Convention or the Montreal Convention unless such carriage is not “international carriage” as defined by the applicable Conventions.
2.2 to the extent not in conflict with the foregoing, carriage and other related services performed by each Carrier are subject to:
2.2.1 applicable laws and government regulations;
2.2.2 provisions contained in the air waybill, Carrier’s conditions of carriage and related rules., regulations, and timetables ( but not the times of departure and arrival stated therein) and applicable tariff if such Carrier, which are made part hereof, and which may be inspected at any airport or any other cargo sales offices from which it operates regular services. When carriage is to/from the USA, the shipper and the consignee entitled, upon request, to receive a free copy of the Carrier’s conditions of carriage. The Carrier’s conditions of carriage include, but are not limited to:
2.2.2.1 limits on the Carrier’s liability for loss, damage or delay of goods, including fragile or perishable goods;
2.2.2.2 claims restrictions, including time periods within which shippers or consignees must file a claim o brig an action against the Carrier for its acts or omissions, or those of its agents;
2.2.2.3 rights, if any, of the Carrier to change the terms of the contract;
2.2.2.4 rules about Carrier’s right to refuse to carry;
2.2.2.5 rights of the Carrier and limitations concerning delay or failure to perform service, including schedule changes, substitution of alternate Carrier or aircraft and rerouting.
3. The agreed stopping places (which may be altered by Carrier in case of necessity) are those places, except the place of departure and place of destination, set forth on the face hereof or shown in Carrier’s timetables as scheduled stopping places for the route. Carriage to be performed hereunder by several successive Carriers is regarded as a single operation.
4. If not governed by the Warsaw Convention, the CMR, or any other international treaties, laws, other governmental regulations, orders, or requirements, our maximum liability for loss, damage, delay, shortage, mis-delivery, non-delivery, misinformation, or failure to provide information in connection with your shipment is limited by this Air Waybill to US$100 per shipment or US$9.07 per pound (USD$20.00 per kilogram) (or the equivalent in local currency), whichever is greater, unless you declare a higher value for carriage as described below.
4.1. If you declare a higher value, you must pay an additional us$100 charge for each additional US$100 (or the equivalent in local currency) of declared value for carriage
5.
5.1 Except when the Carrier has extended credit to the consignee without the written consent of the shipper, the shipper guarantees payment of all charges for the carriage due in accordance with Carrier’s tariff, conditions of carriage and related regulations, applicable laws ( including national laws implementing the Warsaw Convention and the Montreal Convention), government regulations, orders and requirements.
5.2 When no part of the consignment is delivered, a claim with respect to such consignment will be considered even thought transportation charges thereon are unpaid.
6.
6.1 For cargo accepted for carriage, the Warsaw Convention and the Montreal Convention permit shipper to increase the limitation or liability be declaring a higher value for carriage and paying a supplemental charge if required.
6.2 In carriage to which neither the Warsaw Convention nor the Montreal Convention applies Carrier shall, in accordance with the procedures set forth in its general conditions of carriage and applicable tariffs, permit shipper to increase the limitation of liability be declaring a higher value for carriage and paying a supplemental charge if so required.
7.
7.1 In cases of loss of, damage or delay to part of the cargo, the weight to be taken into account in determining Carrier’s limit of liability shall be only the weight of the package or packages concerned.
7.2 Notwithstanding any other provisions, for “foreign air transportation” as defined by the U.S. Transportation Code.
7.2.1 in the case of loss of, damage or delay to a shipment, the weight to be used in determining Carrier’s limit of liability shall be the weight which is used to determine the charge for carriage of such shipment, and
7.2.2 in the case of loss of, damage or delay to a part of a shipment, the weight in 7.2.1 shall be prorated to the packages covered by the same air waybill whose value us affected by the loss, damage or delay. The weight applicable in the case of loss or damage to one or more articles in a package shall be the weight of the entire package.
8. Any exclusion or limitation of liability applicable to Carrier shall apply to Carrier’s agents, employees, and representatives and to any person whose aircraft or equipment is used by Carrier for carriage and such person’s agents, employees and representatives.
9. Carrier undertakes complete the carriage with reasonable dispatch. Where permitted by applicable laws, tariffs and government regulations, Carrier may use alternative carriers, aircraft or modes of transport without notice but with due regard to the interest of the shipper. Carrier is authorized by the shipper to select the routing and all intermediate stopping places that it deems appropriate or to change or deviate from the routing shown on the face hereof.
10. Receipt by the person entitled to delivery of the cargo without complaint shall be prima facie evidence that the cargo has been delivered in god condition and in accordance with the contract of carriage.
10.1 In the case of loss of, damage or delay to cargo a written complaint must be made to Carrier by the person entitled to delivery. Such complaint must be made:
10.1.1 in the case of damage to the cargo, immediately after discovery of the damage and at the latest within 14 days from the date of receipt of the cargo;
10.1.2 in the case of delay, within 21 days from the date on which the cargo ws placed at the disposal of the person entitled to delivery;
10.1.3 in the case of non-delivery of the cargo, within 120 days from the date of issue of the air waybill, or if an air waybill has not been issued, within 120 days from the date of receipt of the cargo for transportation by the Carrier.
10.2 Such complaint may be made to the Carrier, whose air waybill was used, or to the first Carrier or to the last Carrier or to the Carrier, which performed the carriage during which the loss, damage or delay took place.
10.3 Unless a written complaint is made within the time limits specified in 10.1 no action may be brought against Carrier.
10.4 Any rights to damages against Carrier shall be extinguished unless an action is brought within two years from the date of arrival at the destination, or from the date on which the aircraft ought to have arrived, or from the date on which the carriage stopped.
11. Shipper shall comply with all applicable laws and government regulations of the United States of America and any country to or from which the cargo may be carried, including those relating the packing, carriage or delivery of the cargo, and shall furnish such information and attach such documents to the air waybill as may be necessary to comply with such laws and regulations. Carrier is not liable to shipper and shipper shall indemnify Carrier for loss or expenses due to shipper’s failure o comply with this provision.
12. No agent, employee or representative of Carrier has authority to alter, modify or waive any provisions of this contract.
13. Right to Inspect Your shipment may, at our option or at the request of governmental authorities, be opened and inspected by us or such authorities at any time.
WAREHOUSE RECEIPT TERMS AND CONDITIONS OF CONTRACT
1. DEFINITIONS
“Warehouse” means PRINCESS CARGO CORP.
“Depositor” means the shipper, consignee, owner of the Goods or its agents, including, without limitation, motor carriers, drayage companies, forwarders, brokers, and/or any entity that places or maintains a chassis/trailer pool at any of the Warehouse’s facilities.
“Equipment” means any chassis, container, trailer, or tractor.
“Goods” means the merchandise, cargo, or freight that the Depositor tenders for storage, set forth on the front page of this Warehouse receipt.
“Yard Storage” means the placement of containers or trailers, with or without tractors, empty or loaded, secured or unsecured, in the yard of the Warehouse for the benefit of the Depositor and/or the Depositor’s Goods.
“Contract” means this Warehouse Receipt Terms and Conditions of Contract.
ACCEPTANCE – Sec. 1
(a) This Contract, including accessorial charges that may be attached hereto, must be accepted within 30 days from the proposal date by signature of Depositor. In the absence of written acceptance, the act of tendering goods described herein for storage or other services by Warehouse within 30 days from the proposal date shall constitute acceptance by Depositor. Depositor has had the opportunity to review and inspect the warehouse facility.
(b) In the event that goods tendered for storage or other services do not conform to the description contained herein, or conforming goods are tendered after 30 days from the proposal date without prior written acceptance by Depositor as provided in paragraph
(a) of this section, Warehouse may refuse to accept such goods. If Warehouse accepts such goods, Depositor agrees to rates and charges as may be assigned and invoiced by Warehouse and to all terms of this Contract.
(c) Any goods accepted by Warehouse shall constitute Goods under this Contract.
(d) This Contract may be canceled by either party upon 30 days written notice and is canceled if no storage or other services are performed under this Contract for a period of 180 days.
3. SHIPPING
The Depositor shall not designate the Warehouse to be the consignee for any Goods under any bill of lading, waybill, air waybill, or any other transportation contract, receipt, or delivery document. If, in violation of the terms of this Warehouse receipt, Goods arrive at the Warehouse and it is the named consignee, the Depositor agrees to notify the carrier in writing prior to such shipment, with copy of such notice to the Warehouse, that the Warehouse is in fact a Warehouse that has no beneficial title or interest in such Goods and the Depositor further agrees to indemnify and hold harmless the Warehouse from any and all claims for unpaid transportation charges, including, without limitation, undercharges, demurrage, detention, or charges of any nature, that arise out of or are in any way connected to the Goods. The Depositor further agrees that if it fails to notify the carrier as the preceding sentence requires, the Warehouse shall have the right to refuse such Goods and it shall not be liable or responsible for any loss, injury, or damage that arises out of or is in any way connected to such Goods.
4. TENDER FOR STORAGE
All Goods shall be delivered at the Facility properly marked and packaged for storage and handling. The Depositor shall furnish at or prior to such delivery, a manifest showing marks, brands, or sizes to be kept and accounted for separately, and the class of storage and other services desired.
5. STORAGE PERIOD AND CHARGES
(a) Unless otherwise agreed in writing, all charges for storage are per day per warehouse receipt or other agreed unit per month.
(b) The storage month begins on the date that Warehouse accepts care, custody and control of the Goods, regardless of unloading date or date of issue of Warehouse receipt.
(c) Except as provided in paragraph (d) of this section, a full month’s storage charge will apply on all Goods received between the first and the 15th, inclusive, of a calendar month; one-half month’s storage charge will apply on all Goods received between the 16th and the last day, inclusive, of a calendar month, and a full month’s storage charge will apply to all Goods in storage on the first day of the next and succeeding calendar months. All storage charges are due and payable on the first day of storage for the initial month and thereafter on the first day of the calendar month.
(d) When mutually agreed in writing by the Warehouse and the Depositor, a storage month shall extend from a date in one calendar month to, but not including, the same date of the next and all succeeding months. All storage charges are due and payable on the first day of the storage month.
6. TRANSFER, TERMINATION OF STORAGE, REMOVAL OF GOODS
(a) Instructions to transfer Goods on the books of the Warehouse are not effective until delivered to and accepted by Warehouse, and all charges up to the time transfer is made are chargeable to the Depositor. If a transfer involves rehandling the Goods, such will be subject to a charge. When Goods in storage are transferred from one party to another through issuance of a new warehouse receipt, a new storage date is established on the date of transfer.
(b) The Warehouse reserves the right to move, at its expense, 14 days after notice is sent by certified mail or overnight delivery to the Depositor, any Goods in storage from the Facility in which they may be stored to any other of Warehouse’s Facilities. Warehouse will store the Goods at, and may without notice move the Goods within and between, any one or more of the warehouse buildings which comprise the Facility identified on the front of this Contract.
(c) The Warehouse may, upon written notice of not less than 30 days to the Depositor and any other person known by the Warehouse to claim an interest in the Goods, require the removal of any Goods. Such notice shall be given to the last known place of business of the person to be notified. If Goods are not removed before the end of the notice period, the Warehouse may sell them in accordance with applicable law.
(d) If Warehouse in good faith believes that the Goods are about to deteriorate or decline in value to less than the amount of Warehouse’s lien before the end of the 30-day notice period referred to in Section 5(c), the Warehouse may specify in the notification any reasonable shorter time for removal of the Goods and if the Goods are not removed, may sell them at public sal e held one week after a single advertisement or posting as provided by law.
(e) If as a result of a quality or condition of the Goods of which the Warehouse had no notice at the time of deposit the Goods are a hazard to other property or to the Facility or to persons, the Warehouse may sell the Goods at public or private sale without advertisement upon reasonable notification to all persons known to claim an interest in the Goods. If the Warehouse after a reasonable effort is unable to sell the Goods it may dispose of them in any lawful manner and shall incur no liability by reason of such disposition. Pending such disposition, sale or return of the Goods, the Warehouse may remove the Goods from the Facility and shall incur no liability by reason of such removal.
7. HANDLING
(a) The handling charge covers the ordinary labor involved in receiving Goods at warehouse door, placing Goods in storage, and returning Goods to warehouse door. Handling charges are due and payable on receipt of Goods.
(b) Unless otherwise agreed in writing, labor for unloading and loading Goods will be subject to a charge. Additional expenses incurred by the Warehouse in receiving and handling damaged Goods, and additional expense in unloading from or loading into cars or other vehicles not at warehouse door will be charged to the Depositor.
(c) Labor and materials used in loading rail cars or other vehicles are chargeable to the Depositor.
(d) When Goods are ordered out in quantities less than in which received, the Warehouse may make an additional charge for each order or each item of an order.
(e) The Warehouse shall not be liable for any demurrage or detention, any delays in unloading inbound cars, trailers or other containers, or any delays in obtaining and loading cars, trailers or other containers for outbound shipment unless Warehouse has failed to exercise reasonable care.
8. DELIVERY REQUIREMENTS
(a) No Goods shall be delivered or transferred except upon receipt by the Warehouse of Depositor’s complete written instructions. Written instructions shall include, but are not limited to, FAX, EDI, E-Mail or similar communication, provided Warehouse has no liability when relying on the information contained in the communication as received. Goods may be delivered upon instruction by telephone in accordance with Depositor’s prior written authorization, but the Warehouse shall not be responsible for loss or error occasioned thereby.
(b) When Goods are ordered out, a reasonable time shall be given the Warehouse to carry out instructions, and if it is unable because of acts of God, war, public enemies, seizure under legal process, strikes, lockouts, riots or civil commotions, or any reason beyond the Warehouse’s control, or because of loss of or damage to Goods for which Warehouse is not liable, or because of any other excuse provided by law, the Warehouse shall not be liable for failure to carry out such instructions and Goods remaining in storage will continue to be subject to regular storage charges.
9. EXTRA SERVICES
(a) Warehouse labor required for services other than ordinary handling and storage will be charged to the Depositor.
(b) Special services requested by Depositor including but not limited to compiling of special stock statements; reporting marked weights, serial numbers or other data from packages; physical check of Goods; and handling transit billing will be subject to a charge.
(c) Dunnage, bracing, packing materials or other special supplies, may be provided for the Depositor at a charge in addition to the Warehouse’s cost.
(d) By prior arrangement, Goods may be received or delivered during other than usual business hours, subject to a charge.
(e) Communication expense including postage, overnight delivery, or telephone may be charged to the Depositor if such concer n more than normal inventory reporting or if, at the request of the Depositor, communications are made by other than regular United States Mail.
10. BONDED STORAGE
(a) A charge in addition to regular rates will be made for merchandise in bond.
(b) Where a warehouse receipt covers Goods in U.S. Customs and Border Protection bond, Warehouse shall have no liability for Goods seized or removed by U.S. Customs and Border Protection.
11. MINIMUM CHARGES
(a) A minimum handling charge per lot and a minimum storage charge per lot per month will be made. When a warehouse receipt covers more than one lot or when a lot is in assortment, a minimum charge per mark, brand, or variety will be made.
(b) A minimum monthly charge to one account for storage and/or handling will be made. This charge will apply also to each account when one customer has several accounts, each requiring separate records and billing.
12. LIABILITY AND LIMITATION OF DAMAGES
(a) WAREHOUSE SHALL NOT BE LIABLE FOR ANY LOSS OR DAMAGE TO GOODS TENDERED, STORED OR HANDLED HOWEVER CAUSED, INCLUDING, WITHOUT LIMITATION ANY SERVICES PROVIDED TO THE GOODS, UNLESS SUCH LOSS OR DAMAGE RESULTED FROM THE FAILURE BY WAREHOUSE TO EXERCISE SUCH CARE IN REGARD TO THEM AS A REASONABLY CAREFUL PERSON WOULD EXERCISE UNDER LIKE CIRCUMSTANCES AND WAREHOUSE IS NOT LIABLE FOR DAMAGES WHICH COULD NOT HAVE BEEN AVOIDED BY THE EXERCISE OF SUCH CARE.
(b) PRINCESS CARGO LIMIT OF LIABILITY FOR LOSS, DAMAGE OR “ MIS-SHIPMENT” SHALL NOT EXCEEDD USD 0.50 PER POUND, LIMITED TO A MAXIMUM OF USD 500.00 PER WAREHOUSE RECEIPT
(c) GOODS ARE NOT INSURED BY WAREHOUSE AGAINST LOSS OR DAMAGE HOWEVER CAUSED.
(d) THE DEPOSITOR DECLARES THAT DAMAGES ARE LIMITED TO $0.10 PER POUND, PROVIDED, HOWEVER, THAT SUCH LIABILITY MAY AT THE TIME OF ACCEPTANCE OF THIS CONTRACT AS PROVIDED IN SECTION 1 BE INCREASED UPON DEPOSITOR’S WRITTEN REQUEST ON PART OR ALL OF THE GOODS HEREUNDER IN WHICH EVENT AN ADDITIONAL MONTHLY CHARGE WILL BE MADE BASED UPON SUCH INCREASED VALUATION.
(e) WHERE LOSS OR DAMAGE OCCURS TO TENDERED, STORED OR HANDLED GOODS, FOR WHICH WAREHOUSE IS NOT LIABLE, THE DEPOSITOR SHALL BE RESPONSIBLE FOR THE COST OF REMOVING AND DISPOSING OF SUCH GOODS AND THE COST OF ANY ENVIRONMENTAL CLEAN UP AND SITE REMEDIATION RESULTING FROM THE LOSS OR DAMAGE TO THE GOODS.
13. NOTICE OF CLAIM AND FILING OF SUIT
(a) Claims by the Depositor and all other persons must be presented in writing to the Warehouse within a reasonable time, and in no event any later than the earlier of: (i) 60 days after delivery of the Goods by the Warehouse or (ii) 60 days after Depositor is notified by the Warehouse that loss or damage to part or all of the Goods has occurred.
(b) No lawsuit or other action may be maintained by the Depositor or others against the Warehouse for loss or damage to the Goods unless timely written claim has been given as provided in paragraph (a) of this section and unless such lawsuit or other action is commenced by no later than the earlier of: (i) nine months after date of delivery by Warehouse or (ii) nine months after Depositor is notified that loss or damage to part or all of the Goods has occurred.
(c) When Goods have not been delivered, notice may be given of known loss or damage to the Goods by mailing of a letter via certified mail or overnight delivery to the Depositor. Time limitations for presentation of claim in writing and maintaining of action after notice begin on the date of mailing of such notice by Warehouse.
14. NO LIABILITY FOR CONSEQUENTIAL DAMAGES
Warehouse shall not be liable for any loss of profit or for any special, indirect, or consequential damages of any kind whatsoever.
15. LIABILITY FOR MIS-SHIPMENT
If Warehouse negligently misships Goods, the Warehouse shall pay the reasonable transportation charges incurred to return the misshipped Goods to the Facility. If the consignee fails to return the Goods, Warehouse’s maximum liability shall be for the lost or damaged Goods as specified in Section 12 above, and Warehouse shall have no liability for damages due to the consignee’s acceptance or use of the Goods whether such Goods be those of the Depositor or another.
16. MYSTERIOUS DISAPPEARANCE
Warehouse shall be liable for loss of Goods due to inventory shortage or unexplained or mysterious disappearance of Goods only if Depositor establishes such loss occurred because of Warehouse’s failure to exercise the care required of Warehouse under Section 12 above. Any presumption of conversion imposed by law shall not apply to such loss and a claim by Depositor of conversion must be established by affirmative evidence that the Warehouse converted the Goods to the Warehouse’s own use.
17. RIGHT TO STORE GOODS
Depositor represents and warrants that Depositor is lawfully possessed of the Goods and has the right and authority to store them with Warehouse. Depositor agrees to indemnify and hold harmless the Warehouse from all loss, cost and expense (including reasonable attorneys’ fees) which Warehouse pays or incurs as a result of any dispute or litigation, whether instituted by Warehouse or others, respecting Depositor’s right, title or interest in the Goods. Such amounts shall be charges in relation to the Goods and subject to Warehouse’s lien.
18. ACCURATE INFORMATION
Depositor will provide Warehouse with information concerning the Goods, which is accurate, complete and sufficient to allow Warehouse to comply with all laws and regulations concerning the storage, handling and transporting of the Goods. Depositor will indemnify and hold Warehouse harmless from all loss, cost, penalty and expense (including reasonable attorneys’ fees) which Warehouse pays or incurs as a result of Depositor failing to fully discharge this obligation.
19. SEVERABILITY AND WAIVER
(a) If any provision of this Contract or any application thereof, should be construed or held to be void, invalid or unenforceable, by order, decree or judgment of a court of competent jurisdiction, the remaining provisions of this Contract shall not be affected thereby but shall remain in full force and effect.
(b) Warehouse’s failure to require strict compliance with any provision of this Contract shall not constitute a waiver or estoppel to later demand strict compliance with that or any other provision(s) of this Contract.
(c) The provisions of this Contract shall be binding upon the heirs, executors, successors and assigns of both Depositor and Warehouse; contain the sole agreement governing Goods tendered to the Warehouse; and, cannot be modified except by writing signed by Warehouse and Depositor.
20. GENERAL AND SPECIFIC LIEN
The Warehouse claims a general and specific lien for all lawful charges for storage and preservation of the Goods and/or Equipment, and also, for money the Warehouse has advanced, interest, insurance, transportation, labor, weighing, coopering, and other charges and expenses in relation to such Goods, and for the balance on any other accounts that may be due. Warehouse further claims a general warehouse lien for all such charges, advances and expenses with respect to any other Goods stored by the Depositor in any other facility owned or operated by Warehouse. In order to protect its lien, Warehouse reserves the right to require advance payment of all charges prior to shipment of Goods. Warehouse reserves the right to request a non-negotiable forms of payment such as cashier’s checks or wire transfer before releasing or delivery goods. The Warehouse reserves the right to exercise its lien rights under the terms of any applicable law and/or agreement between the Depositor and the Warehouse, including, without limitation, Blue Sky Blue Sea, Inc. d.b.a. American Export Lines ocean bills of lading and Terms and Conditions of Service. Depositor agrees that Warehouse’s general lien shall survive delivery.
21. YARD STORAGE
The liability of the Warehouse for any Yard Storage of containers or trailers, whether loaded or empty, secured or unsecured, shall be subject to this Contract.
22. GOVERNING LAW
These Terms and Conditions of Contract shall be interpreted in accordance with and governed in all respects by the laws of the State of Florida.