PART I: General Conditions
1. Application
1.1 Subject to Clause 1.2, all services of the Company whether gratuitous
or not are undertaken subject to these Conditions and not otherwise
and:
(a) The provisions of Part I shall apply to all such services.
(b) The provisions of Part II shall only apply to the extent that
such services are provided by the Company as agents.
(c) The provisions of Part III shall only apply to the extent that
such services are provided by the Company as principals.
1.2 Where a document is issued by or on behalf of the Company and
bears the title of, or includes the words, "bill of lading"
(whether or not negotiable), or sea or air "waybill" and
provides that the Company contracts as carrier, the provisions set
out in that document, if inconsistent with these Conditions, shall
be paramount and prevail over these Conditions to the extent that
such provisions are inconsistent but no further.
1.3 Any variation, cancellation or waiver of these Conditions (or
any of them) must be in writing signed by a Director of the Company.
No other person has or will be given any authority whatsoever to
agree to any variation, cancellation or waiver of these Conditions.
2. Provision of Services
2.1 All services are provided by the Company as agents only, except
in the following circumstances where the Company acts as principal:
(a) where the Company performs any carriage, handling or storage
of Goods, but only to the extent that the carriage is performed
by the Company itself or its servants and the Goods are in the actual
custody and control of the Company, or
(b) where, prior to the commencement of the carriage of Goods, the
Customer in writing demands from the Company particulars of the
identity, services or charges of persons instructed by the Company
to perform part or all of the carriage, and the Company fails to
give the particulars demanded within 28 days. However, for the purposes
of this sub-clause, the Company shall only be deemed to be contracting
as a principal in respect of that part of the carriage which the
Company fails to give the particulars demanded.; or
(c) to the extent that the Company expressly agrees in writing to
act as a principal, or
(d) to the extent that the Company is held by a court of law to
have acted as a principal.
2.2 Without prejudice to the generality of clause 2.1,
(a) the charging by the Company of a fixed price for any services
whatsoever shall not in itself determine or be evidence that the
Company is acting as an agent or a principal in respect of those
services.
(b) the supplying by the Company of its own or leased equipment
shall not in itself determine or be evidence that the Company is
acting as agent or a principal in respect of any carriage, handling
or storage of Goods;
(c) the Company acts as an agent where the Company procures a bill
of lading, sea or air waybill or other document evidencing a contract
of carriage between a person, other than the Company, and the Customer
or Owner;
(d) the Company acts as an agent and never as a principal when providing
services as a Customs Broker in respect of or relating to customs
requirements, taxes, licenses, consular documents, certificates
of origin, inspection, certificates and other similar services or
when obtaining insurances for or on behalf of the Customer or relating
to the Goods (other than where by law the Company is deemed to be
an agent of the insurer) or when providing any other services whatsoever
for or on behalf of the Customer.
2.3 The Company is not a common carrier and will accept no liability
as such and it reserves the right to accept or refuse the carriage
of any Goods or any other Service at its discretion. All Services
are performed subject only to these Conditions (and when applicable
but subject to clause 21.6, the conditions on any Bill of Lading
or Air Waybill issued by the Company as Principal).
3. Definitions
In these conditions:
(a) "Company" is SCHENKER AUSTRALIA PTY LTD, ACN 000 410
211, and ABN 75 000 410 211
(b) "Customer" means any person at whose request or on
whose behalf the Company provides a service;
(c) "Person" includes persons or any body or bodies corporate;
(d) "Owner" includes the owner, shipper and consignee
of the Goods and any other person who is or may become interested
in the Goods and anyone acting on their behalf;
(e) "Authority" means a duly constituted legal or administrative
person, acting within its legal powers and exercising jurisdiction
within any nation, state, municipality, port or airport;
(f) "Goods" includes the cargo and any container not supplied
by or on behalf of the Company, in respect of which the Company
provides a service;
(g) "Container" includes any container, flexitank, trailer,
transportable tank, flat, pallet or any article of transport used
to carry or consolidate goods and any equipment of or connected
thereto;
(h) "Dangerous Goods" includes goods which are or may
become of a dangerous, inflammable, radio-active or damaging nature
and goods likely to harbour or encourage vermin or other pests;
(i) "Hague-Visby-Rules" means the provisions of the International
Convention for the Unification of certain rules Relating to Bills
of Lading signed at Brussels on 25th August 1924 as amended by the
Visby Protocol of 23rd February 1968 and the SDR Protocol of 21st
December 1979;
(j) "Incidental matters" means anything done or to be
done in relation to the Goods or the provision of any services ancillary
to the Goods including but not limited to moving, storing or leaving
the Goods at any warehouse, terminal, yard, wharf or other place
or area, loading or unloading the Goods from any vehicle, vessel
or other conveyance, stowing or packing the Goods or fumigating,
transhipping, inspecting or otherwise handling the Goods or anything
done in relation thereto.
(k) "Instructions" means a statement of the Customers
specific requirements.
(l) "Services" means the whole of the Services provided
by the Company to the Customer and all matters necessarily related
to the provision of the Services or ancillary to the provision of
the Services.
(m) "Warsaw Convention" means the Convention for the Unification
of Certain Rules Relating to International Carriage by Air dated
12 October 1929 as amended at the Hague, 1955 and supplemented by
the Guadalajara Convention dated 18 September 1961 as applied respectively
by the legislation of the Commonwealth of Australia and of New Zealand.
4. Obligations of Customer
4.1 The Customer warrants that it is either the Owner or the authorised
agent of the Owner of the Goods and that it is authorised to accept
and accepts these Conditions, not only for itself, but also as agent
for and on behalf of the Owner
4.2 The Customer warrants that it has reasonable knowledge of matters
affecting the conduct of its business, including, but not limited
to, the terms of sale and purchase of the Goods and all other matters
relating thereto.
4.3 The Customer shall give sufficient and executable instructions.
4.4 The Customer warrants that the description and particulars of
the Goods are complete and correct.
4.5 The Customer warrants that the Goods are properly packed and
labelled, except where the Company has accepted instructions in
respect of packaging and/or labelling.
5. Special Instructions, Goods and Services
5.1 Unless agreed in writing, the Customer shall not deliver to
the Company, or cause the Company to deal with or handle, Dangerous
Goods.
5.2 If the Customer is in breach of Clause 5.1:
(a) the Customer shall be liable for all loss or damage whatsoever
caused by or to or in connection with the Goods howsoever arising;
(b) the Customer shall defend, indemnify and hold harmless the Company
against all penalties, claims, damages, costs and expenses whatsoever
arising in connection therewith; and
(c) the Company (or any other person in whose custody the Goods
may be in at the relevant time) may, at the Company's sole discretion,
have the Goods destroyed or otherwise dealt with. For the purposes
of this sub-clause, notice is not required to be given to any person
of the intention to destroy or otherwise deal with the Goods. .
5.3 If the Company agrees to accept Dangerous Goods and then it
(or any other person) reasonably forms the view that those Goods
constitute a risk to other goods, property, life or health, it may
(without notice and without liability) have the Goods destroyed
or otherwise dealt with at the expense of the Customer or Owner.
5.4 The Customer undertakes not to tender for transportation any
Goods which require temperature control without previously giving
written notice of their nature and the particular temperature range
to be maintained and, in the case of a temperature controlled Container
stuffed by or on behalf of the Customer, the Customer further undertakes
that:-
(a) the Container has been properly pre-cooled or pre-heated as
appropriate;
(b) the Goods have been properly stuffed in the Container; and
(c) the Container's thermostatic controls have been properly set
by the Customer.
5.5 If the requirements of Clause 5.4 are not complied with the
Company shall not be liable for any loss of or damage to the Goods
caused by such non-compliance.
5.6 Unless agreed in writing, the Company shall not be obliged to
make any declaration for the purposes of any statute, convention
or contract as to the nature or value of any Goods or as to any
special interest in delivery or to make any declaration as to specific
stowage requirements of any Goods.
5.7 Unless agreed in writing or otherwise provided for under the
provisions of a document signed by the Company, instructions relating
to the delivery or release of Goods against payment or against surrender
of a particular document shall be in writing and the Company's liability
shall not exceed that provided for in respect of misdelivery of
Goods.
5.8 Unless agreed in writing that the Goods shall depart by or arrive
by a particular date, the Company accepts no responsibility for
departure or arrival dates of Goods.
6. Insurance
6.1 No insurance shall be effected except upon express instructions
given in writing by the Customer and in effecting any such insurances,
the Company shall be deemed to be an agent only of the Customer
(other than where by law the Company is deemed to be an agent of
the insurer) and not as an insurer, insurance broker or other form
of intermediary.
6.2 All insurances effected by the Company are effect as agent only
for the Customer (other than where by law the Company is deemed
to be an agent of the insurer) and all such insurances are subject
to the usual exceptions and conditions of the policies of the insurance
company or underwriters taking the risk.
6.3 Unless agreed in writing, the Company shall not be under any
obligation to effect a separate insurance on each consignment but
may declare it on any open or general policy.
6.4 The Company is an agent only of the Customer in respect of the
effecting of insurance (other than where by law the Company is deemed
to be an agent of the insurer) and in any event should the insurers
dispute their liability for any reason the insured shall have recourse
against the insurers only and the Company shall not be under any
responsibility or liability whatsoever in relation thereto, notwithstanding
that the premium upon the policy may not be at the same rate as
that charged by the Company or paid to the Company by the customer.
7. General Indemnities and Liabilities of the Customer and Owner
7.1 The Customer and Owner shall defend, indemnify and hold harmless
the Company against all liability, loss, damage, costs and expenses
howsoever arising:
(a) from the nature of the Goods, other than to the extent caused
by the Company's negligence,
(b) out of the Company acting in accordance with the Customer's
or Owner's instructions, or
(c) from a breach of warranty or obligation by the Customer or arising
from the negligence of the Customer or Owner.
7.2 Except to the extent caused by the Company's negligence, the
Customer and Owner shall be liable for and shall defend, indemnify
and hold harmless the Company in respect of all duties, taxes, imposts,
levies, deposits and outlays whatsoever levied by any Authority
and for all payments, fines, costs, expenses, loss and damage whatsoever
incurred or sustained by the Company in connection therewith.
7.3 Advice and information, in whatever form it may be given, is
provided by the Company for the Customer only and the Customer shall
defend, indemnify and hold harmless the Company for all liability,
loss, damage, costs and expenses arising out of any other person
relying on such advice or information.
7.4 The Customer shall be liable for the loss, damage, contamination,
soiling, detention or demurrage before, during and after the Carriage
of property of:
(a) the Company (including, but not limited to, Containers);
(b) the Company's servants, sub-contractors or agents;
(c) independent contractors engaged by the Company for performance
of part or all of the Services;
(d) any person; or
(e) any vessel
caused by the Customer or Owner or any person acting on behalf of
either of them or for which the Customer is otherwise responsible.
7.5 Instructions to collect payment on delivery in cash or otherwise
are accepted by the Company upon and on the condition that the Company
in the matter of such collection will be liable for the exercise
of reasonable diligence and care only. Unless express written instructions
are received that the Goods are not to be delivered without payment,
the Company accepts no liability if, upon delivery of the goods,
payment is not made.
8. Subcontractors
8.1 The Customer undertakes that no claim will be made against any
servant, sub-contractor or agent of the Company which imposes or
attempts to impose upon any of them any liability whatsoever in
connection with the Goods. If any such claim should nevertheless
be made, the Customer undertakes to indemnify the Company against
all consequences thereof.
8.2 Without prejudice to Clause 8.1, every servant, sub-contractor
or agent of the Company shall have the benefit of all provisions
herein as if such provisions were expressly for their benefit. In
entering into this contract, the Company, to the extent of those
provisions, does so not only on its behalf, but as agent and trustee
for such servants, sub-contractors and agents.
8.3 The Customer shall defend, indemnify and hold harmless the Company
from and against all claims, costs and demands whatsoever and by
whomsoever made or preferred, in excess of the liability of the
Company under these Conditions.
8.4 Without prejudice to the generality of this Clause 8, the indemnity
referred to in Clause 8.3, shall cover all claims, costs and demands
arising from or in connection with the negligence of the Company,
its servants, sub-contractors and agents.
8.5 In this Clause, "sub-contractors" includes direct
and indirect sub-contractors and their respective employees, servants
and agents.
9. Charges etc.
9.1 The Customer shall pay to the Company in cash, or as agreed,
all sums immediately when due without deduction or deferment on
account of any claim, counterclaim or set-off.
9.2 When the Company is instructed to collect freight, duties, charges
or other expenses from any person other than the Customer, the Customer:
(a) shall remain responsible for these amounts; and
(b) shall pay these amounts to the Company on demand where these
amounts have become due and have not been paid by such other person.
9.3 On all accounts overdue to the Company, the Company shall be
entitled to liquidated damages, such liquidated damages to be calculated
at 4 per cent above the base interest rate of the Company's bank
applicable during the periods that such amounts are overdue.
9.4 The Customer shall be liable for and pay to the Company any
additional costs or expenses the Company may incur and for any loss
or damage occasioned either directly or indirectly to the Company
as a result of the Company relying upon the description and particulars
provided by the Customer or by reason of any illegal, incorrect
or insufficient marking, numbering or addressing of the Goods.
10. Liberties and Rights of the Company
10.1 Unless otherwise agreed in writing, the Company shall be entitled
to enter into contracts on behalf of itself or the Customer and
without notice to the Customer:
(a) for the carriage of Goods by any route, means or person,
(b) for the carriage of Goods of any description, whether containerised
or not, on or under the deck of any vessel,
(c) for the storage, packing, transhipment, loading, unloading or
handling of Goods by any person at any place whether on shore or
afloat and for any length of time,
(d) for the carriage or storage of Goods in containers or with other
goods of whatever nature,
(e) for the performance of its own obligations, and to do such acts
as the Company reasonably considers may be necessary or incidental
to the performance of the Company's obligations.
10.2 The Company shall be entitled (without incurring any additional
liability), but shall be under no obligation, to depart from the
Customer's instructions in any respect if the Company considers
there is good reason to do so in the Customer's interest.
10.3 The Company may at any time comply with the orders or recommendations
given by any Authority. The responsibility and liability of the
Company in respect of the Goods shall cease on the delivery or other
disposition of the Goods in accordance with such orders or recommendations.
10.4 The Company shall be entitled (but under no obligation) at
any time and from time to time to inspect the Goods and for this
purpose to open or remove any Containers.
10.5 If at any time the Company reasonably considers that the carriage
of the Goods should not be undertaken or continued or only continued
after effecting any necessary incidental matters or incurring additional
expense or risk, the Company shall be entitled to:
(a) abandon the carriage of such cargo or to effect such additional
incidental matters and incur such additional expense, as may be
reasonably necessary in order to enable the carriage to be effected
or further effected; and
(b) be reimbursed by the Customer for the cost of all such additional
incidental matters and all such additional expense incurred.
10.6 If the Company (or any person whose services the Company makes
use of) considers:
(a) the performance of the Company's obligations are likely to be
effected by any hindrance, risk, delay, difficulty or disadvantage
whatsoever; and
(b) the hindrance, risk, delay, difficulty or disadvantage cannot
be avoided by reasonable endeavours of the Company or such other
person,
the Company may (upon giving notice in writing to the Customer or
Owner) treat the performance of its obligations as terminated and
may, at the Customer's expense, place the Goods or any part of them
at the Customer's or Owner's disposal at any place which the Company
deems safe and convenient.
10.7 The notice in writing referred to in Clause 10.6 is not required
where it is not reasonably possible to give such notice.
10.8 Where the Company exercises its rights and obligations under
Clause 10.6, responsibility and liability of the Company in respect
of the Goods shall thereupon cease absolutely.
10.9 Where the Company (or any person whose services the Company
makes use of) is entitled to call upon the Customer or Owner to
take delivery of the Goods at a designated time and place and delivery
of the Goods, or any part thereof, is not taken by the Customer
or Owner at the designated time and place the Company (or such other
person) shall be entitled to store the Goods in the open or under
cover at the sole risk and expense of the Customer.
10.10 Notwithstanding Clauses 10.6 to 10.9, the Company shall be
entitled (but under no obligation) without any responsibility or
liability to the Customer and Owner, to sell or dispose of
(a) all Goods which the Company considers cannot be delivered as
instructed, but only upon giving 21 days notice in writing to the
Customer, and
(b) without notice, Goods which have perished, deteriorated or altered,
or are in immediate prospect of doing so in a manner which has caused
(or may be reasonably expected to cause) loss or damage to any person
or property or to contravene applicable regulations.
10.11 Where the Company sells or disposes of Goods pursuant to Clause
10.10 the Customer shall be responsible for any costs and expenses
of the sale or disposal.
10.12 The Company shall be entitled to retain and be paid all brokerages,
commissions, allowances and other remunerations customarily retained
by or paid to freight forwarders without notice to the Customer.
10.13. The Company shall have the right to enforce against the Owner
and the Customer jointly and severally any liability of the Customer
under these Conditions or to recover from them any sums to be paid
by the Customer which upon demand have not been paid.
11. Lien
11.1 The Company shall have a particular and general lien on all
Goods or documents relating to Goods in its possession the property
of the Customer or Owner for all sums due at any time from the Customer
or Owner (whether those sums are due from the Customer on those
Goods or documents or on any other Goods or documents).
11.2 Where any sum due to the Company from the Customer or Owner
remains unpaid, the Company, on giving 28 days notice in writing
to the Customer, shall be entitled (without liability to the Customer
and Owner) to sell or dispose of such Goods or documents by public
auction or by private treaty at the risk and expense of the Customer
and Owner and to apply the proceeds of any such sale or disposal
in or towards the payment of the sums due.
12. Containers
12.1 If a Container has not been packed or stuffed by the Company,
the Company shall not be liable for loss of or damage to the contents
if caused by:
(a) the manner in which the Container has been packed or stuffed,
(b) the unsuitability of the contents for carriage in Containers,
unless the Company has approved the suitability,
(c) the unsuitability or defective condition of the Container, provided
that where the Container has been supplied by or on behalf of the
Company this paragraph (c) shall only apply if the unsuitability
or defective condition arose:
(i) without any negligence on the part of the Company; or
(ii) would have been apparent upon reasonable inspection by the
Customer or Owner or person acting on behalf of either of them.
(d) the fact that the Container is not sealed at the commencement
of the Carriage, except where the Company has agreed to seal the
Container.
12.2 The Customer shall defend, indemnify and hold harmless the
Company against all liability, loss, damage, costs and expenses
arising from one or more of the matters referred to in Clause 12.1,
except for Clause 12.1(c)(i).
12.3 Where the Company is instructed to provide a Container, in
the absence of a written request to the contrary, the Company is
not under an obligation to provide a Container of any particular
type or quality.
13. General Liability
13.1 Except where otherwise provided in these Conditions, the Company
shall not be liable for any loss or damage whatsoever arising from:
(a) the act or omission of the Customer or Owner or any person acting
on their behalf,
(b) compliance with the instructions given to the Company by the
Customer, Owner or any other person entitled to give them,
(c) insufficiency of the packing or labelling of the Goods, except
where such service has been provided by the Company,
(d) handling, loading, stowage or unloading of the Goods by the
Customer or Owner or any person acting on their behalf,
(e) inherent vice of the Goods,
(f) riots, civil commotions, strikes, lockouts, stoppage or restraint
of labour from whatsoever cause,
(g) fire, flood, storm, explosion or theft or
(h) any cause which the Company could not avoid and the consequences
whereof it could not prevent by the exercise of reasonable diligence.
13.2 Subject to Clause 5.8, the Company shall not be liable for
loss or damage howsoever caused (whether or not indirect or consequential)
to property other than the Goods themselves and shall not be liable
for any pure economic loss or loss of profit, delay or deviation
howsoever arising.
14. Amount of Compensation
14.1 Except in so far as otherwise provided by these Conditions,
the liability of the Company, howsoever arising, shall not exceed
the following:
(a) in respect of all claims other than those subject to the provisions
of Clause 14.4 whichever is the lesser of:
(i) the value of, or
(ii) the equivalent of US$2.00 per gross kilogram in the currency
of the loss or damage, (the exchange rate to apply being the rate
as at the date of the delivery of the Goods) of,
the Goods lost, damaged, misdirected, misdelivered or in respect
of which a claim arises.
(b) in respect of claims for delay where not excluded by the provisions
of these Conditions, the amount of the Company's charges in respect
of the Goods delayed.
14.2 The limitation of liability referred to in Clause 14.1 shall
apply notwithstanding that the cause of the loss or damage is unexplained.
14.3 If agreed in writing prior to receipt of the Goods, the Company
may accept liability in excess of the limits set out in these Conditions
upon the Customer agreeing to pay the Company's additional charges
for accepting such increased liability. Details of the Company's
additional charges will be provided upon request.
14.4 Compensation shall be calculated by reference to the invoice
value of the Goods plus freight and insurance if paid.
14.5 If there be no invoice value for the Goods, the compensation
shall be calculated by reference to the value of such Goods at the
place and time when they were delivered to the Customer or Owner
or should have been so delivered. The value of the Goods shall be
fixed according to the current market price, or, if there be no
commodity exchange price or current market price, by reference to
the normal value of goods of the same kind and quality.
14.6 Unless agreed in writing prior to receipt, the Company will
not accept or deal with bullion, coin, precious stone, jewellery,
antiques, works of art or other valuable Goods. Should any Customer
nevertheless delivery any such Goods to the Company or cause the
Company to handle or deal with any such Goods other than in accordance
with prior written agreement, the Company shall be under no liability
whatsoever for or in connection with such Goods howsoever arising.
15. Notice of Loss, Timebar
15.1 The Company shall be discharged of all liability unless:
(a) notice of any claim is received by the Company or its agent
in writing within 14 days after the date specified in Clause 15.2,
or within a reasonable time after that date if the Customer proves
that it was impossible to so notify, and
(b) suit is brought in the proper forum and written notice thereof
received by the Company within 9 months after the date specified
in Clause 15.2.
15.2 For the purposes of Clause 15.1, the applicable dates are:
(a) in the case of loss or damage to Goods, the date of delivery
of the Goods,
(b) in the case of delay or non-delivery of the Goods, the date
that the Goods should have been delivered,
(c) in any other case, the event giving rise to the claim.
16. General Average
16.1 The Customer shall defend, indemnify and hold harmless the
Company in respect of any claims of a General Average nature, including
any claims or demands for General Average security which may be
made on the Company, and the Customer shall forthwith provide such
security as may be required by the Company in this connection.
17. Miscellaneous
17.1 Notice
Any notice served by post shall be deemed to have been given on
the third day following the day on which it was posted to the address
last known to the Company to be the address of the recipient of
the notice.
17.2 Defences and Limits of Liability
The defences and limits of liability provided in these Conditions
shall apply in any action against the Company whether founded in
contract or in tort or howsoever otherwise founded.
17.3 Legislation
If any legislation is compulsorily applicable to any business undertaken,
these Conditions shall, as regards such business, be read as subject
to such legislation and nothing in these Conditions shall be construed
as a surrender by the Company of any of its rights or immunities
or as an increase of any of its responsibilities or liabilities
under such legislation and if any part of these Conditions is held
to be repugnant to such legislation to any extent such part shall
as regards such business be over-ridden to that extent and no further.
17.4 Headings
Headings of clauses or groups of clauses in these Conditions are
for indicative purposes only.
18. Governing Law and Jurisdiction
18.1 These Conditions and any claim or dispute arising out of or
in connection with the services of the Company shall be subject
to the law of the State or Territory of Australia in which the Company
has its principal place of business and any such claim or dispute
shall be determined by the Courts of that State or Territory and
no other Court.
18.2 Notwithstanding anything herein contained, the Company shall
continue to be subject to any implied warranty provided by the Trade
Practices Act 1974 (as amended) of the Commonwealth of Australia
or any other Commonwealth or State legislation, if and to the extent
that the said Act is applicable to the contract evidenced by these
Conditions and prevents the exclusion, restriction or modification
of such warranty.
18.3 Notwithstanding Clause 18.1, where any claim or dispute arising
out of or in connection with the services of the Company arises
in New Zealand, such claim or dispute shall be determined at the
Company's option in accordance with New Zealand law and by New Zealand
Courts of competent jurisdiction.
18.4 If any claim or dispute is to be determined in accordance with
New Zealand law, Clause 18.2 shall be deemed to be varied so as
to apply on like terms any compulsorily applicable provisions of
the Fair Trading Act 1986 (as amended) of New Zealand in place of
the legislation referred to in Clause 18.2.
18.5 When New Zealand law has application to these Conditions, all
Services provided by the Company as a carrier (within the meaning
of the Carriage of Goods Act 1979 (as amended)) of New Zealand are
provided at limited carrier's risk in accordance with these Conditions
and (other than when Clause 14.5 applies) the provisions of that
Act shall prevail over any inconsistency in these Conditions to
the extent of such inconsistency but no further.
PART
II: Company As Agent
19. Special Liability and Indemnity Conditions
19.1 To the extent that the Company acts as an agent, the Company
does not make or purport to make any contract with the Customer
for the carriage, storage or handling of the Goods nor for any other
physical service in relation to them and acts solely on behalf of
the Customer in securing such services by establishing contracts
with third parties so that direct contractual relationships are
established between the Customer and such third parties.
19.2 The Company shall not be liable for the acts and omissions
of third parties referred to in Clause 19.1.
19.3 The Company, when acting as an agent, has the authority of
the Customer to enter into contracts on the Customer's behalf and
to do acts which bind the Customer in all respects notwithstanding
any departure from the Customer's instructions.
19.4 Except to the extent caused by the Company's negligence, the
Customer shall defend, indemnify and hold harmless the Company in
respect of all liability, loss, damage, costs or expenses arising
out of any contracts made in the procurement of the Customer's requirements
in accordance with Clause 19.1.
20. Choice of Rates
20.1 Where there is a choice of rates according to the extent or
degree of liability assumed by persons carrying, storing, or handling
the Goods, no declaration of value (where available) will be made
by the Company unless previously agreed in writing between the Customer
and the Company.
PART
III: Company as Principal
21 Special Liability Conditions
21.1 Where the Company contracts as principal for the performance
of the Customer's instructions, the Company undertakes to perform,
or in its own name to procure, the performance of the Customer's
instructions and, subject to the provisions of these Conditions,
shall be liable for the loss of or damage to the Goods occurring
from the time that the Goods are taken into its charge until the
time of delivery.
21.2 Where:
(a) the Company contracts as a principal and sub-contracts the performance
of the Company's services; and
(b) it can be proved that the loss of or damage to or in respect
of the Goods arose or was caused whilst the Goods were in the care
or custody of the sub-contractor;
the Company shall have the full benefit of all rights, limitations
and exclusions of liability available to the sub-contractor in the
contract between the Company and the sub-contractor and in any law,
statute or regulation and the liability of the Company shall not
exceed the amount recovered, if any, by the Company from the sub-contractor.
21.3 Notwithstanding other provisions in these Conditions, if it
can be proved where the loss of or damage to the Goods occurred,
the Company's liability shall be determined by the provisions contained
in any international convention or national law, the provisions
of which:
(a) cannot be departed from by private contract, to the detriment
of the claimant, and
(b) would have applied if the claimant had made a separate and direct
contract with the actual provider of the particular service in respect
of that service or stage of carriage where 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.
21.4 Notwithstanding other provisions in these Conditions, if it
can be proved that the loss of or damage to the Goods occurred at
sea or on inland waterways and the provisions of Clause 21.2 do
not apply, the Company's liability shall be determined by the Hague-Visby
Rules. Reference in the Hague-Visby Rules to carriage by sea shall
be deemed to include reference to carriage by inland waterways and
the Hague-Visby Rules shall be construed accordingly.
21.5 Notwithstanding the provisions of Clauses 21.2, 21.3 and 21.4,
if the loss of or damage to the Goods occurred at sea or on inland
waterways, and the Owner, Charterer or operator of the carrying
vessel is entitled to limit its liability at law and establishes
a limited fund, the liability of the Company shall be limited to
the proportion of such limitation fund as is allocated to the Goods.
21.6 In the event of any inconsistency between these Conditions
and the conditions of any Bill of Lading or Air Waybill issued by
or on behalf of the Company as Principal, the conditions of any
such Bill of Lading or Air Waybill shall prevail to the extent of
such inconsistency but no further.
22 Both-to-Blame Collision Clause
22.1. The Both-to-Blame Collision Clause as recommended by BIMCO
as at the same of the provision of Services is incorporated into
and forms part of these Conditions.
23. USA and/or Canada and Additional Responsibility Clause
23.1 With respect to transportation within the USA or Canada, the
responsibility of the Company shall be to procure transportation
by carriers (one or more) and such transportation shall be subject
to such carrier's contracts and tariffs and any law compulsorily
applicable. The Company guarantees the fulfilment of such carrier's
obligations under their contracts and tariffs.
23.2 If and to the extent that the provisions of the Harter Act
of the USA 1893 would otherwise be compulsorily applicable to regulate
the Company's responsibility for the Goods during any period prior
to loading on or after discharge from the vessel on which the Goods
are to be or have been carried, the Company's responsibility shall
instead be determined by these Conditions. If such provisions are
found to be invalid such responsibility shall be determined by the
provisions in the Carriage of Goods by Sea Act of the USA Approved
1936.
23.3 If and to the extent that the provisions of the Regulations
made pursuant to the Carriage of Goods by Sea Act 1991 (as amended)
of the Commonwealth of Australia (or any amendments to such Regulations)
would otherwise be compulsorily applicable to regulate the Company's
responsibility for the Goods during any period prior to loading
on or after discharge from the vessel on which the Goods are to
be or have been carried, the Company's responsibility shall be determined
by these Conditions. If such provisions are found to be invalid
such responsibility shall be determined by the provisions of the
said Carriage of Goods by Sea Act.
24.4 If the Hamburg Rules should be held to be compulsorily applicable
to any carriage of goods by sea undertaken by the Company as principal,
these Conditions shall be read subject to the provisions of the
Hamburg Rules and any term of these Conditions that is repugnant
to the Hamburg Rules shall be void to the extent of such repugnancy
but no further.
24. Air Carriage
24.1 Where the Company acts as a principal in respect of a carriage
of Goods by air, the following notice is hereby given:
If the carriage involves an ultimate destination or stop in a country
other than the country of departure, the Warsaw Convention may be
applicable and the Convention governs and in most cases limits the
liability of carriers in respect of loss of or damage to Goods.
Agreed stopping places are those places (other than the places of
departure and destination) shown under requested routing and/or
those places shown in carrier's timetables as scheduled stopping
places for the route. The address of the first carrier is the airport
of departure.
24.2 Notwithstanding any other provision of these Conditions, where
the Company acts as a principal in respect of a carriage of Goods
by air, the Company's liability in respect of loss of or damage
to such Goods shall be determined in accordance with the Warsaw
Convention.
© Schenker Australia Pty Ltd, Version: November 12, 2001
 Conditions of Carriage
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