1. Definitions
In this Application the following terms shall have the following meaning:
1.1. "BIFA" means the British International Freight Association;
1.2. "the Company" means the Scarlet Group Limited registration number 04340742 and its subsidiaries;
1.3. "the Contract" means the contracts made between the Company and the Customer relating to carriage of goods by the Company for the Customer;
1.4. "the Customer" means the person, firm or company with whom the Contract is made by the Company, whether directly or indirectly, through an agent or factor who is acting for or instructed by the Customer or whose actions are ratified by such person, firm or company;
1.5. "RHA" means the Road Haulage Association.
2. RHA Conditions
All activities undertaken by the Company in relation to the carriage of goods by road in the United Kingdom are undertaken subject to the latest edition of the RHA Conditions (a copy of which is below) except insofar as they conflict with the conditions contained herein.
3. BIFA Conditions
All activities undertaken by the Company in relation to the carriage of goods other than the domestic carriage of goods by road in the United Kingdom are undertaken subject to the latest edition of the BIFA Conditions (a copy of which is below) except insofar as they conflict with the conditions contained herein.
4. General Modifications/Additions to Conditions
All Contracts are freely and openly negotiated in the knowledge that the liability of the Company is to be limited in accordance with the terms and conditions detailed and referred to herein and the price charged by the Company has been calculated accordingly.
The Customer acknowledges that a greater price would be payable but for such limitation. It is intended that the terms and conditions detailed herein should be reasonable as between the Company and the Customer having regard to the nature of the Contracts to be made between them but if at any time any of the terms and conditions detailed herein is either unenforceable or void at law it shall not adversely effect or prejudice the remainder of them or the contract and it shall be deemed to be excluded from these terms and conditions. The following additional conditions shall apply to the RHA Conditions and the BIFA Conditions.
4.1 Payment:
4.1.1. all invoices shall be due within thirty days of the date of the invoice;
4.1.2. all prices quoted by the Company are exclusive of value added tax;
4.1.3. the Company reserves the right by giving notice to the Customer at any time before delivery to increase the price to take account of any increase in the cost of the services to the Company which is due to any factor beyond the control of the Company (such as without limitation any foreign exchange fluctuation currency regulation or alteration of duties increase in labour charges or costs of transportation);
4.1.4. the Company's costs (including storage charges if any) due to the Customer's neglect or default or lack of instructions shall be paid by the Customer in addition to the contract price.
4.2 Insurance
4.2.1 The following provisions shall apply where the Company undertakes carriage of goods by road in the United Kingdom:
The Company shall not be under any obligation to effect insurance (although the Company currently operates an insurance policy in respect of its obligations under the RHA Conditions). The Company shall use its best endeavours to effect insurance where requested in writing by the Customer upon payment by the Customer of such sum as the Company shall notify the Customer in writing. Where the Company agrees to effect insurance following a request by the Customer the Company shall act solely as agent for the Customer.
4.3 Inability to Deliver
The Company shall make one attempt to deliver the goods to be delivered to the delivery address specified by the Customer. If such goods cannot be delivered (due to no fault of the Company) the Company will have the option either to make a further attempt to deliver the goods to the address specified by the Customer or to deliver to any other address specified by the Customer in either case at the Customer's cost.
4.4 Waiver
No relaxation forbearance delays or indulgence by the Company in enforcing any of these Terms and Conditions or the granting of time by the Company to the Customer shall prejudice affect or restrict the rights and powers of the Company hereunder nor shall any waiver by the Company of any breach hereof operate as a waiver of any subsequent or any continuing breach hereof.
4.5 Notices
Any notice or other communication under or in connection with these terms and conditions must be in writing and made in one of the following manners and will be deemed to have been received at the following times:
Manner of Delivery/Time of Delivery
Personally: When left at the recipient's address
First class post pre-paid: Two days after posting recorded delivery within the UK
First class post pre-paid: Six days after posting recorded delivery by airmail outside the UK
Fax: When the sender's fax machine issues a report showing the notice as having been duly sent to the recipient's number
e-mail: When the sender receives confirmation of delivery from the recipient
Notices given shall be delivered to the recipient at their address/fax number/e-mail address set out in above (or such other address/fax number/e-mail address as either party may specify by notice in writing to the other).
British International Freight Association (BIFA) Standard Trading Conditions
2000 Edition
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 APPLICATION
1. In these Conditions:
"Company" Is the BIFA Member trading under these Conditions.
"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.
4. (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 fulfill 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):-
(i) 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
(ii) 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 CUSTOMER
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 with reference to the Late Payments (Interest) Act 1998 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 LIMITATION
24. 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. Subject to clause 2(B) and 11(B) above and sub-clause (D) below the Company's liability howsoever arising and notwithstanding that the cause of loss or damage be unexplained shall not exceed
(i) 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 SDR's), per kilo of the gross weight of any goods lost or damaged whichever shall be the least.
(ii) 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 SDR's per kilo of the gross weight of the goods the subject of the said transaction, or (c) 75,000 SDR's 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 SDR's 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 however 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.
JURISDICTION AND LAW
29. These 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.
Road Haulage Association Limited Standard Trading Conditions
Effective from 1st September 1998
Conditions of carriage 1998
Please note that the customer will not in all circumstances be entitled to compensation, or to full compensation, for any loss and it is therefore recommended to seek professional advice as to appropriate insurance cover to be maintained whilst consignments are in transit.
Scarlet Group Ltd (hereinafter referred to as "the Carrier") is not a common carrier and accepts goods for carriage only upon that condition and the Conditions set out below. No servant or agent of the Carrier is permitted to alter or vary these Conditions in any way unless expressly authorised in writing to do so by a Director, Principal, Partner or other authorised person. If any legislation is compulsorily applicable to the Contract and any part of these Conditions is incompatible with such legislation, such part shall, as regards the Contract, be overridden to that extent and no further.
1. Definitions
In these Conditions the following definitions shall apply:
"Customer" means the person or company who contracts for the services of the Carrier including any other carrier who gives a Consignment to the Carrier for carriage.
"Contract" means the contract of carriage between the Customer of the Carrier.
"Consignee" means the person or company to whom the Carrier contracts to deliver the Consignment.
"Consignment" means goods, whether a single item or in bulk or contained in one parcel, package, or container (as the case may be) or any number of separate items, parcels, packages, or containers sent at one time in one load by or for the Customer from one address to one address.
"Dangerous Goods" means goods named individually in the Approve Carriage List issued from time to time by the Health and Safety Commission, explosives, radioactive material and any other goods presenting a similar hazard.
2. Parties and Sub-Contracting
(1) The Customer warrants that he is either the owner of the Consignment or is authorised by such owner to accept these conditions on such owner's behalf.
(2) The Carrier and any other carrier employed by the Carrier may employ the services of any other carrier for the purposes of fulfilling the Contract in whole or in part and the name of every other such carrier shall be provided to the Customer upon request.
(3) The Carrier contracts for itself and as agent of and trustee for its servants and agents and all other carriers referred to in (2) above and such other carriers' servants and agents and every reference in these Conditions to "the Carrier" shall be deemed to include every other such carrier, servant and agent with the intention that they shall have the benefit of the Contract and collectively and together with the Carrier be under no greater liability to the Customer or any other party than is the Carrier hereunder.
(4) Notwithstanding Condition 2(3) the carriage of any Consignment by rail, sea, inland waterway or air is arranged by the Carrier as agent of the Customer and shall be subject to the Conditions of the rail, shipping, inland waterways or air carrier contracted to carry the Consignment. The Carrier shall be under no liability whatever to whomsoever and howsoever arising in respect of such carriage: Provided that where the Consignment is carried partly by road and partly by such other means of transport any loss, damage or delay shall be deemed to have occurred while the Consignment was being carried by road unless the contrary is proved by the Carrier.
3. Dangerous Goods
Dangerous Goods must be disclosed by the Customer and if the Carrier agrees to accept them for carriage they must be classified, packed and labelled in accordance with the statutory regulations for the carriage by road of the substance declared. Transport Emergency Cards (Tremcards) or information in writing in the manner required by the relevant statutory provisions must be provided by the Customer in respect of each substance and must accompany the Consignment.
4. Loading and Unloading
(1) Unless the Carrier has agreed in writing to the contrary with the Customer:
(a) The Carrier shall not be under any obligation to provide any plant, power or labour, other than that carried by the vehicle, required for loading or unloading the consignment.
(b) The Customer warrants that any special appliances required for loading or unloading the Consignment which are not carried by the vehicle will be provided by the Customer or on the Customer's behalf.
(c) The Carrier hall be under no liability whatever to the Customer for any damage whatever, however caused, if the Carrier is instructed to load or unload any Consignment requiring special appliances which in breach of the warranty in (b) above have not been provided by the Customer or on the Customer's behalf.
(d) The Carrier shall not be required to provide service beyond the usual place or collection or delivery but if any such service is given by the Carrier it shall be at the sole risk of the Customer.
(2) The Customer shall indemnify the Carrier against all claims and demands whatever which could not have been made if such instructions as are referred to in (1)(c) of this Condition and such service as is referred to in (1)(d) of this Condition had not been given.
5. Signed Receipts
The Carrier shall, if so required, sign a document prepared by the sender acknowledging the receipt of the Consignment but no such document shall be evidence of the condition or of the correctness of the declared nature, quantity or weight of the Consignment at the time it is received by the Carrier and the burden of proving the condition of the Consignment on receipt by the Carrier and that the Consignment was of the nature, quantity or weight declared in the relevant document shall rest with the Customer.
6. Transit
(1) Transit shall commence when the Carrier takes possession of the Consignment whether at the point of collection or at the Carrier's premises.
(2) Transit shall (unless previously determined) end when the Consignment is tendered at the usual place of delivery at the Consignee's address within the customary cartage hours of the district: Provided that:
(a) If no safe and adequate access or no adequate unloading facilities there exist then transit shall be deemed to end at the expiry of one clear day after notice in writing (or by telephone if so previously agreed in writing) or the arrival of the Consignment at the Carrier's premises has been sent to the Consignee; and
(b) When for any other reason whatever a Consignment cannot be delivered or when a Consignment is held by the Carrier "to await order" or "to be kept till called for" or upon any like instructions and such instructions are not given or the Consignment is not called for and removed within a reasonable time, then transit shall be deemed to end.
7. Undelivered or Unclaimed Consignments
Where the Carrier is unable for any reason to deliver a Consignment to the Consignee or as he may order, or where by virtue of the proviso to Condition 6(2) hereof transit is deemed to be at an end, the Carrier may sell the Consignment, and payment or tender of the proceeds after deduction of all proper charges and expenses in relation thereto and of all outstanding charges in relation to the carriage and storage of the Consignment shall (without prejudice to any claim or right which the Customer may have against the Carrier otherwise arising under these Conditions) discharge the Carrier from all liability in respect of such Consignment, its carriage and storage: Provided that:
(1) The Carrier shall do what is reasonable to obtain the value of the Consignment.
(2) The power of sale shall not be exercised where the name and address of the sender or of the Consignee is known unless the Carrier shall have done what is reasonable in the circumstances to give notice to the sender of, if the name and address of the sender is not known, to the Consignee will be sold unless within the time specified in such notice, being a reasonable time in the circumstances from the giving of such notice, the consignment is taken away or instructions are given for its disposal.
8. Carrier's Charges
(1) The Carrier's charges shall be payable by the Customer without prejudice to the Carrier's rights against the Consignee or any other person: Provided that when any Consignment is consigned "carriage forward" the Customer shall not be required to pay such charges unless the Consignee fails to pay after a reasonable demand has been made by the Carrier for payment thereof.
(2) Charges shall be payable when due without reduction or deferment on account of any claim, counterclaim or set-off. The Carrier shall be entitled to interest at eight per cent above the Bank of England Base Rate prevailing at the date of the Carrier's invoice or account, calculated on a daily basis, on all amounts overdue to the Carrier.
9. Liability for Loss and Damage
(1) The Customer shall be deemed to have elected to accept the terms set out in (2) of this Condition unless, before the transit commences, the Customer has agreed in writing that the Carrier shall not be liable for any loss or mis-delivery of or damage to or in connection with the Consignment howsoever or whenever caused and whether or not caused or contributed to directly or indirectly by any act, omission, neglect, default or other wrongdoing on the part of the Carrier, its servants, agents or sub-contractors.
(2) Subject to these Conditions the Carrier shall be liable for:
(a) Physical loss, mis-delivery of or damage to living creatures, bullion, money, securities, stamps, precious metals or precious stones comprising the Consignment only if:-
(i) the Carrier has specifically agreed in writing to carry any such items; and
(ii) the Customer has agreed in writing to reimburse the Carrier in respect of all additional costs which result from the carriage of the said items; and
(iii) the loss, mis-delivery or damage is occasioned during transit and is proved to be due to the negligence of the Carrier, its servants, agents or sub-contractors;
(b) Physical loss, mis-delivery of or damage to any other goods comprising the Consignment unless the same has arisen from, and the Carrier has used reasonable care to minimise the effects of:-
(i) Act of God;
(ii) Any consequences of war, invasion, act of foreign enemy, hostilities (whether war or not), civil war, rebellion, insurrection, terrorist act, military or usurped power or confiscation, requisition, or destruction or damage by or under the order of any government or public or local authority;
(iii) Seizure or forfeiture under legal process;
(iv) Error, act, omission, mis-statement or misrepresentation by the Customer or other owner of the Consignment or by servants or agents of either of them;
(v) Inherent liability to wastage in bulk or weight, faulty design, latent defect or inherent defect, vice or natural deterioration of the Consignment;
(vi) Insufficient or improper packing;
(vii) Insufficient or improper labelling or addressing;
(viii) Riot, civil commotion, strike, lockout, general or partial stoppage or restraint of labour from whatever cause;
(ix) Consignee not taking or accepting delivery within a reasonable time after the Consignment has been tendered.
(3) The Carrier shall not in any circumstances be liable for loss or damage arising after transit is deemed to have ended within the meaning of Condition 6(2) hereof, whether or not caused or contributed to directly or indirectly by any act, omission, neglect, default or other wrongdoing on the part of the Carrier, its servants, agents or sub-contractors.
10. Fraud
The Carrier shall not in any circumstances be liable in respect of a Consignment where there has been fraud on the part of the Customer or the owner, or the servants or agents of either, in respect of that Consignment, unless the fraud has been contributed to by the complicity of the Carrier or of any servant of the Carrier acting in the course of his employment.
11. Limitation of Liability
(1) Except as otherwise provided in these Conditions, the liability of the Carrier in respect of claims for physical loss, mis-delivery of or damage to goods comprising the Consignment, howsoever arising, shall in all circumstances be limited to the lesser of:
(a) the value of the goods actually lost, mis-delivered or damages; or
(b) the cost of repairing any damage or of reconditioning the goods; or
(c) a sum calculated at the rate of £1.30* Sterling per kilo on the gross weight of the goods actually lost, mis-delivered or damages; and the value of the goods actually lost, mis-delivered or damages shall be taken to be their invoice value if they have been sold and shall otherwise be taken to be the replacement cost thereof to the owner at the commencement of transit, and in all cases shall be taken to include any Customs and Excise duties or taxes payable in respect of those goods: Provided that:
(i) in the case of loss, mis-delivery of or damage to a part of the Consignment the weight to be taken into consideration in determining the amount to which the Carrier's liability is limited shall be only the gross weight of that part regardless of whether the loss, mis-delivery of or damage affects the value of other parts of the Consignment;
(ii) nothing in this condition shall limit the liability of the Carrier to less than the sum of £10;
(iii) the Carrier shall be entitled to proof of the weight and value of the whole of the Consignment and of any part thereof lost, mis-delivered or damaged;
(iv) the Customer shall be entitled to give to the Carrier written notice to be delivered at least seven days prior to commencement of transit requiring that the £1.30* per kilo limit in 11(1)(c) above be increased, but not so as to exceed the value of the Consignment, and in the event of such notice being given the Customer shall be required to agree with the Carrier an increased limit, but if no such agreement can be reached the aforementioned £1.30* per kilo limit shall continue to apply.
(2) The liability of the Carrier in respect of claims for any other loss whatsoever (including indirect or consequential loss or damage and loss of market), and howsoever arising in connection with the Consignment, shall not exceed the amount of the carriage charges in respect of the Consignment or the amount of the claimant's proved loss, whichever is the lesser, unless:
(a) at the time of entering into the Contract with the Carrier the Customer declares to the Carrier a special interest in delivery in the event of physical loss, mis-delivery or damage or of an agreed time limit being exceeded and agrees to pay a surcharge calculated on the amount of that interest, and
(b) at least seven days prior to the commencement of transit the Customer has delivered to the Carrier written confirmation of the special interest, agreed time limit and amount of the interest.
12. Indemnity to the Carrier
The Customer shall indemnify the Carrier against:
(1) All liabilities and costs incurred by the Carrier (including but not limited to claims, demands, proceedings, fines, penalties, damages, expenses and loss of or damage to the carrying vehicle and to other goods carried) by reason of an error, omission, mis-statement or misrepresentation by the Customer or other owner of the Consignment or by any servant or agent of either of them, insufficient or improper packing, labelling or addressing of the Consignment or fraud as in Condition 10.
(2) all claims and demands whatsoever (including for the avoidance of doubt claims alleging negligence), by whomsoever made and howsoever arising (including but not limited to claims caused by or arising out of the carriage of Dangerous Goods and claims made upon the carrier by HM Customs and Excise in respect of dutiable goods consigned in bond) in excess of the liability of the Carrier under these Conditions in respect of any loss or damage whatsoever to or in connection with the Consignment whether or not caused or contributed to directly or indirectly by any act, omission, neglect, default or other wrongdoing on the part of the Carrier, its servants, agents or sub-contractors.
13. Time Limits for Claims
(1) The Carrier shall not be liable for:
(a) damage to the whole or any part of the Consignment, or physical loss, mis-delivery or non-delivery of part of the Consignment unless advised thereof in writing within seven days, and the claim is made in writing within fourteen days after the termination of transit.
(b) Any other loss unless advised thereof in writing within twenty eight days, and the claim is made in writing within forty two days, after the commencement of transit: Provided that if the Customer proves that:-
(i) It was not reasonably possible for the Customer to advise the Carrier or make a claim in writing within the time limit applicable; and
(ii) Such advice or claim was given or made within a reasonable time, the Carrier shall not have the benefit of the exclusion of liability afforded by this Condition.
(2) The Carrier shall in any event be discharged from all liability whatsoever and howsoever arising in respect of the Consignment unless suit is brought within one year of the date when transit commenced.
(3) In the computation of time where any period provided by these Conditions is seven days or less, Saturdays, Sundays and all statutory public holidays shall be excluded.
14. Lien
(1) The Carrier shall have a general lien against the customer, where the Customer is the owner of the Consignment, for any monies whatever due from the Customer to the Carrier, if such a lien is not satisfied within a reasonable time, the Carrier may, at its absolute discretion, sell the Consignment or part thereof as agent for the Customer and apply the proceeds towards the monies due and the expenses of the retention, insurance and sale of the Consignment and shall, upon accounting to the Customer for any balance remaining, be discharged from all liability whatever in respect of the Consignment.
(2) Where the Customer is not the owner of the Consignment, the Carrier shall have a particular lien against the said owner, allowing the Carrier to retain possession, but not to dispose of, the Consignment against monies due from the Customer in respect of the Consignment.
15. Unreasonable Detention
The Customer shall be liable to pay demurrage for unreasonable detention of any vehicle, trailer, container or other equipment but the rights of the Carrier against any other person in respect thereof shall remain unaffected.
16. Law and Jurisdiction
The Contract shall be governed by English Law and United Kingdom courts alone shall have jurisdiction in any dispute between the Carrier and the Customer.