OCEAN BLUE EXPRESS INC.
Organization No. 019690
TERMS AND CONDITIONS
1. CLAUSE PARAMOUNT: If this Bill of Lading covers the carriage of goods by sea to or from the United States of America, this Bill of Lading shall have effect subject to the provisions of the Carriage of Goods By Sea Act of the United States of America, approved April 16, 1935, which shall be deemed to the incorporated herein, and nothing herein contained shall be deemed a surrender by the Carrier of any of its rights or immunities or limitations or an increase of its responsibilities or liabilities under said Act. The provisions stated in said Act (except as otherwise specifically provided herein) shall govern before the shipment is loaded on and after it is discharged from the vessel and throughout the entire time the goods are in the exclusive custody of the Carrier until made ready for delivery. If this Bill of Lading covers the carriage of Goods by sea to or from non-United States ports, this Bill of Lading shall have effect subject to the Hague-Visby Rules, if and as enacted by the country of shipment or destination and any legislation making those Rules compulsorily applicable to this Bill of Lading shall be deemed incorporated herein made part of this Bill of Lading. When no such enactment is in force in the country of shipment or destination, the Hague-Visby Rules shall apply. The Hague-Visby Rules shall also govern before the goods are loaded on and after they are discharged from the vessel and throughout the entire time the goods are in the actual custody of the Carrier or its Subcontractors.
2. DEFINITIONS: In this Bill of Lading the word “Vessel” means the vessel to be used for ocean crossing, named on the face hereof or any substitute ocean vessel actually used, also any feeder-ship, ferry, lighter, or any other watercraft used by the Carrier in the performance in this contract, the word “Carrier”, means Ocean Blue Express Inc., acting as a non-vessel-operating common carrier as defined under the Shipping Act of 1984 and any amendments thereto, and the Vessel, her owner, demise charterer, if bound hereby, the time charterer, and any substituted ocean carrier, the word “Merchant” means and includes the shipper, consignor, consignee, exporter, importer, the holder of this Bill of Lading and/or the receiver or the owner of the Goods, any person entitled to possession of the Goods, all of whom shall be jointly and severally liable to the Carrier for the payment of all freight, demurrage, detention, and for the performance of the obligations of any of them under this Bill of Lading, , the word “Goods” means the whole or any part of the cargo described on the fact of this Bill of Lading and, if the cargo is packed into containers(s) supplied or furnished by or on behalf of the Merchant, includes the container(s) as well, , the word “Package” means the largest individual unit of partially or completely covered or contained cargo made up by or for the Merchant which is delivered and entrusted to Carrier, including palletized units and each container packed and sealed by the Merchant or on its behalf, although the Merchant may have furnished a description of the contents of such sealed container(s) on this Bill of Lading, and the word “Subcontractor” means and includes ocean common carriers, stevedores, longshoremen, lighterers, terminal operators, warehousemen, truckers, railroads, agents, and any person, corporation or other legal entity that performs any of the Carrier’s obligations under this Bill of Lading (whether or not in direct privity of contract with the Carrier), and includes the Subcontractor’s own Subcontractor(s).
3. SUBCONTRACTING; RIGHTS AND DEFENSES OF SUBCONTRACTORS: A) The Carrier shall be entitled to subcontract on any terms the whole or any part of the receiving, loading, discharge, handling, storage, stowage, carriage, custody or care of the Goods, including all stages of intermodal transportation, and any duty undertaken by the Carrier in relation to the Goods. B) If any claim is made by the Merchant against any Subcontractor, the Subcontractor and the agents of each shall have the benefit of all rights, defenses, exemptions, limitations, conditions, immunities, liberties and statutory protections in this Bill of Lading benefiting the Carrier as if the provisions were expressly for the benefit of the Subcontractor to the fullest extent permitted by the law applicable to Himalaya Clauses.
4. CARRIER’S RESPONSIBILITY: A) PORT TO PORT SHIPMENT: Except as otherwise provided herein, the Carrier’s responsibility for Goods shall commence at the time when such Goods are received by the Carrier or its Subcontractors at the Port of Loading and shall terminate when such Goods are delivered by or on behalf of the Carrier at the intended Port of Discharge. Notwithstanding the above where the space(s) entitled “Place of Receipt” and/or “Place of Delivery” on the face hereof are completed, the contract contained in or evidenced by this Bill of Lading is for through transportation from and/or to the place(s) so named and the Carrier’s responsibility shall then commence at the time when the Goods are delivered at the Place of Receipt so named (if any) and/or terminate when the Goods are delivered at the Place of Delivery so named (if any). The Merchant agrees to have the Carrier as agent to enter into contracts on behalf of the Merchant with other for transport, storage, handling or any other services in respect of the Goods prior to loading and subsequent to discharge of the Goods from the Vessel without responsibility for any act or omission whatsoever on the part of the Carrier or others. B) COMBINED TRANSPORT: Except as otherwise provided in this Bill of Lading, the Carrier shall be liable for loss of or damage to the Goods occurring from the time that the Goods are taken into his charge until the time of delivery to the extent set out below:
(1) Where the stage of Carriage where the loss or damage occurred cannot be proved:
(i) The Carrier shall be entitled to rely upon all exclusions of liability under the rules or legislation that would have applied under Clause 1 above had the loss or damage occurred at sea or, if there was no carriage by sea, under the US COGSA or Hague Visby Rules; ii) where under (1) above, the Carrier is not liable in respect of some of the factors causing the loss or damage, it shall only be liable to the extent that those factors for which it is liable have contributed to the loss or damage; and iii) where the Hague Visby Rules (or any legislation applying such rules or Hague-Visby Rules such as COGSA is not compulsorily applicable, the Carrier’s liability shall not exceed US $2.00 per kilo of the gross weight of the Goods lost, damaged or in respect of which the claim arises or the value of such Goods, whichever is the lesser.
(2) Where the stage of Carriage where the loss or damage occurred can be proved:
(i) The liability of the Carrier shall be determined by the provisions contained in any international convention of national law of the country which provisions cannot be departed from by private contract to the detriment of the Merchant and would have applied if the Merchant had made a separate and direct contract with the Carrier in respect of the particular stage of Carriage where the loss or damage occurred and had received as evidence thereof any particular document must be issued in order to make such international convention or national law applicable; and ii) where (i) above does not apply and liability of the Carrier shall be determined by Clause 1.
(3) DELIVERY OF CARGO: Immediately upon arrival of the Vessel at the Port of Discharge, the Carrier may without giving notice either of arrival or discharge, deliver the container(s) and/or goods onto any wharf, craft, or place that the Carrier or port authorities may select and continuously Sundays and Holidays included, in daytime or nighttime, no matter what the state of the weather or custom of the port may be. All lighterage and use of craft in loading and discharging shall be at the risk and expense of the Merchant. It is agreed that delivery by the Carrier in any event shall take place upon discharge from the Vessel to a safe lighter or dock and the responsibility of the Carrier in any capacity shall altogether cease when the Goods have been discharged and possession is received or taken by customs or other authorities, or by the operator or person in charge of any lighter, craft, wharf, store, warehouse, elevator or other facilities, whether selected by the Merchant, or by port authorities or by the Carrier, unless it be shown that any loss or damage to the Goods was caused by the Carrier’s negligence in selecting the lighter, dock or warehouse. The burden of establishing such negligence is on the Merchant.
(4) DELAY, CONSEQUENTIAL LOSS: Except as otherwise provided herein, the Carrier shall in no circumstances be liable for direct, indirect or consequential loss or damages by delay or any other cause whatsoever and howsoever caused. Without prejudice to the foregoing, if the Carrier is found liable for unreasonable delay, liability shall be limited to the freight applicable to the relevant stage of the transport.
(5) VALUABLE GOODS: The Carrier shall not be liable for loss of or damage to or in connection with precious metals or stones, chemicals, jewelry, currency, writings, negotiable instruments, securities, documents, works of art, heirlooms, or any other valuable Goods, including Goods having particular value only for the Merchant, unless the Merchant has declared the nature and value of the Goods in writing before receipt of the Goods by the Carrier or Subcontractor, the nature and value of the Goods have been inserted on the face of this Bill of Lading, and additional freight has been paid as required.
5. ROUTE OF TRANSPORT; TRANSSHIPMENT; FORWARDING: A) The scope of the sea voyage herein contracted for shall include usual or customary ports of call whether named in this Bill of Lading or not, also ports in or out of the advertised, geographical, usual route or order, even though in proceeding thereto the Vessel may sail beyond the port of discharge named herein or in a direction contrary there to, or return to the original port, or depart from the direct or customary route and includes all canals, straits, and other waters. The Vessel may call at any port for the purpose of the current voyage, or of a prior or subsequent voyage. The Vessel may omit calling at any port whether scheduled or not, and may call at the same port more than once, may discharge the Goods the first or subsequent call at the port of discharge, may for matters occurring before or after loading, and either with or without the Goods on board, and before or after proceeding towards the port of discharge, adjust compasses, drydock with or without cargo on board, stop for repairs, shift berths, make trial trips or tests, take fuel or stores, remain in port, lie on bottom, aground or at anchor, sail with or without pilots, tow and be towed, and save or attempt to save life or property, and all of the foregoing are included in the contract voyage. The Carrier’s sailing schedules are subject to change without notice, both as to sailing date and date of arrival. If this is a Through Bill of Lading, no carrier is bound to transport the shipment by any particular train, truck, aircraft or vessel, or in time for any particular market or otherwise than with reasonable dispatch; no carrier shall be liable for delay and any carrier shall have the right to forward the goods by substitute carrier. B) In any situation whatsoever and whatsoever occurring and whether existing or anticipated before commencement of or during the voyage, which in the judgement of the Carrier or the Master is likely to give rise to risk of capture, seizure, detention, damage, delay or disadvantage to or loss of the Vessel or any part of her cargo, to make it unsafe, imprudent or unlawful for any reason to receive, keep or load the goods, or commence or proceed on or continue the voyage, or to enter or discharge the goods or disembark passengers at the port of discharge, or the usual or agreed or intended place of discharge in such port, or to give rise to delay or difficulty in proceeding by the usual or intended route, the Carrier or the Master may decline to receive, keep or load the goods or may devan container(s) contents or any part thereof and may require the shipper, or other persons entitled thereto, to take delivery of the Goods at the port of shipment and upon failure to do so, may warehouse the Goods at the risk and expense of the Merchant; or the Vessel, whether or not preceding toward or entering or attempting to enter a port of discharge, may discharge the Goods and/or devan the contents of any container(s) at another port, in depot, lighter, craft, or other place, or may forward or transship them or the Carrier or the Master may retain the Goods vanned or unvanned, on board until return of the Vessel to the port of loading or to the port of discharge or until such time as the Carrier or the Master thinks advisable and discharge the Goods at any place whatsoever as herein provided. The Carrier or the Master is not required to give notice of such devanning or of discharge of the Goods or of the forwarding thereof as herein provided. When the Goods are discharged from the ship, as herein provided, they shall be at the risk and expense of the Merchant; such discharging shall constitute delivery and performance under this Bill of Lading and the Carrier shall be freed from any further responsibility, unless it be shown that any loss or damage to the Goods arose from Carrier’s negligence in the discharge and delivery as herein provided, the burden of establishing such negligence being on the owner of the Goods. For any service rendered to the Goods as hereinabove provided or for any delay or expense to the vessel causes as a result thereof, the Carrier shall be entitled to a reasonable extra compensation, and shall have lien on the Goods for such charge. Notice of disposition of the Goods shall be mailed to the Merchant. Goods shut out from the Vessel named herein for any cause may be forwarded on a substitute vessel at Carrier’s option. In all cases where the Goods are delivered to another carrier, or to a lighter, port authorities, warehouseman, or other bailee, for trans-shipment, the liability of this Carrier shall absolutely cease when the Goods are out of its exclusive possession and shall not resume until the Goods again come into its exclusive possession; and the responsibility of this Carrier during any such period shall be that of an agent of the Merchant, and this Carrier shall be without any other responsibility whatsoever. The carriage by any trans-shipment or on-carrier and all trans-shipment or forwarding shall be subject to all the terms whatsoever in the regular form of bill of lading, consignment note, contract or other shipping document used at the time by such carrier.
6. GOVERNMENT DIRECTIONS: A) The Carrier and Vessel shall have liberty to comply with any orders or directions as to loading, departure, arrival, routes, ports of call, stoppages, discharge, destination, delivery or otherwise, howsoever given by the government of any nation or department thereof or any person acting or purporting to act with the authority of such government or of any department thereof, or by any committee or person having, under the terms of war risk insurance on the Vessel, the right to give such orders or directions shall be a fulfillment of the contract voyage. Where the Carrier delivers the Goods to person(s) charged by the law, custom, or usage of the port with the duty to receive the Goods and distribute them to the Merchant, the same shall constitute due delivery under this Bill and thereupon the liability of the Carrier in respect of the Goods shall entirely cease. B) In addition to all other liberties herein, the Carrier shall have the right to withhold delivery of, reship to, deposit or discharge the goods at any place whatsoever, surrender or dispose of the goods or permit inspection or other control in accordance with any direction, condition or agreement imposed upon or extracted from the carrier by any government or department thereof or any person purporting to act with the authority or either of them, In any of the above circumstances, the Goods shall be solely at their risk and expense and all expenses and charges so incurred shall be payable by the cargo owner or consignee and shall be a lien on the goods.
7. MERCHANTS RESPONSIBILITY: A) Merchants and their agents shall be jointly and severally liable to Carrier for any loss or damage to containers or Goods while in their possession or the possession of their agents. The Carrier shall not in any event be liable for any loss, delay, damage or injury to the Goods, or to other property or to any persons arising out of the use or handling of Carrier’s containers by Merchant or their agent. Merchant shall defend, indemnify and hold the Carrier harmless from and against any and all claims, loss, damage or fines on a container or the Goods before delivery to the Carrier at the port of loading. If the Goods are delivered in a container, the Merchant undertakes to return the container promptly to the Carrier in the same condition as when received from the Carrier. The Merchant warrants to the Carrier that the particulars relating to the Goods as set out overleaf have been checked by the Merchant on receipt of this Bill of Lading and that such particulars, and any other particulars furnished by or on behalf of the Merchant, are adequate and correct. The Merchant also warrants that the Goods are lawful goods and contain no contraband. If the container is not supplied by or on behalf of the Carrier, the Merchant further warrants that the container meets all ISO and/or other international safety standards and is fit in all respects for Carriage by the Carrier. The Merchant shall defend, indemnify and hold harmless the Carrier for any injury, loss or damage, including fines arising from Merchant’s failure to declare correctly herein any of the particulars furnished by him, including marks, quantity and description of the goods, weight and cubic measurement of goods and the exact total gross weight of container (container fare weight and cargo weight) and also for any kind of rerouting of the Goods at the Merchant’s request or for any other act, fault or neglect of the Merchant, his agent or his servants for which the Carrier may become liable. If the container is discharged from the vessel with seals intact, the Carrier shall not be liable for any loss or damage to contents of container unless it be proven that such loss or damage was caused by the Carrier’s negligence. B) Merchant shall defend, indemnify and hold harmless the Carrier against any loss or damage to the Vessel or cargo thereon or to any persons or property caused by inflammable, explosive or dangerous goods, shipped without full disclosure of their nature, whether such Merchant be principal or agent and such Goods so shipped may be thrown overboard or destroyed at any time without compensation.
8. CARGO STOWED IN CONTAINERS BY MERCHANT: The Carrier shall not be responsible for the safe and proper stowing of Goods in containers if such containers are loaded with Goods by the Merchant, and no responsibility shall attach to the Carrier for any loss or damage caused to contents by shifting, overloading or improper packing of the container. Containers loaded by the Merchant shall be properly sealed and the seal identification reference, as well as the container reference, shall be shown herein. The Merchant shall inspect containers before loading them and loading of the containers shall be prima facie evidence that the containers were sound and suitable for use. The Carrier will not be liable in any event for the particulars, or other packages or pieces as shown in this Bill of Lading. The Carrier makes no representation as to the quantity, weight, or description in the Particulars Furnished by the Shipper. The Merchant agrees to be liable for, and shall indemnify the Carrier for any injury, loss or damage, including fines, arising from Merchant’s failure to stow the Goods properly in the containers or to declare correctly herein any of the particulars furnished by Merchant, including marks, quantity and description of the Goods, weight and cubic measurement of Goods, and exact total gross weight of container, also for any kind of damage or injury caused by the contents of said container(s) to other property or to persons.
9. ON DECK CARGO: The Carrier shall have the right to stow containers on deck unless this Bill of Lading has a clause “stored under deck” on the face hereof by the Carrier. Containers stowed on deck shall be deemed for all purposes to be stowed under deck within the meaning of the Carriage of Goods by Sea Act.
10. REFRIGERATED CARGO: Special container(s) or cargo space with refrigeration or heating units shall not be furnished unless contracted for in writing at time of booking and freight is charged on the basis of the rates for cargo requiring such special container(s) or space as provided in, the tariff. Merchant shall advise Carrier of desired temperature range when delivering goods to the Carrier, and Carrier shall exercise due diligence to maintain desired range within plus or minus 2 degrees Fahrenheit, while the containers are in its custody and control. The Carrier does not warrant refrigerating or heating machinery of containers and shall not be responsible for its operation or maintenance except while the containers are in the actual custody and control at which time the Carrier shall exercise reasonable care in operation or maintenance of such machinery. In the case of a temperature controlled Container stuffed by or on behalf of the Merchant, the Merchant further undertakes that the container has been properly pre- cooled, that the Goods have been properly stuffed in the container, and that its thermostatic controls have been properly set by the Merchant before receipt of the Goods by the Carrier. Carrier shall not be responsible for the consequences of cargo tendered at a higher temperature than that required for the transportation. If the above requirements are not complied with, Carrier shall not be liable for any loss of or damage to the Goods whatsoever.
11. BOTH-TO-BLAME COLLISION CLAUSE: If the Vessel comes into collision with another vessel as a result of the negligence of the other vessel and act, neglect and default of the Master, mariner, pilot or the servants of the Carrier in the navigation or in the management of the vessel, the Merchant will indemnify the Carrier against all loss or liability to the other or non-carrying vessel or her owners in so far as such loss or liability represents loss of, or damage to or any claim whatsoever of the owners of the said goods, paid or payable by the other non-carrying vessel or her owners of said goods and set-off, recouped or recovered by the other or non-carrying vessel of her owners as part of their claim against the carrying vessel or Carrier.
12. GENERAL AVERAGE: General average shall be adjusted, stated and settled according to York-Antwerp Rules 1974, except Rule XXII thereof, at such port or place as may be selected by the Carrier, and as to matters not provided for these Rules, according to the laws and usage at the port of New York. Average agreement or bond and such additional security as may be required by the Carrier must be furnished before delivery of the goods. The Adjustment shall be made by an Adjuster selected by the Carrier from the Association of Average Adjusters of the U.S.A. and the resulting Adjustment shall be prima facie evidence as against all interests. In the event of accident, danger, damage, or disaster, before or after commencement of the voyage resulting from any cause whatsoever, whether, due to negligence or not, for which, the Carrier is not responsible, by statute, contract, or otherwise, the goods, the Merchant shall contribute with the Carrier in general average to the payment 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. Contribution to general average by all interests shall be paid to the owners even when such average is the result of fault, neglect or error of the Master, pilot or crew.
13. LIEN: A) The Merchant shall be liable for and shall indemnify the Carrier and the Vessel and the Carrier shall have a lien on the Goods, for all expenses of operating, repairing or reconditioning the Goods, also all expenses for repairing containers damaged while in possession of the Merchant and demurrage on containers; also Merchant’s failure to supply information or otherwise comply with laws and regulations in connection with the Goods. The Carrier’s lien shall survive delivery and may be enforced by private or public sale and without notice. B) The Carrier shall have a general lien on the Goods and any other properties (and documents relating thereto) of Merchant, in its possession, custody or control or en route, for all claims (including past due amounts) for charges, expenses or advances incurred by Carrier in connection with any shipments of Merchant. If such claim remains unsatisfied for 30 days after demand for its payment is made, Carrier shall be entitled to sell the goods privately or by auction, without prior notice to the Merchant, as may be necessary to satisfy such lien and the costs of recovery, and apply the net proceeds of such sale to the payment of the amount due Carrier. Any surplus from such sale shall be transmitted to Merchant, and Merchant shall be liable for any deficiency in the sale.
14. FREIGHT AND CHARGES: A) Since freight is calculated on the basis of particulars furnished by the Merchant, the Carrier may at any time inspect the contents of the container(s) and examine the contents of the packages, weight, measure and value the Goods. In case Shipper’s particulars are found to be erroneous and additional freight is payable, the Merchant and Goods shall be liable for all expense incurred for examining, weighing, measuring and valuing the Goods. B) Full freight to destination shall be considered completely earned upon receipt of the Goods, whether the freight be stated or intended to be prepaid or to be collected at destination and the Carrier shall be entitled to all freight and charges due hereunder, whether actually paid or not, and to receive and retain them irrevocably under all circumstances whatsoever, vessel and/or goods lost or not lost or the voyage broken up or abandoned. C) All unpaid charges shall be paid in full and without any offset, counterclaim or deduction, in the current of the United States, or at Carrier’s option, its equivalent in foreign currency. D) The Merchant shall be jointly and severally liable to the Carrier for the payment of all freight and charges and pay for the expenses of collection and litigation, including reasonable attorneys’ fees. E) Merchant shall be jointly and severally liable to Carrier for demurrage, detention, general order, advances and any and all costs associated with the abandonment of the freight or a refusal of the consignee to take delivery whether or not the front of this Bill of Lading has been marked “PREPAID” or “COLLECT” so long as freight and charges remain unpaid. F) Merchant shall jointly and severally indemnify Carrier for all claims, fines, penalties, damages, costs and other amounts which may be incurred or imposed upon Carrier by reason of any breach of any provisions of this Bill of Lading or of any statutory or regulatory requirements by the Merchant.
15. LIMITATION OF LIABILITY: A) In case of any loss or damage to or in connection with Goods exceeding in actual value the equivalent of $500 lawful money of the United States, per package, or in case of Goods not shipped in package, per shipping unit, the value of the Goods shall be deemed to the $500 per package or per shipping unit. The Carrier’s liability, if any, shall be limited to $500 per package or per shipping unit or pro rata in case of partial loss or damage, unless the nature of the Goods and a valuation higher than $500 per package or shipping unit shall have been declared in writing by the Shipper upon delivery to the Carrier and inserted in this Bill of Lading and extra charge paid. If the actual value of the Goods per package or per shipping unit shall exceed such declared value shall nevertheless be deemed to be declared value and the Carrier’s liability, if any, shall not exceed the declared value and any partial loss or damage shall be adjusted pro rata on the basis of such 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 goods shipped in bulk, and irrespective of the weight or measurement unit employed in calculating freight charges. B) Where the Hague-Visby Rules apply hereunder by virtue of Clause 1, the Carrier’s liability for the loss or damage to goods shall in no event exceed the greater of 2 SDRs per kilogram of gross weight of the Goods lost or damaged or 667 SDRs per package.
16. NOTICE OF CLAIM AND TIME BAR: Written notice of claims for loss of or damage to the Goods occurring or presumed to have occurred while in the custody or control of Carrier must be given to Carrier at the port of discharge before or at the time of removal of the Goods by one entitled to delivery. If such loss or damage is not apparent, Carrier must be given written notice within three (3) days of delivery. In any event, the Carrier shall be discharged from any liability in respect of the Goods, including but not limited to liability for nondelivery, misdelivery, delay, loss, or damage, unless suit is brought against Carrier within twelve (12) months after delivery of the Goods, or the date when the Goods should have been delivered. Suit shall not be deemed brought unless jurisdiction shall have been obtained over the Carrier and/or the vessel by service of process or by an agreement to appear. The Merchant and his assignees, subrogees or representatives shall file any and all claims directly with the Carrier or other party responsible for any loss, damage, injury, expense, it being specifically agreed that this Carrier shall not be responsible for any loss, damage, injury, expense not occurring on its own ocean route, nor while the Goods are not in its actual custody and control. This time bar does not apply to Carrier’s claims against the Merchant arising out of this Bill of Lading.
17. CARRIER’S TARIFF: The Goods carried under this Bill of Lading are also subject to all the terms and conditions of Carrier’s tariff(s) on file pursuant to the regulations of the United States Federal Maritime Commission or any other regulatory agency which governs a particular portion of the carriage and the terms are incorporated herein as part of the terms and conditions of this Bill of Lading. Copies of the Carrier’s tariff(s) may be obtained from Carrier or its agents upon request or from the governmental body with whom the tariff has been filed. In the case of inconsistency between this Bill of Lading and the applicable tariff or the terms and conditions of service, this Bill of Lading shall prevail.
18. LAW AND JURISDICTION: Nothing in this Bill of Lading shall operate the Carrier of any statutory protection or exemption from, or limitation of liability, contained in the laws of the United States, or in the laws of any other country which may be applicable. This Bill of Lading shall be construed according to the laws of the United States and the Merchant agrees that any suits against the Carrier shall be brought in the federal courts in the state of California, which shall have exclusive jurisdiction. Carrier reserves the right to bring suit against the Merchant for the collection of freight or other charges in any venue having jurisdiction over the Merchant.
19. SURRENDER AND NEGOTIABILITY OF BILL OF LADING: This Bill of Lading shall be non-negotiable unless made out “to order,” in which event it shall be negotiable and shall constitute title to the Goods and the holder in due course shall be entitled to receive or to transfer the Goods herein described. In witness whereof one (1) original Bill of Lading has been signed if not otherwise stated above, the same being accomplished, the other(s), if any, to be void. If required by the Carrier, one (1) original Bill of Lading, duly endorsed, must be surrendered to the agent of the Carrier at the port of discharge, in exchange for delivery order. This Bill of Lading shall be prima facie evidence of the Carrier’s receipt of the Goods as herein described. However, proof to the contrary shall not be admissible when this Bill of Lading has been negotiated or transferred for valuable consideration to a third party acting in good faith.
Warehouse Receipt – Terms and Conditions
ACCEPTANCE – Sec. 1
- 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 (“FACILITY”).
- 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.
- Any GOODS accepted by WAREHOUSE shall constitute GOODS under this Contract.
- 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.
SHIPMENTS TO AND FROM WAREHOUSE – Sec. 2
DEPOSITOR agrees that all GOODS shipped to and from WAREHOUSE shall identify DEPOSITOR on the bill of lading or other contract of carriage as the named consignee, in care of WAREHOUSE, and shall not identify WAREHOUSE as the consignee. If, in violation of this Contract, GOODS are shipped to WAREHOUSE as named consignee on the bill of lading or other contract of carriage, DEPOSITOR agrees to immediately notify carrier in writing, with copy of such notice to WAREHOUSE, that WAREHOUSE named as consignee is the “in care of party” only and has no beneficial title or interest in the GOODS. Furthermore, WAREHOUSE shall have the right to refuse such GOODS and shall not be liable for any loss, mis-consignment, or damage of any nature to, or related to, such GOODS. The parties agree that, regardless of whether WAREHOUSE is incorrectly identified as named consignee, or DEPOSITOR fails to notify carrier of the incorrect identification on the bill of lading or other contract of carriage, under no circumstances shall WAREHOUSE be considered the consignee for purposes of identifying the “importer” under 21 U.S.C. § 384a. The parties further agree that, regardless of whether WAREHOUSE is named as an “agent” for purposes of 21 U.S.C. § 350d or receives notification from the U.S. government with respect to confirmation of WAREHOUSE’S status as “agent” under 21 U.S.C. § 350d, under no circumstances shall WAREHOUSE be an agent for purposes of identifying the “importer”,. WAREHOUSE shall not be responsible for complying with or performing the duties required of an “importer” under 21 U.S.C. § 384a. Whether WAREHOUSE accepts or refuses GOODS shipped in violation of this Section 2, DEPOSITOR agrees to indemnify and hold WAREHOUSE harmless from all claims for transportation, storage, handling and other charges relating to such GOODS, including undercharges, rail demurrage, truck/intermodal detention, and any fines, penalties, costs and expenses (including attorney’s fees) and other charges of any nature whatsoever, resulting from DEPOSITOR’S failure to comply with the requirements of this Section 2.
TENDER OF GOODS – Sec. 3
All GOODS shall be delivered at the FACILITY in a segregated manner, 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. WAREHOUSE is not a guarantor of the condition of such GOODS under any circumstances, including, but not limited to hidden, concealed, or latent defects in the GOODS. Concealed shortages, damage, inherent vice or tampering will not be the responsibility of WAREHOUSE.
STORAGE PERIOD AND CHARGES – Sec. 4
- Unless otherwise agreed in writing, all charges for storage are per package or other agreed unit per month as per available space.
- 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.
- 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.
- 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.
- Any invoice over 30 days past due may be assessed a service charge of 2% APR per month or a charge otherwise permitted by law. Any dispute as to the amount of the invoice shall be claimed in writing within 30 days from date of invoice. DEPOSITOR may not offset payment of invoices under any circumstances without the prior written consent of WAREHOUSE.
TRANSFER, TERMINATION OF STORAGE, REMOVAL OF GOODS – Sec. 5
- 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 re-handling 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.
- 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 the Facility 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.
- WAREHOUSE reserves the right to require advance payment of all past, present, and future charges prior to removal of the GOODS from the Facility.
- 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.
- 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 sale held one week after a single advertisement or posting as provided by law.
- 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: i) sell the GOODS at public or private sale without advertisement on reasonable notification to all persons known to claim an interest in the GOODS, ii) return GOODS freight collect, or iii) dispose of GOODS. 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.
- If, after a reasonable effort, WAREHOUSE is unable to sell the GOODS pursuant to this Section 5, WAREHOUSE may dispose of the GOODS in any lawful manner and shall incur no liability by reason of such disposition.
HANDLING – Sec. 6
- 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.
- 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.
- Labor and materials used in loading rail cars or other vehicles are chargeable to the DEPOSITOR.
- 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.
- DEPOSITOR shall indemnify, defend, and hold WAREHOUSE harmless from all loss, costs, penalties, claims, expenses (including reasonable attorney’s fees) for transportation, storage, handling and other charges related to the GOODS, including but not limited to undercharges, rail demurrage, truck/intermodal detention and other charges, asserted by any third party. WAREHOUSE shall not be liable to DEPOSITOR 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 as determined by industry practice.
DELIVERY REQUIREMENTS – Sec. 7
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 or electronically in accordance with DEPOSITOR’S prior written authorization, but the WAREHOUSE shall not be responsible for loss or error occasioned thereby. 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. When GOODS are ordered out, a reasonable time shall be given to the WAREHOUSE to carry out instructions.
EXTRA SERVICES (SPECIAL SERVICES) – Sec. 8
- WAREHOUSE labor required for services other than ordinary handling and storage will be charged to the DEPOSITOR.
- 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.
- Dunnage, bracing, packing materials or other special supplies, may be provided for the DEPOSITOR at a charge in addition to the WAREHOUSE’S cost.
- By prior arrangement, GOODS may be received or delivered during other than usual business hours, subject to a charge.
- Communication expense including postage, overnight delivery, or telephone may be charged to the DEPOSITOR if such concern more than normal inventory reporting or if, at the request of the DEPOSITOR, communications are made by other than regular United States Mail.
- WAREHOUSE will take physical inventories and cycle counts as requested by DEPOSITOR, at DEPOSITOR’S expense. Representatives of DEPOSITOR and WAREHOUSE personnel, as well as any independent auditor or designee, may be present when any physical inventory is taken.
MINIMUM CHARGES – Sec. 9
- 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.
- 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.
LIABILITY AND LIMITATION OF DAMAGES – Sec. 10
- WAREHOUSE shall not be liable for any loss or damage to GOODS tendered, stored or handled however caused 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. WAREHOUSE is not liable for damages which could not have been avoided by the exercise of such care.
- GOODS are not insured by WAREHOUSE against loss or damage however caused.
- In the event of loss or damage to the GOODS for which WAREHOUSE is legally liable, DEPOSITOR declares that WAREHOUSE’S liability for damages are limited to _______ per_________, and in no instance shall any one claim exceed the limit of WAREHOUSE’S liability insurance, 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.
- The limitation of liability referred to in Section (c) above shall be DEPOSITOR’S exclusive remedy against WAREHOUSE for any claim or cause of action whatsoever relating to loss, damage, and/or destruction of the GOODS and shall apply to all claims including inventory shortage and mysterious disappearance claims unless DEPOSITOR proves by affirmative evidence that WAREHOUSE converted the GOODS to its own use. Any presumption of conversion imposed by law shall not apply.
- 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 cleanup and site remediation resulting from the loss or damage to the GOODS.
NOTICE OF CLAIM AND FILING OF SUIT – Sec. 11
- 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. Each claim must contain information necessary to identify the GOODS affected, the basis for liability and the amount of the alleged loss or damage, as well as all appropriate supporting documentation.
- 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.
- 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.
LIABILITY FOR CONSEQUENTIAL DAMAGES – Sec. 12
With respect to any claim arising from or related to this agreement, or otherwise arising from the relationship of the parties, in no event will WAREHOUSE be liable for special, indirect, exemplary, punitive, or consequential damages of any kind, including but not limited to lost profits, lost sales, or damages due to business interruption, regardless of whether such damages were foreseeable or WAREHOUSE had notice of the possibility of such damages.
LIABILITY FOR MIS-SHIPMENT AND CHARGEBACKS – Sec. 13
- If WAREHOUSE negligently mis-ships GOODS, the WAREHOUSE shall pay the reasonable transportation charges incurred to return the mis-shipped 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 11 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.
- WAREHOUSE shall not be responsible for chargebacks of any kind.
- Any and all claims made pursuant to this Section must be in compliance with the requirements set forth in Section 12.
RECALL – Sec. 14
In the event a recall, field alert, product withdrawal or field correction (together, “Recall”) may be necessary with respect to any GOODS provided under this Contract, DEPOSITOR shall immediately notify WAREHOUSE in writing. WAREHOUSE will not act to initiate a Recall without the express prior written approval of DEPOSITOR unless otherwise required by applicable laws. The cost of any Recall shall be borne by DEPOSITOR. DEPOSITOR shall indemnify and hold harmless the WAREHOUSE from all loss, cost, penalty, and expense (including reasonable attorneys’ fees) which WAREHOUSE pays or incurs as a result of a Recall.
FORCE MAJEURE – Sec. 15
Neither party shall be liable to the other for default in the performance or discharge of any duty or obligation under this Contract, except for DEPOSITOR’S obligation to pay for services rendered by WAREHOUSE, when caused by acts of God, hurricanes, tidal waves, flood, tornadoes, cyclone, wind storm, earthquake, public enemy, civil commotion, strikes, labor disputes, work stoppages or other difficulties within the workforce, failure to provide power by the utility provider, intentional or malicious acts of third persons or any other organized opposition, cyber-attacks, viruses, corruption, depredation, accidents, explosions, fire, water sprinkler leakage, moths, vermin, insect, seizure under legal process, embargo, prohibition of import or export of GOODS, closure of public highways, railways, airways or shipping lanes, governmental interference, order, regulation, or other action(s) by governmental authority, national, regional, or local emergency(ies), plague, epidemic, pandemic, outbreaks for infectious disease or any public health crisis, including but not limited to compliance with related practices required or recommended by governmental or health organizations (including but not limited to quarantine or other employee restrictions) or other contingency(ies), similar or dissimilar to the foregoing, beyond the reasonable control of the affected party. Upon the occurrence of such an event the party seeking to rely on this provision shall promptly give written notice to the other party of the nature and consequences of the cause. If the cause is one which nevertheless requires WAREHOUSE to continue to protect the GOODS, DEPOSITOR agrees to pay the storage or similar charges associated with WAREHOUSE’S obligation during the continuance of the force majeure. All GOODS are stored, handled, and transported at DEPOSITOR’S sole risk of loss, damage, or delay caused by any of the above.
RIGHT TO STORE GOODS – Sec. 16
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.
ACCURATE INFORMATION – Sec. 17
DEPOSITOR represents and warrants to WAREHOUSE that there are no known potential health, safety and/or environmental hazards associated with the storage and handling of the GOODS that have not been disclosed to and acknowledged by WAREHOUSE. Notwithstanding, 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.
CONFIDENTIALITY – Sec. 18
- The Parties shall keep in confidence and not disclose to any third party (i) the terms of this Contract, and (ii) any confidential or proprietary information (“Confidential Information”) that either learns about the other Party, such as, but not limited to, the rates, value, origin, destination, or consignee of any GOODS or shipment made hereunder. The Parties may disclose such terms and information to the extent required by law, to obtain financing, to substitute service providers to the extent necessary to provide such substitute service, or to auditors retained for the purpose of assessing the accuracy of freight bills.
- WAREHOUSE will maintain and enforce safety and physical security procedures with respect to its possession and maintenance of Confidential Information that comport with the standard of care outlined in Section 11 of this Contract, and which provide reasonably appropriate technical and organizational safeguards against accidental or unlawful destruction, loss, alteration or unauthorized disclosure, removal or access of Confidential Information. WAREHOUSE will not be liable for any breach of security or unauthorized access affecting Confidential Information which could not be avoided by the exercise of such reasonable care.
SEVERABILITY, WAIVER, and ASSIGNMENT – Sec. 19
- 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.
- 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.
- 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 a writing signed by WAREHOUSE and DEPOSITOR.
- DEPOSITOR shall not assign or sublet its interest or obligations herein, including, but not limited to, the assignment of any monies due and payable, without the prior written consent of WAREHOUSE.
LIEN – Sec. 20
WAREHOUSE shall have a general warehouse lien for all lawful charges for storage and preservation of the GOODS; also, for all lawful claims for money 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. Unless expressly stated otherwise in writing, WAREHOUSE will not subordinate its lien to any lender, financial institution, or any other third party.
DOCUMENTS OF TITLE – Sec. 21
Documents of title, including warehouse receipts, may be issued either in physical or electronic form at the option of the parties. Any inconsistencies between the terms of the warehouse receipt and this Contract shall be governed by this Contract.
GOVERNING LAW AND JURISDICTION – Sec. 22
This Contract and the legal relationship between the parties hereto shall be governed by and construed in accordance with the substantive laws of the state where the FACILITY is located, including Article 7 of the Uniform Commercial Code as ratified in that state, notwithstanding its conflict of laws rules. Any lawsuit or other action involving any dispute, claim or controversy relating in any way to this Contract shall be brought only in the appropriate state or federal court in the state where the FACILITY is located.