|
| Standard
Terms & Conditions – 2008
1. Definitions
1.1.
In
these
Conditions “SCH” means Southampton Cargo
Handling Ltd (also trading as Cruise and
Passenger
Services Ltd [CPS]) and
unless a contrary meaning is given:-
1.1.1.
“Authorised
Person” means SCH’s Managing or other Director from time to time or any
person
specifically authorised in writing by one of them.
1.1.2.
“Container” means any
inter-modal freight
container whether or not conforming to ISO Standards.
1.1.3.
“Contract”
means
the contract for the provision of Services by SCH.
1.1.4.
“Inspect”
or
"Inspected" means a cursory, external visual inspection done in the
available light for any obvious defects.
1.1.5.
“Goods”
means any
cargo, baggage or merchandise whatsoever whether or not within a
Container.
1.1.6.
“Services”
means
the services agreed to be provided by SCH in writing at the beginning
of this
agreement and shall not include any additional services agreed from
time to
time between SCH and the User unless such additional services are
agreed by SCH
in accordance with clause 2.5 below.
1.1.7.
“Ship”
means any
vessel in respect of which SCH provides, or is to provide, Services.
1.1.8.
“User”
means any
person, firm or corporation to or for whom or in respect of whom SCH is
to
provide Services and shall include the shipper, receiver, consignor,
consignee,
holder of documents of title (including ship’s agents, forwarding
agents and
hauliers), owner or handler of Goods, registered ship owner, ship
manager, line
operator and charterer including their respective employees, agents and
sub-contractors.
1.1.9.
"Docks"
and "Docks Premises" shall have the same meanings as in the general
regulations and conditions currently in force upon which services and
accommodation are provided at or within the dock at which SCH provides
the
Services to the User;
1.1.10.
Words
in the
singular shall include the plural and vice versa.
1.1.11.
Any
reference to
any statute or statutory provision shall be deemed to include any
amendment,
replacement or re-enactment thereof for the time being in force and to
include
any by-laws, statutory instruments, rules, regulations, orders,
notices,
directions, consents or permissions (together with any conditions
attaching to
the foregoing) made thereunder.
2.
Basis of Contract
2.1.
All Users, Goods,
Containers and Ships are subject to these conditions.
The contractual terms
between SCH and the
User are contained exclusively within these conditions and in
no
circumstances will SCH be bound by any purported addition to, or
variation of these
conditions, whether oral or
in writing, unless any such addition or variation
is signed on behalf of
SCH by an Authorised Person.
2.2. SCH’s employees,
agents and sub-contractors are not authorised to make representations
unless
confirmed by an Authorised Person in writing.
The User acknowledges that it does not rely on any
such
representation
not so confirmed.
2.3.
SCH may perform
Services by its employees, agents or sub-contractors.
2.4.
The terms of any
SCH quotation shall be valid for 30 days from the date of the quotation
form. Any
extension to
this must be
agreed in writing by an Authorised Person.
2.5. Any service
additionally requested by the User which was not included within the
Services
at the
beginning of this agreement shall be undertaken at the
entire discretion
of SCH on these conditions or on
such other terms as may be
agreed in writing
between the user and an authorised person.
2.6.
The benefit of
these conditions shall apply in relation to any act or default
whatsoever of
any
employee, agent or
sub-contractor of SCH.
No User shall proceed against any such employee, agent
or sub-contractor
in respect of such act or default and shall indemnify SCH in respect of
any
liability SCH
may incur arising
from the User not complying with such
requirement.
3.
Price and Payment
3.1. The price for the
Services shall be as set out in the SCH quotation and (if applicable)
the
Contract.
The price is exclusive of VAT which shall be due at the rate
ruling
on the date of the relevant invoice.
If
there is any conflict between the terms
of the SCH quotation and the terms of
the Contract the Contract
shall prevail.
3.2. Payment shall be
made to SCH within 28 days of the invoice date.
3.3.
The Late Payment
of Commercial Debts (Interest) Act 1998 will apply to all payments due
under
the
Contract.
4.
User’s Obligations
4.1. The User shall comply
with and be bound by all statutes, statutory instruments, rules,
regulations,
orders, notices, directions, consents or permissions including (without
limitation) those relating to health
and safety and
dock operations from time
to time in force and the conditions of any
applicable regulatory or statutory
body .
4.2. The User shall
provide to SCH in writing, prior to arrival of the Goods within the
Docks:-
4.2.1.
sufficient
details
of the Goods to enable SCH to identify them, details of all hazardous
features
and actual or potential hazards involved in handling the Goods, any
special
lifting required for the Goods, any stowage, storage or delivery
requirements
for the Goods, and
any other information with
which anyone providing the Services might reasonably expect to be
provided;
4.2.2.
where
Goods are to
be unloaded from a Ship, instructions as to the onward transport
forwarding or
dispatch of the Goods; and
4.2.3.
where appropriate,
instructions in relation to any activity to be undertaken in respect
of
the
Goods while at the Docks
and
shall further provide to SCH notification in writing of any change
to such details, instructions and/or
information which
arises during the
provision of the Services.
4.3. The User shall
immediately upon arrival of the Goods at the Docks provide SCH with
evidence in
writing of their arrival and allow SCH
to Inspect the Goods.
4.4.
The User warrants
that all information provided as required under condition 4.2 was
accurate at
the time
it was provided to SCH and continues to be
accurate throughout the
period during which SCH
provide the Services.
4.5.
Notification
required under clauses 4.2 and 4.3 shall be made by the User to the
e-mail
address specified
in SCH’s quotation or to such other
e-mail address as SCH may
specify from time-to-time.
4.6. The User is
responsible for checking, or arranging the checking of, the state and
condition
of the Goods
at the time the Goods are loaded onto
or unloaded from a Ship (as
the case may be).
4.7.
If the User
requires secure or special storage at the Docks for the Goods, or any
of them,
the User shall
make all arrangements for secure or special
storage with the
owner or operator of the Docks,
shall clearly
identify the Goods for which
secure or special storage has been arranged and provide SCH
with
written
details of all such arrangements.
4.8. SCH shall not be
obliged to comply with any instructions given pursuant to clause 4.2.3
unless
SCH has
agreed in writing prior to the arrival
of the Goods within the Docks to
carry out such instructions.
4.9.
If the User requires
any externally hired plant or equipment or in the opinion of SCH
externally
hired plant
or equipment will be required to perform the
Services SCH may
request that the User shall
contract directly with the
owner to hire the
equipment. In the
event that SCH
contract directly with the
owner
for the hire of the plant and equipment SCH’s
liability shall be limited as set out in clause 6.9.
5. User’s
Warranties
5.1. The User warrants
to SCH that:-
5.1.1.
all
Goods are
properly packed, labelled and if stuffed in Containers are properly
stowed and
secured therein;
5.1.2.
all
Goods,
packages, cartons, drums, pallets and Containers are fit for their
intended
purpose and are in a fit and proper condition to be handled or
otherwise dealt
with in the normal course of business by the equipment and operational
procedures employed by SCH;
5.1.3.
all
Containers and
Goods comply with and all hazardous or potentially hazardous Goods are
labelled
in accordance with all applicable laws, orders, regulations, codes of
practice
or requirements of Government, Customs and Excise, municipal or other
authorities.
5.1.4.
all
Goods and
Containers are insured to their full replacement value.
6.
SCH Liability
6.1. The following
provisions set out the entire financial liability of SCH (including any
liability for the acts or
omissions of its
employees, agents and
sub-contractors) to the User in respect of:-
6.1.1
any
breach of
these Conditions; and
6.1.2.
any
representation, statement or tortious act or omission, including
negligence,
arising under or in connection with SCH’s performance of the Services.
6.2.
All warranties,
conditions and other terms implied by statute or common law (save for
the
conditions
implied by
section 12 of the Sale of Goods Act 1979) are, to the
fullest extent permitted by law,
excluded from the
Contract.
6.3.
Nothing in these
conditions excludes or limits the liability of SCH for death or
personal injury
caused by
SCH’s negligence, or
fraudulent misrepresentation.
6.4. SCH shall not be
responsible for any loss, damage, liability, costs and/or expenses
suffered or incurred
by the User or
any loss, damage or deterioration
to the Goods:
6.4.1.
prior
to written
evidence of the Goods arrival on the Docks being delivered to SCH and
SCH
having Inspected the Goods in accordance with clause 4.3; and/or
6.4.2.
where
goods are
delivered outside SCH's normal working hours and working areas at the
Docks, or
in circumstances where SCH has instructed that Goods should not be
delivered on
certain dates or at certain times
6.5.
SCH shall be under
no obligation to receive evidence of arrival of Goods at the Docks or
Inspect
Goods
outside SCH's hours of normal business at the
Docks.
6.6.
Subject to
conditions 6.2 and 6.3, SCH, its employees, agents or sub-contractors
shall be
liable for any
fault or negligence on their part
resulting in physical loss or
damage subject to the following limits for any
one incident or
series of incidents
arising out of one event:-
6.6.1.
£1,000,000
in
respect of damage to a Ship, including its gear.
6.6.2.
£1,500
in respect
of loss of or damage to any Container.
6.6.3.
£2.50
per kilo
with a maximum limit of £10,000 in respect of loss or damage to any
Goods.
(but
not to exceed in any event the liability of the User with respect
thereto under the relevant Bill of
Lading or other contract of carriage) and
only to the extent that such loss or damage exceeds £100.
6.7.
Subject to
conditions 6.2 and 6.3 SCH shall not be liable to the User for any loss
of
profit, loss of
business, depletion of goodwill or any
indirect or
consequential loss or damage, costs, expenses or
claims
for consequential
compensation whatsoever (howsoever caused) which arise out of
or in
connection
with SCH’s provision of the Services.
6.8.
SCH (including its
employees, agents and sub-contractors) is not responsible for any loss,
damage,
liability, costs
and/or expenses suffered or incurred by the User or any loss,
damage or deterioration to
Goods by reason of any
matter not within the control
of SCH in the
performance of Services
including
(without limitation) any
loss, damage, liability, costs and/or
expenses suffered or incurred by the User
arising out of or in connection
with:-
6.8.1.
defects
in or
inadequacy of any equipment not owned or leased by SCH which is used by
SCH in
connection with the provision of Services;
6.8.2.
faulty
slinging or
the improper loading of any Goods by persons other than SCH, its
employees,
agents or sub-contractors;
6.8.3.
any
equipment or
load colliding with any part of a Ship or any equipment of a Ship
resulting
from the drifting or movement of the Ship or any part of its equipment
howsoever caused;
6.8.4.
the
Ship having
been improperly or insecurely moored;
6.8.5.
using
lifting
points and/or lifting equipment specified by the User.
6.9.
SCH’s liability
for loss damage costs and/or expenses suffered or incurred by the User
or any
loss
damage or
deterioration to Goods by reason of any defect in or failure of
or unavailability of any
equipment leased by SCH and
which is used by SCH in
connection with the provision of
the Services
shall be limited to the liability
which the owner or lessor of the equipment owes to SCH.
6.10. SCH (including its
employees, agents and sub-contractors) is not responsible for any loss,
damage,
liability, costs
and/or expenses suffered or incurred by the User or any loss,
damage or deterioration
to Goods arising out of or in
connection with:-
6.10.1.
SCH
operating
under the direct supervision or on the express instructions of the User;
6.10.2.
any
act, omission,
neglect or the fault of any person not employed by or under contract to
SCH;
6.10.3.
any
misleading,
ambiguous or inadequate orders or particulars given by any person to
SCH;
6.10.4.
any
inadequate or
incorrect address or destination information for the Goods, or any
imperfect,
illegible, misleading, ambiguous, defective or incomplete labelling of
any
Goods;
6.10.5.
any
errors by SCH,
its employees, agents or sub-contractors in the sorting or selecting of
any
Goods or the separating of damaged from sound Goods except where
(subject to
clause 4.7) such errors are due to the failure of SCH, its employees
agents or
sub-contractors to follow written instructions regarding such sorting,
selecting
or separating;
6.10.6.
failure
by the
User to comply with any of these conditions;
6.10.7.
any
leakage, loss
of weight or measure that may be sustained where the receptacle of any
Goods is
in a defective or leaky condition, (except upon proof that the
receptacle was
in a sound condition when delivered to SCH, that it was suitable to
contain the
Goods, and that such defective or leaky condition was negligently
caused by
SCH, its employees, agents or sub-contractors);
6.10.8.
fire;
6.10.9.
vermin,
moths,
worms, weevils or insects;
6.10.10.
natural
causes
(including, without limitation, weather conditions and atmospheric
effects);
6.10.11.
want
of proper
packing or improper packing;
6.10.12.
stowage
or storage
of Goods or Containers contrary to SCH’s advice;
6.10.13.
any
deterioration
of grain, seed or goods whatsoever through the omission on the part of
the User
to give orders in writing to SCH to turn or air them, or to take any
other
precautions in relation to them;
6.10.14.
movement
or
deviation or late arrival or departure of any Ship;
6.10.15.
vermin,
insects,
fungal attack, rot or corrosion affecting Goods;
6.10.16.
heat
or cold,
including heat within Goods and unintended exposure to natural or
artificial
light;
6.10.17.
improper
or
insufficient packing, marking, documentation or labelling;
6.10.18.
any
act of SCH,
its servants or agents which, though deliberate, are reasonably
necessary for
the safety or preservation of persons, the Docks or any Goods;
6.10.19.
late
receipt of
Customs Entry or Delivery or Landing Orders, disputes in respect of
documents
or declarations made for entry purposes by or on behalf of any person,
delay in
passing Customs Entries or obtaining clearance of any Goods or omission
of
information from or a statement in any order to SCH relating to the
Goods;
6.10.20.
theft
or wilful
damage unless proved by the User to have been committed by the servants
of SCH;
6.10.21.
inherent
vice of
the Goods;
6.10.22.
any
loading or
discharging of any Goods during the hours of darkness except that which
resulted from the wilful misconduct or negligence of SCH, its employees
subcontractors or agents;
6.10.23.
any
failure of or
interruption to or delay caused by any electronic systems used to send,
receive
or process documentation, including (without limitation) loss of power
supply,
loss of network access, breakdown of systems or act or omission of any
Internet
Service Provider.
6.11.
Where
the Goods or
any part of them are timber:
6.11.1.
Users
shall supply
SCH with a specification of the timber prior to it being landed, and
deposit
with SCH, immediately upon the arrival of the ship at the Docks, any
delivery
order which SCH may be desired to execute; and
6.11.2.
SCH
will not be
liable for any loss or damage to the timber howsoever caused including
without
limitation by fire, waste, shrinkage, erroneous remeasurement of timber
or any
misdescription of quality whether upon the instructions of the user or
otherwise.
6.12.
SCH shall not in
any event be responsible for any loss from, or damage to, Goods unless
SCH is
notified
in writing of the nature and amount of
the claim made:-
6.12.1.
in
the case of
damage, deficiency or partial loss, before the Goods are removed from
the Dock
Premises (whether for import or export); and
6.12.2.
in
the case of
total loss or misdelivery of import Goods, within thirty days of
collection of
the Goods from the Dock Premises;
6.12.3.
in
the case of
total loss or misdelivery of export Goods to the Dock Premises or where
such
Goods are due to be exported within 60 days of such delivery by the
date of
export, whichever is the greater;
6.12.4.
within
seven days
of the event giving rise to the claim in any other case.
Any claim not made in accordance
with the terms of this
condition shall be deemed to be waived,
extinguished or absolutely
barred.
6.13.
The User must
satisfy itself as to the appropriateness and nature of any storage
facility to
be used for
the Goods.
SCH shall not in
any event be responsible for any loss, damage, liability or expenses
caused
by
or arising in connection with the deterioration of Goods stored in
accordance
with the instructions
of the User
7. SCH’s
Rights
7.1. SCH reserves the
right to postpone performance of Services if, in SCH’s absolute
discretion:-
7.1.1.
additional
or
alternative resources, personnel or equipment are required to carry out
Services;
7.1.2.
Containers
or
Goods are improperly or insufficiently packed or labelled;
7.1.3.
Containers
or
Goods are unsafe whether due to their inherent nature, stowage or
movement
during transit;
7.1.4.
the
weather or
light make the conditions for the provision of Services unsafe or may
cause
damage or deterioration to Goods.
8.
Force Majeure
8.1.
SCH reserves the
right to defer the performance of the Services or to cancel the
Contract
(without
liability to the User) if it is prevented from or delayed in the
carrying on of its business or in the
performance of
Services due to
circumstances beyond the reasonable control of SCH including, without
limitation, acts of God,
governmental actions, war or national emergency, riot, civil commotion,
fire
(and
acts to extinguish it), smoke, ionising
radiation, radioactive
contamination, impact by aircraft or objects
dropped or falling from them,
scarcity of labour, plant, machinery, fuel or power, act or omission of
any
internet service provider , war, revolution, riot or
civil
commotion, restrictions imposed directly or
indirectly by HM Government or any
person, body or corporation acting under statutory
powers, explosion, flood,
epidemic, lock-outs, strikes or other labour disputes (whether or not
relating
to SCH’s workforce), or restraints or
delays affecting carriers or inability or
delay in obtaining
supplies of adequate or
suitable materials.
9.
Disposal of Goods
9.1.
Goods and
Containers handled by SCH remaining on Dock Premises or any other
premises
which SCH
has been required to use on
instructions of the User or ABP may be
removed, warehoused or otherwise
dealt with if they have not
been removed from
Dock Premises by or on behalf of the User within
thirty
days of their delivery
to the Dock Premises. Such
removal
warehousing and dealing shall be at the
entire risk and
expense of the User and
SCH reserves the right to sell the Goods and apply the proceeds
to payment of
all charges in connection with the Services provided under this
Contract or any
other
contract between
SCH and the User under which payment by the User is
outstanding.
9.2. Without prejudice
to condition 9.1 SCH may in its absolute discretion dispose of:-
9.2.1.
perishable
goods
which are not immediately collected on arrival at the Dock Premises;
9.2.2.
hazardous
goods,
or deal with them in such manner as would render them harmless;
9.2.3.
Goods
and
Containers which can not be delivered in accordance with the
instructions of
the User for whatever reason provided that SCH shall give at least
twenty-one
days written notice to the User of its intention to dispose of such
Goods and
Containers.
10.
SCH’s Lien
10.1.
All Goods,
Containers and documents of title to those Goods and Containers in
possession
of SCH shall
be subject to a particular and general lien for
all sums owed by
the User to SCH on any account, and
unless payment or security is given within ten
days of notice of the exercise of the lien, SCH may sell
the
goods by auction
or otherwise as it thinks fit in its absolute discretion in
satisfaction of its
lien.
11.
Application of
Bill of Lading
11.1.
The User shall
include in its Bill of Lading a provision that SCH, its employees,
agents and
sub-contractors shall have the benefit of
any terms in such Bill of Lading
excluding or limiting the liability
of the
User in respect of the Goods.
11.2.
In any event SCH,
as stevedore and/or sub-contractor, shall be entitled to benefit from
the
provisions of
any Bill of Lading (including all defences and
limitations of
liability) to which Goods and/or Container or
Containers are subject as if SCH
were a party thereto.
12.
User Liability
12.1. The User
undertakes that it will indemnify SCH against all proceedings, costs,
expenses,
liabilities, injury,
death, loss or damage incurred or
suffered by SCH arising
out of:-
12.1.1.
the
User’s failure
to comply with these conditions or the Contract;
12.1.2.
all
acts or
omissions of the User.
12.2
The User further
undertakes that it will indemnify and hold harmless SCH against all
proceedings, costs,
expenses,
liabilities, injury, death, loss or damage
incurred or suffered by SCH consequent upon any
claim against SCH by any third
party arising out of the negligent provision of the Services to be
provided to
the User (for example the owner of the Goods or Ship or Container or
vehicle)
insofar as
such
costs, losses and liabilities (when aggregated with any
liability of SCH to the User arising from
the same occurrence or circumstance)
exceed the potential liability of SCH to the User as limited by
the terms of
clause 6.
13.
General
13.1.
No waiver of any
default or breach of these conditions by either party shall be deemed to be
a
continuing waiver or a waiver of any other breach or default no matter
how
similar.
13.2.
These Conditions
shall be governed by and interpreted in accordance with English Law and
the
User
submits to the
non-exclusive jurisdiction of the English Courts.
13.3. Any notice
required to be given hereunder shall unless otherwise specified be
sufficiently
given if sent
by registered or recorded delivery post
or left at the principal
or registered office for the time being of
the party to be served.
Any such notice shall be deemed to be served
at the time the same is
handed
to or left at the address of the party to be
served and if served by post on the third day (not
being a Sunday or Public
Holiday) following the day of posting.
| |
|
