General Conditions of Carriage
The following clauses form the Perkins general conditions
of carriage as attached to Company interim receipts.
1. DEFINITIONS
In this non-negotiable shipping receipt
“carrier” means the ship, her owner, master, operator, demise charterer,
and any substituted carrier, whether the owner, operator, charterer or master shall
be acting as carrier or bailee.
“goods” means the articles or other cargo (including any containers
not supplied by or on behalf of the company) received from the shipper for transportation
and/or forwarding, being the articles and/or other cargo in respect of which this
shipping receipt is issued, and includes live animals.
“owner" includes the shipper, the consignee and any other person who is
or becomes owner or receiver of the goods or is entitled to have possession of them
from the carrier.
“person” means any natural person, company, firm, body corporate or un-incorporated
association or body including any government or governmental or statutory instrumentality
or port authority.
“ship” or “vessel” means and includes any ship, lighter, or other craft
carrying goods under or in connection with this contract.
“shipper” means the person named as shipper or consignor on the face of
this shipping receipt.
“The company” means Perkins Shipping Pty Ltd ACN 009 595 835 or a related
body corporate of Perkins Shipping Pty Ltd as that term is defined in the
corporations law of the Commonwealth of Australia.
2. CONTRACTING PARTIES
2.1 Owner is a party
In agreeing to the terms of this contract,
the shipper acts for himself and on behalf of the owner. The shipper warrants to
the carrier that he is entitled and is duly authorised by the owner to agree to
the terms of this contract and to deliver the goods to the carrier on these terms.
The owner who receives delivery of the goods from the carrier accepts and shall
be deemed to confirm, ratify and agree irrevocably with the carrier to be bound
by all the terms of this contract.
2.2 The company as agent
If the ship performing the whole or part of the carriage is not owned, or chartered
by demise of the company, this shall be deemed to be a contract with the owner or
demise charterer of such ship as principle (whether disclosed or not) made through
the agency of the company which acts as agent only in respect of the shipment and
shall be under no liability whatever in respect of it.
2.3 Sub-contractors, Sub-Agents, and Agents
The carrier shall be entitled to sub-contract on any terms to any person and/or
to entrust on any terms to any servant or agent or any independent contractor engaged
at any time by the carrier, the whole or any part of the carriage including any
loading, unloading, storage, warehousing and handling of the goods, and/or any and
all duties and functions whatsoever in relation to the goods undertaken or authorised
to be undertaken by the carrier which is the carrier’s opinion is for or in connection
with the carrying out of this contract.
3. GOVERNING LAW
Any dispute regarding the terms or this contract shall
be determined in accordance with the laws of the Northern Territory of Australia
and the parties agree to submit to the jurisdiction of its courts.
4. CARRIER’S LIABILITY
4.1 Not a common carrier
The carrier is not a common carrier and reserves the right to accept or refuse any
articles or other cargo for carriage in its sole discretion.
4.2 Exclusion of Liability
Neither the carrier, its agents, servants nor the ship shall be liable for any loss,
detention or damage of or to the goods or any part of them, including consequential
loss, howsoever caused, at any time after the receipt of the goods by the carrier
even though such loss, detention or damage may be caused by the negligence of the
carrier, its agents or servants or other persons for whom the carrier is responsible
or by the unseaworthiness or unfitness of the ship, at the time the goods or any
part of them are placed in it or at any time thereafter and even though the goods
or any part of them are in the custody of the carrier, its agents or servants as
warehousemen, stevedore or otherwise and the goods from the time of delivery to
the carrier are at the sole risk of the owner.
4.3 Himalaya Clause
No agent of the carrier or independent contractor from time to time employed by
the carrier shall in any circumstances be under any liability whatsoever to the
owner for any loss, damage or delay whatsoever kind including consequential loss
arising or resulting directly or indirectly from any act, neglect or default on
his part while acting in the course of or in connection with his employment and
every exemption, limitation, condition and liberty contained in this contract and
every right, exemption from liability and defence of whatsoever nature to which
the carrier is entitled shall be available and shall extend to protect every such
agent or independent contractor and the carrier is deemed to be acting as agent
or trustee on behalf of and for the benefit of all such agents and independent contractors
and all such persons shall to that extent be deemed to be parties to this contract.
5. MISLAID GOODS
In case goods cannot be found at the place of delivery or if they have been miscarried
they, when found, may be forwarded to the place of delivery at the carrier’s expense
but at the sole risk of the owner and the carrier shall not be responsible for any
loss, delay, depreciation or damage arising from such miscarriage and/or forwarding,
even though such loss, delay, depreciation or damage be caused by the negligence
of the carrier or the carrier’s employees or other persons for whom the carrier
is responsible, or by the unseaworthiness or unfitness of the ship at the time the
goods or any part of them are placed in it or at any time thereafter.
6. LIMITATION
If, despite the provisions of this contract, the carrier is found liable for any
loss or damage to the goods, liability shall be restricted to the wholesale cash
value of the goods at the port of discharge at the date when they were or should
have been discharged, provided such value does not exceed the wholesale cash value
at the port of shipment at the date of shipment with actual freight, insurance and
shipping charges added, and any claim must be made in writing to the carrier within
21 days from the date the goods were or should have been landed otherwise the claim
shall not be enforceable.
7. CARRIER’S LIABILITIES
7.1 Liberty to carry by any route
Goods may be transported and/or forwarded by the carrier from the place of receipt
to the place of delivery by any route o routes whatsoever (whether or not the customary
or intended or advertised or shortest route or routes) via any place or places whatsoever.
7.2 Liberty to use any vessel
The carrier shall be at liberty without notice to the shipper or owner to perform
the whole or any part of the carriage by transporting and/or forwarding the whole
or any part of the goods at any time or any place by the intended vessel or any
other vessel or any means of transportation by land or air, whether owned or operated
by the carrier or others and whether departing, arriving or scheduled to depart
or arrive at any place before or after the intended vessel.
7.3 Liberty to dock
The ship may at any time and for any reason and without any notice to any owner
proceed and carry goods to and call and remain for any length of time at any place
or places whatsoever once or more often in any order. The ship may before or
after proceeding towards its intended destination adjust navigational instruments,
dry dock with or without cargo, go on repair yards, take fuel or stores, embark
or disembark any person or for any other purpose whatsoever or remain in port or
delay sailing from any port for whatever purpose.
7.4 Liberty to tranship
The carrier may at any time without notice to any owner and as may be considered
by the carrier in its absolute discretion to be necessary or expedient in connection
with the carriage tranship land or otherwise unload goods at any port or place for
any purpose and store goods by any means of storage either on shore or afloat at
any port or place for any purpose.
7.5 Dangerous goods
The carrier has the right to decline to carry or carry further the goods or
any part of them included in the shipping receipt should they in the carriers opinion
or that of the master or the carrier’s agent be or be likely to become dangerous,
or offensive or injurious to health, or to damage other cargo and/or the ship, and
shall be entitled at the risk and the expense of the owner to discharge the goods
at any port and/or store the same and/or sell the same or throw the same overboard,
or otherwise deal with the same as may be considered advisable, and the owner will
be responsible for any penalties, loss or damage occasioned either directly or indirectly
to the carrier or any of its servants by such goods. Proportion of freight shall
be payable by the owner according to the distance any such goods may have been carried
before they are so dealt with. In the event of any mis-description or insufficient
description of goods double freight which would have been charged if the goods had
been properly described shall be payable.
7.6 Alternative discharge
If by reason of or in compliance with any directions of any authority the ship does
not proceed to any port or place to which it was originally intended to proceed,
the ship may proceed to any other port or place which the carrier or the master
may select and there discharge the goods.
7.7 Strikes
In case of any strike, lock out, labour disturbance or stoppage or restraint or
insufficiency of labour (including the master, officers or crew) for any cause whatever
the carrier may if it is in his judgement necessary or expedient, discharge and/or
re-ship and/or over carry any goods in the same or any other vessel at the owner’s
risk and expense.
7.8 Goods on deck
The carrier has the right to stow and carry goods on or above the deck of the ship.
7.9 Any goods
The ship may carry cargo of all kinds, dangerous or otherwise.
7.10 To sail early or late
The ship is free to start sailing before or after the advertised hour and date of
sailing.
7.11 Postponement of carriage
If any of the events referred to in this clause arise the carrier may retain the
goods at the port or place at which they are discharged and postpone the carriage
until some later date. Whilst the goods are so retained, they shall be entirely
at the owner’s risk and the carrier shall not be responsible for them in any way.
8. CONTAINERS
8.1 Containers and Contents
Where any goods are received by the carrier in or on any container, this contract
shall be deemed to be for the carriage of such containers and their contents.
8.2 Shipper responsible for
packing
The shipper accepts complete responsibility for the packing and stuffing of
the contents of the container, the closing and sealing of it and the fitness of
the container and the contents of it for carriage. The shipper and the owner shall
be liable and hereby undertake to indemnify the carrier against any kind of loss,
damage , expenses, liabilities, penalties and fines directly or indirectly suffered
by the carrier arising from any improper or inadequate packing, stuffing, closing
or sealing or unfitness of the containers or its contents..
8.3 Carrier may open container
The carrier shall be entitled (but under no obligation) to open any of the
containers and to inspect the contents or any part of them without notice to the
owner and at any time or place.
8.4 Container packed by carrier
Where goods are received by the carrier not in or on any container then the
carrier shall be at liberty to pack and transport and/or forward the goods in or
on any container. Any statements on this invoice and shipping receipt related to
marks, numbers, description, quantity, quality, weight, measure, nature, kind, value
or other particulars of the goods are as furnished by the shipper and are unknown
to the carrier and the carrier accepts no responsibility for them. The owner shall
be deemed to have warranted to the carrier the accuracy of those particulars and
shall indemnify the carrier against all loss, damage, expenses, penalties and fines
arising and resulting from inaccuracy.
8.5 Shipper accepts container
The shipper shall inspect containers which are lent, leased or howsoever otherwise
furnished by or on behalf of the carrier before packing goods into or onto them,
and any such containers packed by the shipper shall be deemed to have been accepted
by the shipper as being in sound and suitable condition for the purpose of the contract
of carriage and no owner shall have any rights whatsoever against the carrier for
or in respect of any loss or damage to goods due to insufficient or unsound condition
of containers.
8.6 Owner indemnifies carrier for loss of container
Each owner shall assume full responsibility and indemnify the carrier for any loss
of or damage to any container or other equipment furnished by or on behalf of the
carrier which occurs while such container or equipment is in the possession of any
owner or any servant or any agent or any inland carrier engaged by or on behalf
of any owner.
8.7 Owner indemnifies carrier
for loss or damage
The carrier shall not in any event be liable for and each owner shall be severally
liable to indemnify and hold the carrier harmless from and against any loss of or
damage to property of other persons or personal injuries to, or the death of, other
persons caused by containers furnished by or on behalf of the carrier or the contents
during handling by or while in the use or possession of any owner or any servants
or agents or inland carriers engaged by or on behalf of any owner.
8.8 Return of containers
Where goods are delivered in containers, which the carrier owns, or to the possession
to which the carrier is otherwise entitled the owner taking delivery shall return
such containers promptly. If the owner fails to return all such containers to the
carrier within seven days from the completion of discharge the owner shall pay a
tariff to the carrier per unreturned container for each extra day until all such
containers are returned to the carrier. Copies of the relevant provisions of the
applicable tariff are available from the carrier upon request.
9. GENERAL AVERAGE
In respect of any part or parts of the carriage covered by this contract which are
or may be intended by the carrier to be performed by sea on board any vessel, general
average shall be adjusted, stated and settled at Darwin, Australia or at any other
port or place at the carrier’s option according to the York-Antwerp Rules 1994,
and as to matters not provided for by those rules, according to laws and usages
of the port or place of adjustment and in Australian dollars. The general average
statement shall be prepared by the adjusters appointed by the carrier. If required
by the carrier, an average agreement or bond and such cash deposit as the carrier
may deem sufficient to cover the estimated contribution of the goods and any salvage
and special charges and any other additional securities as the carrier may require
shall be furnished to the carrier by the owner to whom goods are to be delivered
before delivery is made to such owner by the carrier. In the vent of accident, danger,
damage or disaster, before or after commencement of a voyage, resulting from any
cause whatsoever, whether due to negligence or not, for which or for the consequence
of which the carrier is not responsible by statue, contract or otherwise, the goods
and the owners of the goods shall contribute with the carrier in general average
to the payment of any sacrifices, losses or expenses of a general average nature
that may be made or incurred and shall pay salvage and special charges incurred
in respect of the goods. If a salving ship is owned or operated by the carrier,
salvage shall be paid for as fully and in the same manner as if such salving ship
belonged to strangers. Whether or not the carrier requires any average agreement,
bond, cash deposit or securities to be furnished before delivery, each owner shall
be and remain liable for the whole of the contribution of the goods and the owner’s
liability under this clause.
10. BOTH TO BLAME COLLISION
If a vessel comes into collision or contact with another
ship (referred to in this clause as “the other ship”) as a result of negligence
of the other ship and of any act, neglect or default of the master, pilot or the
servants of the carrier in the navigation or in the management of the vessel, each
owner shall be separately liable to pay to the carrier a sum sufficient to indemnify
the carrier against all loss or liability incurred directly or indirectly by the
carrier to the other ship or to her owners insofar as such loss or liability represents
loss of or damage to any person paid or payable by the other ship or her owners
to such person and set off or recovered by the other ship or her owners as part
of any claim by them against the carrier. This clause shall also apply where the
owners, operators or those in charge of any ship or ships or objects other than
or in addition to the colliding ships or objects are at fault in respect of a collision
or contract.
11. DELIVERY
11.1 Delivery at any time
The carrier shall have a right to deliver goods at any time from or at a vessels
side, warehouse, wharf, quay or other place or point designated by the carrier at
or in the vicinity of the place of delivery. Delivery of the goods shall be taken
immediately the vessel is ready to discharge, berthed or not berthed, and continuously
as fast as the vessel can deliver and the carrier shall be at liberty to discharge
continuously day and night, Sundays and holidays included, on the quay or into craft,
all extra expenses to be for the account of the owner. The carrier shall be under
no liability to notify the owner or any other party of the arrival of the goods,
notwithstanding any custom of the port to the contrary or any written request on
this receipt or otherwise. If the owner requires delivery before or after the usual
hours, he shall pay on demand any extra expense incurred.
11.2 Notification
Any mention on the face of this receipt of parties to be notified of the arrival
of the goods is solely for the information of the carrier and failure to give such
notification shall not involve the carrier in any liability not relieve any
owner of any obligation.
11.3 Deemed discharge
Where at the port to which the goods are consigned the consignee or his agent is
not in attendance to take delivery, the endorsement of the carrier or its agent
on the invoice and non-negotiable shipping receipt shall be a good discharge for
the goods.
12. STORAGE, SALE
If goods are not claimed immediately upon being made available by the carrier
at the place at which they are to be delivered, the carrier shall not have any further
responsibility or liability in respect of those goods. However, the carrier shall
be entitled to recover from any owner all storage charges becoming due under the
carrier’s applicable tariff in respect of any period for which any goods have not
been claimed may be held by the carrier at that place. The carrier shall also be
entitled at its absolute discretion and at the expense of the owner and in addition
to the carrier’s lien and its other rights under this contract, to store or sell
by public auction or private treaty, abandon or otherwise dispose of or deal with
any such goods as it thinks fit and to carry out all transportation, unpacking or
other handling of such goods which the carrier deems expedient. Any such storage,
sale, abandonment or disposal or dealing with or transportation, unpacking or handling
of goods shall be at the sole risk at al times of the owner. Storage costs in respect
of any goods delivered into store shall be to the owner’s account and the carrier
shall be under no liability for those costs but shall be entitled to recover from
any owner on demand any such storage costs which the carrier may elect to pay on
the owner’s behalf.
13. CHARGES
13.1 Freight
The freight payable under this contract has been calculated and based on particulars
of the goods by or on behalf of the shipper. The carrier shall be entitled at any
time to re-weigh, re-measure or re-value goods and for this purpose to open and
remove and examine the contents of any container and if the particulars furnished
are found to be incorrect, the freight shall be adjusted accordingly and the shipper
and every other merchant shall be severally liable for and bound to pay to the carrier
all expenses incurred in examining, re-weighing, re-measuring or re-valuing the
goods together with the excess of the adjusted freight over the amount previously
paid. The carrier or any person to whom the carrier has sub-contracted the carriage
or any person authorised by the carrier shall be entitled but under no obligation
to open any container or package at any time and to inspect the goods. Each merchant
shall jointly and severally bear, pay the cost of labour and materials for mending,
bailing, bagging, packing and repairs to and renewals of packages, boxes, crates
or wrappers resulting from insufficiency of packing.
13.2 When deemed earned
Freight shall be deemed earned upon receipt of the goods by the carrier and shall
be paid to and retained by the carrier under all circumstances whether any goods
be lost or not lost. Full freight shall be paid on damaged or unsound goods.
13.3 Applicable tariff
The provisions of the carrier’s applicable tariff current at the time when the goods
were received by the carrier for transportation under this contract, which relate
to freight contingencies, demurrage and charges payable in respect of the carriage,
are incorporated into this contract. Details of the relevant provisions of
the applicable tariff may be obtained by any owner from the carrier upon request.
13.4 Lien
The carrier shall have a lien, which shall survive delivery, on all goods, empty
containers not supplied by or on behalf of the carrier, and documents relating to
the carriage for all freight and general average contributions, expenses payable
on corrected weight or measurement, damages for detention and all payments made
and liabilities incurred in respect of charges , expenditure, damage (including
damage to the vessel or other cargo), costs and expenses(including the costs and
expenses of exercising such lien) and for the interest payable which are to be borne
and paid by the owner, and all charges and sums whatsoever payable by or chargeable
to or for the account of the goods or any owner under this contract and for all
costs of recovering such freight charges and sums(including costs of sale under
any right of sale). For the purpose of such lien, the carrier shall have the right
to sell goods and documents by public auction or private treaty without notice
to any owner. However, the carrier shall be under no obligation to exercise any
such lien. If on a sale of goods the proceeds fail to cover the amount for which
the carrier has a lien on the goods, and the costs and expenses of exercising such
lien and of the sale, the carrier shall be entitled to recover the difference from
any owner.
14. WAIVER
No waiver by the carrier of the benefit of any term of this contract in any particular
instance shall extend or be deemed to extend to any other instance or to any benefit
of any term of this contract save that to which such waiver specifically relates,
nor will it operate as a general waiver of the benefit of any other term. The onus
of providing any waiver shall rest upon the person alleging it.