MAM Intercontinental & Overseas Services, Inc. Terms & Conditions
PART 1: GENERAL CONDITIONS
1. (A) Subject to sub-clause (B) below, all services of the Company whether gratuitous or not are subject to these Conditions.
(i) The provisions of Part I shall apply to all such services.
(ii) The provisions of Part II shall only apply to the extent that such services are provided by the Company as agents.
(iii) The provisions of Part III shall only apply to the extent that such services are provided by the Company as principals.
(B) Where a document bearing a title of or including “bill of lading” (whether or not negotiable), or “waybill” is issued by or on behalf of the Company and provides that the Company contracts as carrier, the provisions set out in such document shall be paramount insofar as such provisions are inconsistent with these Conditions.
(C) Every variation, cancellation or waiver of these Conditions must be in writing signed by a Director of the Company. Notice is hereby given that no other Person has or will be given any authority whatsoever to agree to any variation, cancellation or waiver of these Conditions.
2. All services are provided by the Company as agents 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 agents, servants, subcontractors or other independent contractors whatsoever; or
(B) To the extent that the Company expressly agrees in writing to act as a principal; or
(C) To the extent that the Company is held by a court of law to have acted as a principal.
3. Without prejudice to the generality of clause 2,
(A) The charging by the Company of a fixed price for a service or services of whatsoever nature shall not in itself determine or be evidence that the Company is acting as an agent or a principal in respect of such service or 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 an 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 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 in respect of or relating to Customs requirements, taxes, licenses, consular documents, certificates of origin, inspection certificates and other similar documents and/or services.
4. In these conditions
(A) “Company” is MAM Intercontinental and Overseas Services, Inc., DBA: Red Sea Shipping Company, DBA: RESCO International Freight.
(B) “Customer” means any Person at whose request or on whose behalf the Company provides or arranges for a service, and anyone acting on its behalf;
(C) “Person” includes an individual and any entity, 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 or have an interest in the Goods and anyone acting on their behalf;
(E) “Authority” means a duly constituted legal or administrative body or Person, acting within its legal powers and exercising jurisdiction;
(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 appurtenant or connected thereto.
(H) “Dangerous Goods” includes Goods that are or may become of a dangerous, inflammable, radioactive or damaging nature, Goods likely to harbor or encourage vermin or other pests, and Goods classified as dangerous or hazardous by any governmental body or authority;
(I) “Hague 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;
(J) “Instructions” means a statement of the Customer’s specific requirements and obligations of Customer;
(K) “COGSA” means the US Carriage of Goods by Sea Act (46 U.S.C. §§ 1300-1315);
(L) “Harter Act” means the US Harter Act (46 U.S.C. §§ 190-196).
Obligations of Customer
5. The Customer warrants that he is either the Owner or the authorized agent of the Owner of the Goods and that he is authorized to accept and is accepting these Conditions not only for himself but also as agent for and on behalf of the Owner of the Goods and anyone having an interest in the Goods.
6. The Customer warrants that he has reasonable knowledge of matters affecting the conduct of his business, including but not limited to the terms of sale and purchase of the Goods and all other matters relating thereto.
7. The Customer shall give sufficient and reasonably executable instructions.
8. The Customer warrants that the description and particulars of the Goods are complete and in all respects correct.
9. The Customer warrants that the Goods are properly packed and labeled, except where the Company has accepted prior written instructions in respect of such services and agrees in writing to perform such services.
Special Instructions, Goods and Services
10. (A) Unless otherwise previously agreed in writing, the Customer shall not deliver to the Company or cause the Company to deal with or handle Dangerous Goods.
(B) If the Customer is in breach of sub-clause (A) above he shall be liable for all loss or damage whatsoever caused by or to or in connection with the Goods howsoever arising and shall defend, indemnify and hold harmless the Company, its agents, servants, subcontractors and all independent contractors whatsoever against all penalties, claims, damages, costs and expenses whatsoever arising in connection therewith and the Goods may without notice be destroyed or otherwise dealt with at the sole discretion of the Company or any other Person in whose custody they may be at the relevant time without liability therefore.
(C) If the Company agrees to accept Dangerous Goods and then in the opinion of the Company or any Authority or other Person they constitute a risk to other goods, property, life or health they may without notice be destroyed or otherwise dealt with at the expense of the Customer or Owner.
11. The Customer undertakes not to tender for transportation any Goods which require temperature control without previously giving written notice of their nature and particular temperature range to be maintained and in the case of a temperature controlled Container stuffed by or on behalf of the Customer further undertakes that the Container has been properly pre-cooled or preheated as appropriate, that the Goods have been properly stuffed and secured in the container and that its thermostatic controls have been determined to be in good working order and properly set by the Customer. If the above requirements are not complied with, the Company shall not be liable for any loss of or damage to the Goods caused by such non-compliance.
12. No insurance will be effected except upon express instructions previously given in writing by the Customer prior to receipt of the Goods and accepted by the Company 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. The Company is an agent in respect of the effecting of insurance and 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 its Customers.
13. Except in accordance with express instructions previously received in writing and accepted in writing by the Company, 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.
14. Unless otherwise previously 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 Clause 28 hereof.
15. Unless otherwise previously agreed in writing that the Goods shall depart or arrive by a particular date, the Company accepts no responsibility for departure or arrival dates of Goods.
16. (A) The Customer and Owner shall defend, indemnify and hold harmless the Company, its agents, servants, subcontractors and all independent contractors whatsoever against all liability, loss, damage, costs and expenses howsoever arising from (i) the nature of the Goods unless caused solely by the Company‘s negligence, (ii) the Company, its agents, servants, subcontractors and all independent contractors whatsoever acting in accordance with the Customer‘s or Owner‘s instructions, or (iii) a breach of warranty or obligation by the Customer or arising from the negligence of the Customer or Owner.
(B) Except to the extent solely caused by the Company’s negligence, the Customer and Owner shall be liable for and shall defend, indemnify and hold harmless the Company, its agents, servants, subcontractors and all independent contractors whatsoever in respect of all duties, taxes, imposts, levies, deposits and outlays of whatsoever nature levied by any Authority and for all payments, fines, costs, expenses, loss and damage whatsoever incurred or sustained by the Company, its agents, servants, subcontractors and all independent contractors whatsoever in connection therewith.
(C) Advice and information, in whatever form it may be given, are provided by the Company for the Customer only and the Customer shall defend, indemnify and hold harmless the Company, its agents, servants, subcontractors and all independent contractors whatsoever against all liability, loss, damage, costs and expenses of whatsoever nature and howsoever arising out of any other Person relying on such advice or information.
(1) (i) The Customer undertakes that no claim be made against any agent, servant, sub-contractor or independent contractor of the Company which imposes or attempts to impose upon any of them any liability whatsoever in connection with the Goods, and if any such claim should nevertheless be made, to defend, indemnify, and hold harmless the Company, its agents, servants, subcontractors and all independent contractors whatsoever against all consequences thereof.
(ii) Without prejudice to the foregoing, every such agent, servant, subcontractor and all independent contractors whatsoever shall have the benefit of all provisions herein to which the Company may be entitled, and not otherwise, 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 also as agent and trustee for its agents, servants, subcontractors and all independent contractors whatsoever.
(iii) The Customer shall defend, indemnify and hold harmless the Company, its agents, servants, subcontractors and all independent contractors whatsoever from and against all claims, costs and demands whatsoever and by whomsoever made or preferred in excess of the legal liability of the Company under the terms of these Conditions and applicable law and without prejudice to the generality of this clause, this indemnity shall cover all claims, costs and demands of whatsoever nature and howsoever arising from or in connection with the negligence of the Company, its agents, servants, sub-contractors and all independent contractors whatsoever.
(iv) In this clause, “sub-contractors,” includes direct and indirect sub-contractors performing any service hereunder and their respective agents and servants.
(E) The Customer shall be liable for loss, damage, contamination, soiling, detention and/or demurrage, as the case may be, before, during and after the Carriage of property (including, but not limited to, Containers) caused by the Customer or Owner or any Person acting on behalf of either or both of them or for which the Customer is otherwise responsible.
17. (A) The Customer shall pay to the Company in cash or as otherwise agreed all sums immediately when due without deduction or deferment on account of any claim, counterclaim or set-off.
(B) When the Company is instructed to collect freight, duties, charges or other expenses from any Person other than the Customer, the Customer shall be responsible for the same on receipt of evidence of demand and non-payment when due by such other Person.
(C) On all amounts overdue to the Company, the Company shall be entitled to interest, calculated at 4 per cent above the “Prime rate” as published in The New York Times, applicable during the period that such amounts are overdue.
Liberties and Rights of Company
18. The Company shall be entitled, except insofar as has been otherwise agreed in writing, 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 (except as otherwise provided herein), whether containerized or not, on or under the deck of any vessel,
(C) For the storage, packing, transshipment, 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 whatsoever nature,
(E) For the performance of its own obligations, and to do such acts as in the opinion of the Company may be necessary, desirable, or incidental to the performance of the Company‘s obligations.
19. (A) The Company shall be entitled, but under no obligation, to depart from the Customer‘s instructions in any respect if in the opinion of the Company it is reasonable to do so in the Customer‘s or Goods’ interest and it shall not thereby incur any liability therefore.
(B) The Company may at any time comply with the orders or recommendations given by any Authority. The responsibility 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.
20. If at any time the performance of the Company‘s obligations, in the opinion of the Company or any Person whose services the Company makes use of, is or is likely to be affected by any hindrance, risk, delay, difficulty or disadvantage whatsoever and which cannot be avoided by reasonable endeavors by the Company or such other Person, the Company may, on giving notice in writing to the Customer or Owner or without notice where it is not reasonably possible to give such notice, treat the performance of its obligations as terminated and place the Goods or any part of them at the Customer’s or Owner‘s disposal at any place which the Company, insofar as is reasonably possible, may deem safe or convenient, whereupon the responsibility of the Company in respect of the Goods shall cease. The Customer shall be responsible for any additional costs of carriage to and delivery and storage at such place and all other expenses incurred by the Company and/or the Goods.
21. If delivery of the Goods or any part thereof is not taken by the Customer or Owner at the time and place when and 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 thereof, 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 and the Goods.
22. Notwithstanding Clauses 20 and 21, the Company shall be entitled but under no obligation, at the expense of the Customer and the Goods, payable on demand and without any liability to the Customer or Owner, to deliver, sell, or dispose of the Goods (A) on giving 21 days notice, or such lesser time as dictated by the circumstances, in writing to the Customer and Owner, if known, that in the opinion of the Company, the Goods cannot be delivered as contemplated or carried further, and (B) without notice to the Customer and Owner, if known, that the Goods have perished, deteriorated or become 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 the Goods, other goods, any Person or property or to contravene applicable regulations.
23. The Company shall have a lien on all Goods or documents relating to Goods in its possession for all sums due at any time from the Customer and Owner, if known, and on giving 21 days, or such lesser time as dictated by the circumstances, notice in writing to the Customer, shall be entitled to sell or dispose of such Goods or documents at the expense of the Customer and the Goods without any liability to the Customer and Owner and apply the proceeds in or towards the payment of such sums.
24. The Company shall be entitled to be paid and retain all brokerages, commissions, allowances and other remunerations customarily paid to or retained by freight forwarders.
25. The Company shall have the right to enforce against the Customer and Owner, jointly and severally, any liability of the Customer or the Goods under these Conditions or to recover from them any sums to be paid by the Customer, which upon demand are due and have not been paid.
26. (A) 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:
(i) The manner in which the Container has been packed or stuffed,
(ii) The unsuitability of the contents for carriage in Containers, unless the Company has approved the suitability in writing prior to shipment,
(iii) 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 (iii) shall only apply if the unsuitability or defective condition arose (a) without any negligence on the part of the Company or (b) would have been apparent upon reasonable inspection by the Customer or Owner or Person acting on behalf of either of them,
(iv) If the Container is not sealed at the commencement of the carriage except where the Company has agreed in writing to seal the Container.
(B) The Customer shall defend, indemnify and hold harmless the Company, its agents, servants, subcontractors and all independent contractors whatsoever against all liability, loss, damage, costs and expenses arising from one or more of the matters covered by (A) above except for (A)(iii)(a) above.
(C) 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 and it is conclusively presumed that a standard dry Container is suitable.
27. (A) Except insofar as otherwise provided by 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 behalf of either or both of them,
(b) Compliance with the instructions given to the Company by the Customer, Owner or any other Person entitled to give them,
(c) Insufficiency of packing or labeling 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 behalf of either or both of them,
(e) Inherent vice of the Goods,
(f) Riots, civil commotions, strikes, lockouts, stoppage or restraint of labor from whatsoever cause,
(g) Fire, flood or storm, or
(f) Any cause which the Company could not avoid and the consequences whereof it could not prevent by the exercise of reasonable diligence.
(B) Subject to Clause 5, howsoever caused, the Company, its agents, servants, subcontractors and all independent contractors whatsoever shall not be liable for indirect or consequential loss or damage of whatsoever nature, including but not limited to, loss of profit, delay or deviation.
Amount of Compensation
28. Notwithstanding any other provisions of these Conditions, the liability of the Company, its agents, servants, subcontractors and all independent contractors whatsoever, howsoever arising, and notwithstanding that the cause of loss or damage be unexplained, shall not exceed (i) US$ 0.25 per pound, or (ii) US $50.00 per shipment, whichever is the lesser, unless applicable law provides otherwise.
The Customer may avoid limitation by declaring the value of the Goods prior to shipment and paying an ad valorem rate equivalent to 7% of the value declared or such other percentage as may be provided in the Company’s applicable tariff
Notice of loss: Time Bar
29. The Company shall be discharged of all liability unless:
(i) Notice of claim be received in writing by the Company or its duly authorized agent within 14 days after the delivery of the Goods by the Company, its agents, servants, subcontractors or independent contractors or the date the Goods should have been delivered; and
(ii) Suit is brought and jurisdiction is obtained within 9 months after said delivery, unless compulsorily applicable law provides otherwise. Notwithstanding what period applies, jurisdiction must also be obtained during the applicable period.
30. The Customer shall defend, indemnify and hold harmless the Company, its agents, servants, subcontractors and all independent contractors whatsoever in respect of any claims of a General Average nature which may be made on or against the Company, its agents, servants, subcontractors and all independent contractors whatsoever and the Customer shall provide such security as may be required of them or any of them or of the Goods in this connection.
31. Any notice served by mail shall be deemed to have to be given on the third day following the day on which it was mailed to the address of the recipient of such notice last known to the Company.
32. The defenses and limits of liability specified in these Conditions shall apply in any action against the Company, whether such action be founded in contract, tort or any other theory of recovery.
33. 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 over-ridden to that extent and no further.
34. Headings of clauses or groups in these Conditions are for indicative purposes only.
Jurisdiction and Law
35. These Conditions and any claim or dispute out of or in connection with the services of the Company shall be subject to the law of the United States and the exclusive jurisdiction of the United States District Court for the Southern District of New York to the exclusion of any other court.
PART II: COMPANY AS AGENT
Special Liability and Indemnity Conditions
36. (A) 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 as agent 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.
(B) The Company shall not be liable for the acts or omissions of such third parties referred to in sub-clause (A) above.
37. (A) 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 such acts so as to bind the Customer by such contracts and acts in all respects, notwithstanding any reasonable departure from the Customer‘s instructions.
(B) Except to the extent caused by the Company‘s sole negligence or that of its agents, servants, subcontractors and independent contractors, the Customer shall defend, indemnify and hold harmless the Company, its agents, servants, subcontractors and all independent contractors whatsoever in respect of all liability, loss, damage, costs or expenses arising out of any contracts made in the procurement of the Customer‘s requirements or business in accordance with clause 38.
Choice of Rates
38. Where there is a choice of rates according to the extent or degree of liability assumed by Persons carrying, storing, and/or handling the Goods, no declaration of value where optional will be made unless otherwise agreed in writing prior to booking.
PART III: COMPANY AS PRINCIPAL
Special Liability Conditions
39. To the extent that the Company contracts as principal for the performance of the Customer‘s instructions or business, 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 received until the time of delivery, in accordance with Clauses 28 and 29 hereof.
40. Where the Company contracts as a principal and sub-contracts the performance of its services and 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 a sub-contractor or independent contractor, the Company shall have the full benefit of all rights, limitations and exclusions of liability available to such sub-contractor or independent contractor in the contract between the Company and such sub-contractor or independent contractor and any law, statute or regulation which may be compulsorily applied and the liability of the Company shall not exceed the amount recovered, if any, by the Company from such sub-contractor or independent contractor.
41. If it can be proved where the loss of or damage to the Goods occurred, the Company‘s liability and that of its agents, servants, subcontractors and all independent contractors whatsoever shall be determined by the provisions contained in any compulsorily applicable 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 that must be issued if such compulsorily applicable national law shall apply.
(C) Under no circumstances is the Company to be responsible for any loss or damage in excess of that applicable to the actual provider of the particular service rendered or as specified in Clause 28 hereof, whichever is the lesser.
42. If it can be proved that the loss of or damage to the Goods occurred at sea or inland waterway and the provisions of Clause 41 do not apply, the Company‘s liability shall be determined by COGSA or the Hague Rules, whichever is compulsorily applicable, and if both are compulsorily applicable, COGSA shall govern. Reference in the Hague Rules to carriage by sea shall be deemed to include reference to carriage by inland waterways and the Hague Rules shall be construed accordingly. In the absence of compulsorily applicable law, Clauses 28 and 29 shall apply.
43. Notwithstanding the provisions of Clause 42, if the loss of or damage to the Goods occurred at sea or on inland waterways, and the Owner, Bareboat Charterer or operator of the vessel petitions /or Exoneration from or Limitation of Liability and establishes a limitation fund, the liability of the Company, if any, shall be limited to the proportion of the said limitation fund allocated to the Goods, and nothing herein contained is to be construed as an admission of liability.
44. Air Carriage: If 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 cargo. Agreed stopping places are those places (other than the places of departure and destination) shown under requested routing and/or those places shown in the actual air carrier’s timetables as scheduled stopping places for the route, which are incorporated herein.
45. Validity: If any part hereof be void, voidable or otherwise unenforceable, it shall not affect the validity or enforceability of any other part thereof.