Terms Conditions Frieght Forwarding
1. Application
1.1 All services provided by Moving Solutions International Pty Ltd (hereinafter referred to as “MSI”), whether rendered as a courtesy or for compensation, are subject to the following terms and conditions and shall not be governed by any other agreement. The conditions outlined herein shall apply as follows:
(a) Part I of these terms and conditions shall apply to all services provided by MSI.
(b) Part II of these terms and conditions shall exclusively apply to services rendered by MSI in its capacity as agents.
(c) Part III of these terms and conditions shall exclusively apply to services rendered by MSI in its capacity as principals.
1.2 In cases where MSI issues a document bearing the title “bill of lading,” “sea waybill,” or “air waybill,” which designates MSI as the contracting carrier, the provisions set forth in that document, if conflicting with these terms and conditions, shall take precedence and prevail over these terms and conditions to the extent of the inconsistency but no further.
1.3 Any alterations, cancellations, or waivers of these terms and conditions (or any part thereof) must be made in writing and signed by a Director of MSI. No person, other than a Director of the Company, is authorized to agree to any changes, cancellations, or waivers of these terms and conditions.
1.4 The submission of instructions by the Customer to MSI for the provision of services shall signify the Customer’s acknowledgment, understanding, and agreement to be bound by these terms and conditions. Such instructions shall also constitute authorization for MSI to act on behalf of the Customer in accordance with these terms and conditions.
2. Provision of Services
2.1 MSI acts as agents unless one or more of the following circumstances applies:
(a) MSI performs carriage, handling, or storage of Goods, provided that MSI conducts the carriage and has actual custody and control of the Goods.
(b) Upon written demand from the Customer before the commencement of Goods carriage, MSI fails to provide requested particulars about persons engaged by MSI for the carriage. In such cases, MSI is considered a principal only for the part of the carriage for which particulars were not provided.
(c) MSI expressly agrees in writing to act as a principal.
(d) A court of law determines that MSI acted as a principal.
2.2 Without limiting Clause 2.1:
(a) Charging a fixed price for any service shall not determine whether MSI acts as an agent or principal.
(b) The use of MSI’s equipment does not determine whether MSI acts as an agent or principal for carriage, handling, or storage of Goods.
(c) MSI acts as an agent when it procures a bill of lading, sea waybill, or other document evidencing a contract of carriage between a party other than MSI and the Customer or Owner.
(d) MSI acts as an agent, never as a principal, when providing customs brokerage services, customs related services, taxes, licenses, certificates, and similar services on behalf of the Customer.
2.3 MSI is not a common carrier and reserves the right to accept or refuse the carriage of Goods or any other service at its discretion. All services are provided exclusively under these terms and conditions (and, when applicable, subject to Clause 21.6, the conditions on any bill of lading, sea waybill, or air waybill issued by MSI as a principal).
3. Definitions
In these terms and conditions:
(a) “Authority” refers to a legally constituted administrative entity exercising jurisdiction within any nation, state, municipality, port, or airport.
(b) “Chain of Responsibility” corresponds to the duties of participants in a supply chain to ensure road transport safety, as described in the Heavy Vehicle National Law.
(c) “Company” pertains to Moving Solutions International.
(d) “Container” includes any transport article, such as a container, flexitank, trailer, transportable tank, flat, pallet, or connected equipment used for carrying or consolidating goods.
(e) “Customer” designates any individual or entity for whom MSI provides services.
(f) “Dangerous Goods” encompass goods with hazardous, inflammable, radioactive, or damaging properties and those prone to harboring pests.
(g) “Force Majeure Event” comprises causes beyond the control of the party directly affected, including but not limited to war, rebellion, natural disasters, political disturbances, and government actions.
(h) “Goods” encompass cargo and any container not supplied by MSI, in relation to which MSI provides services.
(i) “Hague-Visby-Rules” signifies the provisions of the International Convention for the Unification of Certain Rules Relating to Bills of Lading, as amended by the Visby Protocol and SDR Protocol.
(j) “Heavy Vehicle National Law” refers to the Heavy Vehicle National Law Act 2012 (Qld) and related regulations, including any subsequent replacements or amendments.
(k) “Incidental Matters” include actions related to Goods, such as moving, storing, loading, unloading, fumigating, and inspecting, among others.
(l) “Insolvency Event” occurs if the Customer becomes insolvent, initiates insolvency proceedings, makes a general assignment for the benefit of creditors, or ceases business operations.
(m) “Instructions” denote specific requirements provided by the Customer.
(n) “Load Restraint Guide” refers to the “Load Restraint Guide: Guidelines and Performance Standards for the Safe Carriage of Loads on Road Vehicles,” including subsequent editions.
(o) “Montreal Convention” signifies the Convention for the Unification of Certain Rules relating to International Carriage by Air, as applied in Australia.
(p) “Navigation Act 2012” refers to the Navigation Act 2012 (Cth) and associated regulations, including any subsequent replacements or amendments.
(q) “Owner” encompasses the owner, shipper, consignee, or any other party interested in the Goods. (r) “Person” includes individuals, partnerships, firms, trusts, associations, or corporate entities.
(s) “PPSA” corresponds to the Personal Property Securities Act 2009 (Cth) and related regulations, including any subsequent replacements or amendments.
(t) “Services” comprise all services provided by MSI to the Customer, along with associated matters.
4. Obligations of Customer
4.1 The Customer hereby represents that it is either the legal Owner of the Goods or duly authorized as the Owner’s agent. The Customer acknowledges its authority to accept and agrees to these Conditions not only on its own behalf but also on behalf of the Owner.
4.2 The Customer represents that it possesses reasonable knowledge of matters pertinent to its business operations, including but not limited to the terms governing the sale and purchase of the Goods and all related aspects.
4.3 The Customer shall provide clear and executable instructions.
4.4 The Customer warrants the completeness and accuracy of the description and particulars of the Goods. Furthermore, the Customer affirms that any consignment documentation provided to MSI is correct.
4.5 The Customer assures that the Goods are appropriately packed and labeled, except in cases where the Company has accepted specific packaging and labeling instructions.
4.6 The Customer undertakes to take all reasonable measures to ensure the safety of road transport carried out for or on its behalf. The Customer will fulfill its obligations under the Heavy Vehicle National Law Chain of Responsibility provisions when acting as a Consignor, Consignee, Loader, or Packer of Goods.
4.7 The Customer guarantees that any Goods delivered to MSI or directly received by MSI are secured for road transport in compliance with Part 1 of the Load Restraint Guide.
4.8 The Customer assures the provision of a compliant and accurate Container Weight Declaration when tasked with supplying consignment documentation.
4.9 For Goods consigned for import or export by sea, the Customer warrants that the consignment documentation, including the verified gross mass, is accurate and in compliance with the requirements of Navigation Act 2012, including but not limited to Marine Order 32 and Marine Order 42.
5. Special Instructions, Goods, and Services
5.1 Unless otherwise agreed in writing, the Customer shall not deliver or request MSI to handle Dangerous Goods.
5.2 In the event of the Customer’s breach of Clause 5.1:
(a) The Customer shall be held responsible for all loss or damage caused by or related to the Goods, irrespective of the cause.
(b) The Customer shall defend, indemnify, and hold MSI harmless from all penalties, claims, damages, costs, and expenses arising from such breach.
(c) MSI, or any other party holding custody of the Goods at the relevant time, may, at MSI’s sole discretion, have the Goods destroyed or dealt with in any manner, without notice or compensation to the Customer, and without liability on MSI’s part.
5.3 If MSI agrees to accept Dangerous Goods and subsequently determines, reasonably, that these Goods pose a risk to other property, life, health, or any other aspect, MSI may, without notice, compensation, or liability to the Customer or Owner, have the Goods destroyed or otherwise handled at the Customer’s or Owner’s expense.
5.4 The Customer shall not tender for transportation any Goods requiring temperature control without prior written notice specifying the nature of the Goods and the required temperature range. In the case of Goods packed or stuffed in a temperature-controlled Container by or on behalf of the Customer, the Customer further guarantees that:
(a) The Container has been appropriately pre-cooled or pre-heated.
(b) The Goods have been properly packed or stuffed in the Container.
(c) The Container’s thermostatic controls have been set correctly by the Customer.
5.5 Failure to comply with the requirements of Clause 5.4 releases MSI from liability for any loss of or damage to the Goods resulting from such non-compliance.
5.6 MSI is not obligated to make any declarations for the purpose of any statute, convention, or contract regarding the nature or value of any Goods or any special interest in delivery, unless agreed upon in writing.
5.7 Unless agreed upon in writing or otherwise provided in a document signed by MSI, instructions related to the delivery or release of Goods upon payment or presentation of a specific document shall be in writing. MSI’s liability for the misdelivery of Goods shall not exceed the limits specified in connection with such misdelivery.
5.8 Unless agreed in writing that the Goods shall depart by or arrive by a particular date, MSI accepts no responsibility for departure or arrival dates of Goods.
6. Insurance
6.1 The Customer is solely responsible for insuring the Goods. MSI does not provide insurance services. Upon request, MSI will provide the Customer with contact details for insurance companies/brokers to facilitate direct insurance arrangements. All such insurance is subject to the terms, exceptions, and conditions of the insurance company or underwriter’s policies.
7. General Indemnities and Liabilities of the Customer and Owner
7.1 The Customer and Owner shall defend, indemnify, and hold MSI harmless from all liability, loss, damage, costs, and expenses arising from the nature of the Goods, except to the extent caused by MSI’s negligence.
7.2 Except to the extent caused by MSI’s negligence, the Customer and Owner shall be liable for and shall defend, indemnify, and hold MSI harmless for all duties, taxes, imposts, levies, deposits, and outlays levied by any Authority and for all payments, fines, costs, expenses, loss, and damage incurred or sustained by MSI in connection with such levies.
7.3 The Customer shall be liable for any liability, loss, damage, costs, and expenses incurred by any person relying on advice or information provided by MSI, regardless of the form of communication, unless expressly agreed otherwise in writing.
7.4 The Customer shall be liable for any loss, damage, contamination, soiling, delay, detention, or demurrage, whether occurring before, during, or after carriage, of property belonging to:
(a) MSI, including but not limited to Containers.
(b) MSI’s servants, sub-contractors, or agents.
(c) Independent contractors engaged by MSI for the performance of Services.
(d) Any person. (e) Any vessel.
Such liability arises from the Customer’s actions, those of the Owner, or any person acting on their behalf, for which the Customer is responsible. The Customer shall defend, indemnify, and hold MSI harmless in respect of such liability.
7.5 Instructions to collect payment upon delivery, whether in cash or by any other means, are accepted by MSI under the condition that MSI will exercise reasonable diligence and care in the collection process. Unless MSI receives express written instructions to the contrary, it accepts no liability if payment is not made upon the delivery.
8. Sub-contractors
8.1 The Customer agrees that no claims will be made against any servant, sub-contractor, or agent of the Company that seeks to impose any liability on them in connection with the Goods. If any such claim is made, the Customer undertakes to indemnify the Company against all consequences arising from such claims.
8.2 Notwithstanding Clause 8.1, every servant, sub-contractor, or agent of the Company is entitled to benefit from all provisions in these Conditions as if those provisions were expressly for their benefit. In entering into this contract, the Company acts on its behalf and as an agent and trustee for such servants, sub-contractors, and agents.
8.3 The Customer shall defend, indemnify, and hold the Company harmless from and against all claims, costs, and demands made or preferred by anyone, in excess of the liability of the Company under these Conditions.
8.4 Without limiting the generality of Clause 8.3, the indemnity referred to in Clause 8.3 shall cover all claims, costs, and demands arising from or related to the negligence of the Company, its servants, sub-contractors, and agents.
8.5 In this Clause, “sub-contractors” includes both direct and indirect sub-contractors and their respective employees, servants, and agents.
9. Invoices and Charges
9.1 The Company has the right to issue a tax invoice for its Services. The Customer shall promptly pay the invoiced amount, in cash or as otherwise agreed, in accordance with the terms specified in the tax invoice and these Conditions. Payment shall be made without any deduction or deferment on account of any claim, counterclaim, or set-off. The Company retains the right to raise invoices for any sums lawfully due, irrespective of prior invoices or notices.
9.2 When the Company is instructed to collect freight, duties, charges, or other expenses from anyone other than the Customer, the Customer:
(a) Remains responsible for these amounts.
(b) Shall pay these amounts to the Company on demand if they become due and are not paid by such other person.
9.3 On all accounts that are overdue, the Company is entitled, without notice, to charge default interest at a rate 4 percent above the base interest rate of the Company’s bank applicable during the period the amounts are overdue, from the due date until the date of full payment.
9.4 The Customer is liable for and shall pay the Company any additional costs or expenses incurred by the Company and for any loss or damage caused directly or indirectly to the Company due to reliance on the description and particulars provided by the Customer or as a result of illegal, incorrect, or insufficient marking, numbering, or addressing of the Goods.
9.5 The designation of charges as fixed prices for Services does not, by itself, determine or imply that the Company is acting as an agent or a principal in relation to those Services. The Company reserves the right to raise invoices for any fee or disbursements lawfully due, irrespective of prior invoices or
notices. If an amount charged by the Company is described as a disbursement (or similar expression), it includes the forwarder’s handling and administration fee and is not required to be separately disclosed.
9.6 The Customer acknowledges that the Company has a pecuniary interest in all contracts entered into by the forwarder as its agent under these Conditions. The Company may receive and retain all brokerages, commissions, allowances, and other remuneration typically retained by or paid to forwarding agents, in addition to the charges and expenses invoiced to the Customer, without being obliged to disclose the nature or amount of such remuneration to the Customer. The Company may charge based on weight, measurement, or value and may reweigh, remeasure, or revalue the Goods (or request such actions) and charge additional fees accordingly.
9.7 Unless stated otherwise, all quoted charges are exclusive of Goods and Services Tax (GST).
10. Liberties and Rights of the Company
10.1 Unless otherwise agreed in writing, the Company is entitled to enter into contracts on behalf of itself or the Customer, and such contracts may be entered into without notice to the Customer for:
(a) The carriage of Goods by any route, means, or person.
(b) The carriage of Goods of any description, whether containerized or not, on or under the deck of any vessel.
(c) The storage, packing, transshipment, loading, unloading, or handling of Goods by any person at any place, whether on shore or afloat, and for any duration.
(d) The carriage or storage of Goods in containers or with other goods of any nature.
(e) The performance of its own obligations and the execution of acts that the Company reasonably deems necessary or incidental to the performance of its obligations.
10.2 The Company may, without incurring additional liability, deviate from the Customer’s instructions if it deems it necessary for the Customer’s benefit.
10.3 The Company may at any time comply with orders or recommendations from any Authority. The Company’s responsibility and liability for the Goods shall cease upon delivery or other disposition of the Goods in accordance with such orders or recommendations.
10.4 The Company is entitled to inspect the Goods at any time and may, for this purpose, open or remove any Containers.
10.5 If, at any time, the Company reasonably believes that the carriage of the Goods cannot or should not proceed as instructed, or can only proceed with additional actions or incurring additional expenses or risks, the Company is entitled to:
(a) Abandon the carriage of such cargo or undertake additional actions and incur additional expenses necessary for the carriage to proceed or continue.
(b) Seek reimbursement from the Customer for the cost of such additional actions and expenses.
10.6 If the Company is entitled to call upon the Customer or Owner to take delivery of the Goods at a designated time and place, and delivery is not taken by the Customer or Owner at the designated time and place, the Company is entitled to store the Goods at the sole risk and expense of the Customer.
10.7 The Company, without assuming responsibility or liability to the Customer or Owner, may, without notice, sell or dispose of:
(a) Goods that the Company believes cannot be delivered as instructed, with 21 days’ written notice to the Customer.
(b) Goods that have perished, deteriorated, or altered or are likely to cause loss or damage to any person, property, or contravene regulations.
10.8 The Customer is responsible for the costs and expenses of selling or disposing of Goods pursuant to Clause 10.10.
10.9 The Company is entitled to retain and receive all brokerages, commissions, allowances, and other remuneration typically retained by or paid to freight forwarders, without notice to the Customer.
10.10 The Company may enforce against the Owner and the Customer, jointly and severally, any liability of the Customer under these Conditions or recover from them any sums due from the Customer upon demand.
10.11 The Company is committed to ensuring, as far as reasonably practicable, that any carriage of Goods is conducted in compliance with the Heavy Vehicle National Law Chain of Responsibility provisions. The Company will not comply with any Customer direction that may contribute to a breach of the Heavy Vehicle National Law or prevent the Company from taking necessary steps to prevent such a breach or fulfill its duties under the Heavy Vehicle National Law.
10.12 The Company will not be liable to the Customer or any other person for any loss or damage arising from any actions or inactions reasonably undertaken by the Company, its officers, sub contractors, servants, or agents to comply with the Heavy Vehicle National Law.
10.13 In the event of a breach of Chain of Responsibility provisions by the Customer, MSI may refuse to comply with a Customer’s direction or instruction or cease the provision of further Services to the Customer.
11. Security Interest
11.1 Special and General Lien: From the time MSI, or its servants or agents, receive the Goods into its custody, MSI, its servants, or agents shall have a special and general lien on the Goods and a right to sell the Goods, whether by public or private sale or auction without notice, for any unpaid amounts for freight, demurrage, container detention charges, duty, fines, penalties, salvage, average of any kind whatsoever, and without limitation, and for any and all debts, charges, expenses, or any other sums due or which become due at any time from the Customer or the Customer’s principals,
servants, or agents (whether those sums are due from the Customer on those Goods or documents or on any other Goods or documents). In addition, the lien shall cover all costs and expenses of exercising the lien, including the costs of a public or private sale or auction, including legal costs and administration costs. The lien and rights granted by this Clause 11.1 shall survive delivery of the Goods, and MSI shall be entitled to retain the proceeds of the sale of the Goods in respect of any outstanding amounts whatsoever referred to in this Clause. The Customer accepts that any sums due and owing by the Customer are secured debts, and that any payment made to MSI in discharge of MSI’s lien does not amount to a preference, priority, or advantage in any manner or turn. MSI sells or otherwise disposes of such Goods pursuant to this Clause 11.1 as principal and not as an agent and is not the trustee of the power of sale.
11.2 Continuing Security Interest: From the time MSI, or its servants or agents, receive the Goods into its custody, the Goods, and all of the Customer’s present and future rights in relation to the Goods, are subject to a continuing security interest in favor of MSI for the payment of all amounts for freight, demurrage, container detention charges, duty, fines, penalties, salvage, average of any kind whatsoever, and without limitation, and for any and all debts, charges, expenses, or any other sums due and owing by the Customer or the Customer’s principals, servants, or agents. In addition, the continuing security interest shall cover all the costs and expenses of exercising the lien, including the costs of a public or private sale or auction, including legal costs and administration costs.
11.3 Registration of Security Interest: The Customer acknowledges that MSI may, at the Customer’s cost, register its security interest in the Goods, and all of the Customer’s present and future rights in relation to the Goods, on the Personal Property Securities Register established under PPSA.
11.4 Provide Information: The Customer will immediately inform MSI if an Insolvency Event occurs with respect to the Customer. The Customer shall not change its name or other details without first notifying MSI in writing at least 14 days before such change takes effect.
11.5 Contracting Out and Waiver:
(a) MSI need not give any notice to the Customer or any other person (including a notice of verification statement) unless the notice is required to be given by the PPSA and cannot be excluded.
(b) The Customer and MSI agree pursuant to section 115 of the PPSA that sections 125, 142, and 143 of the PPSA do not apply to this Agreement.
(c) The Customer, pursuant to section 115 of the PPSA, waives its right to receive any notice, details, or other documents from MSI under sections 95, 121(4), 130, 135, 132(3)(d), and 132(4) of the PPSA.
11.6 Customer’s Obligations: The Customer will not:
(a) permit to subsist any other security interest in relation to the Goods which would rank ahead of the Company ‘s interest; or
(b) except in the normal course of business, sell, lease or dispose of, or
permit the sale, lease or disposal of, the Goods.
11.7 Company’s Rights: In addition to any rights the Company has under the PPSA, the Company shall have the right, as the Customer’s agent, at any time while any amounts owing by the Customer to the Company under any Contract remains outstanding, to enter into the premises where Goods are stored and remove them without being responsible for any damage caused in doing so. The Customer shall indemnify the Company for all such moneys and all costs, charges and expenses in repossessing the Goods. 11.8 Confidentiality: The Customer and the Company agree not to disclose information of the kind mentioned in section 275(1) of the PPSA, except in circumstances required by sections 275(7) (b) to (e) of the PPSA. The Customer agrees that it will only authorise the disclosure of information under section 275(7)(c), or request information under section 275(7)(d), unless the Company approves. Nothing in this Clause 11.9 will prevent any disclosure by the Company that it believes is necessary to comply with its other obligations under the PPSA or any other law.
12. Containers
12.1 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:
(a) the manner in which the Container has been packed or stuffed;
(b) the unsuitability of the contents for carriage in Containers, unless the Company has approved the suitability;
(c) 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 (c) shall only apply if the unsuitability or defective condition of the Container:
(i) arose without any negligence on the part of the Company; or (ii) would have been apparent upon reasonable inspection by the Customer or Owner or person acting on behalf of either of them; (d) the fact that the Container is not sealed at the commencement of the
carriage, except where the Company has agreed to seal the Container.
12.1 The Customer shall defend, indemnify and hold harmless the Company against all liability, loss, damage, costs and expenses arising from one or more of the matters referred to in Clause 12.2.
12.3 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.
12.4 The Customer agrees to indemnify and keep indemnified the Company for all hire and other charges charged for the Customer’s use of Containers provided by the Company, and for any costs incurred by the Company for the cleaning of Containers.
13. General Liability
13.1 Except where otherwise provided in 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 their behalf;
(b) compliance with the instructions given to the Company by the Customer, Owner or any other person entitled to give them;
(c) insufficiency of the packing or labelling of the Goods, except where such service has been provided as a Service by the Company;
(d) handling, loading, stowage or unloading of the Goods by the Customer or Owner or any person acting on their behalf;
(e) inherent vice of the Goods;
(f) riots, civil commotions, strikes, lockouts, stoppage or restraint of labour from whatsoever cause;
(g) fire, flood, storm, explosion or theft;
(h) any Force Majeure Event; or
(i) any other cause which the Company could not avoid and the consequences whereof it could not prevent by the exercise of reasonable diligence.
13.2 Subject to Clause 5.8, the Company shall not be liable for loss or damage howsoever caused (whether or not direct, indirect or consequential) to property other than the Goods themselves and shall not be liable for any pure economic loss or loss of profit (or similar claim), delay or deviation howsoever arising.
14. Limits of Liability
14.1 Except in so far as otherwise provided by these Conditions, the liability of the Company, howsoever arising, shall not exceed the following:
(a) in respect of all claims other than those subject to the provisions of Clause 14.3 whichever is the lesser of:
(i) the value of; or
(ii) the equivalent of 2 SDRs per kilo in the currency of the
loss or damage, (the exchange rate to apply being the rate as at the date of the delivery of the Goods) of;
the Goods lost, damaged, misdirected, misdelivered or in respect of which a claim arises;
(b) in respect of claims for delay where not excluded by the provisions of these Conditions, the amount of the Company’s charges in respect of the Goods delayed.
14.2 The limitation of liability referred to in Clause 14.1 shall apply notwithstanding that the cause of the loss or damage is unexplained.
14.3 If agreed in writing prior to receipt of the Goods, the Company may accept liability in excess of the limits set out in these Conditions 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.
14.4 The value of the Goods shall be calculated by reference to the invoice value of the Goods plus freight and insurance if paid.
14.5 Unless agreed in writing prior to receipt, the Company will not accept or deal with bullion, coin, precious stone, jewellery, antiques, works of art or other
valuable Goods. Should any Customer nevertheless deliver any such Goods to the Company or cause the Company to handle or deal with any such Goods other than in accordance with prior written agreement, the Company shall be under no liability whatsoever for or in connection with such Goods howsoever arising.
14.6 The liability of the Company arising out of any one incident for breach of any right or guarantee the Customer may have under the Competition and Consumer Act 2010 (Cth) and the Australian Consumer Law, or comparable legislation in each of the States and Territories of Australia, or howsoever arising is limited to any of the following as determined by the Company: (a) the supplying of the services again; or
(b) the payment of the cost of having the services supplied again; or (c) the value of the Goods the subject of the services at the time the Goods were received by the Company,
whichever is lower.
15. Notice of Loss, Time bar
15.1 The Company shall be discharged of all liability unless:
(a) notice of any claim is received by the Company or its agent in writing within 14 days after the date specified in Clause 15.2, or within a reasonable time after that date if the Customer proves that it was impossible to so notify; and
(b) suit is brought in the proper forum and written notice thereof received by the Company within 9 months after the date specified in Clause 15.2. 15.2 For the purposes of Clause 15.1, the applicable dates are: (a) in the case of loss or damage to Goods, the date of delivery of the Goods; (b) in the case of delay or non-delivery of the Goods, the date that the Goods should have been delivered;
(c) in any other case, the event giving rise to the claim.
16. General Average
16.1 The Customer shall defend, indemnify and hold harmless the Company in respect of any claims of a General Average nature, including any claims or demands for General Average security which may be made on the Company, and the Customer shall forthwith provide such security as may be required by the Company in this connection.
17. Miscellaneous
17.1 Notice
Any notice served by post shall be deemed to have been given on the third day following the day on which it was posted to the address last known to the Company to be the address of the recipient of the notice.
17.2 Defences and Limits of Liability
The defences and limits of liability provided in these Conditions shall apply in any action against the Company whether founded in contract or in tort or howsoever otherwise founded.
17.3 Legislation
(a) If these Conditions are held to be subject to the laws of the Commonwealth of Australia or of any particular State or Territory in Australia then these Conditions shall continue to apply and shall be void only to the extent that they are inconsistent with or repugnant to those laws and no further. Nothing in these Conditions is intended to have the affect of contracting out of any applicable provisions of the Competition and Consumer Act 2010 (Cth) and the Australian Consumer Law, or comparable legislation in each of the States and Territories of Australia, except to the extent permitted by those Acts where applicable. (b) If any other 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 is held to be
repugnant to such legislation to any extent such part shall as regards
such business be over-ridden to that extent and no further.
17.4 Headings
Headings of clauses or groups of clauses in these Conditions are for
indicative purposes only.
18. Governing Law and Jurisdiction
18.1 These Conditions and any claim or dispute arising out of or in connection
These Conditions and any claim or dispute arising out of or in connection with the Services of the Company shall be subject to the law of the State of Queensland and any such claim or dispute shall be determined by the Courts of Queensland and no other Court.
19. Special Liability and Indemnity Conditions
19.1 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 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. 19.2 The Company shall not be liable for the acts and omissions of third parties referred to in Clause 19.1.
19.3 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 acts which bind
the Customer in all respects notwithstanding any departure from the
Customer’s instructions.
19.4 Except to the extent caused by the Company’s negligence, the Customer shall defend, indemnify and hold harmless the Company in respect of all liability, loss, damage, costs or expenses arising out of any contracts made in the
procurement of the Customer’s requirements in accordance with Clause 19.1.
20. Choice of Rates
20.1 Where there is a choice of rates according to the extent or degree of liability
assumed by persons carrying, storing, or handling the Goods, no declaration of value (where available) will be made by the Company unless previously agreed in writing between the Customer and the Company.
21. Special Liability Conditions
21.1 Where the Company contracts as principal for the performance of the Customer’s instructions, 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 taken into its charge until the time of delivery.
21.2 Where:
(a) the Company contracts as a principal and sub-contracts the performance of the Company’s Services; and
(b) 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 the sub-contractor;
the Company shall have the full benefit of all rights, limitations and exclusions of liability available to the sub-contractor in the contract between the Company and the sub-contractor and in any law, statute or regulation and the liability of the Company shall not exceed the amount recovered, if any, by the Company from the sub-contractor.
21.3 Notwithstanding other provisions in these Conditions, if it can be proved where the loss of or damage to the Goods occurred, the Company’s liability shall be determined by the provisions contained in any international convention or 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 which must be issued if such international convention or national law shall apply. 21.4 Notwithstanding other provisions in these Conditions, if it can be proved that the loss of or damage to the Goods occurred at sea or on inland waterways and the provisions of Clause 21.2 do not apply, the Company’s liability shall be determined by the Hague-Visby Rules. Reference in the Hague-Visby Rules to carriage by sea shall be deemed to include reference to carriage by inland waterways and the Hague-Visby Rules shall be construed accordingly. 21.5 Notwithstanding the provisions of Clauses 21.2, 21.3 and 21.4 but subject to Clause 21.5 if the loss of or damage to the Goods occurred at sea or on inland waterways, and the Owner, Charterer or operator of the carrying vessel is entitled to limit its liability at law and establishes a limited fund, the liability of the Company shall be limited to the proportion of such limitation fund as is allocated to the Goods.
21.6 In the event of any inconsistency between these Conditions and the conditions of any bill of lading or air waybill issued by or on behalf of the Company as principal, the conditions of any such bill of lading or sea waybill or air waybill shall prevail to the extent of such inconsistency but no further.
22. Both-to-Blame Collision Clause
22.1. The Both-to-Blame Collision Clause as recommended by BIMCO as at the time of the provision of Services is incorporated into and forms part of these Conditions.
23. USA and/or Canada and Additional Responsibility Clause
23.1 With respect to transportation within the USA or Canada, the responsibility of the Company shall be to procure transportation by carriers (one or more) and such transportation shall be subject to such carrier’s contracts and tariffs and any law compulsorily applicable. The Company guarantees the fulfilment of such carrier’s obligations under their contracts and tariffs.
23.2 If and to the extent that the provisions of the Harter Act of the USA 1893 would otherwise be compulsorily applicable to regulate the Company’s responsibility for the Goods during any period prior to loading on or after discharge from the vessel on which the Goods are to be or have been carried, the Company’s responsibility shall instead be determined by these Conditions. If such provisions are found to be invalid such responsibility shall be determined by the provisions in the Carriage of Goods by Sea Act of the USA Approved 1936.
23.3 If and to the extent that the provisions of the Regulations made pursuant to the Carriage of Goods by Sea Act 1991 (as amended) of the Commonwealth of Australia (or any amendments to such Regulations) would otherwise be compulsorily applicable to regulate the Company’s responsibility for the Goods during any period prior to loading on or after discharge from the vessel on which the Goods are to be or have been carried, the Company’s responsibility shall be determined by these Conditions. If such provisions are found to be invalid such responsibility shall be determined by the provisions of the said Carriage of Goods by Sea Act.
23.4 If the Hamburg Rules should be held to be compulsorily applicable to any carriage of Goods by sea undertaken by the Company as principal, these Conditions shall be read subject to the provisions of the Hamburg Rules and any term of these Conditions that is repugnant to the Hamburg Rules shall be void to the extent of such repugnancy but no further.
24. Air Carriage
24.1 Where 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 Montreal 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 Goods. Agreed stopping places are those places
(other than the places of departure and destination) shown under requested routing and/or those places shown in carrier’s timetables as scheduled stopping places for the route. The address of the first carrier is the airport of departure. 24.2 Notwithstanding any other provision of these Conditions, where the Company acts as a principal in respect of a carriage of Goods by air, the Company’s liability in respect of loss of or damage to such Goods shall be determined in accordance with the Montreal Convention