NVOCC bill of lading terms & conditions

1. Definitions.

1.  “Bill” means this document whether issued as a bill of lading or a waybill and whether issued in paper or electronic form. Notwithstanding anything else contained in or incorporated into this Bill, this document will not be a document of title to the Goods if it is issued as a waybill.
2. “Carriage” means the whole or any part of the loading, handling, stowage, carriage, transport, storing, weighing, custody, care and discharge of the Goods and all other operations and services whatsoever performed by or on behalf of Carrier or a Sub-Contractor in connection with the Goods under this Bill.
3. “Carrier” means DT America Cor
4. “Combined Transport” arises when a Place of Receipt and/or a Place of Delivery is indicated on the front hereof and such place(s) are different respectively from the Port of Loading or from the Port of Discharge.
5. “Container” means any container (including but not limited to open top, open side or platform container), trailer, van, transportable tank, ISO tank, flat, pallet or any other similar article used to consolidate goods, together with any connected, ancillary or accessory equipment.
6. “Dangerous Goods” means Goods that are or may become of a dangerous, inflammable, explosive, radioactive, corrosive, noxious, hazardous, poisonous or damaging nature, Goods that are or may become liable to damage the Vessel, any property whatsoever, any person or any other cargo, and/or Goods that are classified or described as dangerous in the International Maritime Dangerous Goods Code issued by the International Maritime Organization (the “IMDG Code”) or in Carrier’s applicable Tariff.
7. “Freight” means all freight and charges payable to Carrier in accordance with Carrier’s applicable Tariff and this Bill, including storage, demurrage and detention.
8. “Goods” means the whole or any part of the goods and cargo received from the Shipper and described on the front of this Bill and includes any Container, packaging or equipment not supplied by or on behalf of Carrier. The term “Goods” includes, where applicable, Dangerous Goods.
9. “Merchant” means the Shipper, Consignee, any Person to whom the Bill is endorsed, owner of the Goods, receiver of the Goods, a Person owning or entitled to possession of the Goods or of this Bill, the Holder of this Bill, importer or exporter of the Goods, and anyone acting on behalf of any such Person. The term “Merchant” does not include Carrier or any of its parent, subsidiary, affiliated or related companies.
10. “Package” where a Container is loaded with more than one package or unit, the packages or other shipping units enumerated on the face of this Bill as packed in such Container and entered in the box on the face hereof entitled “Total number of Containers or Packages received by Carrier” are each deemed a Package.
11. “Person” means an individual, group, company, corporation, partnership or other legal entity as the case may be.
12. “Port to Port Shipment” arises when the Carriage called for by this Bill is not Combined Transport.
13. “Sub-Contractor” means the owners, charterers and operators of the Vessel or any other vessel (other than Carrier), any sea, water, rail, road, air or other transport operators or carriers (other than Carrier) performing any stage of the Carriage, stevedores, terminal operators, warehousemen, and any independent contractors, agents, servants or other Persons employed by or on behalf of Carrier in performance of the Carriage, as well as any direct or indirect subcontractor or agent of any of the foregoing.
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2. Carrier’s Tariff. The terms and conditions of Carrier’s applicable Tariff, if any, are incorporated herein. Copies of the relevant provisions of the applicable Tariff are obtainable from Carrier upon request or, where applicable, from the governmental agency with whom such Tariff has been filed. In the case of inconsistency between this Bill and any applicable Tariff, this Bill shall prevail.
3. Carriage Covered by Multimodal Transport Bill of Lading. Notwithstanding the heading “Combined Transport Bill of Lading,” the provisions set out and referred to in this Bill shall also apply if the transport as described on the front of this Bill is performed by one mode of transport only.
4. Negotiability and Title to the Goods. This Bill shall be negotiable unless marked “non-negotiable” on the front hereof and shall constitute title to the Goods and the holder shall be entitled to receive or transfer the Goods described on the front hereof.
5. USA Clause Paramount; Limit of Liability
   1. If the Carriage covered by this Bill includes carriage to or from a port or place in the United States of America, including its districts, territories and possessions, this Bill shall be subject to the United States of America Carriage of Goods by Sea Act 1936 and any amendments thereto (“COGSA”), which shall specifically be deemed to be incorporated by reference herein except as otherwise provided, and COGSA shall govern and be paramount throughout the entire Carriage, including the carriage by sea or inland waterway and the entire time that the Goods are in the actual custody of Carrier or a Sub-Contractor before loading onto the Vessel and after discharge therefrom, including but not limited to at the terminal or container yard. Carrier shall be entitled to the benefits of all privileges, rights, defenses, exclusions, exemptions, immunities and limitations in COGSA, whether or not the loss or damage to the Goods occurs at sea or elsewhere. Neither Clauses 7(b) or 7(c), the International Convention for the Unification of Certain Rules relating to Bills of Lading as signed at Brussels on 25th August 1924 (“Hague Rules”), the Hague Rules as amended by the Protocol signed at Brussels on 23rd February 1968 (“Hague/Visby Rules”) nor the United Nations Convention on the Carriage of Goods by Sea 1978 (“Hamburg Rules”) shall apply to such Carriage, and the liability of Carrier in such case shall be governed exclusively by COGSA.
   2. If COGSA applies, then with respect to Goods carried on deck and stated on the front hereof to be so carried, all risk or loss or damage by perils inherent in or incidental to such Carriage shall be borne by Merchant and in all other respects Carrier shall have benefit of all privileges, rights, defenses, exclusions, exemptions, immunities and limitations in COGSA, notwithstanding Section 1(c) thereof.
   3. If COGSA applies, the liability of Carrier and/or the Vessel for any loss of or damage to or in connection with the Goods shall in no event exceed US$500 per package or, in the case of Goods not shipped in packages, per customary freight unit unless the value of the Goods has been declared on the front hereof, in which case Clause 19(c) shall apply. For limitation of liability purposes under COGSA, it is agreed that the meaning of the word “package” shall be any palletized or unitized assemblage of cartons, boxes or similar articles that has been palletized or unitized for the convenience of Merchant and/or to facilitate the transportation and handling of the Goods, regardless of whether said pallet or unit is disclosed on the front hereof.

6. Clause Paramount (Non-USA Carriage); Limit of Liability.
   1. This Bill shall have effect subject to any national law making the Hague Rules or the Hague/Visby Rules compulsorily applicable to this Bill. Except where the Hague Rules or the Hague/Visby Rules apply, this Bill shall have effect subject to any national law making the Hamburg Rules compulsorily applicable to this Bill.
   2. Where the Hague Rules, the Hague/Visby Rules or the Hamburg Rules (collectively, the “Rules”) are compulsorily applicable to this Bill by any national law, the liability of Carrier shall in no event exceed the limit provided in the applicable national law. Where the Rules are not compulsorily applicable to this Bill by any national law, Carrier shall be entitled to the benefits of all privileges, rights, defenses, exclusions, exemptions, immunities and limitations contained in the Hague Rules, which shall specifically be deemed to be incorporated by reference herein except as otherwise provided, and the liability of Carrier and/or the Vessel for any loss of or damage to or in connection with the Goods shall in no event exceed US$500 per package or, in the case of Goods not shipped in packages, per customary freight unit unless the value of the Goods has been declared on the front hereof, in which case Clause 19(c) shall apply.
   3. Carrier shall be entitled to the benefits of all privileges, rights, defenses, exclusions, exemptions, immunities and limitations conferred by such national laws or Rules as if the same were herein specifically set out. If any law, treaty or rule (“Law”) is compulsorily applicable to the Carriage, these terms and conditions shall, as regards such Carriage, be read as subject to any such Law. However, nothing herein shall be deemed to be a surrender by Carrier of any of its privileges, rights, defenses, exclusions, exemptions, immunities or limitations or an increase of its responsibilities under any such Law or the Rules. If any part of this Bill is repugnant to or inconsistent with such Law, such Law shall prevail and be considered part of this contract but only to the extent of such repugnancy or inconsistency and no further.
   4. Neither the Hague Rules, the Hague/Visby Rules nor the Hamburg Rules, if otherwise applicable, shall apply to the Carriage or this Bill where the Goods consist either of Goods carried on deck pursuant to Clause 15(c) hereof. Such Goods whether carried on deck or under deck are, subject to any applicable law to the contrary, carried without responsibility on the part of Carrier for loss or damage whatsoever arising during the Carriage even if caused by unseaworthiness of the Vessel at any time during the carriage by sea or by reason of negligence on the part of Carrier or a Sub-Contractor or any other cause whatsoever.

7. Carrier’s Responsibility.
   1. Carrier undertakes to procure the services necessary to effect the entire transport of the Goods from the place where they are accepted as designated on the front hereof (Place of Receipt or Port of Loading, as the case may be) to the place of final delivery as designated on the front hereof. Carrier shall not be responsible for loss of or damage to the Goods occurring before the receipt of the Goods by Carrier or after the delivery of the Goods to Merchant or its designee. The custody and Carriage of the Goods are subject to this Bill, as well as Carrier’s Tariffs, rates and rules. Subject to the other terms and conditions of this Bill, Carrier shall be liable for loss of or damage to the Goods occurring between the time when it receives the Goods and the time of delivery only to the extent set out below. Insurance on the Goods will not be arranged by Carrier except with the express written instructions of Merchant prior to receipt of the Goods by Carrier and then only upon the payment of premium by Merchant and lodgment of a declaration as to value prior to shipment.
   2. Port to Port Shipment. Except for Carriage subject to and governed by COGSA pursuant to Clause 5: i)Carrier’s obligations in respect of the Goods shall begin when the Goods are loaded on board the Vessel at the Port of Loading and shall continue until the Goods are discharged at the Port of Discharge, during which period Carrier shall be liable for loss of or damage to the Goods to the extent prescribed by Clause 6 and any legislation giving effect to the Rules; ii) Before loading at the Port of Loading or after discharge at the Port of Discharge, any Goods in the custody of Carrier or a Sub-Contractor shall be deemed to be at the sole risk of Merchant and Carrier and Sub-Contractors shall not be responsible for any act, neglect or omission in relation to the Goods under such circumstances. When making arrangements with any Person for carriage or services related to the Goods prior to loading or after discharge at Merchant’s request, Carrier does so as agent only, assumes no responsibility for performance of any such carriage or services, and shall have no liability whatsoever for such carriage or services or the acts or omissions of Carrier or any other Person; iii) In the event it is adjudged that Carrier has any responsibility for loss of or damage to the Goods prior to the time the Goods are loaded on board the Vessel at the Port of Loading or after they are discharged at the Port of Discharge, such responsibility shall be governed by the national law giving effect to the Rules as provided in Clause 6. Under such circumstances, and subject Clause 6, Carrier shall be entitled to all provisions, rights and defenses under this Bill, as well as under any terms and conditions belonging to any carrier or service provider in whose custody the loss or damage is alleged to have taken place, whether this Bill be issued or not.
   3. Combined Transport. Except for Carriage subject to and governed by COGSA pursuant to Clause 5: i) Notwithstanding anything contained in Clause 7(b), where the contract of Carriage is one calling for Combined Transport, the liability of Carrier shall be governed by Clauses 7(c)(ii) and 7(c)(iii) below and at all times by the provisions of and subject to Carrier’s rights and defenses under this Bill; ii) With respect to loss of or damage to the Goods occurring during the carriage by sea or if it is not known at what stage of the Carriage the loss or damage occurred, the liability of Carrier shall be determined in accordance with the provisions of Clause 6 and any national law giving effect to the Rules; iii) Where it is adjudged that loss of or damage to the Goods occurred prior to the Goods being loaded on the Vessel at the Port of Loading or after discharge at the Port of Discharge: (1) the liability of Carrier shall be determined by the provisions contained in any international convention or national law that: (a) cannot be departed from by private contract to the detriment of Merchant, and (b) would have applied by force of law if Merchant had made a separate and direct contract with Carrier in respect of the particular stage of Carriage where the loss or damage occurred and had received as evidence thereof any particular document that must be issued in order to make such international convention or national law applicable; (2) where no such international convention or national law applies, the liability of Carrier shall be determined by the provisions of Clause 6 and any national law giving effect to the Rules.

8. Subcontracting.
   1. Carrier shall be entitled to subcontract the whole or any part of the Carriage on any terms or conditions whatsoever, including liberty to further subcontract.
   2. The Merchant undertakes that no claim or allegation shall be made against any Person who performs or undertakes the Carriage (including all Sub-Contractors) other than the Carrier that imposes or attempts to impose upon such Person or any vessel owned or chartered by such Person any liability whatsoever in connection with the Goods or the Carriage, whether or not caused by or resulting from negligence, breach or other fault on the part of such Person or vessel, and, if any such claim or allegation should nevertheless be made, to indemnify and hold harmless the Carrier against all consequences thereof.
   3. Any Person who undertakes to perform the Carriage (including any Sub-Contractor) and vessel shall have the benefit of every privilege, right, defense, exclusion, immunity and exemption from or limitation of liability whatsoever applicable to Carrier or to which Carrier is entitled herein or otherwise, including but not limited to the right to enforce Clause 24 hereof, as if such provisions were expressly for such Person’s or vessel’s benefit. In entering into this contract, Carrier, to the extent of those provisions, does so not only on its own behalf but also as agent or trustee for such Persons and vessels.

9. Merchant’s Responsibility.
   1. Merchant shall comply with all laws, regulations and requirements that may be applicable during the Carriage, as well as concerning documentation and any other matters affecting or in any way relating thereto, and shall bear and pay (or indemnify Carrier if it shall be obliged to pay first) any and all duties, taxes, fines, penalties, costs, expenses, losses and damages (whether direct, indirect or consequential) directly or indirectly caused by or resulting from Merchant’s failure to so comply. Merchant shall also bear and pay (or indemnify Carrier if it shall be obliged to pay first) any and all duties, taxes, fines, penalties, costs, expenses, losses and damages (whether direct, indirect or consequential), as well as any attorney fees and expenses, in respect of the Goods directly or indirectly caused by or resulting from any illegal, incorrect, untimely or insufficient declaration, marking, number or addressing of the Goods. In particular, but without limitation, in case of any such noncompliance, Carrier and/or its agents shall be at liberty to reserve not to load the Goods or, if loaded, to arrange at Merchant’s sole risk and expense for such Goods to be landed and stored (ashore or afloat, under cover or in the open) without compensation to Merchant and such shall be deemed to constitute final and due delivery under this Bill.
   2. Merchant undertakes that the Goods are packed in a manner and, if applicable, packed into a Container (in the case of not being packed by or on behalf of Carrier) adequate to withstand the ordinary risks of Carriage having due regard to their nature and in compliance with all laws, regulations and requirements that may be applicable during the Carriage.
   3. Merchant shall be liable for the loss, damage, contamination, soiling, detention or demurrage before, during and after the Carriage of property (including but not limited to Containers) of Carrier or any Sub-Contractor directly or indirectly caused by Merchant or any Person acting on its behalf or for which Merchant is otherwise responsible. Merchant shall defend, indemnify and hold harmless Carrier against any and all losses, damages, injuries, death, claims, liabilities, suits, actions, costs, expenses, fines and penalties of whatsoever kind or nature suffered or incurred by Carrier, any other Person or any cargo other than the Goods directly or indirectly caused by, arising out of or resulting from Merchant’s failure to comply with Clause 9(b).
   4. Merchant shall be jointly and severally liable and remain so, whether or not this Bill has been transferred, to Carrier for the due fulfilment of all obligations to be undertaken or performed by Merchant in this Bill and shall defend, indemnify and hold harmless Carrier against any and all losses, damages, injuries, death, claims, liabilities, suits, actions, costs, expenses, fines, penalties customs, duties and taxes of whatsoever kind or nature suffered or incurred by Carrier, any other Person or any cargo other than the Goods directly or indirectly caused by, arising out of or resulting from any breach by Merchant of any provision of this Bill, including but not limited to the warranties and undertakings herein, Carrier’s applicable Tariff, any law, regulation or requirements that may be applicable during the Carriage, or any other cause in connection with the Goods for which Carrier is not responsible. Any obligation to defend, indemnify and hold harmless Carrier or others set forth in this Bill shall include and encompass Carrier’s negligence, whether sole or otherwise, to the full extent permitted by the applicable law and shall also include contractual liability to third parties.

10. Notification and Delivery.
    1. Merchant shall take delivery of the Goods within the free storage time provided for in Carrier’s applicable Tariff or otherwise at the time and place when and where Carrier is entitled to call upon Merchant to take delivery thereof as may be provided by Carrier’s applicable Tariff or otherwise. If Merchant fails to do so, Carrier shall, without prejudice to any other rights Carrier has under this Bill or otherwise, be entitled without notice to remove the Goods or any part thereof from a Container, if necessary, and/or to store the Goods or any part thereof ashore, afloat, in the open or under cover at the sole risk and expense of Merchant. Such storage shall constitute due and final delivery hereunder, and thereupon all liability whatsoever of Carrier, including for mis-delivery or non-delivery, in respect of the Goods or that part thereof shall cease. The costs of such unloading or storage (if paid or payable by Carrier or Sub-Contractor) shall be immediately payable to Carrier by Merchant upon demand of Carrier.
    2. If Merchant fails or refuses to take delivery of the Goods within thirty days of delivery or such shorter time as may be provided in any law, order, decree or regulation applicable at the Port of Discharge or, if in the sole opinion of Carrier, the Goods are likely to perish or be rendered less valuable or worthless sooner within that period, or incur charges in excess of their value, Carrier shall be entitled at its discretion without further notice to Merchant and without prejudice to any other rights or remedies that Carrier has under this Bill or otherwise, and without responsibility to sell by private treaty or by public auction, dispose of or destroy the Goods and apply any proceeds of sale against sums owed by Merchant to Carrier.

11. Notice of Loss; Time Bar.
    1. Carrier shall be deemed prima facie to have delivered the Goods as described in this Bill unless notice of loss of or damage to the Goods indicating the general nature of such loss or damage shall have been given to Carrier or its agent at the Place of Delivery (or the Port of Discharge if no Place of Delivery is named) before or at the time of delivery or, if the loss or damage is not apparent, within three consecutive days thereafter. In case of damage not apparent upon inspection, the onus of proof that such damage occurred during Carriage shall be on Merchant. Any notation of loss or damage on the delivery receipt or the notice given by Merchant shall be explicit, failing which Carrier shall not accept responsibility for such loss or damage whatsoever or howsoever caused.
    2. Where the Goods have been or may have been lost or damaged during the custody of a Sub-Contractor, Carrier shall be discharged from all liability whatsoever in respect of the Goods unless Merchant gives Carrier notice of loss or damage in time for Carrier to comply with the requirements of the Sub-Contractor.
    3. Carrier shall be discharged of all liability whatsoever in respect of the Goods unless suit is brought in the proper forum and written notice thereof is received by Carrier within nine months after delivery of the Goods or, if the Goods are not delivered, the date when the Goods should have been delivered. Notwithstanding the foregoing, where the Hague Rules, the Hague/Visby Rules or U.S. COGSA apply, whether by incorporation in this Bill or by compulsorily applicable law, Carrier shall be discharged of all liability whatsoever in respect of the Goods unless suit is brought in the proper forum within one year after delivery of the Goods or, if the Goods are not delivered, the date when the Goods should have been delivered. Suit shall not be deemed brought against Carrier until jurisdiction shall have been obtained by service of process on Carrier.

12. Modes, Methods and Routes of Transport (Liberty).
    1. Carrier may at any time and without notice to Merchant: i) use any means of transport or storage whatsoever; ii) transfer the Goods from one conveyance to another, including transshipping, and carry the Goods on a vessel other than the vessel named on the front hereof or by any other means of transport whatsoever; iii) at any point or place unpack and remove Goods that have been packed into a Container and forward the same in a Container or otherwise; iv) load and unload the Goods at any port or place (whether or not any such port or place is named on the front hereof as the Place of Receipt, Port of Loading, Port of Discharge, Place of Delivery or a transshipment point) and store (ashore or afloat, under cover or in the open) the Goods at any such port or place; v) comply with any orders or recommendations given by any government or authority or any Person or body or purporting to act as or on behalf of such government or authority or having under the terms of the insurance on the conveyance employed by Carrier the right to give orders or directions; vi) proceed at any speed and by any route in Carrier’s discretion (whether or not the nearest, most direct, customary or advertised route).
    2. The liberties set out in Clause 12(a) may be invoked by Carrier for any purpose whatsoever, whether or not connected with the Carriage of the Goods, including but not limited to loading or unloading other cargo, bunkering, embarking or disembarking other Persons, undergoing repairs and/or dry docking, towing or being towed, or assisting other vessels. Anything done or not done in accordance with Clause 12(a) or any delay arising therefrom shall be deemed to be within the contractual Carriage and shall not be a deviation whatsoever. Should Carrier be held liable in respect of any such action, Carrier shall be entitled to the full benefit of Carrier’s rights and defenses under this Bill or otherwise.
    3. Carrier does not warrant or undertake that the Goods or any documents relating thereto shall arrive or be available at any point or place during the Carriage, at the Port of Discharge or at the Place of Delivery on any particular date or at any particular time (whether advertised or not), to meet any particular requirement of Merchant, or any market or use. Carrier shall in no event be liable for any delay whatsoever or however caused and shall in no circumstances be liable for any losses, damages, direct or indirect special or consequential loss or damages, indirect damages, incidental damages, loss of profit, loss of revenue, loss of market, loss of contract or loss of use directly or indirectly caused by or resulting from delay. If Carrier should nevertheless be held liable for any loss or damage caused by or resulting from delay, such liability shall in no event exceed the Freight paid for the Carriage covered by this Bill.

13. Matters Affecting Performance.
    1. Carrier is not liable for loss, damage, expense, delay or nonperformance directly or indirectly caused by or resulting from, in whole or in part, circumstances beyond the control of Carrier, including without limitation: (i) acts of God, including flood, earthquake, storm, hurricane, power failure or other natural disaster; (ii) war, hijacking, robbery, theft or terrorist activities; (iii) incidents or deteriorations to means of transportation; (iv) embargoes; (v) civil commotions or riots; (vi) defects, nature or inherent vice of the Goods; (viii) acts by any governmental authority, including denial or cancellation of any import, export or other necessary license; or (ix) strikes, lockouts, slowdowns or other labor conflicts.
    2. If at any time the Carriage is or is likely to be affected by any hindrance, risk, delay, difficulty or disadvantage of any kind whatsoever or howsoever arising (even if the circumstances giving rise to such hindrance, risk, delay, difficulty or disadvantage existed at the time this contract was entered into or the Goods were received for the Carriage), Carrier (whether or not the Carriage has commenced) may, without notice to Merchant and in its sole discretion, either: i) Carry the Goods to the Port of Discharge or the Place of Delivery by an alternative route to that indicated in this Bill or that which is usual for goods consigned to such port or place. If Carrier so elects, then it shall be entitled to such additional Freight, storage charges and/or legal fees and expenses as Carrier may determine, notwithstanding the provisions of Clause 20; or ii) Suspend the Carriage of the Goods and store them (ashore or afloat, under cover or in the open) subject to the terms and conditions of this Bill and use reasonable efforts to forward the Goods as soon as practicable, but Carrier makes no representation as to the maximum period of suspension. If Carrier so elects, then it shall be entitled to such additional Freight, storage charges and/or legal fees and expenses as Carrier may determine, notwithstanding the provisions of Clause 20; or iii) Abandon the Carriage and, where reasonably possible, place the Goods or any part of them at Merchant’s disposal at any port or place that Carrier may, in its sole discretion, deem safe and convenient, whereupon Carrier’s responsibility in respect of the Goods shall cease. Carrier shall nevertheless be entitled to full Freight, and Merchant shall pay any additional costs of the Carriage to, as well as delivery and storage at, such port or place. If Carrier elects to use an alternative route under Clause 13(b)(i) or to suspend the Carriage under Clause 13(b)(ii), this shall not prejudice its right subsequently to abandon the Carriage; or iv) Without prejudice to Carrier’s rights subsequently to use an alternative route under Clause 13(b)(i) or to suspend Carriage under Clause 13(b)(i) or to abandon the Carriage under Clause 13(b)(iii), continue the Carriage.
    3. The circumstances referred to in Clause 13(b) shall include, but shall not be limited to, those caused by the existence or apprehension of war declared or undeclared, hostilities, warlike or belligerent acts or operations; riots, civil commotions or other disturbances; closure of, obstacles in or danger to any port or canal; blockade of port or place or interdiction or prohibition of or restriction on commerce or trading; quarantine, sanitary or other similar regulations or restrictions; strikes, lockouts or other labor troubles whether or partial or general and whether or not involving employees of Carrier or Sub-Contractors; congestion of a port, wharf, sea terminal, canal or any other place; shortage, absence or obstacles of labor or facilities for loading, discharge, storage, delivery or other handling of the Goods; pandemics, epidemics or diseases; bad weather, shallow water, ice, landslide or other obstacle in navigation or haulage.

14. Lien.
    1. Carrier shall have a lien on the Goods and any documents relating thereto for all sums whatsoever earned or due at any time to Carrier from Merchant under this Bill and/or any other contract or paid by Carrier, including, but not limited to, any liens or penalties levied on Carrier, for any acts or omissions for which Merchant is responsible and for general average contributions to whomsoever due and for the costs of recovering the same. Carrier shall have the right to exercise the lien at any time and at any place at its discretion to recover the sums due to Carrier and for that purpose to sell the Goods and documents by public auction or private treaty, without notice to Merchant and at Merchant’s expense and without any liability towards Merchant. Carrier shall be entitled to claim the difference in the event that the sale proceeds do not discharge in full the amount due from Merchant. Carrier’s lien shall survive the delivery of the Goods.

15. Optional Stowage; Deck Cargo.
    1. Where the Goods are not already packed into a Container at the time of receipt by Carrier, Carrier shall be at liberty to pack and to transport the Goods in any type of Container with or without other cargo.
    2. Goods of any description or particulars, whether or not packed into a Container, may be carried on deck or under deck at the sole discretion of Carrier without notice to Merchant and such stowage shall not be a deviation whatsoever, any custom to the contrary notwithstanding. If Goods are carried on deck, whether or not packed into a Container, Carrier shall not be obligated to note, mark or stamp on this Bill any statement that the Goods are carried on deck, any custom to the contrary notwithstanding. Subject to Clause 15(c), such Goods whether carried on deck or under deck and whether or not stated to be carried on deck, shall participate in general average and shall be deemed to be within the definition of goods for the purposes of the Hague Rules, the Hague/Visby Rules, the Hamburg Rules and COGSA, whichever is applicable to this Bill.
    3. Goods not packed in or on a Container other than open flats or pallets that are stated on the front hereof to be carried on deck and that are so carried, whether or not carried on deck, are carried without responsibility on the part of Carrier for loss or damage of whatsoever nature arising during Carriage whether caused by unseaworthiness or negligence or any other cause whatsoever on the part of Carrier or a Sub-Contractor. The Hague Rules, the Hague/Visby Rules, the Hamburg Rules and U.S. COGSA, whichever is applicable to this Bill, shall not apply to such Carriage. Merchant shall defend, indemnify and hold harmless Carrier against any and all extra costs and expenses incurred for any reason whatsoever in connection with Carriage of such Goods.

16. Description of Goods.

The description and particulars of the Goods set out on the front hereof are furnished by or on behalf of the Shipper and are unknown to Carrier. Merchant warrants to Carrier that the description and particulars provided by it or on its behalf, including but not limited to weight, measure, quantity, quality, description, conditions, marks, numbers, origin and value, have been checked by Merchant on receipt of this Bill and that such description and particulars, including any other particular furnished by or on behalf of Merchant, are true, adequate and correct. Merchant is responsible for any customs, duties, taxes, fines or penalties imposed on or in respect of any Goods that have been incorrectly described or declared by Merchant.

17. Inspection of Goods.
    1. Carrier and any Person authorized by Carrier shall be entitled, but under no obligation, to open and/or to scan any package or Container at any time and to inspect the contents.
    2. If pursuant to any provision under this Bill or if by order of the authorities at any point or place, a Container or package has to be opened and/or the seal of a Container broken, Carrier shall not be liable for any loss, damage or delay directly or indirectly caused by or resulting from any opening, unpacking, inspection, re-weighing, re-measurement, re-valuation, repacking or resealing of the Goods or the Container. Merchant shall indemnify Carrier for any and all charges, costs and expenses of all such measures taken.

18. Dangerous Goods; Contraband.
    1. No Dangerous Goods shall be tendered for Carriage without giving prior written notice to Carrier of their precise nature, character, type, name, label and classification, as well as the method of rendering them safe, and without obtaining Carrier’s prior express consent in writing. Carrier or the Master may, in their absolute discretion and option, accept or reject the Carriage of any Dangerous Goods.
    2. Merchant shall undertake that the outside of the Container, packaging or other covering in which the Dangerous Goods are to be stored or transported is distinctly, clearly and durably marked to indicate the nature of the Dangerous Goods and as otherwise required by the IMDG Code and all laws, regulations, codes and conventions that may apply during the Carriage. Merchant shall also undertake to submit the documents or certificates required by the IMDG Code and all laws, regulations, codes and conventions that may apply during the Carriage.
    3. Merchant warrants that Dangerous Goods shall be packed in a manner to withstand the ordinary risks of Carriage, having due regard to their nature and in compliance with the IMDG Code and all laws, regulations, codes and conventions that may apply during the Carriage.
    4. If any Dangerous Goods are delivered to Carrier without obtaining the prior written consent required by Clause 18(a) or without the marking or packing required by Clause 18(b) and 18(c) or, if in the opinion of Carrier, the Goods are or may become of a dangerous, inflammable, explosive, radioactive, corrosive, noxious, hazardous, poisonous, or damaging nature and cannot safely or properly be carried or carried further, whether or not taking any measures or incurring additional expense, Carrier, at its absolute discretion and without notice to Merchant, (but as Merchant’s agent only) may at any time or place take such measures as it considers appropriate and/or incur reasonable additional expense to continue the Carriage and/or arrange at Merchant’s sole risk and expense for such Dangerous Goods or other Goods to be landed, stored (ashore or afloat, under cover or in the open), sold, destroyed, disposed of, abandoned or rendered harmless without compensation to Merchant and without prejudice to Carrier’s rights to Freight. Such action shall be deemed to constitute final and due delivery under this Bill, and Merchant shall pay all costs and expenses incurred by Carrier. In exercising its discretion hereunder, Carrier shall not be under any obligation to take any particular measure and shall not be liable for any loss, damage or delay whatsoever or howsoever caused or any lack of action relating thereto. Carrier shall be under no obligation or liability to make any general average contribution in respect of Dangerous Goods or other Goods that fall within this sub-clause.
    5. Merchant warrants that the Goods are lawful goods according to all laws, regulations and conventions that may apply during the Carriage and are not, or do not contain, contraband, sanctioned items, prohibited or illegal substances, articles or narcotics, or stowaways. Whenever the Goods are perceived or found to be in breach of this warranty, Carrier shall be entitled to have such Goods discharged and left to Merchant at any port or place Carrier may choose or otherwise disposed of in Carrier’s sole discretion without compensation to Merchant.
    6. Merchant shall defend, indemnify and hold harmless Carrier against any and all losses, damages, injuries, death, claims, liabilities, suits, actions, costs, expenses, fines and penalties of whatsoever kind or nature suffered or incurred by Carrier, any other Person or any cargo other than the Goods directly or indirectly caused by, arising out of or resulting from a breach of Clauses 18(a) – (e) and all resulting actions taken by Carrier and, further, Merchant shall post any necessary bonds or financial guarantees as may be required because of such breach.

19. The Amount of Compensation; Declared Value; Valuable Goods.
    1. Subject always to Carrier’s right to limit its liability as provided for herein, if Carrier is liable for compensation in respect of loss of or damage to or in connection with the Goods, such compensation shall be calculated by reference to the commercial invoice value of the Goods plus Freight and insurance if paid. If there is no commercial invoice value of the Goods or if any such invoice is not bona fide, such compensation shall be calculated by reference to the value of the Goods at the place and time they are delivered or should have been delivered to Merchant.
    2. Merchant agrees and acknowledges that Carrier has no knowledge of the value of the Goods and, unless a declared value has been noted in accordance with Clause 19(c), the aggregate liability of Carrier and any Sub-Contractor for any and all loss of or damage to or in connection with the Goods shall, in no circumstances, exceed the per package or the per customary freight unit limitation, as the case may be, set by the Rules or U.S. COGSA, whichever is applicable. Any limitation of liability provided for herein shall be a single, aggregate limitation, and satisfaction of such limitation by any beneficiary of such limit shall act as a satisfaction of such limitation by all beneficiaries and against all claimants.
    3. Merchant agrees and acknowledges that Carrier has no knowledge of the value of the Goods. Merchant may claim higher compensation than the limits of liability provided for in this Bill only when, with the written consent of Carrier, (i) for multimodal shipments to or from the United States where U.S. inland carriage is undertaken, Merchant elects to avoid any limitation of liability provided herein by prepaying extra Freight and opting for full liability by complying with the terms in Carrier’s applicable Tariff and (ii) in all other cases, the Shipper declares the value of the Goods and requests that Carrier insert the declared value of the Goods on the front of this Bill and for which extra Freight has been paid by Merchant. In that case, the amount of the declared value shall be substituted for the limits of liability provided for in this Bill. In such case, if the actual value of the Goods shall exceed such declared value, the value shall nevertheless be deemed to be the declared value and Carrier’s liability, if any, shall not exceed the declared value. Any partial loss of or damage to the Goods shall be adjusted pro rata on the basis of such declared value. Carrier’s knowledge of the value of the Goods and/or Merchant’s declaration of the value of the Goods to Carrier in the regular course or for any purpose other than this sub-clause, such as for customs purposes, shall in no event constitute a declared value of the Goods to Carrier for liability purposes or this sub-clause.
    4. In the event of loss or damage subject to a compulsorily applicable law that invalidates Carrier’s otherwise applicable maximum contractual liability hereunder, Carrier’s liability shall be limited to the lowest amount permissible by such applicable law.
    5. IN NO EVENT SHALL CARRIER BE LIABLE FOR ANY DIRECT OR INDIRECT SPECIAL OR CONSEQUENTIAL LOSS OR DAMAGES, INDIRECT DAMAGES, INCIDENTAL DAMAGES, LOSS OF PROFIT, LOSS OF REVENUE, LOSS OF MARKET, LOSS OF USE, OR PUNITIVE OR EXEMPLARY DAMAGES WHATSOEVER OR HOWSOEVER CAUSED, EVEN IF IT HAS BEEN PUT ON NOTICE OF THE POSSIBILITY OF SUCH DAMAGES.

20. Freight.
    1. Full Freight shall be due and payable to Carrier by Merchant in cash without set-off, deduction or counterclaim on receipt of the Goods or part thereof by Carrier. Freight shall be deemed to have been fully earned and non-returnable on receipt of the Goods by Carrier, whether or not the Goods are lost or damaged or the Vessel is lost or not lost. Merchant shall remain liable to Carrier for Freight, regardless of whether Freight is stated on the front hereof or intended to be prepaid or collect. All Freight shall be paid without any set off, counterclaim or deduction.
    2. Payment of Freight to a freight forwarder, broker or any Person other than Carrier or its authorized agent shall not be deemed payment to Carrier and shall be made at Merchant’s sole risk.

21. Both-to-Blame Collision Clause. If the carrying Vessel comes into collision or contact with another vessel as a result of negligence of the other vessel and any act, neglect or default of any Person in the navigation or in the management of the carrying Vessel, Merchant shall pay Carrier or, where Carrier is not the owner and in possession of the carrying Vessel, shall pay to Carrier as trustee for the owner and/or demise charterer of the carrying Vessel, a sum sufficient to indemnify Carrier and/or the owner and/or demise charterer of the carrying Vessel against all loss or liability to the other or non-carrying vessel or her owners insofar as such loss or liability represents loss of or damage to, or any claim whatsoever of Merchant, paid or payable by the other or non-carrying vessel or her owners to Merchant and set off, recouped or recovered by the other or non-carrying vessel or her owner as part of their claim against the carrying Vessel or her owner or demise charter or Carrier. The foregoing provisions shall also apply where the owner, operator or those in charge of any vessel or vessels or objects, other than, or in addition to, the colliding or contacting vessels or objects, are at fault in respect to a collision, contact, stranding or other accident.

22. New Jason Clause.
    1. In the event of accident, danger, damage or disaster before or after the commencement of the voyage resulting from any cause whatsoever, whether due to negligence or not, for which, or for the consequence of which, Carrier is not responsible by Law, contract or otherwise, the Goods and Merchant shall jointly and severally contribute with 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.
    2. If a salving vessel is owned or operated by Carrier, salvage shall be paid for as fully as if the said salving vessel or vessels belonged to strangers. Such deposit as Carrier or his agents may deem sufficient to cover the estimated contribution of the Goods and any salvage and special charges thereon shall, if required, be made by the Goods or Merchant to Carrier before delivery.

23. General Average.
    1. General average shall be adjusted, stated and settled, at any port or place as may be selected by Carrier, in accordance with the York-Antwerp Rules 1994, or any modification thereof, in respect of all Goods, whether carried on or under deck. General average in connection with a vessel not operated by Carrier shall be adjusted according to the requirements of the operator of that vessel.
    2. Such deposit as Carrier may deem sufficient to cover the estimated contribution of the Goods and any salvage and special charges thereon shall, if required, be made by the Goods or Merchant to Carrier before delivery. If Carrier delivers the Goods without obtaining security for general average contributions, Merchant by taking delivery of the Goods, undertakes personal responsibility to pay such contributions and to provide such cash deposit or other security for the estimated amount of such contribution as Carrier shall reasonably require.
    3. Carrier shall be under no obligation to take any steps whatsoever, including the exercise of any lien, for general average contributions due to Merchant.

24. Governing Law; Jurisdiction. This Bill and the contract evidenced herein shall be governed by and construed according to the general maritime law of the United States of America and, in the absence thereof, the laws of the State of New York. Any suit or action arising out of, in connection with or related to this Bill, the Carriage or the Goods shall be brought and litigated exclusively in the United States District Court for the Southern District of New York to whose jurisdiction Merchant consents for such purpose.

25. Partial Invalidity.
    1. The terms and conditions of this Bill are several and separable. If any term or condition is held to be invalid, null and void, or unenforceable, such invalidity, nullity or unenforceability shall attach only to such provision and shall not affect in any way the validity or enforceability of any other term or condition. This Bill shall be carried out as if such invalid, null and void, or unenforceable term or condition was not contained herein.

26. Precedence. Carrier does not accept any terms or conditions contained in Merchant’s service contract or agreement with Carrier, correspondence of any kind, invoices, or any other written or unwritten material and, in the event of conflict between Carrier’s terms and conditions herein and Merchant’s terms and conditions, if any, the terms and conditions of Carrier take precedence and control.