HEAD OFFICES: Hendaya 60 Piso 14, Santiago, Chile.
“Carrier” means Compañia Sud Americana de Vapores S.A (referred to herein as CSAV).
“Precarrier” and “Oncarrier” shall include any carrier by land, water or air, which participates in the Combined Transport of Goods moving under this Waybill from the Place of Receipt to the Port of Loading in the case of the Precarrier and from the Port of Discharge to the Place of Final Delivery in the case of the Oncarrier.
“Merchant” includes the shipper, holder, consignee, receiver of the Goods, any person owning or entitled to the possession of the Goods or of this Waybill and anyone acting on behalf of any such person.
“Goods” means the whole or part of the cargo received from the shipper and includes any container, trailer, transportable tank, flat or pallet or any similar article used to consolidate the Goods.
“Carriage” means the whole of the operations and services undertaken by the Carrier in respect of the Goods.
“Vessel” means any Vessel on which the Goods are carried during all or part of their Carriage between the Port of Loading and the Port of Discharge and which may be a feeder or ocean vessel. This term shall include any alternative or substitute vessel to the Vessel named on this Waybill.
“Freight” includes all charges payable to the Carrier in accordance with the applicable tariff, charter party, contract of affreightment and this Waybill.
“On board” or similar words endorsed on this Waybill means that the Goods have been loaded on the Vessel or in the event of Combined Transport, if the originating Precarrier is an inland carrier, means that the Goods have been loaded on railcars or other means of inland transportation and are in the custody of a railroad or other Precarrier.
“Package” includes containers, vans, trailers, pallets and unitised Goods or things of any description whatsoever having packaging excluding Goods shipped in bulk or Goods not shipped in packages.
“Hague Rules” means the provisions of the International Convention for the Unification of Certain Rules relating to Bills of Lading signed at Brussels on 25 August 1924 or any national legislation making such Rules compulsorily applicable to Bills of Lading.
“Hague Visby Rules” means the provisions of the International Convention for the Unification of Certain Rules relating to Bills of Lading signed at Brussels on 25 August 1924 as amended by the Protocol signed at Brussels on 23 February 1968 or any national legislation making such Rules as amended compulsorily applicable to Bills of Lading.
“Hamburg Rules” means the provisions of the United Nations Convention on the Carriage of Goods by Sea 1978 adopted at Hamburg on 31 March 1978 or any national legislation giving compulsory effect to such Rules in respect of this Waybill and “national legislation” in the case of Chile, shall mean the provisions of the said Convention and Title V of Book Third of the Chilean Code of Commerce.
The interested parties (Carrier, Merchant, Vessel, Shipper, Consignee) express their will and accept, together with the remaining clauses of this Waybill, the following: (1) that any alteration of the Waybill requires a written agreement, without prejudice to the Chilean Customs regulations; and (2) if in the cases to which the Hamburg Rules are compulsorily applicable, there is proof that the Carrier, his servants or agents adopted all the means which could reasonably be expected to avoid the occurrence and its consequences, the Carrier shall not be liable for the loss, damage or delay resulting from or arising out of any of the circumstances established in Rule 2 of Article 4 of the Hague Visby Rules, save the ones contained in letters a), b) and o). In the same aforementioned cases, the agreed freight comprises the Carriage from the “Point of Reception” of the Goods at the Port of Loading to the “Port of Final Delivery” of same, at the Port of Discharge, including loading and discharge operations for account of the Carrier.
2. CLAUSE PARAMOUNT.
(1) This Waybill is a non-negotiable document. It is not a Bill of Lading, nor shall it be construed in any way as being a document of title. This Waybill is subject always to this Clause 2(1).
(2) Save for the carriage of live animals and Goods which are stated herein to be carried on deck and are so carried (see clause 23 hereof), it is agreed that the Hague Rules or Hague Visby Rules, whichever would have been applicable by operation of law or otherwise, had this document been a Bill of Lading, shall apply and have full effect to this Waybill. In circumstances where neither the Hague Rules nor the Hague Visby Rules are applicable to this Waybill as aforesaid then is agreed to be subject to the Hague Rules and the Carrier shall be entitled to the benefit of all the privileges, rights and immunities contained in Articles I to VIII of the Hague Rules, which will be deemed to be incorporated herein. It is agreed that notwithstanding the provision of Article III Rule 8 of the Hague Rules, the limitation sum for the purposes of Article IV Rule 5 of the Hague Rules shall be £100 pounds sterling. For the avoidance of doubt the contract evidenced by this Waybill is deemed to be a contract of carriage as defined in Article I(b) of the Hague Rules and the Hague Visby Rules whichever may be applicable in accordance with this Clause 2(2).
(3) Notwithstanding Clause 2(2) above, for shipments to and from the United States, this Waybill shall be deemed to incorporate and shall have effect, subject to the provisions of the United States Carriage of Goods by Sea Act (“COGSA”) approved April 16, 1936 and nothing herein nor contained in the said Act shall be deemed a surrender by the Carrier of any of its rights or immunities or an increase of any of its responsibilities or liabilities thereunder, nor shall the Carrier be deemed to have warranted the seaworthiness of the Vessel. The provisions stated in COGSA shall govern the Goods before they are loaded on and after they are discharged from the Vessel and throughout the entire time that they are in the custody of the Carrier at a United States port. The Carrier shall also have the benefit of Sections 181 to 189, inclusive of title 46 US Code and the benefits of Sections 4281 to 4286 inclusive and Section 4289 of the United States Revised Statutes, as amended, the same as if it were the owner of the Vessel or other water craft used to transport the Goods. For the avoidance of doubt the contract evidenced by this Waybill is deemed to be a contract of carriage as defined in paragraph 1(b) of Section 1301 of COGSA, where this Clause 2(3) applies.
(4) Notwithstanding Clauses 2(2) and 2(3) above, if this Waybill is subject to legislation which makes the Hamburg Rules compulsorily applicable to it, then this Waybill shall have effect subject to the Hamburg Rules, which shall nullify any stipulation derogating therefrom to the detriment of the shipper or consignee. If the Hamburg Rules are compulsorily applicable to this Waybill by reason of the aforesaid, it is hereby agreed that the date of delivery of the Goods shall be six (6) months from the date of shipment.
(5) In circumstances where Clauses 2(2) or Clause 2(3) hereof are applicable then the statutes, Rules and Conventions mentioned therein shall be read and interpreted as if they made express reference to sea Waybills and wherever the term “Bill of Lading” or “Bills of Lading” appear in such documents, statutes, Rules and Conventions, such words are to be read and interpreted as if they said “Waybill” or “Waybills” respectively.
Delivery will be made to the Consignee named, or his authorised agents, on production of proof of identity at the Port of Discharge or the Place of Final Delivery, whichever applicable. Should the Consignee require delivery to a party and/or premises other than as shown above in the Consignee box, then written instructions must be given by the Consignee to the Carrier or his agents. Unless the Shipper expressly waives his right to control the Goods until delivery by means of a clause on the face hereof, such instructions from the Consignee will be subject to any instruction to the contrary by the Shipper. Unless instructed to the contrary by the Shipper prior to the commencement of Carriage and noted accordingly on the face hereof, the Carrier will, subject to the aforesaid terms and conditions, process cargo claims with the Consignee. Claims settlement, if any, shall be a complete discharge of the Carrier’s liability to the Shipper. The Shipper accepts the said standard terms and conditions on his own behalf, on behalf of the Consignee and the owner of the Goods and authorises the Consignee to bring suit against the Carrier in his own name but as agent of the Shipper and warrants that he has authority so to accept and authorise. The Shipper further undertakes that no claim or allegation in respect of the Goods shall be made against the Carrier by any person other than in accordance with the terms and conditions of this Waybill.
4. PROHIBITION AGAINST ALTERATION OF CONSIGNEE.
Upon acceptance of this Waybill by a bank against a letter of credit transaction (which acceptance the bank confirms to the Carrier) the Shipper irrevocably renounces any right to vary the identity of the Consignee of these Goods during transit.
5. CONSIGNEE BOX.
If the name shown in the “Consignee” box overleaf is a bank, the bank named is specifically excluded from the parties coming within the definition of Merchant in this Waybill and incurs no liability to the Carrier under this Waybill unless applying for delivery in its own name.
6. INCORPORATION OF TARIFF.
The terms of the Carrier’s applicable tariffs are incorporated herein. Particular attention is drawn to the terms therein relating to Container and vehicle demurrage. Copies of relevant provisions of the applicable tariff are obtainable from the Carrier or its agents upon request. In the case of inconsistency between this Waybill and the applicable tariff, this Waybill shall prevail.
7. SCOPE OF VOYAGE AND LIBERTIES.
(1) The Carrier may at any time and without notice to the Merchant:
(a) use or substitute any means of carriage whatsoever;
(b) transfer and/or forward the Goods by any means and from one conveyance to another, including, without limitation, transhipping or carrying Goods in whole or in part on another vessel (or vessels) other than the Vessel (or Vessels) named overleaf, whether operated by the Carrier or others and even though transhipment of forwarding of the Goods may not have been contemplated or provided for herein. Any rights and exceptions accorded to the Vessel named in this Waybill shall likewise apply to any of the conveyances mentioned in this clause;
(c) load, unload, unpack or transfer the Goods and store them at any port(s) or place(s) whatsoever for any purpose whatsoever;
(d) proceed at any speed to usual, customary or advertised ports of call (whether or not named in this contract), ports in or out of the advertised, geographical, usual or ordinary route or order, even though in proceeding thereto the Vessel may sail beyond the Port of Discharge once or more often, or in a direction contrary thereto, or depart from the direct or customary route;
(e) call at any port(s) or place(s) (whether or not named in this contract) in any order, once or more often, for any purpose whatsoever;
(f) sail with or without pilots, tow and be towed, save or attempt to save life or property;
(g) comply with any order(s), recommendations or directions of any government(s) or international organization(s) or authority/authorities or persons or body acting or purporting to act with the authority of such government(s) or international organization(s) or authority/authorities.
(h) omit calling at any port(s) or place(s), once or more often.
(2) The liberties set out in Clause 7(1) may be invoked by the Carrier for any purpose whatsoever, whether or not connected with the Carriage of the Goods, including (without limitation) loading and unloading other goods and/or for the purpose or the current voyage or of a prior or subsequent voyage, adjusting equipment or instruments, picking up or landing persons, drydocking, going on ways or repair yards, shifting berths, taking fuel or stores or remaining in ports and shall be included in the contracted voyage. Anything done in accordance with Clauses 7(1) and 7(3) or any delay arising therefrom shall be deemed to be within the scope of the voyage herein and shall not be a deviation.
(3) At any time and in any situation whatsoever, including but not limited to political disturbances, strikes or work stoppages or closures or blockages of waterways, which in the judgment of the Carrier or Master is likely to give rise to risk of capture, seizure, detention, damage, delay or disadvantage to the Vessel, Goods and/or those on board, the Carrier or Master shall, without prior notice to the Merchant, in addition to the other rights contained in this Waybill, have the right to stop or delay the Vessel, awaiting the removal of any such hindrance or obstruction, or to return the Goods to the Port of Loading or store them ashore or afloat upon the terms of this Waybill and endeavour to forward them as soon as possible to proceed via any other route, or to transfer the Goods to craft off shore and/or forward them by any means of conveyance to destination or to abandon the Carriage of the Goods and place them at the disposal of the Merchant at any place or port, whereupon the responsibility of the Carrier in respect of such Goods shall cease.
(4) If the Carrier invokes any of the terms of Clause 7(3), notwithstanding the terms of Clause 7(2), he does so at the risk and expense of the Merchant and shall be entitled to such additional freight and expenses of forwarding and/or relaying as the Carrier may determine and for all or any storage charges in connection therewith, in respect of which the Carrier shall have a lien over the Goods. In addition, where the Carrier abandons the Goods in accordance with Clause 7(3), the Carrier shall nevertheless be entitled to full freight on the Goods received for the Carriage. If the Carrier elects to stop or delay the Vessel or use alternative route or means of conveyance, this shall not subsequently prejudice his right to abandon the Carriage.
8. SUB-CONTRACTING AND BENEFICIARIES OF CONTRACT.
(1) The Carrier shall be entitled to subcontract on any terms the whole or any part of the handling and Carriage of the Goods and any and all duties whatsoever undertaken by the Carrier in relation to the Goods.
(2) Every employee, agent, sub-contractor and independent contractor of the Carrier, including the Master, officers and crew members of the Vessel, stevedores, longshoremen, terminal operators and others used and employed by the Carrier in the performance of this work and services, in relation to the Goods referred to herein and the goods of others, including but not limited to other shipowners or charterers whose services are engaged by the Carrier, shall be a beneficiary of this Waybill and shall be entitled to all defences, liberties, exemptions, and immunities from and limitations of liability which the Carrier has under the provisions of this Waybill and under any other applicable national law, and as such may protect themselves against any liability whether or not arising out of negligence on the part of such persons, companies or other entities, and in entering into this contract, the Carrier, to the extent of these provisions, does so not only on its own behalf but also as agent and trustee for each of the persons, companies or other entities described above, all of whom shall be deemed parties to the contract evidenced by this Waybill.
(3) The provisions of Clause 8(2) shall extend to any claims of whatsoever nature against any other persons, companies or other entities, including, without limitation other persons, companies or other entities chartering or utilising space on the carrying Vessel, whether or not such liabilities arise out of the negligence on the part of those other persons, companies or entities.
(4) The expression “subcontractor” and “independent contractor” in Clause 8 shall include direct and indirect subcontractors and/or indirect contractors and their respective servants and agents.
9. IDENTITY OF CARRIER.
If despite the terms of this Waybill it is adjudged that any party other than CSAV is the Carrier and/or bailee of the Goods shipped hereunder, all rights, defences, immunities, limitations of and exceptions from liability provided for by law or by this Waybill shall be available to such other party.
10. CARRIER’S RESPONSIBILITY PORT-TO-PORT SHIPMENTS.
(1) If Carriage is from Port-to-Port, the following provisions shall apply to determine the liability, if any, of the Carrier. Without prejudice to the generality of the meaning of “Vessel” given elsewhere in this Waybill, for the avoidance of doubt, “Vessel” in this clause 10 shall include any transhipment vessel or vessels.
(2) Any liability of the Carrier for the loss of or damage to the Goods occurring from and during loading onto a Vessel up to and during discharge from that Vessel or from another vessel or vessels into which the Goods have been transhipped shall be determined in accordance with Clause 2 hereof.
(3) The Carrier shall be under no liability whatsoever for loss or damage to the Goods, howsoever occurring, if such loss or damage arises prior to loading on or subsequent to discharge from the Vessel.
(4) Notwithstanding the above, in the case of loss or damage arising prior to loading on or subsequent to discharge from any Vessel, if and to the extent that the Carrier is liable for such an additional period of responsibility because Goods are loaded or discharged at ports in the United States, the Hamburg Rules apply compulsorily or any applicable law so provides, the Carrier shall have the benefit of every right, defence, limitation and liberty provided by COGSA, the Hamburg Rules or such national law as the case may be, or if none, by the Hague Rules during that period notwithstanding that the loss or damage did not occur at sea.
11. CARRIER’S RESPONSIBILITY COMBINED TRANSPORT; TARIFFS.
(1) If Carriage is Combined Transport, the Carrier undertakes responsibility for the entire (Combined) transportation of the Goods from the Place of Receipt or the Port of Loading (whichever is applicable) to the Port of Discharge or the Place of Final Delivery (whichever is applicable) save to the extent and as set out in this Waybill and this Clause. The Carrier shall be entitled to use the services of Precarriers and/or Oncarriers and any mode of transport to accomplish the same.
(2) Custody and Carriage of the Goods during the non ocean carriage Combined Transport are subject to the tariffs and terms of the relevant Bills of Lading and/or contract of carriage and/or transport documents adopted by the Precarrier and/or Oncarrier and prescribed or made compulsorily applicable by the country in which the Combined Transport is performed, copies of which are available from the Carrier on request.
(3) If loss or damage occurs while the Goods are in the custody of the Precarrier and/or Oncarrier the liability of CSAV shall be no greater than that of the Precarrier and/or Oncarrier including all benefits, exemptions, defences and limits whatsoever of the Precarrier and/or Oncarrier provided by applicable law or the Precarrier’s and/or Oncarrier’s Bills of Lading and/or contract of carriage and/or transport documents which CSAV shall be entitled to invoke. Particular attention of the Merchant is directed to the terms, conditions or provisions of such documents and laws of the country of transport, as the liability of the Precarrier and/or Oncarrier under such terms, conditions or provisions may be less than the liability of the Carrier in respect of the sea transport.
(4) If loss or damage occurs to which this Clause 11 applies, but the Merchant cannot establish the stage at which the loss or damage occurs, it is hereby agreed that it shall be deemed to have occurred during the sea transport, from the Port of Loading to the Port of Discharge, and nothing contained in this Clause shall deprive the Carrier of its rights or immunities provided for elsewhere.
(5) Without prejudice to the foregoing, the liability of CSAV shall under no circumstances exceed the limitation of liability provided for in respect of the sea transport as set forth in Clause 18 hereof. Nothing herein shall be deemed a waiver of any rights CSAV may have against Precarriers and/or Oncarriers for indemnity or otherwise.
12. DESCRIPTION OF GOODS AND SHIPPER’S/MERCHANT’S RESPONSIBILITY.
(1) This Waybill shall be prima facie evidence of the receipt by the Carrier from the Shipper, in apparent good order and condition, unless otherwise noted, of the total number of containers or packages, indicated overleaf, in the “Total no. of Containers or Packages received by the Carrier” box.
(2) No representation is made by the Carrier as to the weight, measurement, marks, numbers, quality, quantity, description, gauge, contents, nature, or value and the Carrier shall be under no responsibility whatsoever in respect of such particulars or description.
(3) The Shipper/Merchant warrants that:
(a) all particulars and markings on the Goods, Containers or Packages are correct and appropriate (including, without limitation, numbering, addressing of all Goods, and description of contents);
(b) all Certificates required to accompany the Goods are procured;
(c) all regulations or requirements whatsoever of any kind imposed in respect of the Goods by customs, port or other authorities at any port(s) or place(s) whatsoever, including (without limitation) transhipment are complied with and
(d) no illegal, unmanifested or improperly described Goods (including, without limitation, drugs) will be shipped and that they are in compliance with the United States Carrier Initiative Agreement.
(4) The Merchant shall be responsible for all costs and payments of whatsoever nature (including, without limitation, fines, storage charges and duties) levied upon the Carrier or for transhipment expenses for or in connection with the Goods or charged against the Goods and in respect of clearing the Goods and Containers in or out of any port or country.
(5) The Merchant and their agents shall be responsible for, hold the Carrier harmless for and indemnify the Carrier against, all claims, losses, damages, fines, penalties, payments, attachments, arrests, detention, demurrage, or expenses of whatsoever nature and any other consequences arising or resulting from breach of Clause 12(3) and/or due to, or arising out of, any fault, defect or inherent vice of the Goods and/or for which the Carrier is not responsible.
13. SHIPPER-PACKED CONTAINERS.
(1) With respect to the Goods shipped in Containers whether or not furnished by the Carrier, if a Container has not been packed by or on behalf of the Carrier, the Carrier shall have no responsibility whatsoever for any loss or damage to the contents caused by:
(a) the manner in which the Container(s) have been packed, stuffed, consolidated, stowed or loaded;
(b) the unsuitability of the contents for carriage in Containers; or
(c) the unsuitability or defective condition of the Container(s).
(2) The loading of such Container(s) by the Shipper/Merchant shall be prima facie evidence that the Container(s) were sound and suitable for use.
(3) The Merchant shall return the Containers in the same condition as received and shall be responsible for any loss or damage to the Containers and equipment while in the possession of the Merchant. The costs to the Carrier of cleaning or washing the Containers returned in unclean condition shall be for the account of the Merchant.
(4) The Shipper shall be responsible for the packing and sealing of Containers before shipment and the seal reference and identification references of the Containers shall be noted overleaf.
(5) The Merchant shall be responsible for any damage, loss, delay or expense whatsoever to the Vessel, Container(s), other property or to persons resulting from any defect in the Goods, Shipper’s packaging, securing and containerization.
(6) The Carrier shall be entitled to give the Goods the care, handling and stowage appropriate to ordinary goods, unless notified overleaf and on their covering or on the Containers that they are fragile or breakable in character or need special handling or stowage. Whether or not such notice is given or the character of the Goods is otherwise revealed to the Carrier, the Merchant warrants and agrees that the Carrier may assume that the Goods are packed in the best approved methods for Goods of their type and that the Carrier shall not be obliged to give them any care, handling or stowage beyond that appropriate to Goods so packed.
14. SPECIAL, CONTAINERIZED AND PERISHABLE GOODS: REFRIGERATION.
(1) The Carrier shall be entitled to carry any Goods of a perishable or special nature (including, without limitation, fruit, vegetables, fish and meat) in ordinary compartments, ordinary dry cargo containers or on deck and without special cooling, heating or ventilation facilities or attention unless noted overleaf in a typewritten provision that the Goods will be carried in refrigerated or heated or ventilated spaces or containers. The Merchant undertakes not to tender for transportation Goods which require refrigeration, ventilation, heating and the like without giving prior written notice of their nature prior to receipt by the Carrier with specific instructions as to temperature, ventilation, heating and the like.
(2) Unless a special agreement is made and inserted in this Waybill the Carrier does not undertake and shall not be liable for failure to give the Goods, whether or not of a perishable or special nature, any unusual or special care, handling, storage or facilities not given ordinary nonperishable, general Goods, nor will it discharge or deliver the Goods into or to any refrigerated, chilled, cooled, ventilated, insulated, heated, drained, dry, moist, or specially equipped place, compartment, container or other facility, and the Merchant represents and warrants the Goods do not require any such special care or facilities.
(3) If perishable Goods requiring special temperature are delivered to the Carrier in a refrigerated container, the Merchant undertakes that the Goods have the temperature provided on the face hereof and that they have been properly stowed and the thermostatic controls have been properly set by him before delivery of the Goods to the Carrier.
(4) The Merchant agrees that when a temperature is noted on the face hereof or if not noted and the ambient temperature for the carriage of the perishable commodity is known or recognized for ocean transportation of said perishable commodity, the Carrier will exercise reasonable care to maintain the ambient temperature in the refrigerated chamber or container plus or minus 2°C.
(5) In no event shall the Carrier be liable in any respect because heating, refrigeration or special cooling facilities are not furnished during loading, discharge or any part of the time that the Goods are on a dock, wharf, craft, or other loading or discharging place, and the Carrier does not undertake to furnish such facilities.
(6) The Carrier shall be under no responsibility whatsoever for loss of and/or damage to Goods arising out of defect, malfunction or irregularity of a container (whether a Merchant supplied container or not) unless such loss and/or damage arises out of causes for which the Carrier would otherwise be liable under this Waybill.
General Average shall be adjusted, stated and settled according to the York/Antwerp Rules of 1994 or any subsequent modification thereof, at any port or place as selected by the Carrier and as to matters not provided for by these Rules, according to the laws and usages at the port of New York. Anything in this Waybill to the contrary notwithstanding, the cost of handling on board, restowing, reloading, discharging Goods or containers, fuel or stores, whether at port or place of loading, call or refuge, shall be admitted as General Average when the handling or discharge was necessary for the common safety or to enable the Vessel to be repaired and/or remedied, if the repairs or restowage were necessary for the safe prosecution of the voyage.
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 and the Merchant, jointly and severally, shall contribute with the Carrier in General Average to the payment of any sacrifices, losses or expenses of a General Average nature that may be made or incurred, and shall pay salvage and special charges incurred in respect of the Goods. If a salving ship is owned or operated by the Carrier, salvage shall be paid for as fully and in the same manner as if such salving ship or ships belonged to strangers. Security including a cash deposit as the Carrier may deem sufficient to cover the estimated contribution of the Goods and any salvage or special charges thereof shall, if required, be submitted to the Carrier prior to delivery of the Goods. The Carrier shall be under no obligation to exercise any lien for General Average contribution due to the Merchant.
16. BOTH-TO-BLAME COLLISIONS.
If the Vessel comes into collision with another ship as a result of the negligence of the other ship and/or any act, neglect or default of the Master, mariner, pilot or the servants of the Carrier in the navigation or the management of the Vessel, the Merchant will indemnify the Carrier against all loss or liability to the other or non-carrying ship or her owners insofar as such loss or liability represents loss of or damage to, or any claim whatsoever, of the Merchant, paid or payable by the other or non-carrying ship or her owners to the Merchant and set-off, recouped or recovered by the other or non-carrying ship or her owners as part of their claim against the carrying Vessel or Carrier.
The foregoing provisions shall also apply where the owners, operators or those in charge of any ship or ships or objects other than, or in addition to, the colliding ships or objects are at fault in respect of a collision or contact.
17. FREIGHT AND CHARGES.
(1) Full freight and charges (including but not limited to inland freight, additional freight, deadfreight, demurrage, charges and all other amounts due herein) against the Goods shall be deemed fully earned on receipt of the Goods by the Carrier (whether intended to be prepaid or to be collect at the Port of Discharge or Place of Final Delivery or subsequently) and shall be paid and be non returnable in any event under all circumstances whatever, Vessel and/or Goods lost or not lost, or the voyage changed, frustrated or abandoned.
(2) Freight may be calculated on the basis of particulars furnished by or on behalf of the Shipper/Merchant. The Carrier may at any time (re)weigh, measure and value the Goods, and may (but without any obligation) open Packages, Containers or trailers to examine contents. If the particulars furnished by or on behalf of the Shipper/Merchant are incorrect or there is an error in freight or other charges and if on correction the freight or charges should be higher, the Carrier may collect the additional amount and the Merchant shall be liable for any expense incurred in examining, weighing, measuring and valuing the Goods.
(3) All such Freight, charges or sums of whatsoever nature payable to the Carrier are due from all persons defined as the Merchant (who shall be jointly and severally liable to the Carrier therefor) and shall be paid in full, without any set-off, counter-claim or deduction in the currency named in this Waybill or, at Carrier´s option, in other currency.
(4) Any person, firm or corporation engaged to perform forwarding services with respect to the Goods shall be considered the exclusive agent of the Merchant for all purposes and any payment of freight to such person, firm or corporation shall not be considered payment to the Carrier in any event. Failure of such person, firm or corporation to pay any part of the freight to the Carrier shall be considered a default by the Merchant in the payment of the freight.
(1) If COGSA applies, neither the Carrier nor the Vessel shall in any event be or become liable for any loss or damage to or in connection with the transportation of Goods in an amount exceeding $500 per package lawful money of the United States, or in case of Goods not shipped in packages, per customary freight unit, or the equivalent of that sum in other currency, unless the nature and value of the Goods have been declared by the shipper before shipment and inserted on the face of this Waybill in the box SHIPPERS DECLARED VALUE and extra freight charges paid. Charges for excess value declaration shall apply as per Carrier´s tariff.
(2) If this Waybill shall be subject to either the Hague Rules or the Hague Visby Rules, the Carrier´s and Vessel´s liability shall be limited to either 100 pounds sterling per package or unit or per the limitations set forth in the Hague Visby Rules, unless the nature and value of such Goods shall have been declared by the Shipper and inserted on the face of this Waybill in the box SHIPPERS DECLARED VALUE and extra charges paid.
(3) In the event of a higher value being declared by the Shipper in writing and inserted herein and extra freight being paid thereon, the Carrier´s liability if any, for loss or damage to or in connection with the Goods shall be determined on the basis of such declared value and pro rata of such declared value in the case of partial loss or damage, provided such declared value does not exceed the actual value of the Goods.
(4) In no event shall the Carrier be liable for more than loss or damage actually sustained. The Carrier shall not be liable for delay or for any consequential or special damages and shall have the option of replacing any lost Goods and/or replacing or repairing any damaged Goods.
(5) If this Waybill shall be subject to the Hamburg Rules, the Carrier’s and Vessel´s liability shall be in accordance with Article 6 thereof and limited to 835 SDRs per package or other shipping units or 2.5 SDRs per Kilogram of gross weight of the goods lost or damaged, whichever is higher.
The Carrier shall have a lien on the Goods and any documents for all sums payable to the Carrier from the Merchant under this Waybill, including, without limitation all freight, inland freight, additional freight, dead freight, advances, general average contributions, demurrage, fines, taxes, damages, expenses and charges becoming due under this Waybill or which may be sustained or incurred by the Carrier, whether they are payable in advance or not. Any lien shall extend to the cost of recovering the sums due including the cost, expenses and legal fees of exercising such lien. Such lien shall not be lost by delivery of the Goods, and it may be enforced by public or private sale in any manner at the Carrier´s discretion, without notice to the Merchant.
20. NOTICE OF LOSS OR DAMAGE, TIME BAR - PORT TO PORT SHIPMENTS.
(1) Unless notice of loss or damage to the Goods indicating the general nature of such loss or damage, is given in writing to the Carrier or his agent at the Port of Discharge or Place of Final Delivery (as the case may be) before or at the time of the removal of the Goods into the custody of the Merchant or if the loss or damage is not apparent, within three days after delivery or in the case of perishable goods, within 24 hours after delivery, such removal shall be prima facie evidence of the delivery by the Carrier of the Goods as described in this Waybill.
(2) Notwithstanding the application of any local law provision to the contrary, the Merchant hereby agrees that the Carrier shall be allowed a period of 12 months following any judgment or award made against it, to bring any claim, counter claim or indemnity action against the Merchant arising out of or in connection with this Waybill.
(3) Any claims for loss and/or damage to the Goods occurring while in the possession of a Precarrier and/or Oncarrier is subject to the terms and conditions governing that Precarrier’s or Oncarrier’s transportation. The Merchant should note that such terms and conditions may prescribe periods within which notice must be given, claims must be filed or suits must be commenced which are either longer or shorter than that which governs claims against the Carrier.
(4) In any event, the Carrier and the Vessel shall be discharged of all liability of whatsoever kind in connection with or in respect of the Goods, and claims for freight, charges or other expenses unless suit is brought within one year of delivery of the Goods or the date when the Goods should have been delivered. If this Waybill is compulsorily subject to the Hamburg Rules, any claim in relation to the Carriage of Goods is time barred if judicial proceedings have not been instituted within a period of two (2) years from the day of delivery of the Goods or from the last day on which the Goods should have been delivered. Suit shall not be considered to have been brought within time specified unless process shall have been actually served and/or jurisdiction obtained over the Vessel or Carrier within such time.
21. CLAIMS AND TIME BAR - COMBINED TRANSPORT SHIPMENTS.
(1) Claims for loss or damage to Goods:
(a) must be filed against the Carrier. If the Carrier pays the claims, the Carrier shall automatically be subrogated to all rights of the Merchant against all others (including Precarriers and/or Oncarriers), on account of such loss or damage;
(b) must be filed and suit commenced within the time limit provided by law and the terms of the Bills of Lading and/or contracts of carriage and/or transport documents and/or the tariffs of the carriers which had or are deemed in accordance with this Waybill to have had custody of the Goods when the loss or damage occurred;
(c) occurring while in the possession of a Precarrier and/or Oncarrier shall be made in writing against CSAV within nine months after delivery of the Goods by such Precarrier and/or Oncarrier or in the case of failure to make delivery then within nine months from the date when the Goods should have been delivered.
(2) When it cannot be established which carrier hereunder had custody or control of the Goods at the time of the loss or damage, it shall be deemed that the loss or damage occurred aboard the Vessel while in the custody or control of the Carrier.
(3) The liability of CSAV shall be no greater than that of the Precarrier and/or Oncarrier including all benefits, exemptions, defences and limits whatsoever of the Precarrier and/or Oncarrier provided by applicable law and its Bills of Lading and/or tariffs and/or contract of carriage and/or transport documents which CSAV shall be entitled to invoke, PROVIDED ALWAYS that the liability of CSAV shall under no circumstances exceed the limitation of liability provided for in respect of sea transport as set forth in Clause 18 hereof.
(4) Notice of claim should be sent to CSAV at the address set forth above.
22. DISCHARGE AND DELIVERY, DELIVERY BY MARKS.
(1) The Port authorities are hereby authorised to grant a general order for discharging immediately after the arrival of the Vessel. The Vessel may commence discharging immediately on arrival and discharge continuously day and night, Sunday and holidays included any customs of the port to the contrary notwithstanding.
(2) At ports and places of discharge where the Carrier is required to discharge Goods into lighters or other craft by local law, local authorities or local custom, or where it has been so agreed or where piers and wharves which the Vessel can reach, lie at or depart from always afloat are not available or where prevailing conditions at the time render discharge to a pier or wharf dangerous or imprudent or would subject the Vessel, Goods and cargo of others to abnormal delay, the Merchant shall be required to furnish lighters or other craft and take delivery alongside the Vessel in such lighters or craft from the Vessel´s tackle at the risk and expense of the Goods. In such cases, if the Merchant fails or refuses to provide lighters or other craft, the Carrier acting as agent for the Merchant may engage lighters or craft for the risk and account of the Goods and upon discharge of the Goods into such lighters or craft, performance hereunder and delivery of the Goods shall be completed and the Carrier shall not be under any further responsibility with respect to the Goods.
(3) The Carrier shall not be liable for failure to deliver in accordance with leading marks unless such marks shall have been clearly and durably stamped or marked by the Merchant before shipment of the Goods in such a manner as to clearly identify such Goods and their port of discharge. Goods that cannot be identified as to marks and any unclaimed Goods not otherwise accounted for may at Carrier´s option be allocated for completing delivery to the various consignees of Goods of like character in proportion to any apparent shortage.
23. STOWAGE UNDER AND ON DECK. LIVE ANIMALS.
(1) The Carrier shall have the right to stuff Goods in containers and consolidate them with other Goods and containers.
(2) Goods, whether or not carried in containers, may be carried on deck or under deck without notice to the Merchant or any notation on the face hereof and all such Goods (including goods stowed in poop forecastle, deck house, passenger spaces, state rooms or any other covered space) whether carried on deck or under deck shall participate in General Average and shall, save as provided in Clause 23(3) below, be deemed to be within the definition of Goods for the purposes of the Hague Rules, Hague Visby Rules and COGSA and shall be carried subject to the provisions of Clause 2 of this Waybill.
(3) In the case of Goods which are stated on the face hereof as being carried on deck and which are so carried and live animals, the Hague Rules, the Hague Visby Rules and COGSA shall not apply and the Carrier shall be under no liability whatsoever for loss, damage or delay howsoever arising.
Notwithstanding the terms and conditions of the Hague Rules and the Hague Visby Rules, and in particular the provision of Article III Rule 8, and the Hamburg Rules where compulsorily applicable, the Carrier shall be under no responsibility whatsoever howsoever arising for any liability, loss or damage or interruption to service or delay due to or arising out of either malperformance or non-functionality of computer systems both hardware and/or software, microchips, integrated circuit chips or data storage or information technology equipment or systems, due to their being unable accurately to recognise, process, exchange, assign or transfer year, date or time data or information with reference to the use of dates or time data during or after the year 2000.
25. DANGEROUS GOODS.
(1) No Goods which are or may become dangerous, inflammable or damaging (including radio-active materials) or which are or may become liable to damage any property whatsoever, shall be tendered to the Carrier for Carriage without his express consent in writing, and without the container (if any) as well as the Goods themselves being distinctly marked on the outside so as to indicate the nature and character of any such Goods and so as to comply with any applicable laws, regulations, International Conventions or requirements. If any such Goods are delivered to the Carrier, without such written consent and/or marking, or if in the opinion of the Carrier the Goods are or are liable to become of a dangerous, inflammable or damaging nature, they may at any time be destroyed, disposed of, abandoned, or rendered harmless without compensation to the Merchant and without prejudice to the Carrier‘s right to Freight.
(2) The Merchant undertakes that such Goods are packed in a manner adequate to withstand the risks of Carriage having regard to their nature and in compliance with all laws, regulations, International Conventions or requirements which may be applicable during the Carriage.
(3) Whether or not the Merchant was aware of the nature of the Goods, the Merchant shall indemnify the Carrier against all claims, losses, damages or expenses arising in consequence of the Carriage of such Goods whether or not arising out of the negligence of the same.
(4) Nothing contained in this Clause shall deprive the Carrier of any of its rights or immunities provided for elsewhere.
26. LAW AND JURISDICTION.
This Waybill and any claim or dispute arising hereunder shall be subject to English law and the jurisdiction of the English High Court of Justice in London. If, notwithstanding the foregoing, any proceedings are commenced in another jurisdiction, such proceedings shall be referred to ordinary courts of law. In the case of Chile, arbitrators shall not be competent to deal with any such disputes and any proceedings shall be referred to the Chilean Ordinary Courts.
If anything herein contained is invalid under any compulsorily applicable International Convention or National law the provisions hereof shall to the extent of such invalidity but no further be null and void.
28. FINAL AGREEMENT.
All agreements or freight engagements for the shipment of the Goods are superseded by this Waybill and all its terms, whether written, typed, stamped or printed are accepted and agreed to by the Merchant to be binding as fully as if signed by the Merchant any local customer privileges to the contrary notwithstanding. Nothing in this Waybill shall operate to limit or deprive the Carrier of any statutory protection or exemption from or limitation of liability. This Waybill is in no sense the personal contract of the Carrier. If required by the Carrier one original signed Waybill duly endorsed must be surrendered to the Carrier or its agent at the Port of Discharge or Place of Final Delivery in exchange for delivery order.