GENERAL TRADING CONDITIONS
1. In these conditions:- “Company” shall mean International Shipping Services PTY LTD, ABN 55 140 901 926 its servants, agents and subcontractors. “Customer” shall mean the shipper consignee or bailor of the goods or the person for whom any other services are performed by the Company in connection with the goods. “Goods” shall mean the chattels, articles and things tendered for carriage or bailment or other services by the Customer and shall include the container or containers or other packaging containing the same and any pallet or pallets or goods or containers with the same to the company. “Dangerous Goods” shall mean such of the goods as shall be in fact or at law or that may become noxious, dangerous, hazardous, explosive, radioactive, inflammable or capable by their nature of causing damage or injury to other goods or to any persons or animals or to anything in which those goods are carried or stored or likely to harbour or encourage vermin or other pests.
2. The Company is not a common carrier and will accept no liability as such and it reserves the right to accept or refuse the carriage of any goods or the performance of storage of the goods or any other service at its discretion. The goods are carried and all storage, lifting, packing and other services are performed subject only to these terms and conditions (and when applicable the conditions printed on an Air Waybill/Consignment Note/Ocean Bill of Lading or any other shipping documents issued by the Company for itself or as an agent of a carrier). In the event of and to the extent of any inconsistency between these Terms and Conditions and the conditions printed on or applicable to a House Air Waybill/Consignment Note/Ocean Bill of Lading or any other shipping documents issued by or on behalf of the Company, these Terms and Conditions shall be paramount in so far as such provisions are inconsistent with these conditions.
3. The Customer expressly warrants that it is either the owner or the authorised agent of the owner of the goods and enters into this contract on its own behalf and also as agent for the owner of the goods and hereby expressly agrees to indemnify the Company against all claims by any other person, firm or corporation for any loss or damage or expense whatsoever arising from or incidental to or in connection with the carriage of the goods.
4. a) The Customer warrants that the description and particulars of the goods are complete and correct. b) The Customer warrants that the goods are properly packed and labelled except where the Company has accepted instructions in respect of such services. c) The Customer shall comply with the requirements of any applicable law relating to the nature, condition and packaging of the goods and the expenses and charges of the Company in complying with the provisions of any such law or with any order or requirement thereunder or with the requirement of any harbour, dock, airport, railway, shipping, customs, warehouse or other authority or corporation shall be paid by the Customer and the Customer shall provide to the Company all such assistance, information and documents as may be necessary to enable the Company to comply with such laws, orders or requirements.
5. The Customer agrees to indemnify and hold harmless the Company for all customs duty, excise duty, costs, expenses, fines or penalties that the Company becomes liable to pay for any reason whatsoever in respect of the goods and any documents relating to the goods pursuant to any law relating to customs or excise and whether or not arising from or in connection with the negligence of the Company or otherwise.
6. a) Unless otherwise previously agreed in writing the Customer shall not deliver to the Company or cause the Company to deal with or handle dangerous goods. b) If the Customer is in breach of sub-clause (a) above they shall be liable for all loss or damage whatsoever caused by or in connection with the goods howsoever arising and shall defend, indemnify, and hold harmless the Company against all penalties, claims, damages, costs and expenses whatsoever arising in connection therewith and the goods may without notice be destroyed or otherwise dealt with at the sole discretion of the Company or any other person in whose custody they may be at the relevant time. c) If the Company agreed to accept dangerous goods and then in the opinion of the Company or any other person they constitute a risk to other goods, property, life or health, they may without notice be destroyed or otherwise dealt with at the expense of the Customer or owner.
7. The Customer undertakes not to tender for transportation any goods which require temperature control without previously giving written notice of their nature and particular temperature range to be maintained and in the case of a temperature-controlled container stuffed by or on behalf of the Customer further undertakes that the container has been properly pre-cooled or pre-heated as appropriate, that the goods have been properly stuffed in the container and that its thermostatic controls have been properly set by the Customer. If the above requirements are not complied with the Company shall not be liable for any loss of or damage to the goods caused by such non-compliance.
A) The Company shall not be liable for a loss or damage whatsoever arising from: a) The act or omission of the Customer or owner or any person acting on their behalf. b) Compliance with the instructions given to the Company by the Customer, owner or any other person entitled to give them. c) Insufficiency of the packaging or labelling of the goods except where such service has been provided by the Company. d) Handling, loading, stowage or unloading of the goods by the Customer or owner of any person acting on their behalf. e) Inherent vice of the goods. f) Riots, civil commotions, strikes, lock-outs, stoppage or restraint of labour from, whatsoever cause. g) Fire, flood or storm. h) Any cause which the Company could not avoid and the consequences whereof it could not prevent by the exercise of reasonable diligence.
B) The Company shall not be under any liability for any loss of or damage (including concealed damage, deterioration, contamination and evaporation) to or failure to forward, misforwarding and delay in forwarding or misdelivery, non-delivery or delay in delivery of any goods received by it or any consequential loss arising therefrom howsoever such loss, damage or consequential loss is caused, whether arising through misconduct, negligence of the Company or otherwise (including but without limiting the generality of the foregoing any act of the Company in respect of or in dealing with the goods including their carriage, packing or handling) and the Customer shall indemnify the Company from and against all liability in respect of any goods received by it to any person or persons, company or companies, having or claiming any interest in the said goods and further the Customer shall indemnify the Company from and against all liability for loss of life and or personal injury to any person or persons whatsoever of loss or damage to any property whatsoever caused or contributed to by the said goods or any inherent vice thereof or caused or contributed by the storage, carriage, packing, handling or otherwise dealing with the said goods, even though such loss of life, personal injury, loss or damage results from or is contributed to by the negligence of the carrier.
C) In addition to paragraph B) hereof the Company shall not be liable for loss of market, loss of use or consequential loss, concealed damage caused by inherent vice or nature of the goods or of the merchandise carried (including chilled, frozen, refrigerated or perishable goods) either in transit or in storage whether caused or contributed to by the negligence, wrongful act or default of the Company or from any other cause whatsoever.
9. In the event of the contract including any handling, installation, removal, assembly or erection of any kind whatsoever it is undertaken on the basis that the Company shall not be under any liability or responsibility for any loss, damage or injury of any kind whatsoever howsoever arising caused or incurred including without limiting the foregoing the negligence or wilful act or default of the Company or others. The disclaimer extends to include loss damage or injury to any person, property or thing and any loss consequently or otherwise arising from any loss damage or injury as aforesaid. The Customer shall indemnify the Company against all claims, loss, damage and expense arising from or in connection with such handling, installation, removal, assembly or erection whether due to the negligence or wilful act or default of the officers or employees of the Company or otherwise; provided that this indemnity shall not apply for the benefit of any officers or employee of the Company where the claim, loss, damage or expense arises from the negligence or wilful act or default of that officer or employee of the Company.
10.a) The Customer hereby authorises the Company to arrange with a subcontractor or subcontractors for the carriage of any goods or the performance of any services being the subject of the contract. Any such arrangement shall be deemed to be ratified by the customer upon delivery of the said goods to such subcontractor or subcontractors who shall thereupon be entitled to the full benefit of these terms and conditions to the same extent as the Company. Insofar as it may be necessary to ensure that such subcontractor or subcontractors shall be so entitled the Company shall be deemed to enter into this contract for its own benefit and also as agent and trustee for the subcontractor or subcontractors. b) Whenever the Company is instructed to undertake or arrange transport, storage or any other service, it shall be authorised to entrust the goods or arrangements to third parties subject to the latter’s contractual conditions. The Customer shall be bound by such conditions and shall indemnify the Company against any claims arising out of their acceptance.
11) The Company shall be entitled, except in so far as has been otherwise agreed in writing, to enter into contracts on behalf of itself or the Customer and without notice to the Customer: a) For the carriage of goods by any route, means or person. b) For the carriage of goods of any description whether containerised or not on or under the deck of any vessel. c) For storage, packing, trans-shipment, loading or handling of goods by any person at any place whether on shore or afloat or for any length of time, d) For the carriage or storage of goods in containers with other goods of whatever nature, e) For the performance of its own obligations, and to do such acts as in the opinion of the Company may be necessary or incidental to the performance of the Company’s obligations.
12. Insurance will not be arranged by the Company except with the express instructions in writing of the Customer and then only at the Customer’s expense and on lodgement of a declaration as to value prior to receipt of the goods by the Company. The Company may charge the Customer for any such service.
13. The Company is not obliged to advise or assist the Customer or any other party in respect of claims or the preparation of claims against carriers. Whether or not it does provide such advice and/or assistance it may make any additional charge for doing so.
14. Freight and storage charges shall be considered earned whether the goods are delivered by the company or not and whether damage or otherwise. The Company may charge freight or storage charges by weight, measurement or value, and may at any time re-weigh or re-value or re-measure or require the goods to be reweighed, re-valued or re-measured and charge proportional additional freight or storage charges accordingly.
15. The Company shall have a particular and general lien on all goods or documents relating to goods in its possession for all sums due at any time from the Customer or owner and on giving twenty-eight days notice in writing to the Customer, shall be entitled to sell or dispose of such goods or documents at the expense of the Customer and without any liability to the Customer and owner and apply the proceeds in or towards the payment of such sums.
16. Every special instruction to the effect that charges shall be paid by a person other than the Customer shall be deemed to include a stipulation that if that person does not pay the said charges within seven (7) days of delivery or tendered delivery of the goods, then the Customer shall pay the said charges to the Company.
17.A) If a container has not been packed or stuffed by the Company, the Company shall not be liable for loss of or damage to the contents if caused by: i) the manner in which the container has been packed or stuffed; ii) the unsuitability of the contents for carriage in containers, unless the Company has approved the suitability; iii) the unsuitability or defective condition of the container provided that where the container has been supplied by or on behalf of the Company, this paragraph iii) shall not apply if the unsuitability or defective condition arose; a) without any negligence on the part of the Company, or b) would have been apparent upon reasonable inspection by the Customer or owner or person acting on behalf of either of them; iv) if the container is not sealed at the commencement of the carriage except where the Company has agreed to seal the container. B) The Customer shall defend, indemnify and hold harmless the Company against all liability, loss, damage, costs and expenses arising from one or more of the matters covered by (A) above except for (A)iii(a) above. C) Where the Company is instructed to provide a container, in the absence of a written request to the contrary, the Company is not under an obligation to provide a container of any particular type or quality.
18. The Company shall not under any circumstances be liable in any way for loss, damage, cost or penalties sustained or incurred by the customer or any other person resulting from or attributable to or in connection with any quotation, advice, statement, representation or information (whether negligent or otherwise and whether oral or written and howsoever, wheresoever and to whomsoever made) given or made by or on behalf of the Company as to the classification of or any matter material to the valuation of or the liability for or the amount , scale or rate of customs duty, excise duty or other impost or tax or rates charged by carriers applicable to any goods or property whatsoever. In giving or making any such quotation, advice, statement, representation or information the Company relies solely on the information provided by the Customer who warrants that the information provided by it to the Company accurately and completely describes all aspects of the goods and the transaction relating thereto.
19.(A) Except insofar as otherwise provided by these conditions, the liability of the Company, howsoever arising, and notwithstanding that the cause of loss damage be unexplained shall not exceed the following: i) In respect of all claims other than subject to the provisions of sub-clause (ii) below, whichever is the least of; a) the value of, or b) US$1000.00 per per shipment of, the goods lost, damaged, misdirected, misdelivered, or in respect of which the claim arises; ii) In respect of claims for delay where not excluded by the provision of these conditions, the amount of the Company’s charges in respect of the goods delayed. B) Compensation shall be calculated by reference to the invoice of the goods plus freight and insurance if paid. C) If there be no invoice value for the goods, the compensation shall be calculated by reference to the value of such goods at the place and time when they are delivered to the customer or owner or should have been so delivered. The value of the goods shall be fixed according to the current market price, or, if there be no commodity exchange price or current market price, by reference to the normal value of goods of the same kind and quality.
20. a) Any claim for loss or damage must be notified in writing to the Company within fourteen (14) days of delivery of the goods or the date upon which the goods should have been delivered. b) The Company shall be discharged from all liability howsoever arising unless suit is brought and notice thereof given to the Company within nine months after delivery of the goods or the date when the goods should have been delivered.
21. The Customer shall defend, indemnify and hold harmless the company in respect of any claims of a general average nature that may be made on the Company and the customer shall provide such security as may be required by the Company in this connection.
22. Notwithstanding anything herein contained the Company shall continue to be subject to any implied warranty provided by the Trade Practices Act 1974 (as amended) or any other Commonwealth of State legislation if and to the extent that the said Act is applicable to this contract and prevents the exclusion, restriction or modification of that warranty.
23. The Company shall not be bound by any agreement purporting to vary these terms and conditions unless such agreement shall be in writing and signed on behalf of the Company by its duly authorised officer.
24. These conditions shall be governed and construed by the law of the State of New South Wales wheresoever the contract was made and any proceedings in respect of any claim, matter or thing against the Company shall be instituted in the State only.
25. The clauses and provisions in each clause of these conditions shall be severable from each other and if for any reason any clause or provision is invalid or unenforceable such invalidity or unenforceability shall not prejudice or in any way affect the invalidity or unenforceability of any clause or provision.
International Shipping Services PTY LTD, ABN 55 140 901 926