Carrier’s bill of lading includes the following clauses on its front side:
The printed terms and conditions appearing on the face and reverse side of this Bill of Lading are also available at www.motherlinesusa.com/terms and in Motherlines Inc.’s published tariffs.
SHIPPER’S DECLARED VALUE $_______
_____ NO VALUE DECLARED
SEE CLAUSES 19 AND 4 ON THE REVERSE SIDE OF THIS BILL OF LADING
RECEIVED by Carrier from Shipper in apparent external good order and condition, except as otherwise noted herein, the total number of Containers or other packages or units indicated in the sections entitled “No. of Pkgs.” and “Description of Goods” for Carriage subject to all terms and conditions on the face and reverse of this Bill of Lading and the Carrier’s applicable tariff.
In accepting this Bill of Lading the Merchant expressly accepts and agrees to be bound by all its stipulations, terms, conditions, exceptions stated herein wherein printed, stamped or written, or otherwise incorporated, INCLUDING THE TERMS ON THE REVERSE HEREOF AND THE TERMS OF THE CARRIER’S APPLICABLE TARIFF, of which the Merchant is fully aware notwithstanding the non-signing of the Bill of Lading by the Merchant.
IN WITNESS whereof, the number of original Bills of Lading stated opposite, all of the same tenor and date, have been signed, any one of which being accomplished the others to stand void.
(a) “Bill of Lading” as used herein includes conventional, electronic, express and laser bills of lading, sea waybills and all like documents, howsoever generated, covering the Carriage of Goods hereunder, whether or not issued to Merchant. (b) “Carriage” means the whole of the operation and services undertaken or performed by or on behalf of Carrier with respect to the Goods. (c) “Carrier” means Motherlines Inc., a non-vessel common carrier, as defined by the Shipping Act of 1984, as amended, and on whose behalf this Bill of Lading has been issued, whether acting as carrier or bailee. (d) “Charges” means and includes freight and all expenses and money obligations incurred and payable by Merchant. (e) “Container” means any container (closed or open top), van, trailer, flatbed, transportable tank, railroad car, vehicle, flat, flatrack, pallet, skid, platform, cradle, slingload or any other article of transport and any equipment associated or appurtenant thereto. (f) “Goods” means the cargo received from the shipper and described on the face of this Bill of Lading and any Container not supplied by or on behalf of the Carrier. (g) “Merchant” means and includes shipper, consignee, receiver of the Goods, holder of this Bill of Lading, any Person owning or entitled to possession of the Goods, any Person having a present or future interest in the Goods or any Person acting on behalf of any of these. (h) “Multimodal Transport” means Carriage by Vessel plus one or more modes of transport from the Place of Receipt or to the Place of Delivery. (i) “Person” means any natural person, association of persons, corporation or other legal entity, including any government or governmental or statutory instrumentality or port authority. (j) “On Board” means in Port to Port Transport the Goods are on a vessel or water craft and in Multimodal Transport the Goods are on the first means of conveyance. (k) “Participating Carrier” means any other carrier by water, land or air, performing any stage of Port to Port Transport or Multimodal Transport, including inland and coastal carriers, whether acting as sub-carrier, connecting carrier, substitute carrier or bailee. (l) “Port to Port Transport” means Carriage from Port of Loading to Port of Discharge. (m) “Vessel” means the ocean vessel on which the Goods are shipped, named on the face of this Bill of Lading, or any substitute vessel, also any feedership, ferry, barge, lighter or any other watercraft used by Carrier to perform the Carriage.
2. CARRIER’S TARIFFS
The terms and conditions of Carrier’s applicable tariffs are incorporated herein. Copies of applicable tariff provisions are available from the Carrier upon request or from the Carrier’s published tariffs. In case of inconsistency between this Bill of Lading and the applicable tariff, this Bill of Lading shall prevail.
3. MERCHANT WARRANTY AND ACKNOWLEDGEMENT
(a) Merchant warrants that in agreeing to the terms of this Bill of Lading, it is, or is the agent and has the authority of, the owner or Person entitled to the possession of the Goods or any Person who has a present or future interest in the Goods. (b) Merchant acknowledges that Carrier is a non-vessel operating common carrier ("NVOCC"), and that it neither owns nor charters vessels, as a result of which Carrier or Participating Carrier will be required to contract with an ocean carrier to accomplish the Carriage contemplated by this Bill of Lading and does so as agent of Merchant. (c) Merchant further acknowledges that by identifying the carrying Vessel on the face of this Bill of Lading, it knows or can determine the name of the ocean carrier and the terms of the ocean carrier’s bill of lading and applicable tariff(s) and agrees to be bound thereby.
4. CARRIER’S RESPONSIBILITY; CLAUSE PARAMOUNT
(a) Carrier undertakes to procure services necessary to effect Carriage from the place where the Goods are first accepted by Carrier, Participating Carrier, or independent contractor for Carriage (either Place of Receipt or Port of Loading), to the place where the Goods are to be delivered (either the Port of Discharge or Place of Delivery), as indicated on the face of this Bill of Lading. Carrier is responsible for the Goods from the time they are received by Carrier until Goods are deemed delivered pursuant to the terms of this Bill of Lading. The custody and Carriage of Goods are subject to the terms of this Bill of Lading, as well as Carrier’s published tariffs, rules and regulations. (b) At all times the custody and Carriage of Goods are subject to the provisions of the Carriage of Goods by Sea Act of the United States of America approved April 16, 1936 (COGSA) which is incorporated herein as a part of this Bill of Lading, unless and then only to the extent, the terms are preempted by law which is compulsorily applicable to that stage of the transport at which damage or loss occurs. In that event all other provisions of COGSA, this Bill of Lading, and Carrier’s published tariffs, rules and regulations, shall remain in full force and effect. In the event of liability, because of such a compulsorily applicable law, rule, contract or tariff provisions, then Carrier shall be liable on the same basis as any other carrier by land, water or air, would be liable under those compulsorily applicable laws, rules, contracts, or tariffs.
(a) Goods may be stowed by Carrier in or on Containers, and may be stowed with other goods. Containers, whether stowed by Carrier or received fully stowed, may be carried on or under deck without notice, and Merchant expressly agrees that cargo stowed in a Container and carried on deck is considered for all legal purposes to be cargo stowed under deck. (b) The terms of this Bill of Lading shall govern the responsibility of Carrier in connection with or arising out of the supply of a Container to Merchant, whether supplied before or after the Goods are received by Carrier or delivered to Merchant. (c) If Goods were stuffed into Container by or on behalf of Merchant, ,
6. RECEIPT AND DESCRIPTION OF GOODS
(a) This Bill of Lading shall be prima facie evidence of receipt of Goods by Carrier from shipper in apparent external good order and condition, except as otherwise noted, of the total number of Containers or other packages or units specified on the face of this Bill of Lading. No representation is made by Carrier as to weight, contents, measure, quantity, quality, description, condition, marks, numbers and value of Goods, such information having been supplied by shipper and Carrier shall be under no responsibility whatsoever with respect to such description or particulars. (b) If any particulars of any letter of credit, import license, sale contract, invoice or order number or details of any contract to which Carrier is not a party are shown on the face of this Bill of Lading, such particulars are included solely at the request, and for the convenience, of Merchant who agrees (i) that the inclusion of any such particulars herein shall not be regarded as a declaration of value or increase Carrier’s liability under this Bill of Lading and (ii) to fully indemnify Carrier for all consequences of any such particulars being included herein.
7. SHIPPER / MERCHANT RESPONSIBILITY
(a) Merchant warrants that Goods are packed in a manner to withstand the ordinary risks of Carriage and in compliance with all applicable laws, regulations, and requirements and aggress to indemnify Carrier for any loss, damage, liability or expense the Carrier may suffer as a consequence of insufficient packing. (b) Shipper warrants that: (i) the particulars relating to Goods shown on the face of this Bill of Lading have been reviewed by, or on behalf of, shipper on receipt of this Bill of Lading and that such particulars, and any other particulars furnished by, or on behalf of, shipper are adequate, correct and complete; (ii) that Goods are lawful and contain no contraband, drugs, narcotics or other illegal substances or stowaways (the law of any place where Goods are determined to be unlawful or contraband shall be conclusive for the purposes of Clause 7); and (iii) that Containers, if not supplied by or on behalf of the Carrier, meet all ISO and/or applicable national or international safety standards and are fit in all respects for Carriage of Goods. (c) Merchant shall indemnify Carrier against all claims, losses, damages, fines, penalties and expenses arising or resulting from shipper’s breach of any of the warranties in Clause 7(b) or from any other cause in connection with Goods for which Carrier is not responsible including, but not limited to, the inclusion of the particulars of Goods furnished by shipper in any manifest or any other declaration of any nature whatsoever by Carrier, his servants or agents in reliance upon the adequacy, correctness and completeness of such particulars. (d) All Persons included in the definition of Merchant herein shall be jointly and severally liable to Carrier for fulfillment of all obligations undertaken by Merchant in this Bill of Lading and remain so liable throughout Carriage notwithstanding having transferred this Bill of Lading or title to the Goods to any third party. Such liability shall include, but not be limited to, court costs, expenses and reasonable attorneys fees incurred in collecting Charges and sums due to Carrier.
(a) Goods may be stowed by Carrier in or on Containers, and may be stowed with other goods. Containers, whether stowed by Carrier or received fully stowed, may be carried on or under deck without notice, and Merchant expressly agrees that cargo stowed in a Container and carried on deck is considered for all legal purposes to be cargo stowed under deck. (b) The terms of this Bill of Lading shall govern the responsibility of Carrier in connection with or arising out of the supply of a Container to Merchant, whether supplied before or after the Goods are received by Carrier or delivered to Merchant. (c) If Goods were stuffed into Container by or on behalf of Merchant,
(i) Carrier shall not be liable for loss of or damage to Goods: (A) caused by the manner in which Container has been stuffed; (B) caused by the unsuitability of Goods for carriage in Containers; (C) caused by the unsuitability or defective condition of Container provided that where Container has been supplied by or on behalf of Carrier, this Clause (8)(c)(i)(C) shall only apply if the unsuitability or defective condition arose without any lack of due diligence by the Carrier or would have been apparent upon reasonable inspection by Merchant at or prior to the time when Container was stuffed; (D) if Container is not sealed at the commencement of Carriage except where Carrier has agreed to seal Container.
(ii) Merchant shall defend, indemnify and hold harmless Carrier, Participating Carrier or independent contractor against any loss, damage, claim, liability or expense whatsoever arising from one or more of the matters covered by Clause (8)(i).
(d) Where Carrier is instructed to provide a Container, in the absence of a written request to the contrary, Carrier is not under an obligation to provide a Container of any particular type or quality.
9. TEMPERATURE OR ATMOSPHERE CONTROLLED APPARATUS
(a) Merchant shall not tender for Carriage Goods which require temperature control without previously giving written notice of their nature and particular temperature range to be maintained and also including such notice on the face of this Bill of Lading. In the absence of an express request, it shall be conclusively presumed that the use of a dry Container is appropriate for the Goods. (b) Carrier shall not be liable for any loss of or damage to Goods arising from latent defects or stoppage of the temperature control apparatus, insulation, or of any apparatus of the Container, Vessel, conveyance of other facilities, unless Carrier or Participating Carrier, before or at the beginning of the Carriage, failed to exercise due diligence to maintain any such equipment (other than Merchant-provided equipment) in an efficient state. If Goods have been stowed into a refrigerated Container, by or on behalf of Merchant, it is the obligation of Merchant to stow the contents properly and set the thermostatic controls exactly. (c) With respect to both Carrier-and Merchant-packed Containers, where Carrier has undertaken, by special agreement, to carry Goods at a particular temperature or temperature range, Carrier undertakes only that the refrigeration equipment shall perform within the operating specifications of the equipment and makes no warranty or agreement with respect to the actual temperature of any Goods within the Container.
Carrier and any Participating Carrier shall be entitled, but under no obligation, to open any Container at any time and to inspect the contents.
11. DECK CARGO AND LIVE ANIMALS
Deck cargo (except that carried in Containers on deck) and live animals are received and carried solely at Merchant’s risk (including accident or mortality of animals), and Carrier will not in any event be liable for any loss or damage for or from which he is exempt, immune or exonerated by applicable law, or from any other cause whatsoever not due to the fault of Carrier, any warranty of seaworthiness in the premises being hereby waived, and the burden of proving liability being in all respects upon Merchant. Except as may be otherwise provided herein, such shipments shall be deemed Goods and shall be subject to all terms of this Bill of Lading.
It is agreed that superficial rust, oxidation or any like condition due to moisture, is not a condition of damage but is inherent to the nature of the Goods. Acknowledgement of receipt of the Goods in apparent good order and condition is not a representation that such conditions of rust, oxidation or the like did not exist on receipt.
13. MATTERS AFFECTING PERFORMANCE
(a) If at anytime the Carriage is or is likely to be affected by any hindrance, risk, delay, difficulty or disadvantage of any kind (including by the condition of Goods) whensoever and howsoever arising whether or not prior to the commencement of Carriage or the making of the contract of Carriage, Carrier or Participating Carrier may without notice to Merchant: (i) abandon Carriage of Goods or any part of them and where reasonably possible place Goods or any part of them at Merchant’s disposal at any place which Carrier may deem safe and convenient, whereupon the responsibility of Carrier in respect of such Goods shall cease; or (ii) suspend Carriage of Goods or any part of them and store them ashore or afloat upon the terms of the Bill of Lading and use reasonable efforts to forward Goods as soon as possible after the cause of the hindrance, risk, delay, difficulty or disadvantage has been removed, but Carrier makes no representations as to the maximum period between such removal and the forwarding of Goods to the Port of Discharge or Place of Delivery, whichever is applicable, on the face of this Bill of Lading. (b) In any event the Carrier shall be entitled to full Freight on Goods received for Carriage and Merchant shall pay any additional cost resulting from the circumstances mentioned in Clause 13(a). (c) If Carrier or Participating Carrier elects to suspend Carriage under Clause 13(a)(ii), this shall not prejudice Carrier’s or Participating Carrier’s rights subsequently to abandon Carriage under Clause 13(a)(i).
14. METHODS AND ROUTES OF TRANSPORTATION
(a) With respect to Goods or Containers or other packages, Carrier may at any time and without notice to Merchant: use any means of transport (water, land and/or air) or storage whatsoever; forward, transship or retain on board or carry on another vessel or conveyance or by any other means of transport than that named on the reverse side hereof; carry Goods on or under deck at its option; proceed by any route in its sole and absolute discretion and whether the nearest, most direct, customary or advertised route or in or out of geographical rotation; proceed to or stay at any place whatsoever once or more often and in any order or omit calling at any port, whether scheduled or not; store, vanned or devanned, at any place whatsoever, ashore or afloat, in the open or covered; proceed with or without pilots; carry livestock, contraband, explosives, munitions, warlike stores, dangerous or hazardous Goods or Goods of any and all kinds; drydock or stop at any unscheduled or unadvertised port for bunkers, repairs or for any purpose whatsoever; discharge and require Merchant to take delivery, vanned or devanned; comply with any orders, directions or recommendations given by any government or authority or by any Person acting or purporting to act with the authority of any government or authority or having under the terms of the insurance on the Vessel or other conveyance employed by Carrier the right to give such orders, directions or recommendations; take any other steps or precautions as may appear reasonable to Carrier under the circumstances. (b) The liberties set out in Clause 14(a) may be invoked for any purpose whatsoever even if not connected with the Carriage covered by this Bill of Lading, and any action taken or omitted to be taken, and any delay arising therefrom, shall be deemed to be within the contractual and contemplated Carriage and not be an unreasonable deviation. (c) In no circumstance whatsoever shall Carrier be liable for direct, indirect or consequential loss or damage caused by delay.
15. NOTIFICATION AND DELIVERY
(a) Any mention in this Bill of Lading of Persons to be notified of arrival of the Goods is solely for information of Carrier, and failure to give such notification shall not involve Carrier in any liability nor relieve Merchant of any obligation. (b) If Merchant fails to take delivery of the Goods within the time provided in the applicable tariff, Carrier may without notice, but subject to its lien, unpack the Goods or part thereof if packed in Containers and store the Goods or part thereof ashore, afloat, in the open or under cover at the sole risk of Merchant. Such storage shall constitute due delivery to Merchant and thereupon all liability whatsoever of Carrier with respect to Goods shall wholly cease and the cost of such storage (if paid or payable by Carrier, Participating Carrier or any sub-contractor) shall upon demand be paid by Merchant to Carrier. (c) If, at the place of delivery, Carrier is required to discharge Goods into the custody of Customs, port or other authority, such discharge into custody shall be due delivery to Merchant and thereupon all liability whatsoever of Carrier with respect to Goods shall wholly cease. (d) If Merchant fails to take delivery of Goods within 30 days of delivery becoming due or whenever in Carrier’s opinion Goods are likely to deteriorate, decay or become worthless, or incur charges whether for storage or otherwise in excess of their value, Carrier may at its discretion and without prejudice to any other rights which it may have against Merchant, without notice and without any responsibility attaching to it, sell, abandon or otherwise dispose of Goods at the sole risk and expense of Merchant and apply any proceeds of sale in reduction of the sums due to Carrier from Merchant under or in connection with this Bill of Lading. (e) In the event Carrier agrees, at the request of Merchant, to any change of destination, the terms of this Bill of Lading shall continue to apply until Goods are delivered by Carrier to Merchant at the amended Port of Discharge or Place of Delivery, whichever is applicable. (f) Except for "order" bills of lading, Merchant identified on the face of this Bill of Lading may change the name of consignee at any time prior to delivery of Goods, however, Merchant shall defend, indemnify and hold harmless Carrier and any Participating Carrier or independent contractor against any liability which may arise from the change. (g) In the event consignee or receiver of Goods require Carrier, and Carrier agrees, to deliver Goods at a destination beyond the Port of Discharge or Place of Delivery originally designated on this Bill of Lading, the terms of this Bill of Lading shall apply to such further Carriage as if the destination had been entered on the face of this Bill of Lading as the Place of Delivery.
16. CHARGES, INCLUDING FREIGHT
(a) Charges payable hereunder have been calculated on the basis of particulars furnished by or on behalf of Merchant. Carrier shall be entitled to inspect, reweigh, remeasure or revalue the contents and, if any of the particulars furnished by Merchant are found to be incorrect, Charges shall be adjusted accordingly, and Merchant shall be responsible to pay the correct Charges and all expenses incurred by Carrier in checking said particulars or any of them. (b) Charges shall be deemed earned on acceptance of Goods for shipment by or on behalf of Carrier and shall be paid by Merchant in full, without any offset, counterclaim or deduction, cargo and/or vessel or other conveyance lost or not lost, and shall be non-returnable in any event. (c) Merchant shall remain responsible for all Charges, regardless whether the Bill of Lading be marked, in words or symbols, "prepaid", "to be prepaid" or "collect". (d) In arranging for any services with respect to the Goods, Carrier shall be considered the exclusive agent of Merchant for all purposes, and any payment of Charges to other than Carrier shall not, in any event, be considered payment to Carrier. (e) Every Person defined as "Merchant" in Clause 1 shall be jointly and severally liable to Carrier for payment of all Charges and for the performance of the obligations of each of them hereunder.
(a) Carrier shall have a lien on the Goods and any documents relating thereto, which lien shall survive delivery, for all sums due at any time to Carrier from Merchant and for General Average contributions and for the costs of recovering the same, inclusive of attorneys’ fees, and Carrier shall have the right to sell the Goods and documents by public auction or private sale, without notice to Merchant and at Merchant’s expense and without any liability to Merchant. (b) Merchant agrees to indemnify and hold harmless Carrier and any Participating Carrier or independent contractor against all liability, loss, damage or expense which may be sustained or incurred by Carrier relative to Clause 17(a) and Merchant agrees to submit to the jurisdiction of any court, tribunal or other body before whom Carrier may be brought.
18. GENERAL AVERAGE
(a) If General Average is declared, it shall be adjusted according to the York-Antwerp Rules of 1994 and all subsequent amendments thereto from time to time made, at any place at the option of any Person entitled to declare General Average, and the Amended Jason Clause as approved by BIMCO is to be considered as incorporated herein, and Merchant shall provide such security as may be required in connection thereto. (b) Notwithstanding Clause 18(a), Merchant shall indemnify and hold harmless Carrier or Participating Carrier in respect of any claim (and any expense arising therefrom) of a General Average nature which may be made against Carrier or Participating Carrier and shall provide such security as may be required by Carrier in connection thereto. (c) Carrier or Participating Carrier shall not be under any obligation to take any steps whatsoever to post security for General Average or to collect security for General Average contributions due to Merchant.
19. LIMITATION OF LIABILITY AND COMPENSATION
(a) Carrier’s liability for any loss of or damage to or in connection with the Carriage of Goods shall not exceed US$500 per package, or in case of Goods not shipped in packages, per shipping unit. (b) If COGSA is preempted by a law compulsorily applicable to that stage of Carriage at which occurs any loss of or damage to or in connection with the Carriage of Goods, Carrier’s liability shall not exceed GBP 100 per package, or in case of Goods not shipped in packages, per shipping unit. (c) Notwithstanding Clauses 19(a) and (b), where the nature and value of Goods have been declared by Merchant in writing to Carrier before shipment and inserted on the face of this Bill of Lading and extra freight paid, if required, Carrier’s liability, if any, shall not exceed the declared value and any partial loss or damage shall be adjusted pro rata on the basis of such declared value. (d) The words “shipping unit” includes customary freight unit and the term “unit” as used in Hague Rules and Hague Visby Rules. (e) Where a compulsorily applicable law other than COGSA limits the liability of Carrier, Participating Carrier or independent contractor for any loss of or damage to or in connection with the Carriage of Goods to less than $500 per package or shipping unit, such lesser limitation shall apply. (f) In no event shall the Carrier be liable for direct, indirect or consequential loss or damage.
20. NOTICE OF LOSS OR DAMAGE; TIME BAR
(a) Unless notice of loss or damage and the general nature of such loss or damage be given in writing to Carrier at the port of discharge or place of delivery before or at the time of delivery of Goods or, if the loss or damage be not apparent, within three days after delivery, Carrier shall be deemed to have delivered Goods as described in the Bill of Lading. (b) Carrier shall be discharged from all liability unless suit is brought within twelve months after the date of delivery of Goods or after the date which Goods should have been delivered. Suit shall not be deemed brought against Carrier until jurisdiction shall have been obtained by service of process on Carrier.
21. LAW AND JURISDICTION
(a) The laws of the United State shall exclusively apply, unless otherwise provided in Clause 4. (b) All disputes in any way relating to this Bill of Lading shall be determined by the United States District Court for the Eastern District of New York to the exclusion of the jurisdiction of any other courts in the United States or the courts of any other country provided always that Carrier may in its absolute and sole discretion invoke or voluntarily submit to the jurisdiction of any other court which, but for the terms of this Bill of Lading, could properly assume jurisdiction to hear and determine such disputes, but such shall not constitute a waiver of the terms of Clause 21 in any other instance.
(a) If any provision in this Bill of Lading is held to be invalid or unenforceable by any court or regulatory or self regulatory agency or body, such invalidity or unenforceability shall attach only to such provision. The validity of the remaining provisions shall not be affected thereby and this Bill of Lading contract shall be carried out as if such invalid or unenforceable provisions were not contained herein. (b) The terms of this Bill of Lading supersede any other agreements with respect to Carriage of the Goods. No servant or agent of Carrier, Participating Carrier, or Independent Carrier shall have the power to waive or vary the terms of this Bill of Lading unless such waiver or variation is in writing and is specifically authorized or subsequently ratified in writing by Carrier.