Terms and Conditions

MARLIN LOGISTICS, S.A.

General Terms and Conditions – Multimodal Transport

1. Definitions and Interpretation

1.1 Definitions

«Authority» means any duly constituted legal or administrative Person or entity, which exercises jurisdiction or has authority within any nation, state, municipality, vessel or port.

«Carriage» means the whole or any part of the packing, stuffing, loading, carriage, transporting, unpacking de-stuffing, unloading, storing, warehousing, handling and any other services whatsoever undertaken by the Freight Forwarder / NVOCC in respect of the Goods covered by this bill of lading.

«Freight Forwarder» means the Multimodal Transport Operator who issued the bill of lading and is named on the face of it, namely MARLIN LOGISTICS, S.A.

«Compulsory Legislation» means any national law (which will be the Laws of the Republic of Panama or any other applicable legislation ex propio vigore) or international convention which applies compulsorily to the bill of lading or carriage, or part of it.

«Container» includes any container (including an open top container), flat rack, platform, trailer, transportable tank, pallet or any other similar article used to consolidate the Goods and any connected equipment. 

«Freight» includes all charges payable to the Freight Forwarder in accordance with the applicable tariff and this bill of lading.

«Goods» means the whole or any part of the cargo and any packaging accepted from the Shipper and includes any Container not supplied by or on behalf of the Freight Forwarder.

«Holder» means any Person for the time being in lawful possession of the bill of lading to or in whom rights of suit and/or liability under the bill of lading have been transferred or vested.

«Merchant» includes the Shipper, Holder, Consignee, Receiver of the Goods, any Person owning or entitled to the possession of the Goods or of the bill of lading, or the rights vested on it, and anyone duly authorize to act on behalf of such Person. 

«Multimodal Transport» arises if the Place of Receipt or the Place of Delivery (or both) are filled in on the front of the bill of landing in the relevant spaces. 

«Package» where a Container is loaded with more than one package or unit, the packages or other shipping units enumerated on the front of the bill of lading as packed in such Container and entered in the box on the front side of the bill of lading entitled «Total No. of Containers or Packages received by” are each deemed as a Package.

«Subcontractor» includes owners, charterers and operators of vessels (other than the Freight Forwarder), stevedores, terminal and groupage operators, road, rail and air transport operators, warehousemen and any independent contractors employed by the Freight Forwarder in the performance of the Carriage and any direct or indirect Subcontractors, servants and agents thereof whether in direct contractual privity or not.

«Terms and Conditions» means all terms, responsibilities, obligations, warranties, rights, defences, provisions, conditions, exceptions, limitations and liberties hereof including the “Standard Conditions (1992) governing the Negotiable FIATA MULTIMODAL TRANSPORT BILL OF LADING”.

When applicable, this Terms and Conditions prevails over “Standard Conditions (1992) governing the Negotiable FIATA MULTIMODAL TRANSPORT BILL OF LADING” when there are any discrepancies.

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 constitute in full force and effect.

These Terms and Conditions shall apply to all claims against the Freight Forwarder relating to the performance of Carriage, whether the claim is founded in contract or in tort, including, but not limited to, claims for indemnity and contributions. In agreeing and accepting the terms of this document, the Merchant acts for itself and has authority to bind himself to the terms of this document.

«Vessel» means any water borne craft used in the Carriage under this bill of lading, which may be a feeder vessel or an ocean vessel.

1.2 Interpretation

Any words following the word «including» shall be interpreted without limitation to the generality of the preceding words.

2. Freight Forwarder‘s Tariff

The Terms and Conditions of the Freight Forwarder’s applicable tariff are incorporated herein. Copies of the applicable tariff are obtainable from the Freight Forwarder upon request. In the case of inconsistency between this bill of lading and the applicable tariff, this bill of lading shall prevail. 

3. Negotiability

The bills of lading shall be non-negotiable unless made out «to-order» in which event it shall be negotiable. 

4. Merchant’s Warranties and Responsibilities

4.1 The Merchant warrants that:  

1. in agreeing to the Terms and Conditions he is, or has the authority to contract on behalf of, the Person owning or entitled to possession of the Goods and the bill of lading.
2. the Goods are packed in a manner adequate to withstand the risks of Carriage having regard to their nature and in compliance with all laws, regulations or requirements which may be applicable during the Carriage;
3. neither the receipt, delivery or handling of the Goods nor any payment or other transaction relating to the Goods will expose the Freight Forwarder, the Subcontractors or any of their employees, servants, agents, banks, insurers or reinsurers to any sanction, prohibition or penalty (or any risk of sanction, prohibition or penalty) whatsoever imposed by any state, country, supranational or international governmental organisation or other Authority;
4. none of the Persons falling with the meaning of Merchant is or is owned or controlled by or is acting on behalf of a Person which is included on any list of individuals or entities with whom transactions are currently prohibited or restricted under any sanction, prohibition or restriction imposed by any state, country, supranational or international governmental organisation or other Authority, including but not limited to the consolidated list of financial sanctions targets in the USA list of Specially Designated Nationals;
5. the Goods are not intended to be used in the design, development, or production of nuclear, chemical, or biological weapons.

4.2 The Merchant shall comply with all regulations or requirements of customs, port and other authorities, and shall bear, pay and indemnify the Freight Forwarder against all duties, taxes, fines, impost, expenses or losses (including, without prejudice to the generality of the foregoing Freight for any additional Carriage undertaken) incurred or suffered by reason thereof, or by reason of any illegal, incorrect, untimely or insufficient declaration, marking, numbering or addressing of the Goods.

4.3 All of the Persons coming within the definition of Merchant in clause 1 shall be jointly and severally liable to the Freight Forwarder for the due fulfilment of all obligations undertaken by the Merchant in this bill of lading

4.4 Containers supplied by or on behalf of the Freight Forwarder are deemed adequate and clean upon receipt by Merchant, and if unpacked at the Merchant’s premises, the Merchant is responsible for returning the empty Containers with interiors clean, odour free and in the same condition as received, to the point or place designated by the Freight Forwarder, within the time prescribed. Should a Container not be returned in the condition required and/or within the time prescribed in the tariff, the Merchant shall be liable for any detention, loss or expense incurred as a result thereof.

4.5 Containers released into the care of the Merchant for packing, unpacking or any other purpose whatsoever are at the sole risk of the Merchant until redelivered to the Freight Forwarder. The Merchant shall indemnify the Freight Forwarder for all loss of, cleaning and/or damage and/or delay to such Containers. Merchants are deemed to be aware of the dimensions and capacity of any Containers released to them.

5. Subcontracting

5.1 The Freight Forwarder shall be entitled to sub-contract on any terms whatsoever the whole or any part of the Carriage.

5.2 The Merchant undertakes that no claim or allegation, whether arising in contract, bailment, tort, breach of express or implied warranty or otherwise shall be made against any servant, agent, or Subcontractor of the Freight Forwarder, which imposes or attempts to impose upon any of them or any vessel owned or chartered by any of them any liability whatsoever in connection with the Goods or the Carriage of the Goods whether or not arising out of negligence on the part of such Person, and, if any such claim or allegation should nevertheless be made, to indemnify the Freight Forwarder against all consequences thereof. Without prejudice to the foregoing every such servant, agent, and Subcontractor shall have the benefit of all Terms and Conditions of whatsoever nature herein contained or otherwise benefiting the Freight Forwarder including clause 28 (Applicable Law and Jurisdiction), as if such Terms and Conditions including clause 28 (Applicable Law and Jurisdiction) were expressly for their benefit and, in entering into this contract, the Freight Forwarder, to the extent of such Terms and Conditions, including clause 28 (Applicable Law and Jurisdiction), does so on its own behalf, and also as agent and trustee for such servants, agents and Subcontractors.

6. Freight Forwarder‘s Responsibility: Port-To-Port Shipment

6.1 Where the Carriage is Port-to-Port, then the liability (if any) of the Freight Forwarder for loss of or damage to the Goods occurring between the time of loading at the Port of Loading and the time of discharge at the Port of Discharge shall be determined and limited in accordance with any Compulsory Legislation or in any other case in accordance with the Hague Rules Articles 1-8 inclusive only, which Articles shall apply as a matter of contract.

6.2 The Freight Forwarder shall have no liability whatsoever for any loss or damage to the Goods while in its actual or constructive possession before loading or after discharge, howsoever caused. Notwithstanding the above, in case and to the extent that any Compulsory Legislation provides to the contrary, the Freight Forwarder shall have the benefit of every right, defence, limitation and liberty in the Hague Rules Articles 1-8 as applied by clause 6.1 during such additional compulsory period of responsibility, notwithstanding that the loss or damage did not occur at sea.

6.3 Where the Law of the Republic of Panama applies then the provisions stated in said Law shall govern the liability of the Freight Forwarder for any loss or damage to the Goods before loading on the Vessel or after discharge therefrom, as the case may be, during Carriage to or from a container yard or container freight station in or immediately adjacent to the sea terminal at the Port of Loading and/or Discharge. If the Freight Forwarder is requested by the Merchant to procure Carriage by an inland carrier and the inland carrier in his discretion agrees to do so, such carriage shall be procured by the Freight Forwarder as agent only to the Merchant and such carriage shall be subject to the inland carrier’s contract and tariff. If for any reason the Freight Forwarder is denied the right to act as agent at these times, his liability for loss damage or delay to the Goods shall be determined in accordance with clause 7 hereof.

6.4 In the event that the Merchant requests the Freight Forwarder to deliver the Goods:

1. at a port other than the Port of Discharge; or
2. at a place of delivery instead of the Port of Discharge, and the Freight Forwarder in its absolute discretion agrees to such request, such further Carriage will be undertaken on the basis that the Terms and Conditions are to apply to such Carriage as if the ultimate destination agreed with the Merchant had been entered on the reverse side of this bill of lading as the Port of Discharge or Place of Delivery.
3. Freight Forwarder‘s Responsibility: Multimodal Transport 

Where the Carriage is Multimodal Transport, the Freight Forwarder undertakes to perform and/or in his own name to procure performance of the Carriage from the Place of Receipt or the Port of Loading, whichever is applicable, to the Port of Discharge or the Place of Delivery, whichever is applicable. Save as is otherwise provided for in this bill of lading, the Freight Forwarder shall be liable for loss or damage occurring during the Carriage only to the extent set out below: 

7.1 Where the stage of Carriage where loss or damage occurred is not known.

1. Exclusions

The Freight Forwarder shall be relieved of liability for any loss or damage where such loss or damage was caused by:

1. an act or omission of the Merchant or Person acting on behalf of the Merchant other than the Freight Forwarder, his servant, agent or Subcontractor,
2. compliance with instructions of any Person entitled to give them,

iii. insufficient or defective condition of packing or marks,

1. handling, loading, stowage or unloading of the Goods by the Merchant or any Person acting on his behalf,
2. inherent vice of the Goods,
3. strike, lock out, stoppage or restraint of labour, from whatever cause, whether partial or general,

vii. a nuclear incident,

viii. Any error or omissions made by the physical carrier, port or vessel which was not directed or caused by the Freight Forwarder,

1. ix. any cause or event which the Freight Forwarder could not avoid and the consequences whereof he could not prevent by the exercise of reasonable diligence.
2. Burden of Proof

If the Freight Forwarder establishes that, in the circumstances of the case, the loss or damage could be attributed to one or more of the causes or events specified in clause 7.1(a), it shall be presumed that it was so caused. The Merchant shall, however, be entitled to prove that the loss or damage was not, in fact, caused either wholly or partly by one or more of these causes or events.

1. Limitation of Liability.

Except as provided in clauses 8.2(a) or 8.3, if clause 7.1 operates, total compensation shall under no circumstances whatsoever and howsoever arising exceed USD500 per package where Carriage includes Carriage to, from or through a port in Panama and in all other cases 2 SDRs per kilo of the gross weight of the Goods lost or damaged. 

7.2 Where the stage of Carriage where the loss or damage occurred is known. 

Subject to clause 20, the liability of the Freight Forwarder in respect of any loss or damage shall be determined and limited:

1. by the provisions contained in any international convention or national law which provisions:
2. cannot be departed from by private contract to the detriment of the Merchant, and
3. would have applied if the Merchant had made a separate and direct contract with the Freight Forwarder in respect of the particular stage of the Carriage during which the loss or damage occurred and received as evidence thereof any particular document which must be issued if such international convention or national law shall apply; or
4. by the Hague Rules Articles 1-8 inclusive only where the provisions of clauses 7.2(a) do not apply if the loss or damage is known to have occurred during Carriage by sea; or
5. c. where the provisions of clauses2(a) and 7.2(b) above do not apply, in accordance with the contract of carriage or tariffs of any inland carrier in whose custody the loss or damage occurred or in the absence of such contract or tariff by the provisions of clause 7.1. For the purposes of clause 7.2 references in The Hague Rules Articles 1-8 or any Compulsory Legislation to Carriage by sea shall be deemed to include references to all waterborne Carriage and the Compulsory Legislation shall be construed accordingly.

7.3 If the Place of Receipt or Place of Delivery is not named on the reverse hereof the Freight Forwarder shall be under no liability whatsoever for loss or damage to the Goods howsoever occurring:

1. if the Place of Receipt is not named on the front of the bill of lading and such loss or damage arises prior to loading on to the Vessel; or
2. if the Place of Delivery is not named on the front of the bill of lading, if such loss or damage arises subsequent to discharge from the Vessel.

7.4 Amendment of Place of Delivery

In the event that the Merchant requests, and the Freight Forwarder agrees to amend the Place of Delivery, such amended Freight Forwarder will be undertaken on the basis that it was timely requested by the Merchant to prevent delivery at the initial place and the Terms and Conditions are to apply until the Goods are delivered to the Merchant at such amended Place of Delivery.

8. Compensation and Liability Provisions

8.1 Subject always to the Freight Forwarder’s right to limit liability as provided for herein, if the Freight Forwarder is liable for compensation in respect of loss of or damage to the Goods, such compensation shall be calculated by reference to the invoice value of the Goods plus Freight and insurance if paid. If there is no invoice value of the Goods or if any such invoice is not bona fide, such compensation shall be calculated by reference to the value of such Goods at the place and time they are delivered or should have been delivered to the Merchant. The value of the Goods shall be fixed according to the current market price, by reference to the normal value of goods of the same kind and/or quality.

8.2 Save as is provided in clause 8.3:

6. Where the Compulsory Legislation applies hereunder by virtue of clause 6.1 or clause 7.2(a) the Freight Forwarder’s liability shall in no event exceed USD 500 per Package or customary freight unit.
7. b. In all other cases, including where the Hague Rules Articles 1-8 inclusive apply pursuant to clauses 6.1 or 7.2(b), compensation shall not exceed the limitation of liability of 2 SDRs per kilo of the gross weight of the Goods lost or damaged.

8.3 The Merchant agrees and acknowledges that the Freight Forwarder has no knowledge of the value of the Goods and higher compensation than that provided for in this bill of lading may be claimed only when (i) with the consent of the Freight Forwarder, the value of the Goods declared by the Shipper upon delivery to the Freight Forwarder has been stated in the box marked «Shipper Declared Value» on the reverse hereof and (ii) extra freight is paid. In that case, the amount of the declared value shall be substituted for the limits laid down in this bill of lading. Any partial loss or damage shall be adjusted pro rata on the basis of such declared value.

8.4 Nothing in this bill of lading shall operate to limit or deprive the Freight Forwarder of any statutory protection, defence, exception or limitation of liability authorised by any applicable laws, statutes or regulations of any country. The Freight Forwarder shall have the benefit of the said laws, statutes or regulations as if it were the owner of any carrying ship or vessel.

9. General

9.1 The Freight Forwarder does not undertake that the Goods or any documents relating thereto shall arrive or be available at any point or place at any stage during the Carriage or at the Port of Discharge or the Place of Delivery at any particular time or to meet any particular requirement of any licence, permission, sale contract, or credit of the Merchant or any market or use of the Goods and the Freight Forwarder shall under no circumstances whatsoever and howsoever arising be liable for any direct, indirect or consequential loss or damage caused by delay. If the Freight Forwarder should nevertheless be held legally liable for any such direct or indirect or consequential loss or damage caused by such alleged delay, such liability shall in no event exceed the Freight paid for the Carriage.

9.2 Save as is otherwise provided herein and subject to any Compulsory Legislation, the Freight Forwarder shall under no circumstances be liable for any loss of profit, loss of sales or business, loss of agreements or contracts, loss of anticipated savings, loss or damage to goodwill (in each case whether direct or indirect) or any indirect or consequential loss. 

9.3 Save as is otherwise provided herein and subject to any Compulsory Legislation, the Freight Forwarder’s maximum aggregate liability whatsoever for all events which occur under this bill of lading (other than loss or damage to Goods) will be limited to an amount equal to the Freight paid.

9.4 Once the Goods have been received by the Freight Forwarder for Carriage the Merchant shall not be entitled to impede, delay, suspend or stop or otherwise interfere with the Freight Forwarder’s intended manner of performance of the Carriage or the exercise of the liberties conferred by this bill of lading nor to instruct or require delivery of the Goods at other than the Port of Discharge or Place of Delivery named on the reverse hereof or such other Port or Place selected by the Freight Forwarder in the exercise of the liberties herein, for any reason whatsoever including but not limited to the exercise of any right of stoppage in transit conferred by the Merchant’s contract of sale or otherwise. The Merchant shall indemnify the Freight Forwarder against all claims, liabilities, loss, damages, costs, delay, attorney fees and/or expenses caused to the Freight Forwarder, his Subcontractors, servants or agents or to any other cargo or to the owner of such cargo during the Carriage arising or resulting from any stoppage (whether temporary or permanent) in the Carriage of the Goods whether at the request of the Merchant, or in consequence of any breach by the Merchant of this clause, or in consequence of any dispute whatsoever in respect of the Goods (including, but without restriction, disputes as to ownership, title, quality, quantity, information under clause 16.1 or description of and/or payment for the Goods) involving any one or more party defined herein as the Merchant as between themselves or with any third party other than the Freight Forwarder, without prejudice to the Freight Forwarder’s rights under clause 16.2, and the liberties provided for in clauses 21 and 22 shall be available to the Freight Forwarder in the event of any such stoppage.

9.5 The Terms and Conditions of this bill of lading shall govern the responsibility of the Freight Forwarder in connection with or arising out of the supplying of a Container to the Merchant whether before, during or after the Carriage.

10. Notice of Loss, Time Bar

Unless notice of loss or damage and the general nature of such loss or damage be given in writing to the Freight Forwarder or his authorised agent at the Place of Delivery (or Port of Discharge if no Place of Delivery is named on the front of the bill of lading) before or at the time of removal of the Goods into the custody of the Merchant or if the loss or damage is not apparent within three days thereafter, such removal shall be prima facie evidence of the delivery by the Freight Forwarder of the Goods as described in the bill of lading. In any event, the Freight Forwarder shall be discharged from all liability whatsoever in respect of the Goods unless suit is brought within twelve months after their delivery or the date when they should have been delivered. This provision is without prejudice to the applicable time bar period provided by the laws of the Republic of Panama for inland carriage, if the damage occurred during inland carriage between two points within its territory.

11. Defences and Limits for the Freight Forwarder

The Terms and Conditions of whatever nature provided for in this bill of lading shall apply in any action against the Freight Forwarder for any loss or damage whatsoever and howsoever occurring (and, without restricting the generality of the foregoing, including delay, late delivery and/or delivery without surrender of this bill of lading) and whether the action be founded in contract, bailment or in tort and even if the loss or damage arose as a result of unseaworthiness, negligence, wilful misconduct or fundamental breach of contract.

12. Shipper-Packed Containers

If a Container has not been packed by the Freight Forwarder:

12.1 This bill of lading shall be a receipt only for such a Container;

12.2 The Freight Forwarder shall not be liable for loss of or damage to the contents and the Merchant shall indemnify the Freight Forwarder against any injury, loss, damage, liability or expense whatsoever incurred by the Freight Forwarder if such loss of or damage to the contents and/or such injury, loss, damage, liability or expense has been caused by any matters beyond his control including, inter alia, without prejudice to the generality of this exclusion.

1. the manner in which the Container has been packed; or
2. the unsuitability of the Goods for carriage in Containers; or
3. the unsuitability or defective condition of the Container or the incorrect setting of any thermostatic, ventilation, or other special controls thereof, provided that, if the Container has been supplied by the Freight Forwarder, this unsuitability or defective condition could have been apparent upon reasonable inspection by the Merchant at or prior to the time the Container was packed.

12.3 The Merchant is responsible for the packing and sealing of all shipper-packed Containers and, if a shipper-packed Container is delivered by the Freight Forwarder with its original seal as affixed by the Shipper intact, the Freight Forwarder shall not be liable for any shortage of Goods ascertained at delivery.

12.4 The Shipper shall inspect Containers before packing them and the use of Containers shall be prima facie evidence of their being sound and suitable for use.

13. Perishable Cargo

13.1 Goods, including Goods of a perishable nature, shall be carried in ordinary Containers without special protection, services or other measures unless there is noted on the bill of lading that the Goods will be carried in a refrigerated, heated, electrically ventilated or otherwise specifically equipped Container or are to receive special attention in any way and the Freight Forwarder expressly accepts in writing to provide such specifically equipped Container or special attention. The Merchant undertakes not to tender for Carriage any Goods which require refrigeration, ventilation or any other specialised attention without giving written notice of their nature and the required temperature or other setting of the thermostatic, ventilation or other special controls to the Freight Forwarder. If the above requirements are not complied with the Freight Forwarder shall not be liable for any loss of or damage to the Goods howsoever arising.

13.2 The Merchant should note that refrigerated Containers are designed to maintain cargo temperature and not:

1. to cool down or freeze cargo which has not been presented for stuffing at or below its designated carrying temperature and the Freight Forwarder shall not be responsible for the consequences of cargo being presented at a higher temperature than that required for the Carriage; nor
2. to monitor and control humidity levels, albeit a setting facility exists, in that humidity is influenced by many external factors and the Freight Forwarder does not guarantee the maintenance of any intended level of humidity inside any Container.

13.3 The term «apparent good order and condition» when used in this bill of lading with reference to goods which require refrigeration, ventilation or other specialised attention does not mean that the Goods, when received were verified by the Freight Forwarder as being at the carrying temperature, humidity level or other condition designated by the Merchant.

13.4 The Freight Forwarder shall not be liable for any loss or damage to the Goods arising from latent defects, derangement, breakdown, defrosting, stoppage of the refrigerating, ventilating or any other specialised machinery, plant, insulation and/or apparatus of the Container, vessel, conveyance and any other facilities, provided that the Freight Forwarder shall before and at the beginning of the Carriage exercise due diligence to maintain the Container supplied by the Freight Forwarder in an efficient state.

14. Inspection of Goods

The Freight Forwarder shall be entitled, but under no obligation, to open and/or scan any Package or Container at any time and to inspect the contents. If it appears at any time that the Goods cannot safely or properly be carried or carried further, either at all or without incurring any additional expense or taking any measures in relation to the Container or the Goods, the Freight Forwarder may without notice to the Merchant (but as his agent only) take any measures and/or incur any reasonable additional expense to carry or to continue the Carriage thereof, and/or to sell or dispose of the Goods and/or to abandon the Carriage and/or to store them ashore or afloat, under cover or in the open, at any place, whichever the Freight Forwarder in his absolute discretion considers most appropriate, which sale, disposal, abandonment or storage shall be deemed to constitute due delivery under this bill of lading. The Merchant shall indemnify the Freight Forwarder against any reasonable additional expense so incurred. The Freight Forwarder in exercising the liberties contained in this clause shall not be under any obligation to take any particular measures and shall not be liable for any loss, delay or damage howsoever arising from any action or lack of action under this clause.

15. Description of Goods

15.1 The bill of lading shall be prima facie evidence of the receipt of the container by the Freight Forwarder in apparent good order and condition, except as otherwise noted, of the total number of Containers or other Packages or units entered in the box on the bill of lading entitled «Total No. of Containers or Packages received by».

15.2 No representation is made by the Freight Forwarder as to the weight, contents, measure, quantity, quality, description, condition, marks, numbers or value of the Goods and the Freight Forwarder shall be under no responsibility whatsoever in respect of such description or particulars.

15.3 The Merchant warrants to the Freight Forwarder that the particulars relating to the Goods as set out on the front of the bill of lading, including that required under clause 16.1, have been checked by the Shipper on receipt of the bill of lading and that such information and particulars, and any other particulars furnished by or on behalf of the Merchant, are adequate and correct. The Merchant also warrants that the Goods are lawful goods, and contain no contraband, drugs, other illegal substances or stowaways, and that the Goods will not cause loss damage or expense to the Freight Forwarder, or to any other cargo during the Carriage.

15.4 If any particulars of any Letter of Credit and/or Import License and/or Sales Contract and/or Invoice or Order number and/or details of any contract to which the Freight Forwarder is not a party, are shown on the face of the bill of lading, such particulars are included at the sole risk of the Merchant and for his convenience. The Merchant agrees that the inclusion of such particulars shall not be regarded as a declaration of value and in no way increases the Freight Forwarder’s liability under the bill of lading.

16. Gross Mass Requirements

16.1 The Merchant shall provide the Freight Forwarder with the total gross mass established using calibrated and certified equipment of each packed Container (FCL) or each package of Goods (LCL) carried pursuant to this bill of lading and the deadlines established by the Freight Forwarder. The Merchant acknowledges and agrees that the Freight Forwarder will rely on the accuracy and timeliness of such total gross mass information and use this to comply with its obligations to Subcontractors and any Authority.

16.2 In the event of any non-compliance by the Merchant with clause 16.1 or where the Freight Forwarder reasonably believes the total gross mass information provided by or on behalf of the Merchant to be inaccurate or incomplete, the Freight Forwarder may, at its sole discretion and without notice to the Merchant:

16. arrange, at the Merchant’s cost and as agent for and on behalf of the Merchant and without liability to the Merchant in accordance with clause 16.1, for the total gross mass of each packed Container (FCL) or each package of Goods (LCL) carried pursuant to this bill of lading to be established by a third party; or
17. refuse to load the Goods (if the Goods are not yet loaded) without liability to the Shipper or, if the Goods are loaded, arrange at the Merchant’s risk and expense for the Goods to be landed and stored, and such landing and storage shall be deemed to constitute due delivery of the Goods under this bill of lading.
18. Indemnity

17.1 The Merchant shall promptly indemnify the Freight Forwarder and/or the Subcontractors, their respective employees, servants, agents, insurers or reinsurers against all costs (including the costs of investigating and defending any claims), expenses, claims, losses, liabilities, orders, awards, fines, proceedings and judgments of whatsoever nature howsoever assumed, incurred or suffered as a result of or in connection with any of the following:

1. any breach by the Merchant of any of the warranties or obligations undertaken by the Merchant under this bill of lading;
2. any breach by the Merchant of any of the provisions of clause 23;
3. any other cause whatsoever in connection with the Goods for which the Freight Forwarder is not responsible;
4. the Freight Forwarder becoming liable to any other Person (including to a relevant Authority) and/or incurring additional costs by reason of the Freight Forwarder carrying out the Merchant’s instructions;
5. the Freight Forwarder incurring liability in excess of its liability under the provisions of this bill of lading regardlessof whether such liability arises from, or in connection with a breach of contract, negligence, wilful misconduct or breach of duty by the Freight Forwarder, its agents, servants or Sub-contractors;
6. delayed, inaccurate or incomplete verified gross mass information provided by or on behalf of the Merchant under clause 16.1 on which the Freight Forwarder relies.    
7. Freight, Expenses and Fees

18.1 Full Freight shall be payable based on particulars furnished by or on behalf of the Shipper. The Freight Forwarder may at any time open the Goods or Container(s) and, if the Shipper’s particulars are incorrect then without prejudice to the Freight Forwarder’s other rights under this bill of lading, the Merchant and the Goods shall be liable for the correct Freight and any expenses incurred in examining, weighing, measuring, or valuing the Goods.

18.2 Full Freight shall be considered completely earned on receipt of the Goods by the Freight Forwarder and shall be paid and nonreturnable in any event.

18.3 All sums payable to the Freight Forwarder are due on demand and shall be paid in full in United States currency or, at the Freight Forwarder’s option, in its equivalent in the currency of the Port of Loading or of Discharge or the Place of Receipt or of Delivery or as specified in the Freight Forwarder’s tariff.

18.4 The Merchant’s attention is drawn to the stipulations concerning currency in which the Freight is to be paid, rate of exchange, devaluation, additional insurance premium and other contingencies relative to Freight in the applicable tariff. In the event of any discrepancy between Freight (incl. charges etc.) items in the bill of lading and any Freight Forwarder invoices, the latter shall prevail.

18.5 All Freight shall be paid without any set-off, counter-claim, deduction or stay of execution at latest before delivery of the Goods.

18.6 If the Merchant fails to pay the Freight when due he shall be liable also for payment of service fee or interest due on any outstanding sum, reasonable attorney fees and expenses incurred in collecting any sums due to the Freight Forwarder. Payment of Freight and charges to a broker or anyone other than the Freight Forwarder or its authorised agent, shall not be deemed payment to the Freight Forwarder and shall be made at the Merchant’s sole risk.

18.7 Any non-payment of any invoice on its due date shall, by operation of law and without notice of default being required, by the mere fact of non-payment, accrue a statutory interest as stipulated in Article 993 of the Civil Code of the Republic of Panama.

19. Lien and Right of Retention

The Freight Forwarder shall have a possessory lien and/or a maritime lien on the Goods and any documents relating thereto, funds held and any other goods in respect of which the Freight Forwarder is providing services to the Merchant («Other Goods«) for all sums payable to the Freight Forwarder under this contract and for general average contributions to whomsoever due. The Freight Forwarder may exercise his possessory lien and/or maritime lien at any time and any place in his sole discretion, whether the contractual Carriage is completed or not. In any event any possessory lien and/or maritime lien shall extend to cover the cost of recovering any sums due and for that purpose the Freight Forwarder shall have the right to sell the Goods by judicial sale or private treaty at Freight Forwarder’s discretion, without notice to the Merchant. The Freight Forwarder’s maritime lien shall survive delivery of the Goods.

20. Optional Stowage, Deck Cargo and Livestock

20.1 The Goods may be packed by the Freight Forwarder in Containers and consolidated with other goods in Containers.

20.2 Goods, whether packed in Containers or not, may be carried on deck or under deck without notice to the Merchant unless on the reverse side hereof it is specifically stipulated that the Containers or Goods will be carried under deck. If carried on deck, the Freight Forwarder shall not be required to note, mark or stamp on the bill of lading any statement of such ondeck carriage. Save as provided in clause 20.3, such Goods (except livestock) carried on or under deck and whether or not stated to be carried on deck shall participate in general average and shall be deemed to be within the definition of goods for the purpose of the Hague Rules Articles 1-8 or any Compulsory Legislation and shall be carried subject to such Rules or Law, whichever is applicable.

20.3 Goods (not being Goods stowed in Containers other than flats or pallets), which are stated herein to be carried on deck and livestock, whether or not carried on deck, are carried without responsibility on the part of the Freight Forwarder for loss or damage of whatsoever nature or delay arising during the Carriage whether caused by unseaworthiness or negligence or any other cause whatsoever and neither the Hague Rules Articles 1-8 nor any Compulsory Legislation shall apply.

21. Methods and Routes of Carriage

21.1 The Freight Forwarder may at any time and without notice to the Merchant:

1. use any means of transport or storage whatsoever;
2. transfer the Goods from one conveyance to another including transhipping or carrying the same on a vessel other than the vessel named on the reverse hereof or by any other means of transport whatsoever and even though transhipment or forwarding of the Goods may not have been contemplated or provided for herein;
3. unpack and remove the Goods which have been packed into a Container and forward them via Container or otherwise;
4. sail without pilots, proceed via any route, (whether or not the nearest or most direct or customary or advertised route) at any speed and proceed to, return to and stay at any port or place whatsoever (including the Port of Loading herein provided) once or more often, and in any order in or out of the route or in a contrary direction to or beyond the Port of Discharge once or more often;
5. load and unload the Goods at any place or port (whether or not any such port is named on the reverse hereof as the Port of Loading or Port of Discharge) and store the Goods at any such port or place;
6. comply with any orders or recommendations given by any Authority or any Person or body or purporting to act as or on behalf of such Authority or having under the terms of the insurance on any conveyance employed by the Freight Forwarder the right to give orders or directions.

21.2 The liberties set out in clause 21.1 may be invoked by the Freight Forwarder for any purpose whatsoever whether or not connected with the Carriage of the Goods, including but not limited to loading or unloading other goods, bunkering or embarking or disembarking any person(s), undergoing repairs and/or dry-docking, towing or being towed, assisting other vessels, making trial trips and adjusting instruments. Anything done or not done in accordance with clause 21.1 or any delay arising therefrom shall be deemed to be within the contractual Carriage and shall not be a deviation.

22. Matters Affecting Performance

If at any time Carriage is or is likely to be affected by any hindrance, risk, danger, delay, difficulty or disadvantage of whatsoever kind and howsoever arising which cannot be avoided by the exercise of reasonable endeavours, (even though the circumstances giving rise to such hindrance, risk, danger, delay, difficulty or disadvantage existed at the time this contract was entered into or the Goods were received for Carriage) the Freight Forwarder may at his sole discretion and without notice to the Merchant and whether or not the Carriage is commenced either:

1. Carry the Goods to the contracted Port of Discharge or Place of Delivery, whichever is applicable, by an alternative route to that indicated in this bill of lading or that which is usual for Goods consigned to that Port of Discharge or Place of Delivery. If the Freight Forwarder elects to invoke the terms of this clause 22(a) then, notwithstanding the provisions of clause 21 hereof, he shall be entitled to charge such additional Freight as the Freight Forwarder may determine; or
2. Suspend the Carriage of the Goods and store them ashore or afloat upon the Terms and Conditions of this bill of lading and endeavour to forward them as soon as possible, but the Freight Forwarder makes no representations as to the maximum period of suspension. If the Freight Forwarder elects to invoke the terms of this clause 22(b) then, notwithstanding the provisions of clause 21 hereof, he shall be entitled to charge such additional Freight and Costs as the Freight Forwarder may determine; or
3. Abandon the Carriage of the Goods and place them at the Merchant’s disposal at any place or port, which the Freight Forwarder may deem safe and convenient, whereupon the responsibility of the Freight Forwarder in respect of such Goods shall cease. The Freight Forwarder shall nevertheless be entitled to full Freight on the Goods received for the Carriage, and the Merchant shall pay any additional costs incurred by reason of the abandonment of the Goods. If the Freight Forwarder elects to use an alternative route under clause 22(a) or to suspend the Carriage under clause 22(b) this shall not prejudice his right subsequently to abandon the Carriage.
4. Dangerous Goods

23.1 No Goods which are or which may become of a dangerous, noxious, hazardous, flammable, or damaging nature (including radioactive material), or which are or may become liable to damage any Persons or property whatsoever, and whether or not so listed in any official or unofficial, international or national code, convention, listing or table shall be tendered to the Freight Forwarder for Carriage without previously giving written notice of their nature, character, name, label and classification (if applicable) to the Freight Forwarder and obtaining his consent in writing prior to the Company’s receipt of the Goods and without distinctly marking the Goods and the Container or other covering on the outside so as to indicate the nature and character of any such Goods and so as to comply with any applicable laws, regulations or requirements. If any such Goods are delivered to the Freight Forwarder in breach of any of the provisions of this clause, or if in the opinion of the Freight Forwarder the Goods are or are liable to become of a dangerous, noxious, hazardous, flammable or damaging nature they may at any time or place be unloaded, destroyed, disposed of, abandoned or rendered harmless without compensation to the Merchant and without prejudice to the Freight Forwarder’s right to Freight and, the Freight Forwarder shall be under no liability to make any general average contribution in respect of such Goods.

23.2 Nothing contained in this clause shall deprive the Freight Forwarder of any of his rights provided for elsewhere.

24. Notification and Delivery

24.1 Any mention in this bill of lading of parties to be notified of the arrival of the Goods is solely for information of the Freight Forwarder. Failure to give such notification shall not involve the Freight Forwarder in any liability nor relieve the Merchant of any obligation hereunder.

24.2 The Merchant shall take delivery of the Goods within the time provided for in the applicable tariff. If the Merchant fails to do so, the Freight Forwarder may without notice unpack the Goods if packed in Containers and/or store the Goods ashore, afloat, in the open or under cover at the sole risk of the Merchant. Such storage shall constitute due delivery hereunder, and thereupon all liability whatsoever of the Freight Forwarder in respect of the Goods or that part thereof shall cease and the costs of such storage shall forthwith upon demand be paid by the Merchant to the Freight Forwarder.

24.3 If the Goods are unclaimed within a reasonable time or whenever in the Freight Forwarder’s opinion the Goods are likely to deteriorate, decay or become worthless, or incur charges whether for storage or otherwise in excess of their value, the Freight Forwarder may at his discretion and without prejudice to any other rights which he may have against the Merchant without notice and without any responsibility attaching to him sell, abandon or otherwise dispose of the Goods at the sole risk and expense of the Merchant and apply any proceeds of sale in reduction of the sums due to the Freight Forwarder from the Merchant in respect of this bill of lading.

24.4 Refusal by the Merchant to take delivery of the Goods in accordance with the terms of this clause and/or to mitigate any loss or damage thereto shall constitute a waiver by the Merchant to the Freight Forwarder of any claim whatsoever relating to the Goods or the Carriage thereof.

24.5 The Freight Forwarder may in his absolute discretion receive the Goods as Full Container Load and deliver them as less than Full Container Load and/or as break bulk cargo and/or deliver the Goods to more than one receiver. In such event the Freight Forwarder shall not be liable for any shortage, loss, damage or discrepancies of the Goods, which are found upon the unpacking of the Container.

25. General Average

25.1 In the event of accident, danger, or disaster 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 Freight Forwarders and its Subcontractors, servants and agents are not responsible by statute, contract or otherwise, the Goods and the Merchants 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. Such deposit as the Freight Forwarder 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.

25.2 Merchant shall defend, indemnify and hold harmless the Freight Forwarder, its Subcontractors, servant or agents of any claim (and any expense arising therefrom) of a General Average adjuster for payment on account.

25.3 Neither the Freight Forwarder nor its Subcontractor, servants or agents shall be under any obligation to take any steps whatsoever to post security for General Average due from Merchant. Notwithstanding the foregoing, Freight Forwarder 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.

26. 26. Variation of the Contract

No servant or agent of the Freight Forwarder shall have the power to waive or vary any Terms and Conditions unless such waiver or variation is ratified in writing by the Freight Forwarder.

27. 27. Himalaya Clause

27.1 For the purpose of this contract, the term “Servant” shall include any other underlaying carriers, owners, managers, and operators of vessels (other than the Freight Forwarder); stevedores and terminal operators; and any direct or indirect servant, agent, or subcontractor (including their own subcontractors), or any other party employed by or on behalf of the Freight Forwarder, or whose services or equipment haven been used to perform this contract whether in direct contractual privity with the Freight Forwarder or not.

27.2 It is hereby expressly agreed that no Servant shall in any circumstances whatsoever be under any liability whatsoever to the Merchant for any loss, damage, or delay of whatsoever kind arising or resulting directly or indirectly from any act, neglect or default on the Servant’s part while acting in the course of or in connection with the performance of this contract.

27.3 Without prejudice to the generality of the foregoing provisions in this clause, every exemption, limitation, condition and liberty contained herein (other than Art III Rule 8 of the Hague Rules incorporated herein) and every right, exemption from liability, defense and immunity of whatsoever nature applicable to the Freight Forwarder or to which the Freight Forwarder is entitled hereunder including the right to enforce any jurisdiction provision contained herein shall also be available and shall extend to every such Servant of the Freight Forwarder, who shall be entitled to enforce the same against the Merchant.

27.4 The Merchant undertakes that no claim or allegation whether arising from contract, bailment, tort or otherwise shall be made against any Servant of the Freight Forwarder which imposes or attempts to impose upon any of them or any vessel owned or chartered by any of them any liability whatsoever in connection with this contract whether or not arising out of negligence on the part of such Servant. The Servant shall also be entitled to enforce the foregoing covenant against the Merchant; and the Merchant undertakes that if any such claim or allegation should nevertheless be made, he will indemnify the Freight Forwarder against all consequences thereof.

27.5 For the purpose of this clause the Freight Forwarder is or shall be deemed to be acting as agent or trustee on behalf of and for the benefit of his Servants and all Servants shall to this extent be or be deemed to be parties to this contract.

28. Applicable Law and Jurisdiction

Unless expressly provided otherwise herein, these Terms and Conditions shall be governed by the Laws of the Republic of Panama. Any dispute, controversy or claim arising out of, relating to, or in connection with this Agreement, including, without limitation, its validity or termination, or the performance or breach thereof, shall finally settled by the Maritime Courts of Panama in the Republic of Panama.