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Malta International
Forwarders’Association
Standard Terms and Conditions of Trading
These
conditions may be used by current
MIFA Members ONLY
The
Attention of the Customer is drawn
to the following terms and conditions of trading which exclude or
limit the Company’s liability and those which require the
Customer to indemnify the Company in certain circumstances.
1.
APPLICATION AND DEFINITIONS
(i) Application
All services of the Company, whether gratuitous or not, are subject
to the following:
(A) The provisions of these Terms and Conditions and to the
provisions of the Company’s or any other applicable Tariff,
if
any.
(B) To the extent that the Company undertakes or arranges for the
carriage of Goods, Units and any Services connected therewith, the
provisions of these Conditions, shall be paramount, subject to
sub-paragraph 1(E) below, in so far as such provisions are
inconsistent with these other conditions.
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In
so far as these Conditions are inconsistent with the provisions of
any applicable Tariff, these Conditions shall be paramount.
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Copies
of the provisions of any applicable tariff are obtainable from
the Company upon written request.
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If
any legislation, to include regulations and directives, and/or any
International Conventions regulating the international carriage of
goods by Road, Sea and Air 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.
(ii) Definitions
In these terms and conditions
(A) The term “Authority”
shall mean any person or
body of persons which is a duly constituted legal or administrative
person, acting within its legal powers and exercising jurisdiction
within any nation, state, municipality, port or airport;
(B) The term “Company”
shall mean a MIFA Member
trading under these conditions;
(C) The term “Unit”
shall mean any Transport
Unit, Flexitank, Trailer, Transportable Tank, Flat-rack, or any other
article of transport used to carry or consolidate goods and any
equipment of or connected thereto and in respect of which the Company
performs or is requested to perform any service or which enters the
Company’s depot in connection with such service;
(D) The term “Customer”
shall mean any person at
whose request or on whose behalf the Company undertakes any business
or provides a service and any person having any rights or obligations
under any contract whatsoever concluded with the Company or as a
result of that person’s activity in connection with such
services;
(E) The term “Goods”
shall mean the cargo as
well as transport units, pallets or similar articles of transport or
packaging, in respect of which the Company provides or is requested
to provide a service;
(F) The Term “Dangerous Goods”
shall mean goods
which are officially classified as hazardous and includes goods which
are or may become of a dangerous, inflammable, radioactive, noxious
or damaging nature and goods likely to harbor or encourage vermin or
other pests;
(G) The term “Goods of High Value”
shall include
but not be limited to bullion, precious stones, bank notes or coins,
bonds, negotiable instruments or securities of any kind, cigarettes,
spirits, precious metal objects, precious jewellery, valuable works
of art, antiques, historical artefacts and bloodstock, computers/hand
held electronic products/mobile telephones (and electronic components
of these)
(H) The term “in writing/written”
shall mean and
include inter alia any telegram,
telex, facsimile, e-mail,
handwriting, processed or typewritten text or any recording by
electronic means.
(I) The term “Owner”
shall mean and include the
owner, shipper and consignee of goods or transport unit and any other
person who is or who may become interested in the Goods and anyone
acting on their behalf
(J) The term “Agent”
shall mean and include
direct and indirect sub-contractors and their respective servants and
agents.
(K) The term “Person”
shall mean and include
persons or any body or bodies corporate;
(L) The term “Vehicle”
shall mean any motor
vehicle (including but not limited to any lorry, van, trailer, crane,
fork-lift truck or car) in respect of which the Company performs or
is requested to perform any service or which enters the
Company’s
depot in connection with such service.
(M) The term “SDR” means
the Special Drawing Right
as it is defined by the International Monetary Fund.
(N) Except where the context otherwise requires, words denoting the
singular include the plural and the masculine include the feminine
and vice versa.
2. SERVICES PROVIDED TO THE CUSTOMER
The Company shall undertake to provide or to make arrangements for
the provision of the following services to the Customer:
(i) the carriage of goods and/or the arrangement for the carriage
of goods and/or
(ii) storage of goods whether temporary or otherwise and/or
(iii) handling of goods and/or
(iv) lifting of goods and/or
(v) packaging and labeling of goods and/or
(vi) renting and leasing of equipment, vehicles, machinery and/or
(vii) renting and leasing of dry van units.
3. WARRANTY OF AGENCY
The Customer warrants that he is
either the owner of the Goods concerned or is duly authorised by such
owner to accept these Conditions for and on such owner's behalf.
The Customer contracts and agrees with the Company on behalf
of himself and as agent for all persons who have or may acquire any
proprietary, possessory or other rights in respect of Goods, Units or
Vehicles to be bound by the terms of these Conditions and by the
terms of any applicable Tariff and warrants that he has the authority
of all such persons to contract and to agree as aforesaid.
4. OBLIGATIONS OF THE CUSTOMER
(i) The Customer shall give sufficient and executable instructions in
writing wherever possible.
(ii) The Customer warrants that the description and particulars of
the Goods and Units (including, but not limited to, weight, content,
measure, quantity, condition, marks, numbers and value) are complete
and correct and that the Goods are labeled and marked in compliance
with all laws, regulations and requirements which may be applicable.
(iii) The Customer warrants that the Goods and non-empty Units are
properly packed in a manner adequate to withstand normal handling or
storage and in compliance with all laws, regulations and requirements
or official or recognized standards as may be applicable and in such
condition as not to cause damage or injury to the property of the
Company or to any other goods, whether by spreading of damp,
infestation, leakage or the escape of fumes or substances or
otherwise howsoever.
(iv) Before presentation of the Goods for any of the services
provided in Article 2 of these Standard Terms and Conditions of
Trading, the Customer shall duly inform the Company in writing of any
special precautions necessitated by the nature, weight or condition
of the Goods and of any statutory duties specific to the Goods with
which the Company may need to comply. The Customer also undertakes to
supply the Company with any information concerning the nature of the
Goods and their packaging as the Company may reasonably request.
(v) The owners or agents of the owners of the Goods undertake to
reimburse the Company with all duties and taxes that the Company may
be required to pay in respect of the Goods, except to the extent that
the Company is required to accept responsibility for them in
accordance with this Article.
5. GOODS OF A PARTICULAR NATURE
(i) Unless prior to acceptance of the Goods by the Company, the
Company receives written notice containing all appropriate
information, none whatsoever of such Goods will be construed to be
Valuables, Dangerous Goods, human remains, live animals or plants and
unless prior to acceptance of the Goods by the Company, the Company
receives written notice containing all appropriate information, none
of the Goods will be construed as to being of their very nature or as
to containing substances the storage of which would require the
obtaining of any consent or licence or which, if they escaped from
their packaging, would or may cause pollution of the environment or
harm to human health and to other cargo.
(ii) If Goods in the opinion of the Company and/or any Authority
constitute a risk to other goods, property, life or health such Goods
may without notice be destroyed or otherwise dealt with at the sole
discretion of the Company and at the risk and expense of the
Customer.
6. GOODS OF HIGH VALUE
Unless otherwise agreed in writing, the Customer undertakes that no
Goods of High Value or requiring special use or handling shall be
delivered to the Company and that the Company shall not be caused to
deal with or handle such Goods. If such Goods are delivered without
such agreement, the Goods may be refused receipt by the Company or
stored elsewhere at the Customer’s own risk and expense.
7. TEMPERATURE CONTROLLED GOODS
(a) Unless otherwise previously agreed in writing, the Customer
undertakes that no Goods requiring temperature control will be
delivered to the Company and that the Company shall not be caused to
deal with or handle such Goods.
(b) If the Company agrees to handle Goods which require temperature
control, the Customer warrants and undertakes:
(i) to give written notice of the nature of the Goods and particular
temperature range to be maintained and that the Unit has been
properly pre-cooled or pre-heated as appropriate; that the Goods have
been properly stuffed in the unit and that its thermostatic controls
have been properly set. If the above requirements are not complied
with, the Company shall not be liable for any loss of or damage to
the Goods to the extent caused by such non-compliance.
(ii) that any refrigerated unit shall be in good working order at the
time it is placed in the custody of the Company and to hold the
Company harmless for any loss of or damage to the Goods directly or
indirectly arising from any failure of the cooling mechanism of any
refrigerated unit.
8. BREACH
(i) If the Customer is in breach of Articles 5 or 6 or 7 above the
Goods may without notice be refused receipt by the Company, be
destroyed or otherwise dealt with at the sole discretion of the
Company and at the risk and expense of the Customer.
(ii) The Customer shall indemnify the Company against any loss or
damage it suffers which is directly related to the breach, including
all costs and expenses, judicial and extra-judicial incurred therein,
and the Company's reasonable charges for reparation of the breach and
its consequences.
(iii) The Customer shall in addition pay an extra charge equal to the
amount of any fine or penalty payable by the Company wholly or partly
as a result of a breach by the Customer of this contract.
9. INDEMNITIES
(i) The Customer shall defend, indemnify and hold harmless the
Company against all loss, damage, liability, costs and expense to the
extent arising from:-
(a) any breach of the Customer’s undertakings in accordance
with the articles above;
(b) the act or omission of the Customer or the Owner or any person
acting on their behalf;
(c) the Company complying with the instructions given by or on behalf
of the Customer or Owner;
(d) the Company complying with the orders of an Authority with regard
to the Goods;
(e) the handling, loading, stowage or unloading and of the Goods by
the Customer or Owner or any person acting on their behalf;
(f) the nature of the Goods,
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the
defective condition of or overweight Units or Vehicles, or
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any
claims of a general average nature which may be made on the Company.
(ii) The Customer shall defend, indemnify and hold harmless the
Company against all duties, taxes and fines in respect of the Goods
howsoever arising. Notwithstanding the foregoing, if the duty or tax
arises from the physical loss or damage to the Goods for which the
Company is liable under article 13 of these Conditions, the Customer
having indemnified the Company may include such duty or tax in any
claim arising under Article 4 of these Standard Terms and Conditions.
(iii) The Customer’s Contract of Carriage, handling or
temporary storage shall include a provision prohibiting the making of
any claim against the Company, its servants or agents by the Carrier
or party with whom the Customer has negotiated a contract of
carriage, handling or storage and a provision that the Company, its
servants and agents shall have the benefit of any provisions in such
contract of carriage, handling or temporary storage excluding or
limiting the liability of the Customer in respect of the Goods, Units
or Vehicles.
(iv) The Customer undertakes that no claim will be made against
any servant or agent of the Company which imposes or attempts to
impose upon any of them any liability whatsoever in connection with
the Goods, Units or Vehicles and if any such claim should
nevertheless be made, to indemnify the Company against all
consequences thereof.
(v) Without prejudice to the foregoing, every such servant or agent
shall have the benefit of all provisions herein, 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 own behalf, but as agent and trustee for such servants
and agents.
(vi) The Customer shall defend, indemnify and hold harmless the
Company from and against 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 and without prejudice to
the generality of this article this indemnity shall cover all claims,
costs and demands arising from or in connection with the negligence
of the Company, its servants and agents.
10. RECEIPTS
(i) Goods, Units or Vehicles are not received by the Company until
the person delivering has reported to the Company’s reception
office or area and in addition the Company has agreed to receive the
Goods, Unit or Vehicle or until the Company has acknowledged receipt
thereof in writing.
(ii) The Company may refuse to receive load or unload any Goods,
Units or Vehicles if the Company is not satisfied that arrangements
have or will be made for the removal of such Goods, Units or
Vehicles.
11. DELIVERY AND DISPOSAL
(i) If any Goods, Units or Vehicles are not removed from the
Company’s premises within fourteen (14) days of the Company
having given notice to the Customer, the Company shall be entitled to
remove or dispose of such Goods, Units or Vehicles at the sole
discretion of the Company and at the risk and expense of the
Customer.
(ii) If at any time whatsoever, any Goods constitute a risk to other
goods, property, life or health in the opinion of the Company or any
Authority, such Goods may without notice be destroyed or otherwise
dealt with at the sole discretion of the Company and at the risk and
expense of the Customer.
(iii) Instructions contained in the Customer’s Contract of
Carriage, delivery order or other documents shall entitle the Company
to deliver to the bearer thereof notwithstanding that such contract
of carriage, delivery order, or other document provides for delivery
to another named party or to his order. The Company is entitled to
assume that the person presenting such contract of carriage, delivery
order or other document is the person lawfully entitled to take
delivery. The Company is not required to verify signatures appearing
on such contract of carriage, delivery order or other document. It
will accept the document on good faith and at face value.
12. INSPECTION OF THE GOODS AND/OR
VEHICLES
The Company will inform the Customer of any discrepancies to Goods
ascertained on receipt by or delivery from the Company and which are
apparent upon reasonable inspection and if possible without
affecting, as much as possible, the packaging of the Goods.
13. LIABILITY AND LIMITATION OF
LIABILITY
(i) The Company shall not be liable for any loss and/or damage,
whether sustained in the course of transit or whilst in temporary
storage, to the units (as defined in 1 (B) above), Goods (as defined
in 1 (E), (F) and (G) above, delay, duty, tax, rent, charges or
demurrages or consequential loss, non-performance of any obligation,
mis-delivery, misdirection, costs, expense, death or injury of
whatsoever nature and howsoever caused except as specified in this
article.
(ii) Subject to the exclusions of liability in these Conditions, to
the extent that it is proved that the claim arises from the
negligence of the Company, its servants, agents or sub-contractors,
the Company shall be liable for the type of loss or damage set out
below subject to the financial limits stated.
(a) Physical loss of or damage to Goods, but not exceeding the lesser
of:
the value of the Goods lost, or
the reasonable cost of repair in the case of damage, or
2 Special Drawing Rights per kilogram of the gross weight of the
Goods lost or damaged.
(b) Misdirection of the Goods but not exceeding the lesser of:
the cost of transporting the Goods to the correct destination by the
mode of transport that would have applied in the absence of such
misdirection less the cost that would have been incurred in
transporting the Goods to the correct destination in the absence of
such misdirection, or
the value of the Goods misdirected, or
2 Special Drawing Rights per kilogram of the Goods misdirected.
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Loss
of or damage as a direct result of failure to deliver or arrange
delivery of goods, in a reasonable time but not exceeding the lesser of:
The sum equal to twice the amount freight that would have been earned
by the Company, or
the value of the goods, or
2 Special Drawing Rights per kilogram of the goods.
(d) Physical loss of or damage to the Customer’s owned or
leased Unit or Vehicles, but not exceeding the lesser of:
the value of the Unit or Vehicle, or
the reasonable cost of repair in the case of physical damage, or
2 Special Drawing Rights per kilogram.
(e) Physical loss of or damage to property of any form other than
that in Section 13 (a), (b), or (c), but not exceeding the lesser of:
the value of the property lost, or
the reasonable cost of repair in the case of damage, or
2 Special Drawing Rights per kilogram each event or events arising
from a common cause.
(f) In the case of all other claims not exceeding the lesser of:-
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the amount of direct loss, or
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75,000 Special Drawing Rights.
(g) The Company shall not in any circumstances whatsoever be liable
for indirect or consequential loss such as (but not limited to) loss
of profit or loss of market.
(iii) For the purposes of this Article,
(a) the value of Goods shall mean the invoice value added to the
cost of freight (if paid) and insurance (if applicable) plus any
Customs Duty or tax incurred on the Goods in respect of their
carriage and not recoverable from any Authority or, in the absence of
such value, the market value at the place where the Company received
the Goods;
(b) the value of the Customer’s Unit or Vehicle shall be
taken to be its lease value if leased by the Customer and if owned by
the Customer the value shall be taken to be the market value at the
place where the loss or damage occurred;
(c) the value of property under article 13(ii[d]) is the market
value at the place where the loss or damage occurred.
(iv) The Company shall not incur any liability whatsoever for claims
arising from:
(a) any act or omission of the Customer Or Owner or any person
acting on their behalf,
(b) any acts of the Company conforming with the instructions given
by or on behalf of the Customer or Owner,
(c) the act or order of
any Authority,
(d) insufficiency or inadequate packaging or labeling of the Goods
or Units except where such services have been provided by the Company,
(e) the handling, loading, stowage or unloading
of the Goods by
theCustomer or Owner or any person acting on their
behalf,
(f) the nature of the Goods,
(g) the defective or overweight condition of Units or
Vehicles
(h) riots, civil commotions, strikes, lockouts,
stoppage or restraint of
labour,
(i) explosion, fire, flood or storm,
(j) breakdown of or failure of any handling equipment of the
Company,
(k) breakdown of, accident to, failure or interruption of or
reduction in
the mains electrical supply to the Company, it hereby being agreed
that the Company is under no obligation whatsoever to have available
any auxiliary Power supply,
(l) any cause which the Company could not avoid and the
consequences whereof it could not prevent by the exercise of
reasonable diligence.
14. CHARGES
(i) The Customer shall pay to the Company as agreed all sums
immediately when due without deduction or deferment on account of any
claim, counterclaim or set-off.
(ii) 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 by such other person when due.
(iii) On all amounts overdue to the Company, the Company shall be
entitled to interest, calculated at one per cent above the base rate
established by The Central Bank of Malta applicable during the period
that such amounts are overdue.
(iv) The Company's contracted charges, which may be increased from
time to time by at least one (1) day prior notice to the Customer,
shall be payable free of any deductions at such periodic intervals as
may have been agreed between the parties and in any event on the
earlier of (a) the expiry of any agreed period of credit and (b) the
time immediately before the removal of the Goods from the Company's
custody or control.
15. LIEN
The Company shall have a particular and general lien or similar
charge on all Goods, Units and Vehicles, or documents relating
thereto, in its possession for all sums due at any time from the
Customer or Owner, entitling it to retain the goods as security for
payment of all sums due from the Customer or any outstanding account
whether relating to the Goods or not. Storage charges shall continue
to accrue on any of the goods detained under lien or similar charge.
The Company shall be entitled, on at least 28 days notice in writing
to the Customer, to sell or dispose of or deal with such Goods or
documents, as agents for and at the expense of the Customer and apply
the proceeds in or towards the payment of such sums.
16. INSURANCE
The Company does not provide insurance cover for the Goods being
carried and the customer may, if he so wishes, make arrangements to
effect insurance cover for the Goods.
17. TIME LIMIT
The Company shall be discharged of all liability:
(i) in respect of damages, unless the Company has been given a
reasonable time period in which to survey such damage except where it
was not reasonably possible for the Company to be given such
opportunity,
(ii) in respect of loss or damage at the Company’s premises
of
any Unit or Vehicle, unless written notice of such loss or damage is
received within five working days of the date when such Unit or
Vehicle left the Company’s premises or, if lost, when such
Unit
or Vehicle should have left the Company’s depot,
(iii) in respect of all claims, unless within 9 (nine) months from
the date of delivery of the goods to the Customer, suit is brought
against the Company in the proper forum and written notice thereof
received by the Company.
18. MISCELLANEOUS
(i) Any notice given by the Company to the Customer shall be duly
given if left at or sent by mail to the last known address of the
Customer or by facsimile or electronic transmission to the last
notified number and/or address and such notice or account shall if
posted be deemed to have been given 2 working days after posting and,
if by facsimile or electronic mail, the next working day.
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The
defences and limits of liability provided for by these Conditions
shall apply in any action against the Company and each exclusion and
liability in these Conditions exists separately and cumulatively.
(iii) No servants or agents of the Company shall have power to
waive or vary any of the terms hereof unless such waiver or variation
is in writing and is specifically authorized or ratified in writing
by a director or officer of the Company who has the actual authority
of the Company so to waive or vary.
(iv) When reasonably necessary and at the discretion of the Company
the Goods may be carried, stored or handled with other compatible
goods or handled between stores.
(v) The Customer and the Owner shall not take any proceedings against
any employee or sub-contractor of the Company for a claim.
(vi) The Company shall be relieved of its contractual obligations to
the extent that their performance is prevented by, or their
non-performance results wholly or partly, directly or indirectly from
the act, neglect, or default of the Customer, including any breach by
the Customer of these Conditions, or by storm, flood, fire,
explosion, breakdown or failure of plant and/or machinery, riot,
civil disturbance, industrial dispute, labour disturbance, acts of
terrorism or cause beyond the reasonable control of the Company.
19. SERVICES UNDERTAKEN OR ARRANGED
BY THE COMPANY
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When
engaging companies and/or persons to perform the services of
carriage, handling or storage, or any other services the Company may
enter into contract on its own behalf and, where required, on behalf of
the Customer, with such companies and/or persons on any terms
whatsoever including terms less favourable than the terms of these
Conditions.
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In
the event of a claim in respect of the Goods or Units, the Company
shall provide the Customer with particulars of the identity, services
of companies and/or persons instructed to perform the carriage,
handling or storage or any other services to the extent that such
particulars are relevant to the Customer’s claim.
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If
any cargo has been received by the Company for local delivery or for
local handling or for transhipment from a foreign principal with which
the Company has had no previous contractual or commercial relationship,
then the Company shall act and be responsible only in her capacity as
that Principal’s local handling representative.
20. JURISDICTION AND FORUM
These Conditions and any claim or dispute arising out of or in
connection with the services of the Company shall be governed by and
in accordance with Maltese Law and any dispute in relation with such
services shall be subject to arbitration in Malta in terms of the
Arbitration Act 1996. The award of the arbitrators shall be final and
binding on both parties.
21. AMENDMENT
The Company reserves the right to amend these Standard Terms and
Conditions of Trading at any time without notifying the Customer.
Such amendments will not, of course, apply retrospectively, and will
not effect any business transaction which the Company has contracted
with the Customer prior to such amendment.
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