(a) “Carriage” means the entirety of the operations and services undertaken or to be performed by or on behalf of the Carrier with respect to the Goods;
(b) “Carrier” means MTS LOGISTICS INC., named on the front side hereof, on whose behalf this Bill of Lading has been issued;
(c) “Charges” mean freight, deadfreight, and costs and expenses of whatever kind or nature arising out of or incurred upon the Carriage evidenced by this Bill of Lading, including any assessed detention, demurrage or per diem;
(d) “Container” means any container, van, trailer, flatbed, transportable tank, railroad car, vehicle, flat, pallet, skid, platform or similar article used to consolidate or transport cargo;
(e) “Goods” mean the cargo described on the front side of this Bill of Lading and, if the cargo is stowed into a Container supplied by the Merchant, include the Container;
(f) “Merchant” means shipper of the Goods, the consignor, the consignee or receiver of the Goods, the holder of this Bill of Lading, the owner of the Goods or person claiming or entitled to possession of the Goods;
(g) “Package” means the largest individual unit of covered or contained Goods that the Merchant delivers for Carriage, including palletized units, and each Container packed and sealed by the Merchant although the Merchant may have furnished a description of the contents of such Container on this Bill of Lading;
(h) “Participating carrier” means an originating carrier and any other water/land/air transportation person performing any stage of the Carriage under this Bill of Lading;
(i) “Person” means an individual, a body corporate or any other legal entity;
(j) “Vessel” means the oceangoing ship named on the front side of this Bill of Lading, and any substitute vessel or other means of conveyance by water employed by the Carrier to accomplish this Carriage.
2. CARRIER’S TARIFFS & THROUGH TRANSPORTATION
(a) Goods transported under this Bill of Lading are subject to the terms and conditions of the Carrier’s tariff on file with a regulatory body whose rules govern any portion of this Carriage, and said terms and conditions are incorporated herein. Copies of the relevant provisions of applicable tariff are obtainable from the Carrier or other concerned regulatory body upon request. The Carrier may enter into negotiated rate/service arrangements with the Merchant in lieu of applicable rates for services provided in the tariff.
(b) Where the Place of Receipt or the Place of Delivery of the Goods is an inland point or place that is not the port of loading or the port of unloading, the Carrier will upon request and at the Merchant’s expense procure transportation to or from such inland point or place.
3. ACKNOWLEDGMENT & WARRANTY OF MERCHANT
(a) The Merchant acknowledges that the Carrier is a non-vessel operating common carrier (“NVOCC”) that neither owns nor charters oceangoing vessels, in consequence of which the Carrier will contract with an actual ocean carrier to perform the high seas leg of the Carriage under this Bill of Lading and does so as agent of the Merchant.
(b) The Merchant acknowledges that, by the Carrier identifying the Vessel on the front side of this Bill of Lading, the Merchant knows and can determine (i) the name of the actual ocean carrier of the Goods, (ii) the terms and conditions of that ocean carrier’s bill of lading and applicable tariff(s), and agrees to be bound thereby.
(c) The Merchant acknowledges that it is owner of the Goods, or warrants that it is an agent with authority to contract on behalf of the person who owns the Goods or who is entitled to possession of the Goods or who has a present or future interest in the Goods.
(d) The Merchant acknowledges that every person herein defined as “Merchant” is jointly and severally liable to the Carrier for all undertakings and responsibilities of the Merchant under this Bill of Lading, including the payment of all Charges due without deduction or set-off.
(e) The Merchant acknowledges that the Carrier will not procure insurance on the Goods save upon Merchant’s written instruction, and then only at Merchant’s expense and upon presentation to the Carrier of a declaration of value for insurance purposes prior to Carriage.
4. CLAUSE PARAMOUNT
(a) Carriage of Goods under this Bill of Lading to or from or within the United States is subject to provisions of the Carriage of Goods by Sea Act, 46 U.S.C. §§ 1300-1315 (“COGSA”). Carriage within other locations shall be governed by any law making the Hague Rules or Hague-Visby Rules compulsorily applicable or, if there be no such law, in accordance with the Hague Rules, save that nothing shall be deemed a surrender by the Carrier of rights, immunities, exemptions, limitations or exonerations provided by COGSA. (b) COGSA (or as applicable Hague Rules or Hague-Visby Rules) shall govern before the Goods are loaded on and after they are discharged from the Vessel, and whether the Goods are carried on deck or under deck and throughout whilst the Carrier has possession.
5. LIMITATION OF LIABILITY & INDEMNIFICATION
(a) Where COGSA applies to this Bill of Lading, the Carrier shall not be liable in an amount greater than US$500 per package. If the Hague Rules or Hague‐Visby Rules become compulsorily applicable to this Bill of Lading, the Carrier’s liability shall not exceed the amount provided in such Rules.
(b) Freight assessed on a Container, when no higher valuation is declared by the Merchant at booking, is computed on a value of US$500 per Container. Where a Container is packed by the Merchant or the Container is sealed, when delivered or upon delivery to the Carrier, the Carrier’s liability will be limited to US$500 with respect to the contents of such Container.
(c) The Merchant acknowledges that the Carrier has no knowledge of the value of the Goods. Compensation exceeding US$500 per package or Container is allowed only when the value of the Goods is shown in the box marked “Declared Value” on the front side of this Bill of Lading and agreed additional Charges paid by the Merchant, in which event the Declared Value shall be substituted for the US$500 provided in this Bill of Lading and any partial loss or damage shall be adjusted pro rata on the basis of such Declared Value.
(d) The Carrier shall not be responsible for loss of or damage to precious metals, stones or chemicals, jewelry, currency, negotiable instruments, securities, documents, works of art, curios, heirlooms or other similar cargo unless their true nature and value were declared in writing by the Merchant before delivery to the Carrier, the aforesaid is inscribed on the front side of this Bill of Lading and agreed additional Charges paid.
(e) Inasmuch as the Carrier acts as agent of the Merchant when contracting with the actual ocean carrier for Carriage of the Goods, the Merchant is a third-party beneficiary of the ocean-carrier’s bill of lading and is thus bound by all exemptions, limitations of and exonerations from liability therein contained. Under no circumstances shall the Carrier be held responsible to the Merchant to any extent greater than as provided in the ocean carrier’s bill of lading.
(f) Should loss or damage to the Goods occur during custody of a Participating carrier and the Carrier becomes subject to law compulsorily applicable to the Participating carrier’s bill of lading or cargo receipt, the Carrier shall enjoy the rights, defenses, immunities, exemptions, limitations of and exonerations from liability accorded under such bill of lading or cargo receipt, provided that nothing therein shall be deemed a surrender by the Carrier of its defenses and immunities under this Bill of Lading.
(g) The Merchant shall hold harmless and indemnify the Carrier against any and all loss, damage, delay, fines or expenses arising from the Merchant’s breach of any warranty or representation in this Bill of Lading.
6. SUB-CONTRACTING BENEFICIARIES
(a) The Carrier is entitled to subcontract the whole or any portion of this Carriage, including the loading, unloading, handling, storage or warehousing of the Goods.
(b) The Carrier will procure such services as are necessary, and shall select any mode of land, sea or air transport and arrange participation by other carriers to secure Carriage of the Goods from Port of Loading to Port of Discharge or from Place of Receipt to Place of Delivery, or any combination thereof, except as otherwise provided in this Bill of Lading.
(c) The Carrier and any Participating carrier, servant, agent, subcontractor, or any other person whose services have been employed to perform any aspect of this Carriage, shall be entitled to the rights, exemptions from, or limitations of, liability, defenses and immunities set forth in this Bill of Lading. The Carrier shall be deemed to be acting as agent for such Participating carrier, servants, agents, subcontractors, or other persons who shall to that extent be deemed to be parties to this Bill of Lading.
7. MERCHANT’S RESPONSIBILITY AS TO THE GOODS
(a) The Merchant shall provide the Carrier with all pertinent particulars of the Goods, including, without limitation, commodity description, numbers and quantities, the Merchant’s true and complete name and address, hazardous materials codes, and Container seal numbers. Merchant warrants that the particulars provided to the Carrier and printed on the front side of this Bill of Lading, and any description or representation appearing on the Goods and appertaining documents, are true and correct, and shall hold harmless and indemnify the Carrier against all claims, penalties, losses or damages arising from any inaccuracy.
(b) The Merchant warrants that it has complied with all applicable laws, regulations and requirements of government and port authorities concerning the Goods, and shall bear and pay all duties, taxes, fines and expenses incurred by reason thereof or by reason of any incorrect or insufficient marking, numbering, representation or other particulars of the Goods.
(c) The Merchant warrants that the Goods are packed in a manner adequate to withstand the ordinary risks of Carriage, having regard to their nature and in compliance with applicable laws, regulations and requirements. Where a Container is packed by the Merchant or delivered sealed to the Carrier, the Merchant warrants that it inspected the Container and acknowledges that use of the Container is prima facie evidence of its suitability for Carriage of the Goods.
(d) The Merchant warrants that Goods requiring refrigeration or special atmospheric controls will not be tendered for Carriage without advanced written notice to the Carrier.
(e) The Merchant acknowledges that, in the event of non-compliance with US Customs rules and regulations, the Carrier may abstain from receiving or delivering the Goods or uploading Goods unto the Vessel.
(f) The Merchant acknowledges and accepts responsibility for damage or loss resulting from a breach of any provision of Clauses 7-10 of this Bill of Lading, including damage or loss to cargo consolidated with Merchant’s Goods or to other cargo or person on the Vessel, and shall hold harmless and indemnify the Carrier against all claims, liability and expenses arising from any occurrence in connection with the Goods for which the Carrier is not responsible.
(a) Where the Merchant requests the Carrier to supply a Container for Carriage of the Goods, the Carrier shall provide a dry Container (i.e., without temperature or atmosphere control) unless specifically instructed in writing to the contrary.
(b) Where the Carrier supplies a Container to the Merchant, the Carrier shall be absolved of responsibility for unsuitability or defective condition of the Container or incorrect setting of any refrigeration controls if such unsuitability or defective condition would have been apparent upon inspection by the Merchant before or at the time the Merchant packed the Container.
(c) Where a Container is packed by the Merchant, the Carrier shall be absolved of responsibility for loss or damage to the Goods caused by (i) the manner in which the Container was packed, (ii) the unsuitability of the Goods for transport in the Container, (iii) the unsuitability or defective condition of the Container, and (iv) the Merchant’s failure to seal the Container before or upon delivery to the Carrier for Carriage.
(d) Where the Merchant delivers to the Carrier a Container with an intact original seal, or if the Carrier can show bona fide circumstance in which the original seal was broken, the Carrier shall not be responsible for any shortage of the Goods ascertained upon delivery.
(e) Where the Merchant unpacks a Container supplied by the Carrier, the Merchant shall return the empty Container, with interiors clean and in good condition, to the point or place designated by the Carrier and within the time prescribed in the tariff. Should a Container not be returned in the condition required or within the time prescribed, the Merchant shall be liable for any detention, loss or expense thereby incurred.
(f) Free In / Free Out – Unless otherwise specified in this Bill of Lading, the Carrier is not responsible for the cost of loading and unloading Goods onto or from the Vessel.
(g) CY/CY – Unless otherwise specified in this Bill of Lading, the Carrier’s responsibility for the Goods begins and ends at CY, the Port of Loading or the Port of Discharge. Any additional movement of the Goods will be on the Merchant’s account.
9. CONTAINERS WITH ATMOSPHERIC-CONTROL APPARATUS
(a) The Carrier will not supply a Container with temperature or atmosphere control apparatus unless the Merchant specifically so requests in writing at cargo booking, and providing such Container may increase Charges. If supplied, the Carrier is not responsible for the proper functioning of temperature or atmosphere-controlled Container.
(b) Where the Merchant requests a temperature or atmosphere controlled Container at cargo booking, the Merchant shall provide the Carrier with the desired air temperature range of the Goods and insert same on the front side of this Bill of Lading, and the Carrier will exercise due diligence to maintain said temperature while in possession of the Goods.
(c) Where a temperature or atmosphere controlled Container is packed by the Merchant, the Merchant warrants that it properly pre-cooled the Container and that the temperature or atmosphere controls have been properly set before delivery of the Container to the Carrier.
10. DANGEROUS GOODS
(a) Cargo which are or may become dangerous, inflammable or damaging, or which are or may become hazardous to any person or property (“Dangerous Goods”), may not be tendered for Carriage without (i) the Carrier’s written approval, and (ii) said Goods and/or any Container being distinctly marked on the outside so as to indicate their nature and character and as to comply with all applicable laws and regulations. If Dangerous Goods are tendered to the Carrier without such written approval and marking, the same may at any time be destroyed, disposed of, abandoned or rendered harmless at the Merchant’s expense and without prejudice to the Carrier’s right to payment of all Charges.
(b) If Dangerous Goods should subsequently, in the judgment of the Carrier or the ocean carrier, become a danger to the Vessel or other cargo or person, the aforesaid Goods may be disposed of without compensation to the Merchant and the Merchant shall indemnify the Carrier for any loss or expenses arising from such action.
(c) The Merchant is liable for injury and damage of every kind and nature caused by Dangerous Goods, whether or not the Merchant was aware of the nature of aforesaid Goods, and shall hold harmless and indemnify the Carrier against all claim, liability or expense arising from any mishap in connection with the Dangerous Goods for which the Carrier is not responsible.
11. CONSOLIDATION OF GOODS & CARRIAGE
(a) The Carrier may pack or consolidate Goods in a Container, which may be packed or stuffed with other cargo.
(b) Without notice to Merchant, the Goods may be stowed on or under deck and Goods stowed on deck are considered for all legal purposes as Goods stowed under deck.
(c) Goods received for Carriage are at the Merchant’s risk, and the Carrier shall not be liable for any loss or damage to the Goods from which it is exempt, immune or exonerated by applicable law, or from any other cause whatsoever not due to the fault of the Carrier.
12. CARRIER’S OPTION TO INSPECT GOODS; INSPECTION BY CUSTOMS OR PORT AUTHORITIES
(a) The Carrier or a Participating carrier is entitled, but under no obligation, to inspect the Goods and open any Container to inspect the contents. If it thereupon appears that the Goods cannot safely or properly be carried further, the Carrier or Participating carrier may abandon the Goods or take reasonable measures to continue the Carriage or store the Goods, and such storage shall be deemed due delivery of the Goods to the Merchant. The Merchant shall reimburse the Carrier any reasonable additional expenses so incurred.
(b) If by order of port authorities or border security at any place, the Goods are detained or a Container is opened for the Goods to be inspected, the Carrier shall not be responsible for loss or damage sustained as a result of such detention, opening, unpacking, inspection, re-packing, destruction or delay resulting from such action. The Carrier shall be entitled to recover from the Merchant all Charges, fines, costs and expenses, detention, demurrage or storage charges, including reimbursement of the Carrier’s reasonable legal fees and costs.
13. METHODS & TRANSPORTATION; LIBERTIES
(a) Without notice to the Merchant, the Carrier may: (i) utilize any appropriate means of transportation (via water/land/air) or storage of the Goods; (ii) transship or carry the Goods on a vessel other than named on the front side of this Bill of Lading; (iii) proceed by any route regardless whether the nearest, most direct, customary or advertised or out of geographical rotation; (iv) proceed to or stay at any place in any order or omit calling at any port, whether scheduled or not; (v) store, vanned or devanned Container at any place; (vi) unload the Goods at a convenient place and require the Merchant to take delivery;(vii) comply with all orders or directives from any government agency or competent port authority acting or purporting to act as government agency or port authority as to disposition of the Goods.
(b) The liberties set forth above may be exercised for any purpose even if unrelated to the Goods, and such action taken by the Carrier, and any ensuing delay, shall be deemed within the contractual and contemplated Carriage and not an unreasonable deviation. In no circumstance whatsoever shall the Carrier be liable for any direct or indirect loss or damage caused by any such delay.
14. HINDERANCES AFFECTING PERFORMANCE
(a) The Carrier shall use reasonable efforts to complete this Carriage and deliver the Goods at the place designated for delivery. If in the opinion of the Carrier the Carriage will be affected by any hindrance, risk, delay, injury, difficulty or disadvantage of any kind, including strike, and if by reason thereof it becomes unsafe, impracticable, unlawful, or injurious to the Carrier to complete the Carriage, the Carrier may without notice to the Merchant elect to terminate this Carriage and place the Goods at Merchant’s disposal at any place the Carrier deems safe and convenient, whereupon the Carrier’s responsibility for the Goods shall cease, but without prejudice to the Carrier’s right subsequently to continue the Carriage or take any of the steps set forth in Clause 13 hereof.
(b) The Carrier shall comply with notices, orders or directives as to the Goods from any competent government agency or port authority. If by reason of or in compliance with such notice, order or directive anything required or contemplated under this Bill of Lading is not done, or not timely done, the same shall be deemed included within the Carriage and not an unreasonable deviation.
(c) The Carrier’s responsibility for the Goods shall cease upon delivery or other disposition of the Goods in accordance with notices, orders or directives of customs, port or other government authority, with the aforesaid deemed due delivery of the Goods to the Merchant. (d) The Carrier shall be entitled to and the Merchant shall become liable to pay the Carrier all Charges on the Goods and any additional costs or expenses arising from any event enumerated in this Clause 14.
15. DELIVERY OF GOODS
(a) The Merchant shall take delivery of the Goods within the time provided for in the Carrier’s tariff. If delivery is not taken at such time and place as the Carrier is entitled to have the Marchant take delivery, the Goods shall be deemed to have been delivered to the Merchant and the Carrier may, subject to its lien and without notice, elect to have the Goods remain where they are or warehoused elsewhere at the risk and expense of the Merchant and Goods.
(b) If the Goods are stowed within a Container supplied by the Carrier, the Carrier shall be entitled to devan the contents of such Container, whereupon the Goods shall be considered to have been delivered to the Merchant and the Carrier may, subject to its lien and without notice, elect to have the Goods remain where they are or warehoused elsewhere at the risk and expense of the Merchant and Goods.
(c) Any detention or demurrage or per diem assessed, or other expenses incurred, as a result of the Merchant’s failure to take delivery of the Goods at time and place as the Carrier is entitled to have the Merchant take delivery, are for Merchant’s account.
16. CHARGES & PAYMENT BY MERCHANT
(a) Charges have been calculated on the basis of particulars furnished by the Merchant. The Carrier is entitled to inspect, reweigh, remeasure or revalue the Goods and, should any of the Merchant’s particulars be found incorrect, the Charges shall be adjusted accordingly and the Merchant shall pay the correct Charges and all expenses the Carrier incurred in ascertaining the correct particulars.
(b) Charges are non-refundable and payable in full by the Merchant, without offset or deduction, upon the Carrier’s acceptance of the Goods for Carriage. The Merchant shall remain responsible to the Carrier for payment of the Charges regardless whether this Bill of Lading is marked, in words or substance, as “Prepaid,” “To be Prepaid” or “Collect.”
(c) Merchant’s payment of the Charges to a person other than the Carrier shall not be considered payment to the Carrier. Should the Carrier prevail in any lawsuit against the Merchant to collect Charges, the Merchant shall pay all expenses of the litigation, including the Carrier’s reasonable counsel fees.
17. CARRIER’S LIEN ON GOODS
(a) The Carrier shall have a lien on the Goods and any documents pertaining thereto, which lien shall survive delivery of the Goods, for Charges due under this Bill of Lading and any related shipments between the Merchant and the Carrier. Should the lien remain unsatisfied for 30 days after demand for payment, the Carrier may, after a 10-day written notice to the Merchant, sell at public auction or private sale the Goods (or so much as necessary to satisfy such lien and the costs of sale) and apply the proceeds to payment of the amount due the Carrier. Any surplus from such sale shall be forwarded to the Merchant, and the Merchant shall be liable for any deficiency upon the sale.
(b) In the event of any lawsuit by the Carrier against the Merchant to foreclose the Carrier’s lien, the Merchant shall, if the Carrier prevails in the litigation, pay all expenses of foreclosure and litigation, including the Carrier’s reasonable counsel fees.
18. GENERAL AVERAGE
Terms and Conditions in the bill of lading of the actual ocean carrier, identified on the front side of this Bill of Lading, shall apply as incorporated herein.
19. NOTICES & RESERVATION OF RIGHTS
(a) Before or upon delivery of the Goods, the Merchant shall notify the Carrier in writing of any loss or damage to the Goods, and if loss or damage is not then apparent, no later than 3 days after delivery of the Goods. It shall be presumed that the Goods were delivered in good condition if the Merchant provides no such written notice. See 46 U.S.C. § 30701.
(b) The Carrier shall be discharged from all liability of whatsoever nature unless suit is brought within one year after delivery of the Goods to the Merchant or the date when the Goods should have been delivered, provided that if any claim should arise which by applicable law is subject to a shorter period for commencement of suit, any suit shall be brought within such shorter period.
(c) Nothing in this Bill of Lading shall operate to limit or deprive the Carrier of any statutory protection, defense, exemption or limitation of liability under any law, statute or regulation which would have been applicable in the absence of any of the terms herein.
20. SEPARABILITY; INTEGRATION; NON-WAIVER
(a) Terms of this Bill of Lading are separable; if any term is held unenforceable or invalid, such holding shall not affect enforceability or validity of any other term.
(b) This Bill of Lading records the entire agreement of the Merchant and the Carrier on this Carriage, superseding all prior and contemporaneous correspondence and understandings between the parties, whether written or verbal.
(c) No provision of this Bill of Lading may be waived or varied unless such waiver or variation is in a writing signed by the party against whom enforcement is sought.
21. GOVERNING LAW; VENUE; COUNSEL FEES
(a) The laws of New York State shall govern any and all claim or dispute between the Carrier and the Merchant arising under this Bill of Lading, and any such claim or dispute shall be venued exclusively in the United States District Court for the Southern District of New York or New York State Supreme Court, County of New York, to whose exclusive jurisdiction the Carrier and the Merchant both submit. The Merchant waives any objection to the venue and personal jurisdiction over the Merchant of the above-named New York courts.
(b) The Merchant shall institute no claim or dispute against the Carrier in any jurisdiction or venue other than the United States District Court for the Southern District of New York or New York State Supreme Court, County of New York, and shall reimburse all costs and expenses and the reasonable legal fees incurred by the Carrier in removing to New York any claim or dispute commenced in any other venue.
(c) The prevailing party in any claim or dispute under this Bill of Lading and the Carriage thereby contemplated shall be entitled to reimbursement of all costs and expenses incurred, including the party’s reasonable counsel fees, from the unsuccessful party.