TERMS AND CONDITIONS OF SERVICE
Rev. A These terms and conditions of service constitute a legally binding contract between the “Company” and the “Customer”. In the event the Company renders services and issues a document containing Terms and Conditions governing such services, the Terms and Conditions set forth in such other documents(s) shall govern those services.
(a) “Company” shall mean SPEEDMARK TRANSPORTATION, INC., its subsidiaries, related companies, agents and/or representatives;
(b) “Customer” shall mean the person for which the Company is rendering service, as well as its agents and/or representatives, including, but not limited to, shippers, importers, exporters, carriers, secured parties, warehousemen, buyers and/or sellers, shipper’s agents, insurers and underwriters, break-bulk agents, consignees, etc. It is the responsibility of the Customer to provide notice and copy(s) of these terms and conditions of service to all such agents or representatives;
(c) “Documentation” shall mean all information received directly or indirectly from Customer, whether in paper or electronic form;
(d) “Ocean Transportation Intermediaries” (“OTI”) shall include an “ocean freight forwarder” and a “non-vessel operating carrier”;
(e) “Third parties” shall include, but not be limited to, the following: “carriers, truckmen, cartmen, lightermen, forwarders, OTIs, customs brokers, agents, warehousemen and others to which the goods are entrusted for transportation, cartage, handling and/or delivery and/or storage or otherwise.”
2. Company as Agent
The Company acts as the “agent” of the Customer for the purpose of performing duties in connection with the entry and release of goods, post entry services, the securing of export licenses, the filing of export documentation on behalf of the Customer and other dealings with Government Agencies: as to all other services, Company acts as an independent contractor.
3. Limitation of Actions
(a) Unless subject to a specific statute or international convention, all claims against the Company for a potential or actual loss, must be made in writing and received by the Company, within ninety (90) days of the event giving rise to claim; the failure to give the Company timely notice shall be a complete defense to any suit or action commenced by Customer.
(b) All suits against Company must be filed and properly served on Company as follows:
(i) For claims arising out of ocean transportation, within one (1) year from the date of the loss;
(ii) For claims arising out of air transportation, within two (2) years from the date of the loss;
(iii) For claims arising out of the preparation and/or submission of an import entry(s), within seventy-five (75) days from the date of liquidation of the entry(s);
(iv) For any and all other claims of any other type, within two (2) years from the date of the loss or damage.
4. No Liability for the Selection or Services of Third Parties and/or Routes.
Unless services are performed by persons or firms engaged pursuant to express written instructions from the Customer, Company shall use reasonable care in its selection of third parties, or in selecting the means, route and procedure to be followed in the handling, transportation, clearance and delivery of the shipment; advice by the Company that a particular person or firm has been selected to render services with respect to the goods, shall not be construed to mean that the Company warrants or represents that such person or firm will render such services nor does Company assume responsibility or liability for any action(s) and/or inaction(s) of such third parties and/or its agents, and shall not be liable for any delay or loss of any kind, which occurs while a shipment is in the custody or control of a third party or the agent of a third party; all claims in connection with the Act of a third party shall be brought solely against such party and/or its agents; in connection with any such claim, the Company shall reasonably cooperate with the Customer, which shall be liable for any charges or costs incurred by the Company.
5. Quotations Not Binding.
Quotations as to fees, rates of duty, freight charges, insurance premiums or other charges given by the Company to the Customer are for informational purposes only and are subject to change without notice; no quotation shall be binding upon the Company unless the Company in writing agrees to undertake the handling or transportation of the shipment at a specific rate or amount set forth in the quotation and payment arrangements are agreed to between the Company and the Customer.
6. Reliance on Information Furnished.
(a) Customer acknowledges that it is required to review all documents and declarations prepared and/or filed with the Customs Service, other Government Agency and/or third parties, and will immediately advise the Company of any errors, discrepancies, incorrect statements, or omissions on any declaration filed on Customer’s behalf;
(b) In preparing and submitting customs entries, export declarations, applications, documentation and/or export data to the United States and/or a third party, the Company relies on the correctness of all documentation, whether in written or electronic format, and all information furnished by Customer; Customer shall use reasonable care to ensure the correctness of all such information and shall indemnify and hold the Company harmless from any and all claims asserted and/or liability or losses suffered by reason of the Customer’s failure to disclose information or any incorrect or false statement by the Customer upon which the Company reasonably relied. The Customer agrees that the Customer has an affirmative non-delegable duty to disclose any and all information required to import, export or enter the goods.
7. Declaring Higher Value to Third Parties.
Third parties to whom the goods are entrusted may limit liability for loss or damage; the Company will request excess valuation coverage only upon specific written instructions from the Customer, which must agree to pay any charges therefor; in the absence of written instructions or the refusal of the third party to agree to a higher declared value, at Company’s discretion, the goods may be tendered to the third party, subject to the terms of the third party’s limitations of liability and/or terms and conditions of service.
Unless requested to do so in writing and confirmed to Customer in writing, Company is under no obligation to procure insurance on Customer’s behalf; in all cases, Customer shall pay all premiums and costs in connection with procuring requested insurance
9. Disclaimers; Limitation of Liability.
(a) Except as specifically set forth herein, Company makes no express or implied warranties in connection with its services;
(b) Subject to (d) below, Customer agrees that in connection with any and all services performed by the Company, the Company shall only be liable for its negligent acts, which are the direct and proximate cause of any injury to Customer, including loss or damage to Customer’s goods, and the Company shall in no event be liable for the acts of third parties;
(c) In connection with all services performed by the Company, Customer may obtain additional liability coverage, up to the actual or declared value of the shipment or transaction, by requesting such coverage and agreeing to make payment therefor, which request must be confirmed in writing by the Company prior to rendering services for the covered transaction(s).
(d) In the absence of additional coverage under (c) above, the Company’s liability shall be limited to the following:
(i) where the claim arises from activities other than those relating to customs brokerage, $50.00 per shipment or transaction; or
(ii) where the claim arises from activities relating to “Customs business,” $50.00 per entry or the amount of brokerage fees paid to Company for the entry, whichever is less;
(e) In no event shall Company be liable or responsible for consequential, indirect, incidental, statutory or punitive damages even if it has been put on notice of the possibility of such damages.
10. Advancing Money.
All charges must be paid by Customer in advance unless the Company agrees in writing to extend credit to Customer; the granting of credit to a Customer in connection with a particular transaction shall not be considered a waiver of this provision by the Company.
11. Indemnification/Hold Harmless.
The Customer agrees to indemnify, defend, and hold the Company harmless from any claims and/or liability arising from the importation or exportation of Customer’s merchandise and/or any conduct of the Customer, which violates any Federal, State and/or other laws, and further agrees to indemnify and hold the Company harmless against any and all liability, loss, damages, costs, claims and/or expenses, including but not limited to reasonable attorneys’ fees, which the Company may hereafter incur, suffer or be required to pay by reason of such claims; in the event that any claim, suit or proceeding is brought against the Company, it shall give notice in writing to the Customer by mail at its address on file with the Company.
12. C.O.D. or Cash Collect Shipments.
Company shall use reasonable care regarding written instructions relating to “Cash/Collect” or “Deliver (C.O.D.)” shipments, bank drafts, cashier’s and/or certified checks, letter(s) of credit and other similar payment documents and/or instructions regarding collection of monies but shall not have liability if the bank or consignee refuses to pay for the shipment.
13. Costs of Collection.
In any dispute involving monies owed to Company, the Company shall be entitled to all costs of collection, including reasonable attorneys’ fees and interest at 15% per annum or the highest rate allowed by law, whichever is less, unless a lower amount is agreed to by Company.
14. General Lien and Right to Sell Customer’s Property.
(a) Company shall have a general and continuing lien on any and all property of Customer coming into Company’s actual or constructive possession or control for monies owed to Company with regard to the shipment on which the lien is claimed, a prior shipment(s) and/or both;
(b) Company shall provide written notice to Customer of its intent to exercise such lien, the exact amount of monies due and owing, as well as any ongoing storage or other charges; Customer shall notify all parties having an interest in its shipment(s) of Company’s rights and/or the exercise of such lien.
(c) Unless, within thirty days of receiving notice of lien, Customer posts cash or letter of credit at sight, or, if the amount due is in dispute, an acceptable bond equal to 110% of the value of the total amount due, in favor of Company, guaranteeing payment of the monies owed, plus all storage charges accrued or to be accrued, Company shall have the right to sell such shipment(s) at public or private sale or auction and any net proceeds remaining thereafter shall be refunded to Customer.
15. No Duty to Maintain Records for Customer.
Customer acknowledges that pursuant to Sections 508 and 509 of the Tariff Act, as amended, (19 USC, 1508 and 1509) it has the duty and is solely liable for maintaining all records required under the Customs and/or other Laws and Regulations of the United States; unless otherwise agreed to in writing, the Company shall only keep such records that it is required to maintain by Statute(s) and/or Regulation(s), but not act as a “recordkeeper” or “recordkeeping agent” for Customer.
16. Obtaining Binding Rulings, Filing Protests, etc.
Unless requested by Customer in writing and agreed to by Company in writing, Company shall be under no obligation to undertake any pre- or post Customs release action, including, but not limited to, obtaining binding rulings, advising of liquidations, filing of petition(s) and/or protests, etc.
17. Preparation and Issuance of Bills of Lading.
Where Company prepares and/or issues a bill of lading, Company shall be under no obligation to specify thereon the number of pieces, packages and/or cartons, etc.; unless specifically requested to do so in writing by Customer or its agent and Customer agrees to pay for same, Company shall rely upon and use the cargo weight supplied by Customer.
18. No Modification or Amendment Unless Written.
These terms and conditions of service may only be modified, altered or amended in writing signed by both Customer and Company; any attempt to unilaterally modify, alter or amend same shall be null and void.
19. Compensation of Company.
The compensation of the Company for its services shall be included with and is in addition to the rates and charges of all carriers and other agencies selected by the Company to transport and deal with the goods and such compensation shall be exclusive of any brokerage, commissions, dividends, or other revenue received by the Company from carriers, insurers and others in connection with the shipment. On ocean exports, upon request, the Company shall provide a detailed breakout of the components of all charges assessed and a true copy of each pertinent document relating to these charges. In any referral for collection or action against the Customer for monies due the Company, upon recovery by the Company, the Customer shall pay the expenses of collection and/or litigation, including a reasonable attorneys’ fees.
In the event any Paragraph(s) and/or portion(s) hereof is found to be invalid and/or unenforceable, then in such event the remainder hereof shall remain in full force and effect.
21. Governing Law; Consent to Jurisdiction and Venue.
These terms and conditions of service and the relationship of the parties shall be construed according to the laws of the State of California without giving consideration to principles of conflict of law.
Customer and Company
(a) irrevocably consent to the jurisdiction of the United States District Court and the State courts of California;
(b) agree that any action relating to the services performed by Company, shall only be brought in said courts;
(c) consent to the exercise of in personam jurisdiction by said courts over it, and
(d) further agree that any action to enforce a judgment may be instituted in any jurisdiction.
IATA International Air Way Bill
The following Conditions of Contract and Notices be included on an Air Waybill.
I. NOTICE APPEARING ON THE FACE OF THE AIR WAYBILL
It is agreed that the goods described herein are accepted in apparent good order and condition (except as noted) for carriage SUBJECT TO THE CONDITIONS OF CONTRACT ON THE REVERSE HEREOF. ALL GOODS MAY BE CARRIED BY ANY OTHER MEANS INCLUDING ROAD OR ANY OTHER CARRIER UNLESS SPECIFIC CONTRARY INSTRUCTIONS ARE GIVEN HEREON BY THE SHIPPER, AND SHIPPER AGREES THAT THE SHIPMENT MAY BE CARRIED VIA INTERMEDIATE STOPPING PLACES WHICH THE CARRIER DEEMS APPROPRIATE. THE SHIPPER’S ATTENTION IS DRAWN TO THE NOTICE CONCERNING CARRIER’S LIMITATION OF LIABILITY. Shipper may increase such limitation of liability by declaring a higher value for carriage and paying a supplemental charge if required.
II. CONDITIONS OF CONTRACT ON REVERSE SIDE OF THE AIR WAYBILL NOTICE CONCERNING CARRIER’S LIMITATION OF LIABILITY
If the carriage involves an ultimate destination or stop in a country other than the country of departure, the Montreal Convention or the Warsaw Convention may be applicable to the liability of the Carrier in respect of loss of, damage or delay to cargo. Carrier’s limitation of liability in accordance with those Conventions shall be as set forth in subparagraph 4 unless a higher value is declared.
CONDITIONS OF CONTRACT
1. In this contract and the Notices appearing hereon:
CARRIER includes the air carrier issuing this air waybill and all carriers that carry or undertake to carry the cargo or perform any other services related to such carriage.
SPECIAL DRAWING RIGHT (SDR) is a Special Drawing Right as defined by the International Monetary Fund.
WARSAW CONVENTION means whichever of the following instruments is applicable to the contract of carriage:
the Convention for the Unification of Certain Rules Relating to International Carriage by Air, signed at Warsaw, 12 October 1929;
that Convention as amended at The Hague on 28 September 1955;
that Convention as amended at The Hague 1955 and by Montreal Protocol No. 1, 2, or 4 (1975) as the case may be.
MONTREAL CONVENTION means the Convention for the Unification of Certain Rules for International Carriage by Air, done at Montreal on 28 May 1999.
2.2.1 Carriage is subject to the rules relating to liability established by the Warsaw Convention or the Montreal Convention unless such carriage is not “international carriage” as defined by the applicable Conventions.
2.2 To the extent not in conflict with the foregoing, carriage and other related services performed by each Carrier are subject to:
2.2.1 applicable laws and government regulations;
2.2.2 provisions contained in the air waybill, Carrier’s conditions of carriage and related rules, regulations, and timetables (but not the times of departure and arrival stated therein) and applicable tariffs of such Carrier, which are made part hereof, and which may be inspected at any airports or other cargo sales offices from which it operates regular services. When carriage is to/from the USA, the shipper and the consignee are entitled, upon request, to receive a free copy of the Carrier’s conditions of carriage. The Carrier’s conditions of carriage include, but are not limited to:
22.214.171.124 limits on the Carrier’s liability for loss, damage or delay of goods, including fragile or perishable goods;
126.96.36.199 claims restrictions, including time periods within which shippers or consignees must file a claim or bring an action against the Carrier for its acts or omissions, or those of its agents;
188.8.131.52 rights, if any, of the Carrier to change the terms of the contract;
184.108.40.206 rules about Carrier’s right to refuse to carry;
220.127.116.11 rights of the Carrier and limitations concerning delay or failure to perform service, including schedule changes, substitution of alternate Carrier or aircraft and rerouting.
3. The agreed stopping places (which may be altered by Carrier in case of necessity) are those places, except the place of departure and place of destination, set forth on the face hereof or shown in Carrier’s timetables as scheduled stopping places for the route. Carriage to be performed hereunder by several successive Carriers is regarded as a single operation.
4. For carriage to which the Montreal Convention does not apply, Carrier’s liability limitation for cargo lost, damaged or delayed shall be 19 SDRs per kilogram unless a greater per kilogram monetary limit is provided in any applicable Convention or in Carrier’s tariffs or general conditions of carriage.
5./5.1 Except when the Carrier has extended credit to the consignee without the written consent of the shipper, the shipper guarantees payment of all charges for the carriage due in accordance with Carrier’s tariff, conditions of carriage and related regulations, applicable laws (including national laws implementing the Warsaw Convention and the Montreal Convention), government regulations, orders and requirements.
5.2 When no part of the consignment is delivered, a claim with respect to such consignment will be considered even though transportation charges thereon are unpaid.
6./6.1 For cargo accepted for carriage, the Warsaw Convention and the Montreal Convention permit shipper to increase the limitation of liability by declaring a higher value for carriage and paying a supplemental charge if required.
6.2 In carriage to which neither the Warsaw Convention nor the Montreal Convention applies Carrier shall, in accordance with the procedures set forth in its general conditions of carriage and applicable tariffs, permit shipper to increase the limitation of liability by declaring a higher value for carriage and paying a supplemental charge if so required.
7./7.1 In cases of loss of, damage or delay to part of the cargo, the weight to be taken into account in determining Carrier’s limit of liability shall be only the weight of the package or packages concerned.
7.2 Notwithstanding any other provisions, for “foreign air transportation” as defined by the U.S. Transportation Code:
7.2.1 in the case of loss of, damage or delay to a shipment, the weight to be used in determining Carrier’s limit of liability shall be the weight which is used to determine the charge for carriage of such shipment; and
7.2.2 in the case of loss of, damage or delay to a part of a shipment, the shipment weight in
7.2.1 shall be prorated to the packages covered by the same air waybill whose value is affected by the loss, damage or delay. The weight applicable in the case of loss or damage to one or more articles in a package shall be the weight of the entire package.
8. Any exclusion or limitation of liability applicable to Carrier shall apply to Carrier’s agents, employees, and representatives and to any person whose aircraft or equipment is used by Carrier for carriage and such person’s agents, employees and representatives.
9. Carrier undertakes to complete the carriage with reasonable dispatch. Where permitted by applicable laws, tariffs and government regulations, Carrier may use alternative carriers, aircraft or modes of transport without notice but with due regard to the interests of the shipper. Carrier is authorized by the shipper to select the routing and all intermediate stopping places that it deems appropriate or to change or deviate from the routing shown on the face hereof.
10. Receipt by the person entitled to delivery of the cargo without complaint shall be prima facie evidence that the cargo has been delivered in good condition and in accordance with the contract of carriage.
10.1 In the case of loss of, damage or delay to cargo a written complaint must be made to Carrier by the person entitled to delivery. Such complaint must be made:
10.1.1 in the case of damage to the cargo, immediately after discovery of the damage and at the latest within 14 days from the date of receipt of the cargo;
10.1.2 in the case of delay, within 21 days from the date on which the cargo was placed at the disposal of the person entitled to delivery.
10.1.3 in the case of non-delivery of the cargo, within 120 days from the date of issue of the air waybill, or if an air waybill has not been issued, within 120 days from the date of receipt of the cargo for transportation by the Carrier. 10.2 Such complaint may be made to the Carrier whose air waybill was used, or to the first Carrier or to the last Carrier or to the Carrier, which performed the carriage during which the loss, damage or delay took place.
10.3 Unless a written complaint is made within the time limits specified in 10.1 no action may be brought against Carrier.
10.4 Any rights to damages against Carrier shall be extinguished unless an action is brought within two years from the date of arrival at the destination, or from the date on which the aircraft ought to have arrived, or from the date on which the carriage stopped.
11. Shipper shall comply with all applicable laws and government regulations of any country to or from which the cargo may be carried, including those relating to the packing, carriage or delivery of the cargo, and shall furnish such information and attach such documents to the air waybill as may be necessary to comply with such laws and regulations. Carrier is not liable to shipper and shipper shall indemnify Carrier for loss or expense due to shipper’s failure to comply with this provision.
12. No agent, employee or representative of Carrier has authority to alter, modify or waive any provisions of this contract.
WAREHOUSE RECEIPT TERMS AND CONDITIONS
D E F I N I T I O N S : The terms “the warehouseman” and “the warehouse company” mean SPEEDMARK TRANSPORTATION, INC. . The term “depositor” means the shipper, consignee, owner of the goods or its agents, including, but not limited to, persons who physically tender the goods to the warehouseman at the warehouseman’s premises, motor carriers, motor freight brokers and draymen and/or any entity that places or maintains a chassis/trailer pool at the warehouseman’s facility identified in this warehouse receipt. The term “equipment” means any chassis, container, trailer, or tractor. The term “storage” means the whole of the operations and services undertaken by the warehouseman with respect to the goods. The term “goods” means the merchandise, cargo, property, or freight tendered for storage by the depositor and identified on the face of this warehouse receipt. The term “yard storage” means the placement of containers or trailers, with or without tractors, empty or loaded with merchandise, cargo, property, or freight, secured or unsecured, in the yard of the warehouseman for the benefit of the depositor and/or the depositor’s goods.
ACCEPTANCE – Sec. 1
(a) This contract and/or rate quotation, including accessorial charges endorsed on or attached hereto, must be accepted prior to tender of the goods to the warehouseman by signature of the depositor on the reverse side of the contract. In the absence of written acceptance, the act of tendering goods described herein for storage or other services by the warehouseman shall constitute such acceptance by the depositor.
(b)In the event that goods tendered for storage or other services do not conform to the description contained herein, or conforming goods are tendered after 30 days from the proposal date without prior written acceptance by the depositor as provided in sub-paragraph (a) of this section, the warehouseman may refuse to accept such goods. If the warehouseman accepts such goods, the depositor agrees to rates and charges as may be assigned and invoiced by the warehouseman and to all terms of this contract.
(c) Depositor agrees and warrants that the terms and conditions of this warehouse receipt shall apply to any and all instances of future storage by the depositor where the warehouseman has issued no warehouse receipt.
SHIPPING – Sec. 2
The depositor shall not designate the warehouseman to be the consignee for any goods under any bill of lading, waybill, air waybill, or any other transportation contract. If, in violation of this agreement, goods are shipped to the warehouseman as named consignee, the depositor agrees to notify carrier in writing prior to such shipment, with copy of such notice to the warehouseman, that warehouseman named as consignee is a warehouseman and has no beneficial title or interest in such goods and the depositor further agrees to indemnify and hold harmless the warehouseman from any and all claims for unpaid transportation charges, including undercharges, demurrage, detention or charges of any nature, in connection with goods so shipped. The depositor further agrees that if it fails to notify carrier as required by the preceding sentence, the warehouseman shall have the right to refuse such goods and shall not be liable or responsible for any loss, injury or damage of any nature to, or related to, such goods.
TENDER FOR STORAGE – Sec. 3
All goods shall be delivered at the warehouse properly marked and packaged for handling. At the time of such delivery, or prior thereto, the depositor shall furnish to the warehouseman a manifest showing marks, brands, or sizes to be kept and accounted for separately, and the class of storage and other services desired.
STORAGE PERIOD AND CHARGES – Sec. 4
(a)All charges for storage are per package or other agreed unit, per month.
(b)Storage charges commence upon the date that warehouseman accepts care, custody and control of the goods, regardless of the unloading date or the date of issue of a warehouse receipt.
(c)Except as provided in sub-paragraph (d) of this section, a full month’s storage charge will apply on all goods received between the first and the fifteenth, inclusive, of a calendar month; one-half month’s storage charge will apply on all goods received between the sixteenth and the last day, inclusive, of a calendar month, and a full month’s storage charge will apply to all goods in storage on the first day of the next and succeeding calendar months. All storage charges are due and payable on the first day of storage for the initial month and thereafter on the first day of the calendar month.
(d)When mutually agreed by the warehouseman and the depositor, a storage month shall extend from a date in one calendar month to, but not including, the same date of the next and all succeeding months. All storage charges are due and payable on the first day of the storage month.
TRANSFER, TERMINATION OF STORAGE, REMOVAL OF GOODS AND LIEN BY WAREHOUSEMAN – Sec. 5
(a)Instructions to the warehouseman to transfer goods are not effective until delivered to and accepted by the warehouseman, and all charges up to the time transfer is made are chargeable to the depositor of record. If a transfer involves rehandling the goods, such rehandling will be subject to a charge. When goods in storage are transferred from one party to another through issuance of a new warehouse receipt, a new storage date is established on the date of transfer.
(b)The warehouseman reserves the right to move, at his expense, fourteen days after notice is sent by certified or registered mail to the depositor of record or to the last known holder of the warehouse receipt, any goods in storage from the warehouse in which they may be stored to any other of his warehouses. But if such depositor or holder takes delivery of his goods in lieu of transfer, no storage charge shall be made for the current storage month. The warehouseman will store the goods at, and may without notice move the goods within and between, any one or more of the warehouse buildings that comprise the warehouse complex identified on the front of this warehouse receipt.
(c)The warehouseman may, upon written notice to the depositor of record and any other person known by the warehouseman to claim an interest in the goods, require the removal of any goods by the end of the next succeeding storage month. Such notice shall be given to the last known place of business or residence of the person to be notified. If goods are not removed before the end of the next succeeding storage month, the warehouseman may sell them in accordance with applicable law.
(d)If the warehouseman in good faith believes that the goods are about to deteriorate or decline in value to less than the amount of the warehouseman’s lien before the end of the next succeeding storage month, the warehouseman may specify in the notification any reasonable shorter time for removal of the goods and in case the goods are not removed, may sell them at public sale held one week after a single advertisement or posting as provided by law.
(e)If, as a result of a quality or condition of the goods of which the warehouseman had no notice at the time of deposit, the goods are a hazard to other property or to the warehouse or to any persons, the warehouseman may sell the goods at public or private sale without advertisement on reasonable notification to all persons known to claim an interest in the goods. If the warehouseman after a reasonable effort is unable to sell the goods, he may dispose of them in any lawful manner and shall incur no liability by reason of such disposition. Pending such disposition, sale, or return of the goods, the warehouseman may remove the goods from the warehouse and shall incur no liability by reason of such removal.
(f)The warehouseman claims a lien for all lawful charges for storage and preservation of the goods and/or equipment; also, for money advanced, interest, insurance, transportation, labor, weighing, cooper ing and other charges and expenses in relation to such goods, and for the balance on any other accounts that may be due. The warehouseman also claims a lien under maritime law, if at any time these goods were subject to the SPEEDMARK TRANSPORTATION, INC. bill of lading, and SPEEDMARK TRANSPORTATION, INC.’s invoice “Terms & Conditions of Service.” The warehouseman reserves the right to exercise its lien rights under the terms of any applicable law and/or agreement between the depositor and the warehouseman.
(G)THE GOODS COVERED BY THIS WAREHOUSE RECEIPT HAVE NOT BEEN INSURED BY THE WAREHOUSEMAN FOR THE BENEFIT OF THE DEPOSITOR AGAINST FIRE OR ANY OTHER CASUALTY. PROCUREMENT OF SUCH INSURANCE IS THE SOLE RESPONSIBILITY OF THE DEPOSITOR, AT THE DEPOSITOR’S SOLE DISCRETION AND EXPENSE.
HANDLING – Sec. 6
(a)The handling charge covers the ordinary labor involved in receiving goods at the warehouse door, placing goods in storage, and returning goods to the warehouse door. Handling charges are due and payable on receipt of goods.
(b)Unless otherwise agreed, labor for unloading and loading goods will be subject to a charge. Additional expenses incurred by the warehouseman in receiving and handling damaged goods, and additional expenses incurred in unloading from or loading into cars or other vehicles not at the warehouse door will be charged to the depositor.
(c)Labor and materials used in loading rail cars or other vehicles are chargeable to the depositor.
(d)When goods are ordered out in quantities less than those in which received, the warehouseman may make an additional charge for each order or each item of an order.
(e)The warehouseman shall not be liable for demurrage or detention, delays in unloading inbound cars, trailers, or other containers, or delays in obtaining and loading cars, trailers, or other containers for outbound shipment unless the warehouseman has failed to exercise reasonable care.
DELIVERY REQUIREMENTS – Sec. 7
(a)No goods shall be delivered or transferred except upon receipt by the warehouseman of complete written instructions. Written instructions shall include, but are not limited to, facsimile transmissions, EDI, e-mail, or similar communications, provided the warehouseman has no liability when relying on the information contained in the communication as received. However, when no warehouse receipt is outstanding, goods may be delivered upon instruction by telephone, in accordance with a prior written authorization, but the warehouseman shall not be responsible for loss or error occasioned thereby.
(b)When goods are ordered out, a reasonable time shall be given the warehouseman to carry out instructions, and if he is unable to do so because of acts of God, war, public enemies, seizure under legal process, strikes, lockouts, riots and civil commotions, or any reason beyond the warehouseman’s control, or because of the loss or destruction of goods for which warehouseman is not liable, or because of any other excuse or justification provided by law, the warehouseman shall not be liable for failure to carry out such instructions and goods remaining in storage will continue to be subject to regular storage charges.
EXTRA SERVICES/SPECIAL SERVICES – Sec. 8
(a)Warehouse labor required for services other than ordinary handling and storage will be charged to the depositor.
(b)Special services requested by depositor including, but not limited to, compiling of special stock statements, reporting marked weights, serial numbers or other data from packages, physical checking of goods, and handling transit billing will be subject to a charge.
(c)Dunnage, bracing, packing materials or other special supplies may be provided to the depositor at a charge in addition to the warehouseman’s cost.
(d)By prior arrangement, goods may be received or delivered other than during usual business hours, subject to a charge.
(e)Communication expenses, including postage, teletype, telegram, or telephone will be charged to the depositor if such expenses concern more than normal inventory reporting or if, at the request of the depositor, communications are made by other than regular United States mail.
BONDED STORAGE – Sec. 9
(a)A charge in addition to regular rates will be made for merchandise in bond.
(b)Where a warehouse receipt covers goods in U.S. Customs bond, such receipt shall be void upon the termination of the storage period fixed by law.
MINIMUM CHARGES – Sec. 10
(a)Goods are subject to a minimum handling charge per lot and a minimum storage charge per lot per month. When a warehouse receipt covers more than one lot or when a lot is in assortment, the goods will be subject to a minimum charge per mark, brand, or variety.
(b)A minimum monthly charge to one account for storage and/or handling will be made. This charge will apply also to each account when one customer has several accounts, each requiring separate records and billing.
LIABILITY AND LIMITATION OF DAMAGES – Sec. 11
(a)THE WAREHOUSEMAN SHALL NOT BE LIABLE FOR ANY LOSS OR INJURY TO GOODS STORED, HOWEVER CAUSED, UNLESS SUCH LOSS OR INJURY RESULTED FROM THE FAILURE BY THE WAREHOUSEMAN TO EXERCISE REASONABLE CARE AND THE WAREHOUSEMAN IS NOT LIABLE FOR DAMAGES THAT COULD NOT HAVE BEEN AVOIDED BY THE EXERCISE OF SUCH CARE.
(b)GOODS ARE NOT INSURED BY THE WAREHOUSEMAN AGAINST LOSS OR INJURY, HOWEVER CAUSED.
(c)THE DEPOSITOR DECLARES THAT DAMAGES ARE LIMITED TO $.50 PER LB., PROVIDED, HOWEVER, THAT SUCH LIABILITY MAY AT THE TIME OF ACCEPTANCE OF THIS CONTRACT , AS PROVIDED IN SECTION 1, BE INCREASED UPON DEPOSITOR’S WRITTEN REQUEST ON PART OR ALL OF THE GOODS HEREUNDER IN WHICH EVENT AN ADDITIONAL MONTHLY CHARGE WILL BE MADE BASED UPON SUCH INCREASED VALUATION.
(d)WHERE LOSS OR INJURY OCCURS TO STORED GOODS FOR WHICH THE WAREHOUSEMAN IS NOT LIABLE, THE DEPOSITOR SHALL BE RESPONSIBLE FOR THE COST OF REMOVING AND DISPOSING OF SUCH GOODS AND THE COST OF ANY ENVIRONMENTAL CLEANUP AND SITE REMEDIATION RESULTING FROM THE LOSS OR INJURY TO THE GOODS.
ARBITRATION – Sec. 12
(a)The warehouseman and depositor, on behalf of itself and its heirs, assigns, and/or subrogees, agree that any dispute arising under this warehouse receipt shall be submitted to the American Arbitration Association, under its rules then in force. The parties agree to be bound by the arbitration decision and judgment upon such decision may be entered in any federal or state court of competent jurisdiction in the County of Los Angeles. Any arbitration shall be held in the City of Los Angeles.
(b)The depositor expressly agrees that the time for commencement of such arbitration proceedings by the depositor against the warehouseman shall be limited to 9 months after date of delivery by the warehouseman or within 9 months after the depositor of record or the last known holder of a warehouse receipt is notified that loss or injury to part or all of the goods has occurred, whichever time is shorter—all proceedings commenced thereafter being time-barred, however founded.
NOTICE OF CLAIM AND COMMENCEMENT OF ARBITRATION – Sec. 13
(a)Claims by the depositor and all other persons must be presented in writing to the warehouseman within a reasonable time, and in no event longer than either 60 days after delivery of the goods by the warehouseman or 60 days after the depositor of record or the last known holder of a warehouse receipt is notified by the warehouseman that loss or injury to part or all of the goods has occurred, whichever time is shorter.
(b)Neither the depositor nor any other person may commence an arbitration against the warehouseman for loss or injury to the goods stored unless timely written claim has been given as provided in sub-paragraph (a) of this section.
(c)When goods have not been delivered, notice may be given of known loss or injury to the goods by mailing of a registered or certified letter to the depositor of record or to the last known holder of a warehouse receipt. Time limitations for presentation of claim in writing and commencing an arbitration after notice begin on the date of mailing of such notice by the warehouseman.
NO LIABILITY FOR CONSEQUENTIAL DAMAGES – Sec. 14
The warehouseman shall not be liable for any loss of profit or special, indirect, or consequential damages of any kind.
LIABILITY FOR MIS-SHIPMENT – Sec. 15
If the warehouseman negligently mis-ships goods, the warehouseman shall pay the reasonable transportation charges incurred to return the mis-shipped goods to the warehouse. If the consignee fails to return the goods, the warehouseman’s maximum liability shall be for the lost or damaged goods, as specified in Section 11 above, and the warehouseman shall have no liability for damages due to the consignee’s acceptance or use of the goods, whether such goods be those of the depositor or another.
MYSTERIOUS DISAPPEARANCE – Sec. 16
The warehouseman shall not be liable for loss of goods due to inventory shortage or shortage, or unexplained or mysterious disappearance of goods, unless the depositor establishes that such loss occurred because of the warehouseman’s failure to exercise the care required of warehouseman under Section 11 above. Any presumption of conversion imposed by law shall not apply to such loss, and a claim by the depositor of conversion must be established by affirmative evidence that the warehouseman converted the goods to the warehouseman’s own use.
RIGHT TO STORE GOODS – Sec. 17
The depositor represents and warrants that the depositor is lawfully possessed of the goods and has the right and authority to store them with the warehouseman. The depositor agrees to indemnify and hold harmless the warehouseman from all loss, cost and expense, including reasonable attorneys’ fees that warehouseman pays or incurs as a result of any dispute or litigation, whether instituted by the warehouseman or others, respecting depositor’s right, title or interest in the goods. Such amounts shall be charges in relation to the goods and subject to the warehouseman’s lien.
ACCURATE INFORMATION – Sec. 18
The depositor will provide the warehouseman with information concerning the stored goods that is accurate, complete, and sufficient to allow the warehouseman to comply with all laws and regulations concerning the storage, handling, and transporting of the goods. The depositor will indemnify and hold the warehouseman harmless from all loss, cost, penalty and expense, including reasonable attorneys’ fees that the warehouseman pays or incurs as a result of depositor failing to fully discharge this obligation.
SEVERABILITY AND WAIVER – Sec. 19
(a)If any provision of this warehouse receipt, or any application thereof, should be construed or held to be void, invalid or unenforceable, by order, decree, or judgment of a court of competent jurisdiction, the remaining provisions of this warehouse receipt shall not be affected thereby but shall remain in full force and effect.
(b)The warehouseman’s failure to require strict compliance with any provision of the warehouse receipt shall not constitute a waiver or estoppel to later demand strict compliance with that or any other provision(s) of this warehouse receipt.
(c)The provisions of this warehouse receipt shall be binding upon the depositor’s heirs, executors, successors and assigns. Those provisions contain the sole agreement governing goods stored with the warehouseman, and they cannot be modified except by a writing signed by the warehouseman.
YARD STORAGE – Sec. 20
The liability of the warehouseman for any yard storage of containers or trailers, whether loaded or empty, secured or unsecured, shall be subject to Sections 11, 12, and 13 of this warehouse receipt. By tendering containers or trailers to the warehouseman for yard storage, the depositor agrees and warrants that the warehouseman’s premises are deemed to have a reasonable level of security for the yard storage.
CONSTRUCTION OF TERMS AND VENUE – Sec. 21
The terms and conditions of this warehouse receipt shall be construed and interpreted under the laws of the State of California, except when a law of the United States, convention, treaty, or other law is otherwise compulsorily applicable.
NON-NEGOTIABLE OCEAN BILL OF LADING TERMS AND CONDITIONS OF CARRIAGE
“Carrier” means Speedmark Transportation, Inc., on whose behalf this Bill of Lading has been issued as indicated on the face hereof, whether acting as carrier or bailee.
“Carriage” means the whole or any part of the operations and services described by this document as undertaken by or on behalf of the Carrier in respect of the Goods.
“Container” means any container, trailer, transportable tank, flat rack, pallet, skid, drum or any similar article of transport.
“Dangerous or Hazardous Goods” means Goods classified, designated or described as dangerous by any statute, regulation, or the Dangerous Goods code issued by the International Maritime Organization and also includes any Goods which are or may be unstable or present a hazard or danger to the conveyance in which they are carried or to other property, goods or any person, whether or not the Goods are identified as dangerous by any authority.
“Goods” means any and all property (cargo) described on the face hereof or on an attached or referenced manifest, to specifically include live animals as well as containers, pallets or similar articles of transport or packaging not supplied by the Carrier, irrespective of whether such cargo is to be or is carried on or under deck.
“Merchant” means and includes the shipper, consignee, receiver, holder of this document, owner of the Goods, person entitled to the possession of the Goods, and any person, corporation, company or other legal entity having any interest in the Goods, or anyone acting on behalf of any such person or entity.
“Multi-Modal Transportation” means and refers to Carriage of Goods under this Bill of Lading which includes both Carriage by a Vessel and Carriage by one or more inland (surface) motor and/or rail carriers.
“Subcontractor” shall include all direct and indirect subcontractors of Carrier and their respective subcontractors, servants and agents, including vessel operators, motor and rail carriers, warehousemen, stevedores, and container freight stations.
“Vessel” means and includes the vessel set forth on the front page hereof, as well as any other vessel, ship, craft, lighter or other water conveyance used to perform the Carriage or upon which the Goods are loaded for any purpose.
These Terms and Conditions for Carriage shall apply to all modes of Carriage utilized to transport the Goods, and the Carrier’s responsibility to the Merchant for the Goods shall terminate at the time of delivery under Clause 11. These Terms and Conditions of Carriage shall apply to all claims against the Carrier relating to the performance of the Carriage, whether the claim is founded in contract or in tort, including, but not limited to, claims for indemnity and contribution. In agreeing and accepting the terms of this document, the shipper acts for itself and also each Merchant and warrants it has authority of each Merchant to bind each Merchant to the terms of this document.
2. ENTIRE AGREEMENT AND SEVERABILITY:
2.1 In addition to the terms herein, Carriage of Goods is also subject to all of the terms and provisions of Carrier’s tariffs on file or published or required to be filed or published, as the case may be, with or by the Federal Maritime Commission or other regulatory body that may govern particular portions of the Carriage. The relevant provisions of the applicable tariff(s) are publicly accessible and/or shall be provided by Carrier or its representatives upon request. In case of inconsistency between this document and any applicable tariff(s), this document shall prevail except as otherwise required by law.
2.2 This document and the incorporated tariff terms constitute the entire agreement of the parties. No servant or agent of Carrier shall have the power to terminate, waive or vary any term of this document unless such termination, waiver or variation is in writing and is specifically authorized or ratified in a writing signed by Carrier.
2.3 If any part of this document is rendered invalid or unenforceable, such invalidity or unenforceability shall attach only to the offending provision or part thereof and the remaining part of such provision and all other provisions herein shall continue in full force and effect.
3. NEGOTIABILITY OF DOCUMENT AND RELEASE OF GOODS:
3.1 This Bill of Lading shall be a negotiable document of title only if consigned “to order,” or order of a named consignee. In all other circumstances, or in the event of ambiguity, this Bill of Lading shall be presumed to be non-negotiable.
3.2 If negotiable, an original bill of lading, properly endorsed, is required to be surrendered when the Goods are delivered. If the person receiving the Goods wishes to take delivery without surrender of an original endorsed bill of lading, and if Carrier agrees in its exclusive discretion to deliver the Goods without such surrender, the person receiving the Goods agrees to fully indemnify Carrier against all damages and liabilities which Carrier may incur as a result of delivering the Goods without such surrender. Upon surrender of one original bill of lading, all other original bills of lading will be immediately void. Negotiable bills of lading will in all events become void as a document of title six months after date of issuance, provided the terms of this document shall still apply and Carrier shall continue to be entitled to all rights and limitations of liability herein.
3.3 If this Bill of Lading is non-negotiable, delivery of the Goods may be made, at the sole discretion of the Carrier, to the nominated consignee without surrender of an original counterpart; such delivery shall constitute due delivery hereunder. Carrier may nevertheless in its exclusive discretion, but shall not be required to, demand surrender of an original endorsed non-negotiable bill of lading before release of the Goods.
3.4 Whether a negotiable bill of lading or a non-negotiable bill of lading, the person receiving the Goods in any and all events warrants their entitlement to such receipt and agrees to indemnify Carrier against all damages and liabilities which Carrier may incur as a result of releasing the Goods.
4. CARRIER’S SUBCONTRACTORS, SERVANTS AND AGENTS:
4.1 All or part of the Carriage may be performed by subcontractors, servants and agents of the Carrier without prior notice of the same to Merchant. Carrier may freely engage such third parties in accordance with their applicable terms and conditions, which shall in all events be binding upon Merchant.
4.2 If the Goods are lost, damaged, or delayed on the sea portion of the Carriage, and the vessel owner or demise charterer seeks to limit its liability pursuant to 46 U.S. Code §§ 181 et seq. or pursuant to a similar limitation regime of another nation, claims or suits may only be brought against that Vessel owner or demise charterer. In all other circumstances, claims or suits may only be brought against Carrier. In the event a claim or suit is nevertheless brought against any Subcontractor, servant or agent of Carrier, that party is entitled to all exceptions, exemptions, defenses, immunities, limitations of liability, privileges and conditions granted or provided to Carrier under this document as a third party beneficiary. The aggregate of the amounts recoverable from the Carrier, its subcontractors, servants and agents shall in no event exceed Carrier’s liability limit as provided by the terms and conditions of this contract for carriage.
5. DESCRIPTION AND COMPLIANCE OF GOODS, SOLAS WEIGHT CERTIFICATION, INSPECTION OF GOODS:
5.1 This document constitutes a receipt only for the external condition of the Goods visible to Carrier.
5.2 Merchant warrants that, unless special carriage is requested and paid for, the Goods are fit to be carried in an unventilated, unheated, unrefrigerated Container or other stowage space and withstand condensation / container “sweat.”
5.3 Merchant warrants the description and marks, numbers, quantities, and weight of the Goods, as well as designation of Merchants, are accurate and complete and comply with all regulations. Merchant is required to provide verified weights obtained on calibrated, certified equipment of all cargo tendered. Merchant agrees Carrier is entitled to rely on the accuracy of such weight and to counter-sign or endorse such weight as Carrier’s own certified weight to the vessel operator. Merchant agrees to indemnify and hold Carrier harmless from any and all claims, losses, penalties or other costs resulting from incorrect verification of the weight provided by Merchant or its agent or contractor on which the Carrier relies.
5.4 Merchant has the exclusive obligation to ensure, and hereby warrants, the Goods and Merchants are compliant with all relevant authorities and are legally eligible for Carriage in all respects under all relevant governing laws and regulations.
5.5 Without any obligation to do so, the Carrier shall have unrestricted liberty to inspect the packaging and contents of the Goods for any purpose and to inquire and verify the accuracy or sufficiency of information provided and to seek assurances. Any discrepancies may result in shipment delay, cancellation and/or additional charges assessed by the Carrier. The Carrier may disclose and report, whether on a mandatory or voluntary basis, any and all regulatory non-compliance to authorities; such authorities may exercise forfeiture and/or assess penalties against Merchant.
6. DANGEROUS OR HAZARDOUS GOODS:
6.1 Carrier may accept or reject at its exclusive discretion Dangerous or Hazardous Goods offered for transportation.
6.2 Merchant shall comply with applicable law relating to the Carriage of Dangerous or Hazardous Goods and shall inform Carrier in writing prior to tender of the Goods the exact nature of the danger or hazard and indicate the precautions to be taken. If Merchant fails to provide such information and if the Goods are deemed to be a hazard to life or property, the Goods may at any place be unloaded, destroyed or rendered harmless without compensation. The burden of proving Carrier knew and accepted the exact nature of the danger and hazard constituted shall be upon Merchant.
6.3 If the Goods become a danger to life or property, they may in like manner be unloaded or landed at any place or destroyed or rendered harmless. If such danger was not caused by the fault and neglect of the Carrier, it shall have no liability and the Merchant shall indemnify the Carrier of all damages and liabilities arising therefrom.
7. LIMITED COGSA CLAUSE PARAMOUNT:
Whether or not applicable by force of law, and except as specifically provided in this Clause 7 and in Clause 8.1, the United States Carriage of Goods by Sea Act (COGSA), 46 U.S.C. § 30701 (Note), is incorporated by reference as terms of this contract for Carriage whether the Goods are carried on or under deck, whether or not the Carriage is in U.S., foreign trade, between U.S. ports, or between non-U.S. ports, before the Goods are loaded on and/or after the Goods are discharged from the Vessel, and throughout the entire time the Goods are in the custody or are the responsibility of Carrier in performing the Carriage hereunder, whether acting as carrier or bailee. Nothing contained herein shall be deemed a surrender by Carrier of any of its rights or immunities or an increase of any of its responsibilities under COGSA. Notwithstanding the foregoing, the provisions of 46 U.S.C. §§ 30701 (3)(8) and (4)(5) of COGSA addressing minimum liability of the Carrier are excluded from incorporation by reference and shall only apply when required by force of law.
8. CARRIER LIABILITY:
8.1 Unless the shipper declares a higher value as provided at Clause 8.5, Carrier’s liability shall be limited as follows: (a) for loss or damage occurring during any portion of the Carriage governed by COGSA by force of law, Carrier’s liability shall be limited to a maximum of $500 per package of the portion of Goods adversely affected, or for Goods not shipped in packages, per customary freight unit; (b) for loss or damage occurring during any portion where COGSA is otherwise incorporated herein but is not applicable by force of law, to include periods of domestic water carriage and inland (surface) transportation, Carrier’s liability shall be limited to a maximum of the lesser of $500 per Package or $0.50 per pound of the portion of Goods adversely affected; (c) for error or omissions arising from agency (non-carrier) services ancillary to the Carriage, Carrier’s liability is limited to independent negligence and to $50 per entry or shipment; (d) in the event of loss or damage subject to mandatory applicable law which invalidates Carrier’s otherwise applicable maximum contractual liability hereunder, Carrier’s liability shall be limited to the lowest amount permissible by / in accordance with such applicable law.
8.2 In any and all events, nothing in this document shall constitute a surrender of any liability immunity or limitation inuring to Carrier’s benefit under any applicable law, even if such immunity or limitation by law results in a liability of Carrier less than the otherwise applicable maximum contractual liability hereunder.
8.3 For purposes of Carrier’s liability, when it cannot be ascertained at what stage of Multi-Modal Transportation the loss or damage occurred, it shall be presumed to have occurred during periods of inland (surface) transportation, where and to the fullest extent permissible under applicable law.
8.4 For purposes of Carrier’s liability, and for good and valuable consideration to Merchant in the form of freight rate, the package or customary freight unit shall be the object and unit referred to in the “No. of Pkgs.” column on the face of this document and in the absence of designation in such column shall be deemed the Container.
8.5 The Merchant may avoid the liability limitations hereunder, or any other liability limitation imposed by applicable law, by unequivocally declaring the value of the Goods for liability purposes to Carrier in writing prior to Carriage and paying Carrier an ad valorem freight rate. Such declared value shall only be binding upon Carrier to the extent also memorialized and indicated on the face of this document. Carrier’s knowledge of the value of Goods and/or Merchant’s declaration of the value of the Goods to Carrier in regular course or for any other purpose, such as for Customs purposes, shall in no event constitute a declared value of the Goods to Carrier for liability purposes.
8.6 In no event shall Carrier be liable for special, incidental or consequential damages, lost profits or revenues or loss of merchantability of the Goods, whether or not Carrier had notice or knowledge that such may occur.
8.7 In no event shall Carrier’s aggregate liability exceed the actual value of any loss or damage or the replacement value of the Goods adversely affected, whichever is lower.
8.8 Carrier does not guarantee delivery of the Goods at the port of discharge or place of delivery at any particular time or to meet any particular market or use. Carrier shall have no liability for any direct or consequential damages arising from delay or failure to notify Merchant as to the actual arrival and/or delivery date of the Goods. In the event Carrier is nevertheless for any reason found liable for delay, Carriers liability shall in all circumstances be limited to the lesser of the liability calculated pursuant to Clause 8.1 hereunder or twice the amount of freight charges billed Merchant for the Carriage. If the Goods are not delivered within 90 days of anticipated delivery date, the Goods shall be deemed lost, in the absence of contrary evidence.
8.9 Notwithstanding anything herein to the contrary, Carrier shall in no event have any liability whatsoever for any loss, damage, delay or failure in performance hereunder arising from or attributable to: (a) circumstances of inherent defect, quality or vice of the Goods, including but not limited to wastage in bulk or weight; (b) defective or insufficient packing not reasonably fit to withstand the ordinary rigors of contemplated transportation; (c) insufficiency or inadequacy of marks on or description of Goods; (d) any act or omission of Merchant, its agent or representative; (e) unsuitable or defective container provided by Carrier if such unsuitability or defect would have been apparent to Merchant upon reasonable inspection; (f) arrest or restraint of princes, rulers of people or seizure under legal process, quarantine restrictions or embargo or any act of any public authority; (g) act, neglect or fault of the master, mariner, pilots or the servants of Carrier in the navigation or management of the Vessel; (h) any act of barratry; (i) perils, dangers, and accidents of the sea or other navigable waters; (j) saving or attempting to save life or property at sea or any deviation in rendering such service; (k) bursting of boilers, breakage of shafts or any latent defect in hull, equipment, machinery, hawsers or lines, unseaworthiness unless caused by want of due diligence by Carrier to make the Vessel seaworthy or to have her properly manned, equipped and supplied; (l) fire unless caused by the actual fault or privity of Carrier or its subcontractors, servants or agents; (m) any force majeure event, to include but not be limited to, natural disasters, strikes or lockouts or stoppage/restraint of labor from whatever cause, civil unrest, acts of war or armed conflicts and acts or threatened acts of public enemies, terrorists, pirates, hijackers or assailing thieves; (n) latent defects not discoverable by due diligence of Carrier or its subcontractors, servants or agents; (o) any cause arising without the fault or privity of the Carrier, its subcontractors, servants or agents.
8.10 Merchant shall indemnify Carrier against any claim by a third party or assignee of Merchant which imposes or attempts to impose upon Carrier any liability in connection with the Goods other than or in excess from that as provided herein, whether or not arising from negligence of Carrier, its subcontractors, servants or agents.
9. METHOD AND ROUTE OF TRANSPORTATION
Without notice to the Merchant, Carrier has liberty and discretion to consolidate the Goods with other cargoes, carry the Goods on or under deck and to choose or substitute the method, means, route, mode and procedure to accomplish the Carriage.
10. MERCHANT LIABILITY FOR EQUIPMENT
Merchant shall assume full responsibility for and shall indemnify Carrier against any loss of or damage to Containers and other equipment provided by Carrier or its subcontractors, servants, or agents which loss or damage occurs while in the possession or control of Merchant, its agents or independent vendors engaged by or on behalf of Merchant. Merchant shall indemnify and hold Carrier harmless from and against any loss of or damage to property of other persons or injuries to other persons caused by Containers or the Goods during handling by, or while in the possession or control of, Merchant, its agents or any independent vendors engaged by or on behalf of Merchant.
11.1 The Goods shall be deemed to be delivered when they have been delivered to or placed at the disposal of the Merchant or its agent in accordance with this Bill of Lading, or when the Goods have been delivered to any authority or other party to which, pursuant to the law or regulation applicable at the place of delivery, the Goods must be delivered or surrendered, or such other place at which the Carrier is entitled to call upon the Merchant to take delivery.
11.2 The Carrier shall also be entitled to store the Goods at the sole risk of the Merchant, and the Carrier’s liability shall cease upon the Carrier’s tender/delivery of the Goods to the appointed warehouse or storage facility. The cost of such storage shall be paid, upon demand, by the Merchant to the Carrier.
11.3 If at any time the Carriage is or is likely to be affected by any hindrance or risk of any kind (including the condition of the Goods) not arising from any fault or neglect of the Carrier, its subcontractors or agents, the Carrier may: abandon the Carriage of the Goods and, where reasonably practicable, place the Goods or any portion of them at the Merchant’s disposal at any place that the Carrier may deem safe and convenient, whereupon delivery shall be deemed to have been made, and the responsibility of the Carrier in respect of such Goods shall cease. In such event, the Carrier shall be entitled to full freight under this Bill of Lading and the Merchant shall pay any additional costs arising out of such event.
12. FREIGHT CHARGES AND EXPENSES TO MERCHANT
12.1 Freight charges shall be paid without any reduction or deferment on account of any claim, counterclaim or set-off, whether prepaid or payable at destination. Freight charges shall be deemed earned by the Carrier upon its receipt of the Goods. Earned freight charges are non-refundable.
12.2 Freight charges and all other amounts due Carrier for the Carriage are to be paid in the currency named in this Bill of Lading or, at the Carrier’s option, in the currency of the country of origin or destination.
12.3 The Merchant shall reimburse and indemnify the Carrier for any duties, taxes, demurrage, detention, charges, liabilities or other expenses whatsoever in connection with the Goods or arising from any breach of warranty by Merchant hereunder or from any cause or reason not exclusively attributable to a liability of Carrier, its subcontractors, servants or agents.
12.4 In the event Merchant breaches its warranty as to the accuracy and completeness of the description and the marks, numbers, quantities and weight of the Goods, resulting in a lower freight charge than should be due and owing carrier based upon actual correct and complete description, marks, numbers, quantities and weight of the Goods, it is agreed that a sum equal either to double the correct freight charges properly assessed based upon actual correct and complete description, marks, numbers, quantities and weight of the Goods, less the freight previously calculated or charged, shall be payable as liquidated damages to the Carrier. Such liquidated damages shall only relate to freight charges; Carrier reserves all rights to recover from Merchant other damages caused by Merchant’s breach of its warranty as to the accuracy and completeness of the description and the marks, numbers, quantities and weight of the Goods.
12.5 Notwithstanding the acceptance by the Carrier of instructions to collect freight charges or other expenses relating to the Carriage from any specific person, Merchant shall remain responsible for such monies on receipt of evidence of demand and the absence of payment for whatever reason. Shipper, consignee and bill-to parties are jointly and severally liable for all charges and expenses related to the Carriage. Charges may be reversed to the responsible parties if the Goods are refused delivery or in the event payment is not made by the original bill-to party.
13.1 The Carrier shall have a lien on any and all of the Merchant’s property for all advances, claims, costs, freight charges, duties, surcharges, general average expenses, salvage expenses, taxes, demurrage, money due and payable to the Carrier by Merchant, including any lien and collection-related costs, whether or not related to the Carriage of Goods under this document, a prior transaction / an unrelated claim and/or any combination of the foregoing. The lien on the Goods shall survive delivery to the Merchant. Carrier may sell the Goods privately or by public auction without notice to the Merchant. If upon sale of the Goods the proceeds fail to satisfy the amount due Carrier, together with the cost and expenses incurred, Carrier shall be entitled to recover any difference from Merchant.
13.2 If the Goods are unclaimed after 30 days from date the Goods are placed at the disposal of the Merchant, or whenever in the Carrier’s judgment the Goods will become deteriorated, decayed or worthless, the Carrier may, at its discretion and subject to its lien and without any responsibility attaching to it, sell, abandon, or otherwise dispose of the Goods solely at the risk and expense of the Merchant.
14. GENERAL AVERAGE
14.1 In the event of accident, danger, damage or disaster before or after the commencement of the Carriage, resulting from any cause whatsoever, whether due to negligence or not, for which, or for the consequence of which, the Carrier and its subcontractors, servants and agents are not responsible by statute, contract or otherwise, the Goods and the Merchant shall contribute 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, its subcontractors, servants or agents, salvage shall be paid for as fully as if the said salving ship or ships belonged to strangers. Such deposit as the Carrier or his 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/or the Merchant prior to delivery.
14.2 Merchant shall defend, indemnify and hold harmless the Carrier, its subcontractors, servants or agents in respect of any claim (and any expense arising therefrom) of a General Average which may be made against the Carrier and/or any of its subcontractors, servants or agents. Merchant agrees to pay any and all sums or securities assessed by the General Average Adjuster for payments on account.
14.3 Neither the Carrier nor its subcontractors, servants or agents shall be under any obligation to take any steps whatsoever to post security for General Average or to collect security for General Average contributions due from the Merchant. Notwithstanding the foregoing, Carrier is authorized at its discretion to act on behalf of the Goods in any salvage proceeding at the sole expense of Merchant, unless Merchant arranges for separate representation.
15. NOTICE OF CLAIM AND TIME FOR SUIT
15.1 Unless the Merchant provides written notice to the Carrier of the general nature of any loss or damage to the Goods at the time the Carrier delivers the Goods to the Merchant, such delivery by the Carrier is prima facie evidence of the Carrier’s delivery of the Goods in good order and condition.
15.2 Where the loss or damage is not apparent and/or latent, the same prima facie presumption shall apply if notice in writing is not given to Carrier within 3 days after the day when the Goods were delivered to the Merchant.
15.3 The Carrier shall be discharged of all liability unless suit is brought against the Carrier within one year from the date of delivery or the date on which the Goods should have been delivered.
16. MANDATORY VENUE, JURISDICTION, AND APPLICABLE LAW
Merchant agrees that all claims or disputes hereunder or questions arising out of the Carriage of the Goods shall be determined under United States law solely in the United States District Court for the Central District of California at Los Angeles, to the exclusion of all other courts, and the Merchant and Carrier each agree to submit to the personal jurisdiction of that Court; provided, however, where the Vessel operator issues a bill of lading for the transportation of the Goods that includes a mandatory venue clause for a mandatory venue other than the Central District of California, the Merchant expressly agrees to be bound by the mandatory venue clause of the Vessel operator’s bill of lading for any claims, disputes, or questions that the Merchant has against the Carrier and any subcontractor, servant or agent of Carrier. Merchant agrees that equity and judicial efficiency require that a single action shall resolve all claims, disputes, or questions arising out of the Carriage of the Goods.
BILL OF LADING CONTRACT TERMS –FREIGHT FORWARDER (DOMESTIC)
“Forwarder” means Speedmark Transportation, Inc. “Bill of Lading” means the Forwarder’s Non-Negotiable Bill of Lading, front and reverse pages. “Customer” includes the consignor, shipper, consignee, owner of the Goods, and any person lawfully acting on behalf of any of the aforementioned persons, including, without limitation, brokers of property. “Goods” means articles of every kind and description, including their packaging, containers, or other shipping units or materials, that Customer has tendered to the Forwarder for transportation from the Place of Receipt to the Place of Delivery (the “Carriage”), all of the above as set forth on the front page of this Bill of Lading. “Charges” includes, without limitation, freight, all expenses, costs, detention, demurrage, and any other money obligations incurred and payable by the Customer, and all collection costs for freight and other amounts due from the Customer, including, without limitation, attorneys’ fees and court costs.
2. AGREEMENT TO TERMS AND CONDITIONS OF BILL OF LADING
By the Customer’s tender of the Goods for Carriage, the Customer agrees to these Bill of Lading Contract Terms, which no agent or employee of the parties may alter. This Bill of Lading is non-negotiable. The Customer has prepared this Bill of Lading, or the Forwarder or its authorized agents have done so on the Customer’s behalf. The Customer agrees that the Carriage is subject to these Bill of Lading Contract Terms and those set forth on the front page of this Bill of Lading, the applicable tariff(s), which is/are available for inspection upon request, and which is/are expressly incorporated herein by reference. The defenses and limits of liability set forth in this Bill of Lading shall apply in any action against the Forwarder under any legal theory whatsoever, whether the action is in contract, tort, bailment, indemnity, contribution, or otherwise.
3. FORWARDER’S UNDERTAKING
The Customer understands that the Forwarder is a non-vehicle-operating domestic freight forwarder. The Forwarder is a Title 49 freight forwarder, licensed by the Federal Motor Forwarder Safety Administration—docket number FFXXXXX. The Forwarder contracts with service providers including, without limitation, motor carriers, drayage companies, brokers, freight forwarders, rail carriers, warehousemen, and/or other transportation and transportation-related service providers (collectively, the “Service Providers”) to transport and/or handle the Goods.
4. FORWARDER ACTING AS AGENT FOR NON-CARRIAGE UNDERTAKINGS
Whenever the Forwarder undertakes to accomplish any act, operation, or service outside of the Carriage undertaking or not initially agreed or mentioned on this Bill of Lading, the Forwarder shall act as the Customer’s agent and shall be under no liability whatsoever for any loss or damage to the Goods or any direct, indirect, or consequential loss arising out of or resulting from such act, operation, or service.
5. NOTICE OF CLAIM AND TIME-BAR
(a) As a condition precedent to the Forwarder’s processing of a cargo claim, all freight charges must have been paid in full. (b) Any and all cargo claims must be filed against the Forwarder 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 aforementioned nine-month period shall result in the claim’s being time-barred and the Forwarder’s discharge from any and all liability, whether in contract, tort, or otherwise. The Forwarder 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 Forwarder, as set forth below in sub-paragraph (C). (c) Any lawsuits for cargo claims shall be filed in court against the Forwarder no later than two years and one day from the day on which the Forwarder has given written notice to the claimant that the Forwarder 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 aforementioned two-year-and-one-day period shall result in the claim’s being time-barred and the Forwarder’s discharge from any and all liability, whether in contract, tort, or otherwise. The Forwarder shall not pay any time-barred claims.
6. SPECIAL SECURITY/PROTECTIVE SERVICES
The Forwarder’s failure to arrange any agreed-to special security services and/or requirements, including, without limitation, team drivers, shall not negate the Forwarder’s limitation of liability, which is set forth below in paragraph 8.
7. HIJACKING/ASSAILING THIEVES DISCLAIMER
The Forwarder shall have no liability whatsoever arising out of or in connection with the acts of any person who unlawfully, by use of force or threats of any kind, damages, seizes, or exercises control over the Goods, over any Service Provider, or over any means of transportation or storage of the Goods. The Customer understands and agrees that it accepts and assumes the risk of loss for the foregoing acts.
8. LIMITATION OF LIABILITY; OPPORTUNITY TO AVOID LIMITATION
The Forwarder has established and offered alternative rates of freight for the Carriage and the Customer acknowledges that it has made an election between those alternative rates, between (a) the Forwarder’s regular/lower rates for goods with limited value, and (b) ad valorem rates for goods not so limited, which rates are dependent on the value declared by the Customer .Unless the Customer declares the nature and value of the Goods prior to the Carriage, sets forth the same on the front page of this Bill of Lading, and pays the corresponding ad valorem rate, the Customer knowingly and willingly elects to ship under the Forwarder’s regular/lower rates, the consequence of which is that in no event shall the Forwarder or its servants and/or agents be or become liable for any loss of or damage to or in connection with the Carriage of the Goods in an amount exceeding the lesser of $.50 per pound or $50.
9. CARRIAGE METHODS/ROUTES, SUBSTITUTION OF MODE/EQUIPMENT
The Customer understands and agrees that the Forwarder and/or Service Providers performing the Carriage of the Goods may at any time, and without notice to the Customer: (a) Use any means of transport or storage whatsoever; (b) Transfer the Goods from one conveyance to another, including transshipment or carrying on a truck and/or trailer other those that may be set forth on the front page of this Bill of Lading, or any other means of transport whatsoever; or (c) Proceed by any route in the Forwarder’s and/or any Service Provider’s sole discretion—irrespective of whether such route is the nearest, most direct, customary, or advertised route. The Customer agrees that anything done or not done in accordance with the above sub-paragraphs or any delay arising there from shall be within the scope of the Carriage and not a deviation.
10. MATTERS AFFECTING PERFORMANCE
If at any time and for any reason the performance of the contract for the Carriage of the Goods evidenced by this Bill of Lading is or is likely to be affected by any hindrance, risk, delay, difficulty, or disadvantage of any kind, other than the inability of the Goods to be safely or properly carried or carried further, and howsoever arising (even though the circumstances giving rise to such matters as stated above existed at the time this contract was entered into or the Goods were received for shipment), the Forwarder, at its sole discretion, without prior notice to the Customer and irrespective of whether the Carriage has commenced, may treat the performance the of this contract of transportation as terminated and place the Goods at the Customer’s disposal at any place that the Forwarder, at its sole discretion, deems to be safe and convenient, whereupon the responsibility of the Forwarder in respect of such Goods shall cease. The Forwarder shall nevertheless be entitled to full freight for the Carriage of the Goods, and the Customer shall pay any additional costs of transportation to and delivery and storage at such place.
11. REFUSED DELIVERY
Refusal of the consignee or Customer to take delivery of the Goods notwithstanding their having received notice of the Goods’ availability shall constitute an irrevocable waiver of any and all claims arising out of or in any way relating to the Goods or the Carriage. The Customer shall be liable to the Forwarder for any losses, damages, expenses, and liabilities it incurs arising out of such a refusal, including, without limitation, the return of the Goods to their Place of Receipt.
12. FREIGHT AND CHARGES
(a) All freight shall be deemed fully, finally, and unconditionally earned on the Forwarder’s receipt of the Goods and shall be paid and non-returnable in any event whatsoever. (b) All freight and Charges shall be paid without any set-off, counter-claim, deduction, or stay of execution before delivery of the Goods. (c) If the Customer’s description of the Goods in this Bill of Lading or in any documents the Forwarder receives from or on behalf of the Customer is inaccurate, incorrect, or misleading in any respect, the Customer shall pay for any actual damage that the Forwarder suffers as a result. (d) Payment of freight and Charges to any carrier, broker, or freight forwarder, or anyone other than the Forwarder or its authorized agent shall not be considered payment to the Forwarder and shall be made at the Customer’s sole risk. (e) The class of persons that make up the definition of “Customer” shall, where applicable, be jointly and severally liable to the Forwarder for payment of all freight, demurrage, detention, and Charges including, without limitation, court costs, expenses and attorneys’ fees the Forwarder incurs in collecting any sums due, failing which shall be considered a default by the Customer in the payment of freight and Charges.
(a) The Forwarder shall have a general and continuing lien on any and all property of the Customer coming into the Forwarder’s actual or constructive possession or control for monies owed to the Forwarder with regard to the shipment on which the lien is claimed, a prior shipment(s), and/or both, including without limitation, freight, dead freight demurrage, detention, any Charges, and for any expenses the Forwarder incurs for repacking, remarking, fumigation, or required disposal of faulty Goods, for fines, dues, tolls, or commissions the Forwarder has paid or advanced on behalf of the Goods, for any sums, including, without limitation, for legal expenses the Forwarder 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 Forwarder’s lien shall survive discharge or delivery of the Goods. (b) The Forwarder shall provide written notice to the Customer of the Forwarder’s intent to exercise its lien rights, which notice shall set forth the exact amount of monies due and owing. The Customer shall notify all parties having an interest in the shipment(s) of the Forwarder’s rights and/or the exercise of such lien rights. (c) Unless, within thirty days of receiving notice of lien, the Customer 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 Forwarder, guaranteeing payment of all monies due and owing, plus all ongoing and accruing charges, such as storage, the Forwarder shall have the right to sell such shipment(s) at public or private sale or auction and the Forwarder shall refund to the Customer any net proceeds remaining after such sale.
14. DESCRIPTION OF GOODS AND NOTIFICATION
(a) The Customer’s description of the Goods stuffed in a sealed trailer by the Customer or on its behalf shall not be binding on the Forwarder, and the description declared by the Customer on the front page of this Bill of Lading is information provided by the Customer solely for its own use. The Customer understands that the Forwarder has not verified the contents, weight, or measurement of a sealed trailer or package, or its weight or measurement, or the value, quantity, quality, description, condition, marks, or numbers of the contents thereof. The Forwarder is under no responsibility whatsoever in respect of such description of particulars, and the Customer shall indemnify and hold harmless the Forwarder against any and all loss, damage, liability, and expense, including, without limitation, attorneys’ fees that the Forwarder has incurred, arising out of or in any way connected with or caused by, in whole or in part, such description of particulars. (b) The Forwarder, its agents, and servants 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 mis-delivery 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 Place of Delivery to the contrary.
15. HAZARDOUS GOODS
(a) Prior to tendering hazardous goods, as defined under applicable federal and state law and regulations, the Customer shall, in compliance with the laws and regulations governing the transportation of such goods, have the same properly packed, distinctly marked, and labeled, and notify the Forwarder in writing of their proper description, nature, and the necessary precautions. (b) Goods that are hazardous goods or are otherwise of an inflammable, explosive or dangerous nature to the shipment whereof the Forwarder, master or agent of the Forwarder, 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 Forwarder without compensation, and the Customer of such goods shall be liable for all damages and expenses directly or indirectly arising out of or resulting from such shipment. If any such goods shipped with such knowledge and consent shall become a danger to the transporting tractor and/or trailer, or any cargo thereon, they may in like manner be landed in any place, or destroyed and rendered innocuous by the Forwarder without liability on the part of the Forwarder. (c) The Customer shall indemnify and hold harmless the Forwarder against any and all loss, damage, liability, and expense, including, without limitation, attorneys’ fees that the Forwarder 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 GOODS
(a) Goods of a perishable nature shall be carried in ordinary trailers without special protection, services, or other measures unless there is noted 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 trailer, or that the Goods are to receive special attention in any way. In case of refrigerated trailer(s) packed by or on behalf of the Customer, it undertakes not to tender for Carriage any Goods that require refrigeration without giving written notice to the Forwarder of their nature and the required temperature setting of the thermostatic controls before the Forwarder’s receipt of the Goods. The Customer undertakes that the Goods have been properly stowed in the trailer
and that the thermostatic controls have been adequately set before the Forwarder’s receipt of the Goods and, if necessary, that the Goods have been pre-cooled before their stuffing into the trailer. The Customer’s attention is drawn to the fact that refrigerated trailers are not designed to freeze down Goods that have not been presented for stuffing at or below their designated carrying temperature, and the Forwarder shall not be responsible for the consequences of Goods tendered to it at a higher temperature than that required for the Carriage. If the Customer fails to comply with the foregoing requirements ,the Forwarder shall not be liable for any loss of or damage to the Goods, howsoever arising. (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 Forwarder’s receipt of the same, were verified by the Forwarder as being at the designated carrying temperature.(c) The Forwarder shall in no event be held liable for damage to Goods due to condensation.
17. GOODS UNACCEPTABLE FOR CARRIAGE
(a) Unless the Forwarder otherwise agrees in writing, Forwarder shall not accept for Carriage any of the following: accounts, bills, deeds, evidences of debt, notes, securities, currency, money, coins or stamps, jewelry, precious stones, fine arts, bullion, specie, or other precious metals, furs, garments trimmed with furs, weapons, ammunition, explosives, live animals and plants, Christmas trees, batteries, used household goods and personal effects, used machinery and used automobiles, used aircraft/used boats, temperature controlled commodities, cigarettes and tobacco products, hazardous materials, human remains, antiques, plants, live animals, pharmaceuticals, lewd, obscene or pornographic materials, D.O.T.-restricted articles, including dangerous goods and hazardous or combustible materials,
any material prohibited from transport by any law, regulation, or statute of any country in which the shipment may be carried.(b) If the Customer tenders any of the foregoing without previous full written disclosure of the same to the Forwarder and its written agreement to transport the same, the Customer shall indemnify and hold harmless the Forwarder against any and all loss, damage, liability, and expense, including, without limitation, attorneys’ fees that the Forwarder has incurred, arising out of or in any way connected with or caused by, in whole or in part, such goods.
18. INSPECTION OF GOODS
The Forwarder and/or any Service Provider shall be entitled, but under no obligation, to open any trailer, package, carton, or other shipping unit at any time and to inspect the Goods.
19. CUSTOMER-PACKED GOODS, CUSTOMER-STUFFED TRAILERS (a) If Goods have not been packaged, and if a trailer has not been stuffed by or on behalf of the Forwarder, the Forwarder shall not be liable for the loss of or damage to the Goods, and the Customer shall indemnify and hold harmless the Forwarder against any and all loss, damage, liability, and expense, including, without limitation, attorneys’ fees that the Forwarder 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 Goods and/or trailer was stuffed, filled, packed, and/or loaded; or (2) The unsuitability of the Goods for Carriage in their packaging and/or in a trailer; or (3) The unsuitability or defective condition of the trailer, provided that, if the trailer had been supplied by or on behalf of the Forwarder, that unsuitability or defective condition could have been apparent upon inspection by the Customer at or prior to the time when the trailer was stuffed, filled, packed, and/or loaded. (b) The Customer shall inspect trailers before stuffing them and the Customer’s use of a trailer shall be prima facie evidence of its being suitable and without defect.
20. 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(s) in relation to the Goods or the trailer, the Forwarder may, without notice to the Customer, but as its agent only, take any measure(s) and/or incur any additional expense to carry or to continue the Carriage, and/or sell or dispose of the Goods, and/or abandon the Carriage and/or store Goods, under cover or in the open, at any place that the Forwarder, 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 Customer shall indemnify the Forwarder against any additional expenses it has so incurred.
21. CUSTOMER’S RESPONSIBILITY
The Customer shall comply with all regulations or requirements of customs, port and other authorities, and shall bear and pay all duties, taxes, fines, imposts, expenses, or losses, including the full return-freight for the Goods returned, or if on-carried, the full freight from the Place of Delivery to another place of delivery, incurred and/or sustained by reason of any failure to so comply or by reason of any illegal, incorrect, or insufficient marking, numbering, or addressing of the Goods, and shall indemnify the Forwarder in respect of such expenses.
22. DELAY, CONSEQUENTIAL LOSS, ETC.
(a) The Forwarder does not undertake that the Goods will be transported from the Place of Receipt, or will arrive at the Place of Delivery, or will be shipped on board any particular truck 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 Forwarder shall in no circumstances whatsoever and howsoever arising be liable for direct, indirect, or consequential loss or damage caused by delay. (b) Save as otherwise provided herein, the Forwarder shall in no circumstances be liable for direct or indirect consequential loss or damage arising from any other cause.
23. VARIATION OF THE CONTRACT
No person, including, without limitation, a Service Provider or an employee, servant, or agent of the Forwarder has the power to waive or vary any of the Bill of Lading Contract Terms unless an officer of the Forwarder, in writing, has specifically agreed to such a waiver or variation.
24. PARTIAL INVALIDITY
If any provision of this Bill of Lading shall for any reason be held to be invalid or unenforceable by any court or regulatory body, then the remainder of this Bill of Lading shall be unaffected thereby, and remain in full force and effect.
25. LAW AND JURISDICTION; MANDATORY VENUE
In the absence of any compulsorily-applicable law to the contrary, the Customer 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 and exclusively in the United States District Court for the Central District of California in Los Angeles, California, to the exclusion of all other courts, and the Customer and Forwarder agree to irrevocably submit to the personal jurisdiction of such courts, and thereby waive any jurisdictional, venue, or inconvenient forum objections to such courts.