Terms and Conditions
The
Customer's attention is drawn to the Clauses hereof which exclude or
limit the Company's liability and those which require the Customer to
indemnify the Company in certain circumstances.
DEFINITIONS AND APPLICATION1. In these Conditions:
"Company" is the Russells Freight International trading under these Conditions.
s"Person" Includes persons or any Body or Bodies Corporate.
"The
Owner" means the Owner of the goods (including any packaging,
containers or equipment) to which any business concluded under these
Conditions relates and any other person who is or may become interested
in them."Customer" means any person at whose request or on whose behalf
the Company undertakes any business or provides advice, information or
services.
2. (A) Subject to Sub-Paragraph (B) below,
all and any activities of the Company in the course of business whether
gratuitous or not are undertaken subject to these Conditions.
(B) 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 be repugnant to such
legislation to any extent such part shall as regards such business be
overridden to that extent and no further.
3. The Customer
warrants that he is either the Owner or the authorised Agent of the
Owner and also that he is accepting these Conditions not only for
himself but also as Agent for and on behalf of the Owner.
THE COMPANY4. (A)
Subject to Clauses 11 and 12 below, the Company shall be entitled to
procure any or all of its services as an Agent or to provide those
services as a Principal.
(B) The Company shall on demand by the
Customer provide evidence of any Contract entered into as Agent for the
Customer. Insofar as the Company may be in default of this obligation,
it shall be deemed to have contracted with the Customer as a Principal
for the performance of the Customer's instructions.
5.
When the Company contracts as a Principal for any services, it shall
have full liberty a) to perform such services itself or b) to
subcontract the whole or any part of such services to third parties
(including the Company's own parent, subsidiary, or associated
companies).
6. When the Company acts as an Agent on
behalf of the Customer, the Company shall be entitled (and the Customer
hereby expressly authorises the Company) to enter into all such
Contracts on behalf of the Customer as may be necessary or desirable to
fulfil the Customer's instructions and subject to the trading
conditions of the parties with whom such contracts are made.
7. The
Company reserves to itself a reasonable liberty as to the means, route
and procedure to be followed in the handling, storage and
transportation of goods.
8. (A) Subject to Sub-Clause (B)
hereof, the Company shall have a general lien on all goods and
documents relating to goods in its possession, custody or control for
all sums due at any time from the Customer or Owner, and shall be
entitled to sell or dispose of such goods or documents as Agent for and
at the expense of the Customer and apply the proceeds in or towards the
payment of such sums on 28 days notice in writing to the Customer. Upon
accounting to the Customer for any balance remaining after payment of
any sum due to the Company and the costs of sale or disposal the
Company shall be discharged of any liability whatsoever in respect of
the goods or documents.
(B) When the goods are liable to perish or
deteriorate, the Company's right to sell or dispose of the goods shall
arise immediately upon any sum becoming due to the Company subject only
to the Company taking reasonable steps to bring to the Customer's
attention its intention of selling or disposing of the goods before
doing so.
9. 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.
10.
(A) If delivery of the goods or any part thereof is not taken by the
Customer, Consignee or Owner, at the time and place when and where the
Company is entitled to call upon such person to take delivery thereof,
the Company shall be entitled to store the goods or any part thereof at
the sole risk of the Customer, whereupon the liability of the Company
in respect of the goods or that part thereof stored as aforesaid shall
wholly cease and the cost of such storage if paid for or payable by the
Company or any Agent or Sub-Contractor of the Company shall forthwith
upon demand be paid by the Customer to the Company.
(B) The Company
shall be entitled at the expense of the Customer to dispose of (by sale
or otherwise as may be reasonable in all the circumstances):-
1. on
28 days notice in writing to the Customer, or (where the Customer
cannot be traced and reasonable efforts have been made to contact any
parties who may reasonably be supposed by the Company to have any
interest in the goods) without notice, any goods which have been held
by the Company for 90 days and which cannot be delivered as instructed;
and
2. without prior notice, goods which have perished, deteriorated
or altered or are in immediate prospect of doing so in a manner which
has caused or may reasonably be expected to cause loss or damage to the
Company or Third Parties or to contravene any applicable laws or
regulations.
11. (A) No Insurance will be
effected except upon express instructions given in writing by the
Customer and all Insurances effected by the Company are subject to the
usual exceptions and conditions of the Policies of the Insurance
Company or Underwriters taking the risk. Unless otherwise 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 held by the Company.
(B) Insofar as the Company
agrees to effect Insurance, the Company acts solely as Agent for the
Customer. The limits of liability under Clause 27(A)(ii) of these
Conditions shall not apply to the Company's obligations under Clauses
11(A) and (B).
12. (A) Except under special arrangements
previously made in writing or under the terms of a printed document
signed by the Company, any instructions relating to the delivery or
release of goods in specified circumstances only, such as (but without
prejudice to the generality of this Clause) against payment or against
surrender of a particular document, are accepted by the Company where
the Company has to engage third parties to effect compliance with the
instructions, only as Agents for the Customer.
(B) The Company
shall not be under any liability in respect of such arrangements as are
referred to under Sub-Clause (A) hereof save where such arrangements
are made in writing.
(C) In any event, the Company's liability
in respect of the performance or arranging the performance of such
instructions shall not exceed the limits set out in Clause 27(A) (ii)
of these Conditions.
13. Advice and information, in
whatever form it may be given, is provided by the Company for the
Customer only and the Customer shall not pass such advice or
information to any Third Party without the Company's written agreement
. The Customer shall indemnify the Company against all loss and damage
suffered as a consequence of any breach of this Condition by the
Customer.
14. (A) Except under special arrangement
previously made in writing the Company will not accept or deal with
bullion, coin, precious stones, jewellery, valuables, antiques,
pictures, human remains, livestock, pets or plants. Should any Customer
nevertheless deliver any such goods to the Company or cause the Company
to handle or deal with any such goods otherwise than under special
arrangements previously made in writing the Company shall be under no
liability whatsoever for or in connection with such goods howsoever
arising.
(B) The Company may at any time waive its rights and
exemptions from liability under Sub-Clause (A) above in respect of any
one or more of the categories of goods mentioned herein or of any part
of any category. If such waiver is not in writing, the onus of proving
such waiver shall be on the Customer.
15. Except
following instructions previously received in writing and accepted by
the Company, the Company will not accept or deal with goods of a
dangerous or damaging nature, nor with goods likely to harbour or
encourage vermin or other pests, nor with goods liable to taint or
affect other goods. If such goods are accepted pursuant to a special
arrangement and then in the opinion of the Company they constitute a
risk to other goods, property, life or health, the Company shall where
reasonably practicable contact the Customer, but reserves the right at
the expense of the Customer to remove or otherwise deal with the goods.
16.
Where there is a choice of rates according to the extent or degree of
the liability assumed by carriers, warehousemen or others, no
declaration of value where optional will be made except under special
arrangements previously made in writing.
THE CUSTOMER17. The Customer warrants:
(A) that the description and particulars of any goods furnished by or on behalf of the Customer are full and accurate
(B) that all goods have been properly and sufficiently prepared,
packed, stowed, labelled and/or marked, and that the preparation,
packing, stowage, labelling and marking are appropriate to any
operations or transactions affecting the goods and the characteristics
of the goods.
(C) that where the Company receives the goods
from the Customer already stowed in or on a container, trailer, tanker,
or any other device specifically constructed for the carriage of goods
by land, sea or air (each hereafter individually referred to as "the
transport unit"), the transport unit is in good condition, and is
suitable for the carriage to the intended destination of the goods
loaded therein or thereon.
18. Should the Customer
otherwise than under special arrangements previously made in writing as
set out in Clause 15 above deliver to the Company or cause the Company
to deal with or handle goods of a dangerous or damaging nature, or
goods likely to harbour or encourage vermin or other pests, or goods
liable to taint or affect other goods, he shall be liable for all loss
or damage arising in connection with such goods and shall indemnify the
Company against all penalties, claims, damages, costs and expenses
whatsoever arising in connection therewith, and the goods may be dealt
with in such manner as the Company or any other person in whose custody
they may be at any relevant time shall think fit.
19.
The Customer undertakes that no claim shall be made against any
Director, Servant, or Employee of the Company which imposes or attempts
to impose upon them any liability in connection with any services which
are the subject of these Conditions and if any such claim should
nevertheless be made, to indemnify the Company against all consequences
thereof.
20. The Customer shall save harmless and keep the Company indemnified from and against:-
(A) All liability, loss, damage, costs and expenses whatsoever
(including without prejudice to the generality of the foregoing, all
duties, taxes, imposts, levies, deposits and outlays of whatsoever
nature levied by any authority in relation to the goods) arising out of
the Company acting in accordance with the Customer's instructions or
arising from any breach by the Customer of any Warranty contained in
these Conditions or from the negligence of the Customer, and
(B) Without derogation from Sub-Clause (A) above, any liability assumed
or incurred by the Company when by reason of carrying out the
Customer's instructions the Company has reasonably become liable or may
become liable to any other party, and
(C) All claims, costs
and demands whatsoever and by whomsoever made or preferred in excess of
the liability of the Company under the terms of these Conditions
regardless whether such claims, costs and demands arise from or in
connection with the negligence or breach of duty of the Company, its
Servants, Sub-Contractors or Agents, and
(D) Any claims of a General Average nature which may be made on the Company.
21.
(A) The Customer shall pay to the Company in cash or as otherwise
agreed all sums immediately when due without reduction or deferment on
account of any claim, counterclaim or set-off.
(B) In respect
of all sums which are overdue, the Customer shall be liable to pay to
the Company interest calculated at 8% above the prevailing Base Rate of
the London clearing banks.
22. Despite the acceptance
by the Company of instructions to collect freight, duties, charges or
other expenses from the Consignee or any other person the Customer
shall remain responsible for such freight, duties, charges or expenses
on receipt of evidence of proper demand and in the absence of evidence
of payment (for whatever reason) by such Consignee or other person when
due.
23. Where liability for General Average arises in
connection with the goods, the Customer shall promptly provide security
to the Company or to any other party designated by the Company in a
form acceptable to the Company.
LIABILITY AND LIMITATION24. The Company shall perform its duties with a reasonable degree of care, diligence, skill and judgement.
25. The Company shall be relieved of liability for any loss or damage if and to the extent that such loss or damage is caused by
(A) strike, lock-out, stoppage or restraint of labour, the consequences
of which the Company is unable to avoid by the exercise of reasonable
diligence;
(B) any cause or event which the Company is unable
to avoid and the consequences whereof the Company is unable to prevent
by the exercise of reasonable diligence.
26. Except
under special arrangements previously made in writing the Company
accepts no responsibility for departure or arrival dates of goods.
27.
(A) Subject to clause 2(B) and 11(B) above and sub-clause (D) below the
Company's liability howsoever arising and not withstanding that the
cause of loss or damage be unexplained shall not exceed:
1.
in the case of claims for loss or damage to goods: (a) the value of any
goods lost or damaged, or (b) a sum at the rate of two Special Drawing
Rights as defined by the International Monetary Fund (hereinafter
referred to as SDRs), per kilo of the gross weight of any goods lost or
damaged whichever shall be the least.
2. in the case of all other claims:
(a) the value of the goods the subject of the relevant transaction between the Company and its Customer, or
(b) a sum at the rate of two SDRs per kilo of the gross weight of the goods the subject of the said transaction, or
(c) 75,000 SDRs in respect of any one transaction whichever shall be the least.
For
the purposes of Clause 27(A) the value of the goods shall be their
value when they were or should have been shipped. The value of SDRs
shall be calculated as at the date when the claim is received by the
Company in writing.
(B) Subject to Clause 2(B) above, and Sub-Clause
(D) below, the Company's liability for loss or damage as a result of
failure to deliver or arrange delivery of goods in a reasonable time or
(where there is a special arrangement under Clause 26) to adhere to
agreed departure or arrival dates shall not in any circumstances
whatever exceed a sum equal to twice the amount of the Company's
charges in respect of the relevant transaction.
(C) Save in respect
of such loss or damage as is referred to at Sub-Clause (B) and subject
to Clause 2(B) above and Sub-Clause (D) below, the Company shall not in
any circumstances whatsoever be liable for indirect or consequential
loss such as (but not limited to) loss of profit, loss of market or the
consequences of delay or deviation hover caused.
(D) By special
arrangement agreed in writing, the Company may accept liability in
excess of the limits set out in Sub-Clauses (A) to (C) above 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.
28. (A) Any claim by the
Customer against the Company arising in respect of any service provided
for the Customer or which the Company has undertaken to provide shall
be made in writing and notified to the Company within 14 days of the
date upon which the Customer became or should have become aware of any
event or occurrence alleged to give rise to such claim and any claim
not made and notified as aforesaid shall be deemed to be waived and
absolutely barred except where the Customer can show that it was
impossible for him to comply with this Time Limit and that he has made
the claim as soon as it was reasonably possible for him to do so.
(B) Notwithstanding the provisions of Sub-Paragraph (A) above the
Company shall in any event be discharged of all liability whatsoever
howsoever arising in respect of any service provided for the Customer
or which the Company has undertaken to provide unless suit be brought
and written notice thereof given to the Company within nine months from
the date of the event or occurrence alleged to give rise to a cause of
action against the Company.
29. JURISDICTION AND LAWThese
Conditions and any act or contract to which they apply shall be
governed by English Law and any dispute arising out of any act or
contract to which these conditions apply shall be subject to the
exclusive jurisdiction of the English Courts