TERMS & CONDITIONS
Terms & Conditions of Carriage
The rules mentioned below shall apply to every contract concluded with the Carrier for the performance of the Carriage as undertaken by the Carrier, whether evidenced by the issue of a document or not.
(a) “Carrier” means I-Motion Shipping NV, Port Arthurlaan 40, 9000 Gent as well as vessels used in the carriage, their owners, and operators. The Carrier will be referred to as “Carrier” or as “I-Motion”.
(b) “Carriage” means the whole or any part of the operations and services undertaken by the Carrier in respect of the Goods covered by this Waybill.
(c) “Combined Transport” means a Carriage for which the Carrier agrees to be responsible from the place of receipt indicated on the face of this Waybill to the place of delivery indicated on the face of this Waybill.
(d) “Container” includes any container, trailer, transportable tank, flat or pallet, packaging or any similar article used to consolidate cargo and any ancillary equipment.
(e) “Goods” mean the cargo described in the Waybill. If the Containers, equipment or other packaging are not furnished by the Carrier, those Containers, equipment and other packaging are also “Goods”.
(f) “Merchant” means the shipper, consignee, notify party, receiver of the Goods, holder of the Waybill, and any person, including any corporation, company, or other legal entity, owning the Goods or entitled to the possession of the Goods or acting on behalf of the Goods or any such entity. Their obligations are joint and several.
(g) “Package” means the largest means used to prepare cargo for transportation, including but not limited to, a skid, pallet, Container, trailer or carton.
(h) “Port to Port Shipment” means a shipment from one port to another port. The Carrier would be responsible for the Goods only from the port of loading indicated on the face of this Waybill to the port of discharge indicated on the face of this Waybill.
(i) “Subcontractor” includes but is not limited to owners, operators and charterers (time, voyage and slot) of vessels, (other than the Carrier), stevedores, terminal and groupage operators, road and rail transport operators and any independent contractor employed directly or indirectly by the Carrier in performance of the Carriage.
(j) “Third Party On-Carriage” means the transfer of the Goods and the responsibility for the Goods from I-Motion to another carrier.
(k) “Waybill” means a non-negotiable liner service receipt note (however described or titled on its face) issued for a receipt of the Goods on the means of transport or ship and which by reference to these Terms and Conditions of Carriage evidences the contract of carriage of goods and which shall be in such form as the Carrier may from time to time determine.
2. ACCEPTANCE OF WAYBILL AND CARRIER'S TARIFFS, RULES, AND RATES
In accepting the Waybill, the Merchant agrees to be bound by all its terms, conditions and limitations, whether printed, stamped, or written on the front or back of the Waybill, as well as the provisions of the Carrier’s published freight Tariffs, Rates, and Rules, as fully as if they were all specifically accepted in writing by the Merchant, even if local customs or practice are to the contrary.
3. PARAMOUNT CLAUSE
The Waybill is a non-negotiable document; it is not a bill of lading and no bill of lading will be issued. However, it is agreed that the International Convention for the Unification of Certain Rules relating to Bills of Lading (Brussels 1924), as amended by the 1968 and 1979 Protocols – the Hague-Visby Rules – shall also apply to the Waybill. Whenever the Hague-Visby Rules, or laws or statutes incorporating these Rules, use the words “Bill of Lading” they shall be read and interpreted as meaning “Waybill”.
4. SCOPE OF THIS WAYBILL
The Waybill evidences the contract of carriage from the time the Carrier accepts complete custody and control of the Goods at the place of receipt or the port of loading described on the face of the Waybill until the Carrier delivers custody or control of the Goods at the port of discharge or the place of delivery described on the face of the Waybill. The terms and conditions of the Waybill apply during the Carriage described by the Waybill on all modes of transportation and storage.
5. THIRD PARTY ON-CARRIAGE
The Merchant and the Carrier may indicate, in a clause on the face of the Waybill or otherwise, that the Goods will be on-carried beyond the port of discharge or place of delivery. I-Motion is not responsible for such on-carriage and is not liable for loss of or damage to the Goods during on-carriage. I-Motion will act only as agent of the Merchant to arrange such on-carriage. I-Motion’s duties and responsibilities will be completed at the place of on-carriage as if I-Motion had delivered the cargo according to Clause 7.
6. RECEIPT FOR CONDITION AND QUANTITY OF GOODS
By issuing the Waybill the Carrier acknowledges receipt only of the external, apparent condition of the Goods’ packaging, including containers, and the quantity of the Goods or their packages, including Containers, that are visible and apparent to the Carrier and that the Carrier has reasonable means to check. If the Carrier receives a sealed Container, the Carrier is only responsible to deliver the Container intact with the seal intact. The Carrier shall not be liable for loss, damage, or injury caused by improper stuffing of Containers that has been performed by the Merchant or on the Merchant’s behalf. This exception shall include, but shall not be limited to, a defective condition of the Container that should have been obvious to the Merchant, its agent, or servant at the time the Container was loaded. The Merchant shall be liable for, and shall hold the Carrier harmless from, any and all loss, damage or injury caused by the Goods, which by their nature are dangerous, fragile, perishable, or are improperly stuffed or secured in the Container or are insufficiently packaged.
Goods are not to be shipped inside vehicles or other cargo unless the Carrier agrees in writing to accept such additional goods and extra freight is paid. The Carrier is not responsible for such additional goods unless the Carrier agrees in writing to carry the goods.
The Carrier will deliver the Goods by one of the following means:
(a) Relinquish exclusive custody and control of the Goods to a person entitled to the possession and control of the Goods; or
(b) Place the Goods at a place, reasonably safe and fit relative to the conditions at the place of delivery, and allow the person entitled to delivery up to 5 days to assume custody and control of the Goods unless the nature of the Goods or custom, law or regulation at the place of delivery suggest a shorter time; or
(c) Relinquish custody and control of the Goods to a port authority or other authority or other entity to whom custody and control is customarily relinquished at the place of delivery or port of discharge.
The Carrier is not responsible for Goods not picked up within the time specifically allowed, or if no time is specified, within 5 days. The Carrier may remove such Goods from the Container or other packaging furnished by the Carrier, and/or place the Goods in a storage facility or other available place at the risk and expense of the Goods and the Merchant. That facility will act as an agent of the Merchant, not the Carrier. Demurrage will continue to be charged for the Container and other carrier equipment until the Container and other equipment are returned to the Carrier. This demurrage will give rise to a right of retention, a pledge and a privilege or lien against the Goods. Goods not picked up within 30 days may be sold to exercise these rights with regard to outstanding freight, demurrage, storage, handling, and other charges.
8. MERCHANT'S RESPONSIBILITY
(a) The Merchant warrants that it has authority to enter into the Waybill and that it has properly and accurately described the Goods on the face of the Waybill.
(b) It also warrants that proper labels and markings are on the Goods or their packaging, that the Goods are properly prepared and packaged for transportation, and that all necessary instructions for transportation have been given to the Carrier.
The Merchant also warrants that the Goods are safe for transportation on all modes of transportation. Although the Merchant agrees to comply with all relevant treaties, conventions, laws, and regulations, it agrees that such compliance alone may not be sufficient to satisfy this warranty. If action beyond such compliance is required to assure that the Goods are safe for transportation, that action will be taken by the Merchant. The Carrier has the right to destroy or render harmless any Goods that the Carrier reasonably believes present a danger.
The Merchant warrants that the vessel will not incur any fine, penalty or other expense because of the Goods, their preparation for transportation, packing, labeling or any other aspect of the Goods.
(c) If the Merchant issues its own bill of lading or other shipping document, it warrants that the terms of its bill of lading or document will be no less favourable to the Carrier than the Carrier’s Waybill.
(d) If Containers or other equipment supplied by or on behalf of the Carrier are unpacked, discharged or released at the Merchant’s premises, the Merchant is responsible for returning the empty Containers or other equipment, in a clean condition inside and outside, to the point or place designated by the Carrier, his servants or agents, within the time specifically allowed or, if no time has been specifically allowed, within 5 days. Should a Container not be returned within the time, the Merchant shall be liable for any demurrage, detention, loss or expenses which may arise from such non-return.
Containers or other equipment released into the care of the Merchant for packing, unpacking or any other purpose whatsoever are at the sole risk of the Merchant whilst in his control. The Merchant shall indemnify the Carrier for all loss and/or damage to such Containers or equipment.
(e) The Merchant agrees to indemnify and hold harmless the Carrier in respect of any expenses and liability whatsoever and howsoever arising (including and without limiting the foregoing from negligence or breach of contract or willful act or default of the Carrier or others) in respect of any breach of these warranties.
9. APPLICABLE LIABILITY REGIME
(a) Carrier’s liability is determined according to the Hague-Visby Rules. These Rules are incorporated into the Waybill as if they were fully set forth herein.
(b) The Carrier shall in no case be responsible for loss of or damage to the Goods howsoever arising prior to loading into and after discharge from the vessel or while the Goods are in the charge of another carrier. Should, however, the Carrier be held liable for loss or damage arising prior to loading into or after discharge from the vessel, then liability will be governed by the Hague-Visby Rules.
(c) Application of CMR and CMI. In the event that a dispute arising from the Waybill is litigated in a forum that must apply the CMR Convention for road transport or the CMI Convention for rail transport, or local enactments of these Conventions, then these Conventions or local enactments will govern only the portion of the carriage that it governs by the force of law.
10. NOTICE OF DAMAGE
The absence of written notice of loss or damage from the Merchant at the time of delivery of Goods with visible loss or damage or within three (3) days of delivery of Goods with hidden loss or damage, shall constitute prima face evidence that the Carrier delivered the Goods in the same condition and quantity in which the Goods were delivered to the Carrier at the place of receipt or port of loading.
11. TIME LIMIT TO COMMENCE SUIT AGAINST CARRIER
In any event, the Carrier will be relieved of all liability unless suit is commenced against the Carrier within one year from the date the Goods were delivered or the date they should have been delivered by the Carrier.
The Merchant warrants that it will preserve the time limit within which any action may be commenced by the Merchant or the Carrier against any party who may be responsible for loss of or damage to the Goods. The Merchant agrees to hold harmless, indemnify, and otherwise protect the Carrier against such loss or damage the Carrier may suffer due to the Merchant’s failure to preserve such time limit.
12. ROUTES, LIBERTIES
The carrier has the option to determine the route and the means of transport without notice to the Merchant. The route chosen by the Carrier may not be the most direct or shortest route and may be interrupted. The Carrier may, if circumstances justify, destroy the Goods, abandon them or discharge the Goods at any place and declare the Goods delivered and at the risk of the Merchant.
16. RETENTION, PLEDGE, PRIVILEGE, LIEN
The Carrier shall have a right of retention, a pledge as provided for in the Law of 11 July 2013 (Belgium), as well as a privilege and lien provided for in the said Law, on the Goods and any document relating to the Goods or any other Goods, documents or property of the Merchant for any amount due the Carrier plus interest and the cost of collecting that amount with interest on those costs. The costs of collecting the amount due will include, but will not be limited to, attorney and other legal fees.
13. SUB-CONTRACTORS AND HIMALAYA CLAUSE
The Carrier may sub-contract, directly or indirectly, the whole or any part of the contract of carriage on any terms. The parties to this Waybill extend its terms and conditions, including all defenses and limitations, to all parties who participate in its performance. The defences, limitations, and the law governing the Waybill with the force of law or incorporated by reference into the Waybill shall extend to all parties that agree directly or indirectly with the Carrier to perform all or any part of the contract of carriage.
14. AGREEMENT TO CLAIM AGAINST NO ONE OTHER THAN THE CARRIER
The Merchant undertakes
(a) that no claim or allegation shall be made, whether by the Merchant or any other person who is or who may subsequently be interested in the Goods, against any person (other than the Carrier) (whether it is a subcontractor, principal, employer, servant, agent or otherwise) which imposes or attempts to impose upon such person any liability whatsoever and howsoever arising (including without limiting the foregoing from negligence or breach of contract or willful act or default of the Carrier or others) in connection with the Goods and if such claim or allegation should nevertheless be made to indemnify the Carrier and the person against whom such claim or allegation is made against the consequences of such claim or allegation; and
(b) to indemnify the Carrier against any claim or allegation made against it by any person (other than the Merchant) in connection with any liability, in connection with the Goods.
15. FREIGHT AND OTHER CHARGES
Freight, whether it is pre-payable or collect, is fully earned when the Goods are delivered to the Carrier, its agents or servants. The freight is fully earned in any event, without deduction, whether the Goods are lost or not lost. The freight will not be returned.
The Carrier has the right, but not the duty, to inspect Goods inside Containers or other packaging. If the Goods are not described correctly and as a result a lower freight is charged, the Carrier will be entitled to the correct freight and all the costs of calculating and collecting it, including but not limited to attorney fees and other legal fees, and interest on both the amount due and the cost of collection. If the Carrier considers the packing insufficient and remedies this deficiency, the Merchant will pay the Carrier’s charge for remedying this deficiency and will pay the freight as computed for the Goods thus remedied.
17. GENERAL AVERAGE AND SALVAGE
(a) General Average is to be adjusted at any port or place at the Carrier’s option and is to be settled according to the York-Antwerp Rules 2016, and amendments. In the event the venture is placed in peril from any cause, even the negligence or other fault of the Carrier, for which, or for the consequences of which, the Carrier is not liable by reason of statute, law, treaty, convention, contract, or otherwise, the Merchant shall contribute with the Carrier in General Average according to the statement prepared by the General Average Adjuster. The parties to the Waybill agree to accept as binding the decisions of the General Average Adjuster as set forth in the statement, and agree that the General Average Adjuster or the Carrier may exercise a right of retention, pledge, privilege and lien against the Goods for General Average or Salvage.
The Merchant shall provide such security and payments on account as are requested by the General Average Adjuster within 30 days of such request. The Merchant agrees to provide such security and to make payments on account before or after the Goods have been delivered from the Carrier. The Merchant agrees that if the Goods have been delivered, or are otherwise not available for the purpose of executing a security right against them, the Carrier may obtain such security and payments on account by exercising a right of retention, pledge, privilege or lien against any other property owned by or in the possession of or held by the Merchant.
(b) The Merchant shall also pay salvage and special charges incurred in respect of the Goods. If a salvaging vessel is owned, operated, or chartered by the Carrier, salvage shall be paid as fully and in the same manner as if such salvaging vessel belonged to strangers. The Merchant hereby appoints the Carrier to act on behalf of the Merchant in any salvage proceeding in which the Merchant does not appear.
18. DELAY AND CONSEQUENTIAL DAMAGE
(a) The Carrier is not responsible for consequential damages, nor for indirect damages, loss of turnover, loss of profit, unless the carrier has agreed in writing to be responsible for the certain, specific damage that occurred.
(b) The Carrier does not agree to deliver the Goods at any particular time or for any particular market and thus is not responsible for damages alleged to have been caused by delay. If, despite the foregoing provision, the Carrier is held liable for damages attributable to delay, those damages are limited to the total amount payable as freight for all of the Goods shipped under the Waybill that included the delayed Goods.
19. DECK STOWAGE
The Carrier or vessel owner or operator, not the Merchant, has sole authority and responsibility to determine the stowage location of the Goods on vessels that carry the Goods. Goods stowed either by the Merchant or the Carrier in Containers, or are otherwise protected from the weather, are likely to be stowed on deck. The Waybill will not be claused to indicate such deck stowage, and the Hague-Visby Rules or local enactments thereof shall apply to such deck cargo as if it were stowed below deck.
Goods that are customarily carried on deck, may be carried on deck without notice to the Merchant and at the Goods’ and the Merchant’s risk.
Goods not customarily carried on deck may be carried on deck at the risk of the Goods and the Merchant with the agreement of the Shipper if the Waybill is claused to note that the Goods are carried on deck at the risk of the Goods or the Merchant.
20. SPECIFIC RULES WITH REGARD TO GOODS
(a) Special ventilation, refrigeration or heat will not be furnished to the Goods unless such special service is contracted for on the face of the Waybill and extra freight is paid. The Merchant is responsible for inspecting each Container to determine whether it is fit to carry the Goods. The Merchant is also responsible to assure that the Goods are at the proper temperature before they are loaded into a refrigerated Container. The Merchant agrees to determine that the refrigeration equipment is set to the proper temperature and that the Container is at the proper temperature before the Goods are loaded into the Container.
The Carrier is not responsible for heating, ventilating or refrigerating equipment when the equipment is not within its custody and control.
(b) Acknowledgement of receipt of steel, other metal cargo, lumber and wood in apparent, external, good order and condition in the Waybill is not a representation by the Carrier that conditions of rust, oxidation or wetting and the like did not exist on receipt of such Goods by the Carrier. It is agreed that superficial rust, white rust, oxidation, wetness or any like condition is not a condition of damage to steel and other metal cargo. It is also agreed that wetting of lumber and wood is not a condition of damage.
If the Merchant requests in writing before delivery of such Goods to the Carrier and if a higher freight is paid, the Carrier will, after a special survey of the Goods, issue a Waybill describing superficial rust, white rust, oxidation or wetness on such Goods.
(c) The Merchant agrees not to tender for transportation any Goods which are of a dangerous, inflammable, radio-active, or damaging nature without previously giving written notice of their nature to the Carrier, marking the Goods and the Container or other covering on the outside as required by any laws or regulations which may be applicable during the Carriage. Furthermore, the Merchant undertakes that the Goods are packed in a manner adequate to withstand the risk of Carriage having regard to their nature and in compliance with all laws and regulations. If these requirements are not met, the Merchant shall defend, indemnify and hold harmless the Carrier against all loss, damage or expense arising out of the Goods. Goods which are or at any time become dangerous, inflammable, radio-active of damaging may at any time or place be unloaded, destroyed, or rendered harmless without compensation, and if the Merchant has not given notice of their nature to the Carrier, the Carrier shall be under no liability to make any General Average contribution in respect of these Goods.
21. BOTH TO BLAME COLLISION CLAUSE
If a vessel on which the Goods are being carried collides with another vessel as the result of the negligence or fault of both vessels, and if the Merchant collects payment for loss or damage to the Goods from the other vessel, and if the other vessel obtains a contribution toward that damage payment from the Carrier, the Merchant will reimburse the Carrier for that contribution.
22. APPLICABLE LAW AND FORUM
All disputes will be decided by the Commercial Court Ghent (division Ghent), Belgium, which will have exclusive jurisdiction over those disputes. The general law of Belgium will apply to those disputes in addition to the laws and rules specified in the Waybill.