ALLPORTS FORWARDING INC.
Bill of Lading Contract Terms and Conditions
“Carriage” means the operations and services undertaken or performed by or on behalf of the Carrier as to the Goods covered by this Bill of Lading. “Carrier” means Allports Forwarding Inc., OTI license no. 003132NF, and its servants and agents. “Person” means any natural person, corporation, any other legal entity, or any unincorporated association. “Merchant” includes the consignor, shipper, exporter, seller, consignee, owner of the Goods, or the lawful holder or endorsee of this Bill of Lading, and any Person lawfully acting on behalf of any of those Persons. “Goods” means the cargo that the Merchant has tendered for Carriage, whether carried on or under deck, and includes any Container not supplied by or on behalf of the Carrier. “Vessel” includes the vessel named on the front page of this Bill of Lading or any substitute for that vessel, and any feeder vessel, lighter, barge, or other conveyance used by or on behalf of the Carrier for any part of the Carriage. “Sub-Contractor” includes Vessel owners and operators, stevedores, terminals, warehouses, container freight stations, road and rail transport operators, and any Person employed by the Carrier in the performance of the Carriage. “Sub-Contractor” also includes direct and indirect sub-contractors and their respective servants, agents, or sub-contractors. “Package” means each Container that is stuffed and sealed by or on behalf of the Merchant, and not the items packed in such Container if the number of such items is not stated on the front page of this Bill of Lading, and not where the number of such items is indicated by the terms such as “Said to Contain” or similar expressions. “Container” includes any shipping container, open top, trailer, transportable tank, flat rack, platform, pallet, and any other equipment or device used for or in connection with the Carriage. “COGSA” means the Carriage of Goods by Sea Act of the United States of America, Apr. 16, 1936, ch. 229, 49 Stat. 1207, reprinted in note following 46 U.S.C. ' 30701. “Hague Rules” means the International Convention for the Unification of Certain Rules of Law Relating to Bills of Lading, signed at Brussels, August 25, 1924. “Hague-Visby Rules” means the amendments by the Protocol Amending the International Convention for the Unification of Certain Rules of Law Relating to Bills of Lading, adopted at Brussels, February 23, 1968. “SDR Protocol” means the amendments by the Protocol Amending the International Convention for the Unification of Certain Rules of Law Relating to Bills of Lading, adopted at Brussels, December 21, 1979. “Charges” includes freight, all expenses, costs, detention, demurrage, general average, and any other money obligations incurred in the Carriage of the Goods or payable by the Merchant, and all collection costs for freight and other amounts due from the Merchant, including attorneys’ fees and court costs. “Dangerous Goods” includes any Goods classified or described as dangerous in the International Maritime Organization’s International Maritime Dangerous Goods Code or in the Carrier’s applicable tariff, and any Goods that could present or could be likely to present any hazard to the Vessel, any other transporting conveyance, to other cargo or property, or to any Person.
2. CARRIER’S TARIFF
The Carrier’s applicable tariff is incorporated into these Bill of Lading Contract Terms and Conditions. The Carrier shall provide copies of the applicable tariff upon request or, where applicable, through the government body with which the tariff is on file. In case of any inconsistency between these Bill of Lading Contract Terms and Conditions and the applicable tariff, the former shall prevail.
3. AGREEMENT TO TERMS AND CONDITIONS
In tendering the Goods to the Carrier for Carriage, the Merchant accepts this Bill of Lading and agrees to be bound by these Bill of Lading Contract Terms and Conditions, as well as those on the front page, whether written, typed, stamped, or printed, as fully as if signed by the Merchant, any local custom or privilege to the contrary notwithstanding, and the Merchant agrees that this Bill of Lading supersedes all agreements or freight engagements for and in connection with the Carriage of Goods. The defenses and limits of liability of this Bill of Lading shall apply in any action against the Carrier under any legal theory whatsoever, whether in contract, tort, bailment, indemnity, contribution, or otherwise.
4. SUB-CONTRACTING AND INDEMNITY
(A) The Carrier has the right at any time and on any terms whatsoever to sub-contract the whole or any part of the Carriage, as well as any duties the Carrier has undertaken as to the Goods, or to substitute any other vessel or means of transport for the Vessel.
(B) Every Sub-Contractor, Person, and Vessel shall have the benefit of every exemption, defense, and limitation of these Bill of Lading Contract Terms and Conditions, as if such provisions were expressly for every such Sub-Contractor’s, Person’s, and Vessel’s benefit, and in entering into this contract for the Carriage, the Carrier, to the extent of such exemptions, defenses, and limitations, does so not only on its behalf, but also as agent for such Sub-Contractors, Persons, and Vessel, and to that extent, each is or shall be deemed to be parties to this Bill of Lading.
5. NOTICE OF CLAIM AND TIME-BAR
(A) Unless written notice of loss or damage and the general nature of such loss or damage is given in writing to the Carrier at the Port of Discharge or Place of Delivery, whichever is applicable to the Carriage, before or at the time of the removal of the Goods into the custody of the Person entitled to delivery thereof under this Bill of Lading, such removal shall be prima facie evidence of the delivery by the Carrier of the Goods as described in this Bill of Lading. If the loss or damage is not apparent, then the notice must be given within three days of the delivery.
(B) In any event the Carrier and Sub-Contractors shall be discharged from all liability in respect of loss or damage unless suit is brought in the exclusive forum under clause 27 within nine months after the delivery of the Goods or the date on when the Goods should have been delivered; provided, however, if such time period shall be found to be contrary to any law that compulsorily applies to the segment of the Carriage during which the loss or damage occurred, then the prescribed period or minimum period under such law shall then apply.
6. CLAUSE PARAMOUNT
(A) This Bill of Lading shall have effect subject to COGSA, unless it is adjudged that any other legislation of a nature similar to the Hague Rules, the Hague-Visby Rules, or the SDR Protocol compulsorily applies to this Bill of Lading. Where the Hague Rules, Hague-Visby Rules, or the SDR Protocol (collectively, “Hague Rules Legislation”) compulsorily applies, this Bill of Lading shall have effect subject to such Hague Rules Legislation. Notwithstanding anything else to the contrary in this Bill of Lading, on all Carriage to or from the United States of America, including its districts, territories, and possessions (collectively, the “U.S.”), this Bill of Lading shall have effect subject to COGSA—the Carrier and Merchant expressly agree, under the section 13 of COGSA, that it shall apply to Carriage between ports of the U.S., in lieu of the Harter Act, 46 U.S.C. sections 30701-30707.
(B) COGSA or the Hague Rules Legislation, whichever is applicable under clause 6(A), shall also apply contractually and govern the Carriage before the Goods are loaded aboard the Vessel and after their discharge, and throughout the entire time that the Goods are in the custody of the Carrier or its Sub-Contractors.
(C) COGSA or the Hague Rules Legislation, whichever is applicable under clause 6(A), is hereby incorporated into this Bill of Lading.
(D) Agency: Whenever the Carrier undertakes to accomplish any act, operation, or service not initially agreed to or mentioned on this Bill of Lading, the Carrier shall act as the Merchant’s agent and shall be under no liability whatsoever for any loss of or damage to the Goods or any direct, indirect, or consequential loss arising out or resulting from such act, operation, or service.
7. CARRIER’S RESPONSIBILITIES
(A) The responsibilities of the Carrier for the Goods cover the entire period during which the Carrier is in charge of the Goods, starting from the time the Carrier has received the Goods at the Place of Receipt or Port of Loading, as applicable, until the time of delivery at the Port of Discharge or Place of Delivery, as applicable, to the Merchant or to any authority to which the Carrier is required to make delivery by local law or regulation, whichever occurs earlier.
(B) Subject to clause 7(C), if it can be proven that loss or damage to the Goods has occurred during a particular segment of the Carriage, the liability of the Carrier, if any, and its right to limit its liability under this Bill of Lading shall be subject to any national law or international conventions that are compulsorily applicable to that segment of the Carriage.
(C) Where the liability scheme for interstate motor transportation under United States of America laws collectively known as the “Carmack Amendment” (“Carmack”) would otherwise apply to any segment of the Carriage, the Merchant expressly agrees to a waiver of the Carmack liability scheme. For such motor transportation, the Merchant expressly agrees that this Bill of Lading, and particularly, this paragraph, satisfies the express written waiver required under 49 U.S.C. section 14101(b) of all the Merchant’s rights and remedies under Carmack, excluding the provisions governing registration, insurance, or safety fitness.
(D) For any segment of the Carriage that may be non-exempt rail transportation under 49 U.S.C. Title 49 and, therefore, subject to that part of Carmack that governs rail transportation, the Merchant expressly agrees that this Bill of Lading is a contract for specified services under specified rates and conditions under 49 U.S.C. section 10709. For any segment of the Carriage that may be exempt rail transportation as part of a continuous intermodal movement, the Merchant expressly agrees that this Bill of Lading is a contract of exempt rail transportation under 49 U.S.C. section 10502. For such transportation, the Merchant understands and agrees that the Carrier has offered to the Merchant contractual terms for liability and claims that are consistent with the provisions of 49 U.S.C. section 11706 and that the Merchant has instead elected to ship the Goods under the alternative terms for liability and claims of this Bill of Lading, in exchange for the Carrier’s regular/lower rates for Goods with a limited value.
(E) Notwithstanding clauses 7(C) and (D), if a court were to hold that that Carmack nevertheless applies to any segment of the Carriage, then the following notice and time-for-suit periods shall apply:
(i) Any cargo claims subject to Carmack must be filed within nine months after the delivery of the Goods, or in the case of export traffic, within nine months after delivery at the port of export, except that claims for failure to make delivery must be filed within nine months after a reasonable time for delivery has elapsed. The failure to file a claim within the applicable nine-month period shall result in the claim’s being time-barred and the Carrier’s discharge from any liability. The Carrier shall not pay any time-barred claims. A timely notice of claim is a condition precedent to the right to institute a timely lawsuit against the Carrier, as set forth below in sub-paragraph (ii).
(ii) Any lawsuits for cargo claims subject to Carmack shall be filed against the Carrier no later than two years and one day from the date on which the Carrier has given written notice to the claimant that the Carrier has disallowed the claim or any part or parts of the claim specified in the timely notice of claim. Assuming a timely notice of claim, the failure to file a timely lawsuit within the above two-year-and-one-day period shall result in the claim’s being time-barred and the Carrier’s discharge from any liability. The Carrier shall not pay any time-barred claims.
8. LIMITATION OF LIABILITY, OPPORTUNITY TO AVOID LIMITATION OF LIABILITY
The Carrier has established and offered alternative rates of freight for the Carriage and the Merchant understands and agrees that it has made an election between those alternative rates, between (1) the Carrier’s regular/lower rates for Goods with limited value, and (2) ad valorem rates for goods not so limited, which rates are dependent on the value declared by the Merchant. Unless the Merchant declares the nature and value of the Goods before the Carriage, states the same on the front page of this Bill of Lading, and pays the corresponding ad valorem rate, the Merchant knowingly and willingly elects to ship the Goods under the Carrier’s regular/lower rates, the consequence of which shall be that the Carrier’s liability to the Merchant shall be limited as follows:
(A) Limitation for Carriage to or from the U.S.: The consequence of the Merchant’s knowing and willing election to ship under the Carrier’s lower/regular rates is that neither the Carrier nor any Sub-Contractors, or the Vessel, shall in any event be or become liable for any loss or damage to or in connection with the Carriage in an amount exceeding U.S.$500 per package lawful money of the U.S., or in case of Goods not shipped in packages, per customary freight unit, or the equivalent of that sum in other currency.
(B) Limitation for Carriage Under Hague Rules Legislation: The consequence of the Merchant’s knowing and willing election to ship under the Carrier’s lower/regular rates is that neither the Carrier nor any Sub-Contractors, or any vessel that transports the Goods shall in any event be or become liable for any loss or damage to or in connection with the Carriage in an amount exceeding the applicable package or unit limitation. Under the Hague Rules, such limitation value is 100 pounds sterling current value, and under the Hague-Visby Rules and SDR Protocol, the limitation is 666.67 Special Drawing Rights (“SDRs”) per package or 2 SDRs per kilogram, whichever amount is greater.
(C) Limitation for Other Trades or Where Carmack Applies Notwithstanding Clauses 7(C) or 7(D): In trades where neither COGSA nor the Hague Rules Legislation applies compulsorily, or where COGSA does not apply under the terms of this Bill of Lading, or if a court were to hold that Carmack applies notwithstanding the waiver in clause 7(C) or the language of clause 7(D), the consequence of the Merchant’s knowing and willing election to ship under the Carrier’s lower/regular rates is that neither the Carrier nor any Sub-Contractors, or any vessel that transports the Goods shall in any event be or become liable for any loss or damage to or in connection with the Carriage in an amount exceeding U.S.$1 per kilogram of the gross weight of the Goods that have sustained loss or damage.
9. METHODS AND ROUTES OF CARRIAGE
The Carrier may at any time and without notice to the Merchant:
(A) Use any means of transport or storage whatsoever;
(B) Transfer the Goods from one conveyance to another, including transshipment to a vessel other than the Vessel stated on the front page of this Bill of Lading, or any other means of transport whatsoever; or
(C) Sail with or without pilots, proceed at any speed and by any route in the Carrier's sole discretion—irrespective of whether such route is the nearest, most direct, customary, or advertised route, proceed to, return to, and stay at any port or place whatsoever in any order, in or out of the route, or in a contrary direction to or beyond the Port of Discharge, once or more in order to, without limitation, bunker or load or discharge cargo, undergo repairs, adjust equipment, drydock, make trial trips, tow, or be towed.
The Merchant agrees that anything done or not done in accordance with the above sub-paragraphs or any delay arising therefrom shall be within the scope of the Carriage and not a deviation.
10. FORCE MAJEURE
Without prejudice to any of the Carrier’s rights or privileges under this Bill of Lading or under applicable law, the Carrier shall not be responsible for any loss, damage, or delay that arises out of or is in any way related to, directly or indirectly, any event beyond the reasonable control of the Carrier, regardless of the event’s foreseeability, including war, hostilities, warlike operations, terrorism, embargoes, blockades, port congestion, strikes or labor disturbances, regulations of any governmental authority pertaining thereto or any other official interferences with commerce that arise out of or are in any way related to the above conditions and affecting the Carrier’s operations or the Carriage in any way, in which case the Carrier shall have the right to cancel any outstanding booking or the Carriage. The Carrier, at its sole discretion, without prior notice to the Merchant and irrespective of whether the Carriage has begun, may treat the performance of the Carriage as terminated and place the Goods at the Merchant’s disposal at any place or port that the Carrier, at its sole discretion, deems to be safe and convenient, whereupon the Carrier’s responsibility for such Goods shall cease. The Carrier shall nevertheless be entitled to full freight and Charges on such Goods, and the Merchant shall pay any additional costs of transportation, transshipment, loading, unloading, delivery, storage, and all expenses related to each of the foregoing.
11. NOTIFICATION AND DELIVERY
(A) Any mention in this Bill of Lading of parties to be notified of the arrival of the Goods is solely for the information of the Carrier, and failure to give such notification shall not give rise to any liability on the part of the Carrier or relieve the Merchant of any obligation thereunder.
(B) The Merchant shall take delivery of the Goods within the time set forth in the Carrier’s applicable tariff or as the Carrier may otherwise require because of circumstances at the Port of Discharge or Place of Delivery. If the Merchant fails to do so, or whenever in the Carrier’s sole discretion the Goods are likely to deteriorate, decay, become worthless, lose value, or incur charges in excess of their value, whether for storage or otherwise, then the Carrier may, in its sole discretion and without prejudice to any rights the Carrier may have against the Merchant, and without notice and without any responsibility whatsoever attaching to the Carrier, un-stuff, sell, destroy, or dispose of the Goods at the Merchant’s sole risk and expense. Any of the foregoing shall constitute delivery to the Merchant under this Bill of Lading, whereupon the Carrier’s responsibility for the Goods shall cease.
(C) The Merchant’s refusal to take delivery of the Goods notwithstanding its having received notice of their availability shall constitute an irrevocable waiver of any claims arising out of or relating to the Goods or the Carriage. The Merchant shall be liable to the Carrier for any losses, damages, expenses, and liabilities it incurs arising out of such a refusal, including for the cost of returning the Goods to their place of origin.
(D) The Merchant understands and agrees to the provisions on free storage time and demurrage in the Carrier's applicable tariff.
12. FREIGHT AND CHARGES
(A) All freight shall be deemed fully, finally, and unconditionally earned on the Carrier’s receipt of the Goods and shall be paid and non-returnable in any event.
(B) All freight and Charges shall be paid without any set-off or deduction.
(C) Payment of freight and Charges to any Person other than the Carrier or its authorized agent is not and shall not be considered payment to the Carrier and shall be made at the Merchant’s sole risk.
(D) The Merchant shall, where applicable, be jointly and severally liable to the Carrier for payment of all freight, demurrage, detention, general average, and Charges including court costs, interest, expenses, and attorneys’ fees the Carrier incurs in collecting any sums due, failing which shall be considered a default by the Merchant in the payment of freight and Charges.
13. SPECIFIC AND GENERAL LIENS
(A) The Carrier shall have a general and continuing lien on the Goods as well as on any other property of the Merchant coming into the Carrier’s actual or constructive possession or control for monies owed to the Carrier with regard to the shipment on which the lien is claimed, a prior shipment(s), or any other prior obligation, including for freight, dead freight, demurrage, detention, any Charges, and for any expenses the Carrier incurs for storage, security, repacking, remarking, fumigation, or required disposal of Goods, for fines, dues, tolls, or commissions the Carrier has paid or advanced on behalf of the Goods, for any sums, including attorneys’ fees, the Carrier has incurred because of any attachment or other legal proceedings brought against the Goods by governmental authorities or any Person claiming an interest in the Goods. The failure to pay any Charges may result in a lien on future shipments, including the cost of storage and appropriate security for the subsequent shipments the Carrier may hold under this clause. In any event, the Carrier’s lien shall survive discharge or delivery of the Goods.
(B) The Carrier shall provide written notice to the Merchant of the Carrier’s intent to exercise its lien rights, which notice shall set forth the exact amount of monies due. The Merchant shall notify all parties that it knows to have an interest in the shipment of the Carrier’s lien rights and the exercise of such rights.
(C) Unless, within 30 days of receiving notice of lien, the Merchant posts cash or letter of credit at sight, or if the amount due is in dispute, an acceptable bond equal to 110 per cent of the value of the total amount due, in favor of Carrier, guaranteeing payment of all monies due, plus all ongoing and accruing charges, such as storage, the Carrier shall have the right to enforce its lien by public or private sale of the Goods or any other property of the Merchant, in bulk or in packages, at any time or place and on any terms that are commercially reasonable, after which the Carrier shall refund to the Merchant any net proceeds remaining after such sale.
14. DESCRIPTION OF GOODS AND NOTIFICATION
(A) The Merchant’s description of the Goods stuffed in a sealed Container by the Merchant or on its behalf shall not be binding on the Carrier, and the description declared by the Merchant on the front page of this Bill of Lading is solely for the Merchant’s own use. The Merchant understands that the Carrier has not verified the contents, weight, or measurement of a sealed Container or Package, or the value, quantity, quality, description, condition, marks, or numbers of the contents thereof. The Carrier is under no responsibility whatsoever in respect of such description of particulars.
(B) The Carrier shall not in any circumstances whatsoever be under any liability for insufficient packing or inaccuracies, obliteration or absence of marks, numbers, addresses or description, or for misdelivery due to marks or countermarks or numbers, or for failure to notify the consignee of the arrival of the Goods, notwithstanding any custom of the Port of Discharge or Place of Delivery, as applicable, to the contrary.
15. DANGEROUS GOODS
(A) At the time of shipment of Dangerous Goods, the Merchant shall, in compliance with the regulations governing the transportation of such goods, have the same properly packed, distinctly marked, and labeled, and notify the Carrier in writing of their proper description, nature, and the necessary precautions.
(B) Goods that are Dangerous Goods or are otherwise of an inflammable, explosive, or dangerous nature to the shipment whereof the Carrier, master, or agent of the Carrier has not consented with knowledge of their nature and character, may at any time before discharge be landed at any place and destroyed or rendered innocuous by the Carrier without compensation to the Merchant, which shall be liable for all damages and expenses directly or indirectly arising out of such shipment.
(C) The Merchant shall indemnify and hold the Carrier harmless from and against any loss, damage, liability, and expense, including attorneys’ fees, the Carrier has incurred, arising out of or in any way connected with or caused by, in whole or in part, omission of full disclosure required by this clause or by applicable treaties, conventions, laws, codes, or regulations.
16. PERISHABLE CARGO
(A) Goods of a perishable nature shall be carried in ordinary Containers without special protection, services, or other measures unless there is stated on the front page of this Bill of Lading that the Goods will be carried in a refrigerated, heated, electrically ventilated, or otherwise specially-equipped Container, or that the Goods are to receive special attention in any way.
(B) The term “apparent good order and condition,” when used in this Bill of Lading with reference to Goods that require refrigeration, does not mean that the Goods upon the Carrier’s receipt of the same, were verified by the Carrier as being at the designated carrying temperature.
(C) The Carrier shall in no event be held liable for damage to Goods due to condensation.
17. DECK CARGO, ANIMALS AND PLANTS
Goods, other than Goods stuffed in Containers, that are stated on the front page of this Bill of Lading as contracted to stowed “on deck” and are so carried, and all live animals, including, fish and birds, or plants shipped hereunder, shall be carried solely at the risk of the Merchant, which understands and agrees that the Carrier shall not be liable for any loss or damage of whatsoever nature arising during the Carriage, whether or not arising out of negligence on the part of the Carrier. The Merchant shall indemnify and hold the Carrier harmless from and against any extra costs the Carrier has incurred for any reason whatsoever in connection with the Carriage of such live animals or plants.
18. CARRIAGE OF METAL PRODUCTS, LUMBER, VEHICLES, COTTON
(A) The term “apparent good order and condition” when used in this Bill of Lading does not mean:
(1) with reference to iron, steel, or metal products, that the Goods when received were free from visible rust or moisture, nicks, dents, or bends;
(2) with reference to lumber, timber, plywood, or other wood products, that the Goods when received were free from visible stains, discoloration, moisture, shakes, holes, warps, chafage, breakage, or splitting;
(3) with reference to vehicles, including automobiles, trucks, rolling stocks, tractors, and machinery, that the Goods when received were free of scratches, dents, nicks, bends, holes, or cuts;
(4) with respect to cotton or cotton products, that when the Goods were received the covering was sufficient, untorn, or in sound condition, or that there were no damages resulting from the condition of the covering. If the Merchant were to so request, then Carrier will issue a substitute Bill of Lading omitting the above definition and stating any notations as to the foregoing that may appear on the mate’s or tally clerk’s receipts or similar document.
(B) Carrier shall not be liable for failure to deliver iron, steel, or metal products unless each piece and bundle is distinctly and durably marked and each bundle is securely fastened and tagged so that each piece and bundle can be distinguished at the port of discharge.
19. INSPECTION OF GOODS
The Carrier or any Sub-Contractor shall be entitled, but shall be under no obligation, to open any Container or Package at any time and to inspect the Goods.
20. MERCHANT-STUFFED CONTAINERS
(A) If a Container has not been stuffed by or on behalf of the Carrier, then the Carrier shall not be liable for the loss of or damage to the Goods and the Merchant shall indemnify and hold the Carrier harmless from and against any loss, damage, liability, and expense, including attorneys’ fees, that the Carrier has incurred if such loss, damage, liability, or expense arises out of or is in any way connected with or is caused by, in whole or in part: (1) The manner in which the Container was stuffed, filled, packed, or loaded, including, without limitation, because of the inclusion of wood packing materials; or (2) The unsuitability of the Goods for Carriage in the Container; or (3) The unsuitability or defective condition of the Container, provided that, if the Container had been supplied by or on behalf of the Carrier, that unsuitability or defective condition could have been apparent upon inspection by the Merchant at or before the time when the Container was stuffed, filled, packed, or loaded.
(B) The Merchant shall inspect Containers before stuffing them and the use of a Container shall be prima facie evidence of its being suitable and without defect.
21. CARRIAGE AFFECTED BY THE CONDITION OF THE GOODS
If it appears at any time that the Goods cannot safely or properly by carried or carried further, either at all or without incurring any additional expense or taking any measure in relation to the Goods or the Container, then the Carrier may, without notice to the Merchant, but as its agent only, take any measure or incur any additional expense to carry or to continue the Carriage, or to sell or dispose of the Goods, or to abandon the Carriage or store Goods ashore or afloat, under cover or in the open, at any place that the Carrier, in its sole discretion, considers most appropriate, which abandonment, storage, sale, or disposal shall be deemed to constitute delivery under this Bill of Lading. The Merchant shall indemnify the Carrier against any additional expenses it has so incurred.
22. MERCHANT’S RESPONSIBILITIES
(A) The parties within the definition of “Merchant” shall be jointly and severally liable to the Carrier for the fulfillment of all obligations undertaken by any of them under this Bill of Lading.
(B) The Merchant warrants to the Carrier that the particulars relating to the Goods stated on the front page of this Bill of Lading have been checked by the Merchant on its receipt of this Bill of Lading. The Merchant further warrants that any particulars relating to the Goods furnished by or on behalf of the Merchant are adequate and correct for all purposes including for purposes of security filings or disclosures and all other government-required filings or disclosures. The Merchant also warrants that the Goods are lawful goods and are not contraband.
(C) The Merchant shall indemnify and hold the Carrier harmless from and against any loss, damage, liability, and expense, including attorneys’ fees, that the Carrier has incurred, arising out of or in any way connected with or caused by, in whole or in part, any breach of the warranties in sub-paragraph (B) of this clause or from any other cause in connection with the Goods for which the Carrier is not responsible.
(D) The Merchant shall provide Carrier with certified weights obtained on calibrated and certified weighing equipment of the Goods and the Container that are tendered to steamship lines and Merchant represents that Carrier is entitled to rely on the accuracy of such weights and to counter-sign or endorse it as agent of Merchant in order to provide the certified weight certificates or verifications of gross mass to the steamship line or terminal operator. The Merchant agrees that it shall indemnify and hold the Carrier harmless from any claims, losses, fines, penalties, or other costs resulting from any incorrect or improper statements of the weight or verified gross mass provided by the Merchant or its agent or contractor on which the Carrier relies.
23. DELAY, CONSEQUENTIAL LOSS, ETC.
(A) The Carrier does not undertake that the Goods will be transported from the Place of Receipt or Port of Loading, as applicable, or will arrive at the Port of Discharge or Place of Delivery, as applicable, or will be transshipped on board any particular vessel or other conveyance at any particular date or time or to meet any particular market or in time for any particular use. The scheduled or advertised departure and arrival times are only expected times and may be advanced or delayed and the Carrier shall in no circumstances whatsoever be liable for direct, indirect, or consequential loss or damage caused by delay.
(B) Save as otherwise provided herein, the Carrier shall in no circumstances be liable for direct or indirect consequential loss or damage arising from any other cause.
24. GENERAL AVERAGE AND SALVAGE
Any general average shall be adjusted, stated, and settled according to the version of the York-Antwerp Rules and in a place and in a currency under the Carrier’s agreement with the Vessel’s owners’ or operators’ interests. The Merchant shall give such cash deposit or other security as the general average adjusters require to cover the estimated general average contribution of the Goods before their delivery, irrespective of whether the Merchant had notice of the general average lien at the time of delivery. The Carrier shall be under no obligation to take any steps to collect security for general average or salvage security or contributions due from the Merchant.
25. NEW JASON CLAUSE
In the event of accident, danger, damage, or disaster before or after the commencement of the voyage resulting from any cause whatsoever, whether due to negligence or not, for which or for the consequences of 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 vessel is owned or operated by the Carrier, salvage shall be paid for as fully as if the salving vessel or vessels belonged to strangers. Such deposit as the general average and salvage adjusters, or the Carrier or its agents, may deem sufficient to cover the estimated contribution of the Goods and any salvage and special charges thereon shall, if required, be made by the Goods and the Merchant, jointly and severally, before delivery.
26. BOTH-TO-BLAME COLLISION
If the Vessel comes into collision with another vessel as a result of the negligence of the other vessel and any act, neglect, or default of the Master, mariner, pilot, or the servants of the Carrier in the navigation or in the management of the Vessel, the Merchant shall indemnify the Carrier against all loss or liability to the other or non-carrying vessel or her owners insofar as such loss or liability represents loss of, or damage to, or any claim whatsoever of the Merchant, paid or payable by the other or non-carrying vessel or her owners to the Merchant and set-off, recouped or recovered by the other or non-carrying vessel 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 vessel or vessels or objects other than, or in addition to, the colliding vessels or objects, are at fault in respect of a collision or contact.
27. VARIATION OF THE CONTRACT; PARTIAL INVALIDITY
No employee, servant, agent, or Sub-Contractor of the Carrier has the power to waive or vary any of these Bill of Lading Contract Terms and Conditions unless the Carrier, in writing, has specifically authorized such a waiver or variation. If any provision of these Bill of Lading Contract Terms and Conditions shall for any reason be held to be invalid or unenforceable by any court or regulatory body, then the remainder of these Bill of Lading Contract Terms and Conditions shall be unaffected thereby and shall remain in full force and effect.
28. MANDATORY LAW, VENUE, AND JURISDICTION
(A) MANDATORY CHOICE OF LAW. The Merchant agrees that all claims or disputes arising out of or in any way connected to this Bill of Lading or the Carriage shall be determined under the federal law of the United States of America, without regard to its conflict of laws rules or, in the absence of such federal law, then under the laws of the State of Oregon, without regard to its conflict of laws rules.
(B) MANDATORY VENUE. The exclusive and mandatory venue for any of the above claims or disputes shall be the United States District Court for the District of Oregon in Portland, Oregon, to the exclusion of all other courts. If after a filing in the above federal court it were to rule that it lacks subject matter jurisdiction, then the exclusive and mandatory venue for any of the above claims or disputes would become the Multnomah County Circuit Court in Portland, Oregon, to the exclusion of all other courts.
(C) MANDATORY CONSENT AND WAIVER. The Carrier and Merchant agree to irrevocably submit to the personal jurisdiction of the above courts, and thereby waive any jurisdictional, venue, or inconvenient forum objections to such courts.