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2. DEFINITIONS: The term "carrier" wherever used in this bill of lading shall mean Waterman Steamship Corporation., and shall include the barge named herein or substitute. The word "goods" shall mean wares, merchandise and articles of every kind including containers, vans, trailers, palletized units and other packages. The term "shipper" shall include the party named as such in this bill of lading and/or the person for whose account the goods are shipped. The term "consignee" shall include the party named as such in this bill of lading and/or the holder of this bill of lading properly endorsed and/or the person who owns or is entitled to or receives delivery of the goods. The term "package" shall include containers, vans, trailers, palletized units and all pieces, articles or things of any description whatsoever except goods shipped in bulk. The terms "vessel" and "ship" as used in this bill of lading and any applicable statute shall include the LASH barge named herein, or substitute, from the time the goods are loaded on until they are discharged from such barge, including the time when the barge is being carried on the barge carrying vessel as well as such barge carrying vessel and any tug, lighter or other means of transportation by water used by the carrier in the performance of this contract.
3. CLAUSE PARAMOUNT: This bill of lading shall have effect and be governed by the United States Carriage of Goods by Sea Act, adopted 1936, which is deemed incorporated herein (except as otherwise specifically provided for herein) and shall apply throughout the entire time the goods are in the carrier's custody, including periods of the carrier's actual custody before the goods are loaded on the barge and after discharge therefrom and to all movements and transportation of the goods over land by air, rail, truck or other method occurring at whatsoever time provided that said transportation has been arranged by the carrier. Nothing contained herein is to be deemed a surrender by the carrier of any of its rights, defenses, immunities or exemptions or limitations or to in any way increase carrier's responsibilities or liabilities under the United States Carriage of Goods by Sea Act. In the event that this bill of lading is issued in a locality where legally there has been adopted a law or ordinance of a similar nature to the International Convention for the Unification of Certain Rules Relating to Bills of Lading, dated Brussels August 25, 1924, or an ordinance or statute whereby there is imposed upon carrier a liability for or a higher package or customary unit of freight limitation value than called for by the United States Carriage of Goods by Sea Act, then and in that event nothing contained herein shall be deemed a surrender by the carrier of any rights, defenses, exemptions, immunities or limitations or an increase of carrier's responsibilities or liabilities under the United States Carriage of Goods by Sea Act, adopted 1936.
No provision in this bill of lading shall be deemed or interpreted to mean that the parties voluntarily hereby adopt the United Nations Convention on the Carriage of Goods by Sea 1978 (The Hamburg Rules). But, in the event that the United Nations Convention on the Carriage of Goods by Sea 1978 (The Hamburg Rules) is deemed for whatever reason applicable to this bill of lading or to any carriage or transportation of goods rendered by carrier, then, and only in that event, the carrier shall be entitled to all rights, defenses, exemptions, immunities or limitations under the United States Carriage of Goods by Sea Act, adopted 1936, whenever the provisions of said Act are not inconsistent therewith.
If any term of this bill of lading be repugnant to the United States Carriage of Goods by Sea Act, adopted 1936, to any extent, such term shall be void to that extent but no further. The carrier shall be entitled to the benefits of all privileges, rights and immunities contained in the United States Carriage of Goods by Sea Act, adopted 1936.
4. CARRIER’S SERVANTS, CONTRACTORS, ETC. (HIMALAYA): Because the carrier requires persons and companies to assist it in the performance of all work and services undertaken by it in connection with the cargo described herein, as well as the cargo of others transported or to be transported by the carrier, it is expressly agreed between the parties hereto that the barge carrying vessel, or substitute, the tugs/pushers employed to tow/push the barge named herein and other barges, the owners, operators, charterers, master, officers, and crew members of such barge carrying vessels and tugs/pushers and all stevedores, longshoremen, agents, representatives, employees or contractors and others used, and any parties or inland carriers including truck lines, airlines and railroads for inland or over land transportation of the goods, engaged or employed by the carrier in the performance of the work and services of the carrier, shall each be a beneficiary of this contract and shall be entitled to all exemptions and immunities from and limitations of liability which the carrier has under this bill of lading, whether written, printed or stamped hereon or incorporated by reference herein, and under the United States Carriage of Goods by Sea Act, 1936 and in entering into the provisions of this clause, the carrier, to the extent of such provisions, does so not only on its own behalf but also as agent and trustee of the barge carrying vessels, tugs/pushers, barges, each person and company described above, all of whom shall be deemed to be a party of the contract evidenced by this bill of lading.
5. CARRIER’S RESERVATION OF EXEMPTIONS AND LIMITATIONS: The carrier, barge, barge carrying vessel and tugs/pushers engaged to tow/push the barge, their owners and charterers shall be entitled to the full benefit of, and right to, all limitations of, or exemptions from, liability contained in any law of the United States, including but not limited to those provided in or authorized by any provisions of Title 46, United States Code, Sections 181 to 186, inclusive, and Section 188 of Title 46 of the United States Code and amendments thereto, and of any other provisions of the laws of the United States or of any other country or place whose laws shall be applicable. This bill of lading shall not be deemed to be or give rise to a personal contract of the carrier. The terms of this bill of lading constitute the contract of carriage, which is between the shipper, consignee and owner of the goods, and the owner or demise charterer of the vessel designated to carry the goods. It is understood and agreed that, other than said shipowner or demise charterer, no person, firm or corporation or other legal entity whatsoever (including the master, officers and crew of the vessel, all agents and all stevedores, watchmen and other independent contractors whatsoever) is, or shall be deemed to be, liable with respect to the goods as a carrier, bailee or otherwise howsoever, in contract or in tort. If, however, it shall be adjudged that any other than said shipowner or demise charterer is carrier or bailee of the goods or under any responsibility with respect thereto, all limitations of and exonerations from liability provided by the law or by the terms hereof shall be available to such other. In contracting for the foregoing exemptions, limitations and exonerations from liability, the carrier is acting as agent and trustee for the other above-mentioned.
Nothing in this bill of lading (expressed or implied) shall be deemed to waive or operate to deprive the carrier of, or lessen the benefits of, any such rights, immunities, limitations or exemptions.
6. SCOPE OF VOYAGE: The voyage of the barge and/or barge carrying vessel may or may not include all usual, scheduled, geographic, direct, customary, ordinary or advertised routes, ports or places, whether or not named or disclosed in this bill of lading. As often as and for any reason whatsoever which the carrier may deem advisable, whether relating to the current or a prior, intermediate, subsequent, or overlapping voyage, or to matters occurring, known, or anticipated before or after receipt of the goods, and whether or not the voyage may have commenced, the barge and/or barge carrying vessel, at any stage of the voyage and without notice to the shipper or consignee: (a) may proceed under any conditions of sea and weather, depart from or change the intended, usual, scheduled, geographic, direct, customary, ordinary or advertised route and proceed in any direction by any route whatsoever, or return to or call at or stay or delay at any ports or places in any rotation, sequence or order, or omit calling at any ports or places, and (b) may also at any time or place whatsoever, carry livestock, deck cargo, and dangerous goods and with or without the goods aboard proceed in tow, adjust compasses, drydock, go on ways or to repair yard, shift berths or places in port, lie on bottom or aground in berth, make trial trips for test, take fuel or stores at any place, lie at anchor or moorings, sail or proceed in or out of ports or elsewhere without pilots, whether or not pilots are compulsory or customary and available, tow/push and assist vessels or craft in any situation, or save or attempt to save lives or property whether the property be that of the carrier or others, including the liberty to depart from her course to any extent for any of such purposes. The provisions of this clause are not to be restricted by any words of this bill of lading, whether printed, stamped, or incorporated herein or by prior notice or advertisement.
7. EVENTS BEYOND CARRIER’S CONTROL; STRIKES, STOPPAGES, ETC.: In any situation whatsoever or wheresoever occurring, including, but not limited to, strikes and work stoppages of any kind, closures, obstructions, blockages and breakdowns of canals, locks and inland waterways from whatever causes and whether existing or anticipated before the commencement of, or during the voyage, which in the judgment of the carrier is likely to give rise to risk of capture, seizure, arrest, detention, injury, damage, delay or danger, detriment or disadvantage to, or loss of any goods, the barge and/or barge carrying vessel, or any persons, or to make it unsafe, imprudent, inadvisable or unlawful for any reason to receive or keep the goods or to commence or continue on the voyage or to enter or discharge the barge or goods, the carrier (a) before, during or after receipt of the goods or before commencement of the voyage, may decline to receive the goods or may discharge them or any part thereof and may require the shipper or person entitled thereto to take delivery at the barge loading point or elsewhere and upon failure to do so the carrier may warehouse or store or hold the goods, or (b) at any time, whether or not the barge and/or barge carrying vessel is proceeding toward or entering the debarging point or barge destination, may discharge the goods into any depot, lazaretto, craft, or other place, or (c) may have the barge and/or barge carrying vessel proceed or return, directly or indirectly, or to stop at any port or place, and discharge the goods, or any part thereof, at any such port or place into craft or into or on any other place whatsoever, or (d) may retain the goods, or any part thereof, on board the barge until the return trip or until such time as the carrier deems advisable, and discharge the goods, or any part thereof, into craft or into or on any other place whatsoever at the barge loading point or elsewhere, or (e) at the barge loading point or elsewhere may substitute another barge or barge carrying vessel or may transship or forward the goods, or any part thereof, by any means, but always at the risk and expense of the goods.
Any measures or procedures whatsoever authorized by this clause may be taken without notice to the shipper or consignee and shall be considered as taken as agent of the shipper and/or consignee and at their risk and expense, but without prejudice to any lien of the carrier. Any disposition of the goods pursuant to this clause shall constitute complete delivery of the goods and performance of this contract by the carrier which shall thereupon be free of further responsibility. For any and all services rendered as herein provided, the carrier shall be entitled to extra compensation, including, but not limited to, proportionate additional freight if the length or duration of the voyage is increased.
8. STOWAGE ON DECK -- The clause "received at the above barge loading point, the goods or the containers, vans, trailers, palletized units or other packages, said to contain the goods described, in apparent good order and condition, except as otherwise noted herein, for transportation in said barge to the barge destination named above" shall not mean the goods stowed in the barge, container, van, or trailer shall be stowed under deck and shipper takes cognizance of the type of stowage offered by carrier on the LASH type vessel which may include stowage on deck, but said stowage shall be deemed by both carrier and shipper to be stowed under deck for all purposes including general average. The shipper represents the goods covered by this bill of lading and stowed in a barge, container, van or trailer need not be stowed under deck and it is agreed that it is proper to and they may be stowed on deck unless the shipper informs the carrier in writing before the delivery of the goods to the carrier that under deck stowage is required. If carried on deck, the carrier shall not be required to specially note, mark or stamp any statement of on deck carriage on the bill of lading, any custom to the contrary notwithstanding. All risks of loss or damage to the goods by perils inherent or incidental to such carriage shall be borne by the shipper and carrier shall have the benefit of all provisions of the bill of lading and of all rights, immunities, exemptions and limitations as provided by the Carriage of Goods by Sea Act of the United States.
9. SHIPPER’S PACKING/LOADING OF BARGE/INDEMNITY: If a barge has not been filled, packed, stuffed or loaded by the carrier, the carrier shall not be liable for loss of or damage to the contents and the shipper or consignee shall indemnify the carrier against any loss, damage, liability or expense incurred by the carrier, if such loss, damage, liability or expense has been caused by: (a) the manner in which the barge has been filled, packed, stuffed or loaded; (b) the unsuitability of the contents for carriage in barges; (c) the unsuitability or defective condition of the barge arising without any want of due diligence on the part of the carrier to make the barge reasonably fit for the purpose for which it is required; (d) the unsuitability or defective condition of the barge which would have been apparent upon reasonable inspection by the shipper or consignee at or prior to the time when the barge was filled, packed, stuffed or loaded.
10. WEIGHT OR QUANTITY OF GOODS: As the carrier has no reasonable means of checking the quantity or weight of goods shipped in bulk, the carrier does not represent or warrant the accuracy of the quantity or weight of such goods as furnished by the shipper and appearing in this bill of lading.
11. LIABILITY OF CARRIER; PACKAGE LIMITATION: In the event of any loss of or damage to goods exceeding in actual value $500 lawful money of the United States per package, or in case of goods not shipped in packages, per customary freight unit, the value of the goods shall be deemed to be $500 per package or per customary freight unit, as the case may be, and the carrier's liability, if any, shall be determined on the basis of the $500 per package or per customary freight unit, unless the nature of the goods and a higher value were declared by the shipper, in writing before shipment, and inserted in this bill of lading, and extra freight paid thereon if required.
In the event of a higher value being declared by the shipper, in writing and inserted in this bill of lading and an extra freight paid thereon, if required, the carrier's liability, if any, for loss of or damage to or in connection with the goods shall be determined on the basis of such declared value, and pro rata of such declared value in the case of partial loss or damage, provided such declared value does not exceed the actual value of the goods.
12. ADJUSTMENT OF FREIGHT/CHARGES: Any claim against the carrier for any adjustment, refund, or with respect to freight, charges or expenses, or for delay, or any claim other than for loss or damage to goods, must be given to the carrier or its agent, in writing, within one year from the date when the goods were or should have been delivered.
In any event, the carrier and the barge, tugs/pushers, and barge carrying vessel shall be relieved from all liability for any loss or damage to the goods or with respect to freight, charges or expenses, or the refund thereof, or any claim of whatsoever kind, nature or description, with respect to or in connection with the goods, unless suit is brought within one year after delivery of the goods or the date when the goods should have been delivered.
13. DELIVERY: The carrier shall not be required to give any notification whatsoever of arrival of the barge carrying vessel at the debarging point, or the arrival of the barge at the barge destination, or the discharge of or any disposition of or any action taken with respect to the goods, any custom or practice of the port, the carrier or others to the contrary notwithstanding and even though the goods are consigned to order with provision for notice to a named party.
It is agreed that when possession of the goods is received or taken by the customs or other authorities or by any operator of any lighter, craft, dock, pier, store, warehouse, refrigerator, elevator or other facilities, whether selected by the carrier or master, shipper or consignee, whether public or private, such authority or person shall be considered as having received possession and delivery of the goods solely as agent of and on behalf of the shipper and consignee, at the risk of the goods and subject to any lien of the carrier thereon. Also if the consignee does not take possession or delivery of the goods as soon as the goods are at the disposal of the consignee for removal, the goods shall be at their own risk and expense, and delivery shall be considered complete and the carrier may, subject to carrier's liens, send the goods to store, warehouse, put them in lighters or other craft, put them in possession of authorities, dump, permit them to lie where landed or otherwise dispose of them, always at the risk and expense of the goods, and the shipper and consignee shall pay and indemnify the carrier for any loss, damage, fine, charge or expense whatsoever suffered or incurred in so dealing with or disposing of the goods, or by reason of the consignee's failure or delay in taking possession and delivery as provided herein.
14. NOTICE OF DISCHARGE; PORT AUTHORITIES; ORDERS: The port authorities are hereby authorized to grant a general order for discharging the barge, or goods from the barge carrying vessel or barge, immediately on arrival of the barge carrying vessel or barge at the debarging point or port of discharge, and the carrier, without giving notice either of such arrival or of such discharge, may tow/push the barge containing the goods directly to the barge destination named herein, where the port authorities are authorized to grant a general order for discharging the goods from the barge.
15. SUBSTITUTIONS; DELIVERY; TIME OF DELIVERY: The carrier in its discretion, at any time and place, whether or not the reason for its action or inaction was known at the time of receipt of the goods, without notice (a) may substitute another barge carrying vessel or barge, whether operated by the carrier or others, or of a different flag, type or speed, or whether before, during or after loading the goods or any part thereof, and whether the substituted vessel or barge arrives or departs or is scheduled to do so before or after the barge carrying vessel or barge named herein, (b) may, if the goods or any part of them are damaged or lost, or in danger of damage or loss, or of becoming worthless or subject to charges disproportionate to their value, or because of their condition, take any measures to salve, protect, recondition, recover possession of, sell, return to shipper, hold, store or otherwise deal with or dispose of the goods or any part of them, or forward the goods or any part of them, by any means to or toward barge destination, and (c) if there shall be a forced interruption, abandonment or frustration of the voyage at any stage, or because of the need of repairs to the barge or barge carrying vessel, or of the inability of either to prosecute the voyage promptly, may substitute another barge or barge carrying vessel, or may forward the goods or any part thereof by any means.
The carrier is not required, and does not undertake, to deliver the goods at barge destination or elsewhere at any particular time, or to meet any market or time for any particular purpose or use, nor does it undertake that the barge carrying vessel or substitute barge carrying vessel will sail or arrive at any stated or scheduled time. The carrier shall not be liable for any loss or damage arising or resulting from delayed or earlier arrival of the goods or any damage or expense incurred by the shipper or consignee because of any change in date or time of sailing or arriving.
All such measures, procedures or acts taken pursuant to this clause shall be at the risk and expense of goods.
16. COMPLIANCE WITH GOVERNMENT ORDERS ETC.: The carrier, master, barge carrying vessel and barge shall have liberty to comply with any orders, directions, regulations, requests or suggestions, including, but not limited to, any such which may be given or effected pursuant to or by reason of any agreement or undertaking exacted from or considered advisable by the carrier or master, whether or not relating to the barge carrying vessel, barge, goods, other cargo or to passengers, crew, or other person aboard, howsoever, whensoever and wheresoever given by, or received from the government of any nation or department thereof or by any person acting or purporting to act with the authority of such government or department, or by any committee or person having or purporting to have, under the provisions and terms of the war risks insurance on the barge carrying vessel and barge, the right to do so or to approve the voyage. If the port of discharge be declared blockaded, or if the port to which the ship is scheduled to discharge be one to which the ship is or shall be prohibited from going by the government of the nation under whose flag the ship sails or by any other government, the carrier shall discharge the cargo at any other port (provided such other port is not a blockaded or prohibited port as above mentioned) and shall be entitled to freight as if the ship had discharged at the port or ports of discharge to which she was originally ordered. Any disposition whatsoever of the goods pursuant to this clause shall not be deemed a deviation and shall constitute delivery and be a fulfillment of the contract of carriage by the carrier, which shall not be under any further obligation, and the goods shall thereafter be solely at their own risk and expense.
The ship shall have liberty to comply with any orders or directions as to departure, arrival, routes, ports of call, stoppages, destination, delivery or otherwise howsoever given by the government of the nation under whose flag the vessel sails or any department thereof, or by any other government or any department thereof, or any person acting or purporting to act with the authority of such government or of any department thereof, or by any committee or person having, under the terms of the war risks insurance on the ship, the right to give such orders or directions and if by reason of and in compliance with any such orders or directions anything is done or is not done, the same shall not be deemed a deviation and delivery in accordance with such orders or directions shall be a fulfillment of the contract voyage and the freight shall be payable accordingly.
For any and all expenses or charges incurred by the carrier in connection with any such compliance, the carrier shall be entitled to extra compensation including, but not limited to, proportionate additional freight if the length or duration of the voyage is increased.
17. DANGEROUS OR HAZARDOUS CARGO: The barge carrying vessel and barge may carry explosives, munitions, warlike stores, dangerous and hazardous cargo, and may sail armed or unarmed, with or without convoy, with or without lights, with or without pilots.
18. SUFFICIENCY OF PACKING AND MARKS; DESCRIPTION OF GOODS; SPOILAGE: With respect to containers, vans, trailers, palletized units and other packages not packed by the carrier, the carrier shall not have any responsibility or liability for the safe and proper packing or stowage of the contents of such containers, vans, trailers, palletized units or other packages.
The shipper, whether principal or agent, represents and warrants that the goods are properly described, marked, secured and packed in containers, vans, trailers, palletized units or other packages, and may be handled in ordinary course without damage to the said containers, vans, trailers, palletized units or to other packages, the barge or barge carrying vessel, or to property or persons, and guarantees the correctness of the particulars, weight of each, and the description of the goods, and agrees to ascertain, and to disclose in writing on shipment, any condition, nature, quality, ingredient or characteristic of the goods which might indicate that they are of an inflammable, explosive, corrosive, radioactive, noxious, hazardous or dangerous nature, or any condition, nature, quality, ingredient or characteristic that may cause damage, injury or detriment to the goods, other property, the barge or barge carrying vessel or to persons and, in the event of failure to do so, the shipper agrees to be liable for and fully indemnify the carrier, and to hold it harmless in respect of any injury or death of any person, and/or loss or damage to cargo or property. The carrier shall not be liable for the correctness of any such marks, descriptions or representations.
If at any time the goods, whether ashore or afloat, are, in the judgment of the carrier or master, or of the health or other authorities, spoiling, decayed, injurious, offensive, unfit for further carriage, or dangerous to health or property, or if any goods are in fact, or may be considered by any civil or military authorities, or the master to be inflammable, explosive, noxious, hazardous or dangerous, whether shipped with the knowledge and consent of the carrier or master as to their nature and character or shipped without such disclosure, and become a danger to the barge or barge carrying vessel or those on board, the goods or other property, or any part thereof, may at any time or place be landed, thrown overboard, destroyed or rendered innocuous without compensation to the shipper or consignee in general average or otherwise and extra charges and expenses, if any, for discharging, lightening, handling, caring for, disposing of or otherwise occasioned by such goods shall be borne by the goods, the shipper and/or consignee.
Neither carrier nor vessel responsible for incorrect delivery and all expenses incurred at port of discharge consequent upon insufficient securing or marking will be payable by the shipper or consignee unless: (a) every piece is distinctly and permanently marked and portmarked with oil paint; (b) every bundle is securely fastened, distinctly and permanently with oil paint and metal tagged, so that each piece or bundle can be distinguished at port of discharge.
19.IRON, STEEL AND OTHER METALLURGICAL PRODUCTS, RUBBER, WOOD AND PAPER PRODUCTS It is expressly agreed that staining, chafing, breakage, superficial rust, moisture, sweat, oxidation, condensation, and any other like condition or any other slight alteration due to moisture which might affect the external aspect of the goods is to be considered inherent to the special nature of the cargo. Weight, as well as number of bundles and/or pieces bundled into lifts is presumed to be unknown, the carrier having no reasonable means to check shipper's weight and number of declarations at loading port. Only the number of lifts has been checked by the carrier.
20. FREIGHT EARNED; LIEN FOR FREIGHT: Freight shall be payable, at carrier's option, on gross intake or discharged weight or measurement or on a basis of any particulars concerning the goods furnished by the shipper, but the carrier may at any time weigh, measure or value the goods. If there is any error in freight or other charges and if on correction the freight or charges should be higher, the carrier may collect the additional amount. If shipper's particulars are found to be erroneous and additional freight is payable, the shipper, consignee and goods shall be liable for any expenses incurred in examining, weighing, measuring and/or valuing the goods.
Full freight to the barge destination named herein, and all advance charges against the goods, shall be considered completely earned on receipt of the goods by the carrier, whether the freight or charges be prepaid or be stated or intended to be prepaid, or to be collected at barge destination or subsequently, and the carrier shall be entitled absolutely to all freight and charges, whether actually paid or not, and to receive and retain them under all circumstances whatsoever, barge, barge carrying vessel and/or cargo lost or not lost, or the voyage changed, broken up, frustrated or abandoned.
All charges or sums payable to the carrier are due when incurred, and such charges, sums and all unpaid freight or other charges shall be in full without any offset, counterclaims or deduction in the currency named in this bill of lading, or at carrier's option, in any other currency at the closing rate of exchange for bankers' sight bills current on the date hereof. Should freight and other charges be controlled by a tariff of a conference of which the carrier is a member, or by a tariff issued by the carrier, and should the tariff provide a rule governing the date for conversion of the currency, said rule will supersede the provisions stated above.
The shipper and consignee shall be jointly and severally liable to the carrier for the payment of all freight, charges and other amounts due to the carrier, and for any failure of either or both to perform his or their obligations under the provisions of this bill of lading, and they shall indemnify the carrier against, and hold it harmless from, all liability, loss, damage and expense which the carrier may sustain or incur arising or resulting from any such failure of performance by the shipper and consignee, or either of them. Any person, firm or corporation engaged by any party to perform forwarding services with respect to the cargo shall be considered the exclusive agent of the shipper and consignee for all purposes, and any payment of freight to such person, firm or corporation shall not be considered payment to the carrier in any event. Failure of such person, firm or corporation to pay any part of the freight to the carrier shall be considered a default by the shipper and/or consignee in the payment of freight.
The shipper and consignee shall be liable for return freight and charges on goods refused exportation or importation by any government or public authorities and the carrier accepts no responsibility therefor.
The carrier shall have a lien on the goods, which shall survive delivery, for all freight, charges and other amounts due under this bill of lading, and may enforce this lien, by all legal means, including public or private sale and without notice, upon the goods, or any part thereof, or any other property belonging to the shipper or consignee which may be in the carrier's possession. The net proceeds of any such sale, after deducting all costs and expenses in executing the lien, shall be applied towards the settlement of the freight, charges and any other amount due to the carrier, and the carrier shall not be under any further obligation in respect thereof, except to account for the balance, if any, of such proceeds; the shipper and consignee shall also remain liable in the event the carrier is unable to obtain such payment on exercising a lien on the goods.
21. TRANSSHIPMENT OF GOODS: Whenever the goods are to be transshipped via an inland or other carrier ("on-carrier") from the barge destination named herein to another port or place, the carrier acts only as the shipper's forwarding agent in arranging for such on-carriage. The responsibility of the carrier shall be limited to the period of its actual custody, and the carrier shall not be liable in any capacity for any loss, damage or delay howsoever occurring during any such on-carriage, even though the freight for the entire transportation has been collected by the carrier.
Such transshipment shall be subject to all of the terms in the regular form of bill of lading or freight note, contract or other shipping document used at the time by such on-carrier, whether issued for the goods or not, even though such terms may be less favorable to the shipper than the terms of this bill of lading, may contain more stringent requirements as to notice of claim and commencement of suit, or may exempt the on-carrier from liability for negligence. The shipper expressly authorizes the carrier to arrange with any such on-carrier that the lowest valuation of the goods or limitation of liability contained in such on-carrier's bill of lading shall apply even though lower than the valuation or limitation contained in this bill of lading. Pending or during transshipment the goods may be stored ashore or afloat at their risk and expense, and the carrier shall not be liable for detention.
22. BOTH TO BLAME: If the barge or barge carrying vessel comes into collision with another vessel as a result of the negligence of the other vessel or any act, neglect or default of the master, mariner, pilot or of the servants of the carrier in the navigation or in the management of the barge or barge carrying vessel, the shipper, consignee or interested party will indemnify the carrier against all loss or liability to the other or non-carrying vessel or her owners insofar as such loss or liability represents loss of, or damage to, or any claim whatsoever, of the owners of said goods, paid or payable by the other or non-carrying vessel or her owners to said shipper, consignee or interested party and set-off, recouped or recovered by the other or non-carrying vessel or her owners as part of their claim against the carrying vessel or carrier. The foregoing provisions shall also apply where the owners, operators or those in charge of any vessel or vessels or objects other than, or in addition to, the colliding vessels or objects, are at fault in respect of the collision, contact, stranding or other accident.
23 . GENERAL AVERAGE; NEW JASON CLAUSE: General Average shall be adjusted, stated, and settled at such place in the United States as the carrier may select according to York-Antwerp Rules 1994, and as to matters not provided for in these Rules, according to the laws and practices at the Port of New York. Average agreement, bond and such cash deposit (payable at carrier’s option in United States money) as the carrier may require as additional security for contribution of the cargo, and salvage and special charges theron, shall be furnished before delivery of the cargo.
In the event of accident, danger, damage or disaster, before or after the commencement of the voyage, resulting from any cause whatsoever, whether due to negligence or not, for which, or for the consequence of which, the carrier is not responsible, by statute, contract or otherwise, the cargo, shippers, consignees or owners of the goods, jointly and severally, shall contribute with the carrier in General Average to the payment of any sacrifices, losses or expenses of a general average nature that may be made or incurred, and shall pay salvage and special charges incurred in respect of the goods. If a salving ship is owned or operated by the carrier, salvage shall be paid for as fully and in the same manner as if such salvage ship or ships belong to strangers.
Contribution in General Average shall be limited to the carrying barge, cargo and pending freight.
In addition to the circumstances dealt with in the York-Antwerp Rules, it is agreed that if the carrier has used due diligence in the stowage of cargo and if the safe prosecution of the voyage is thereafter imperiled in consequence of the disturbance of stowage, the costs of handling, discharge, reloading, and restowing cargo shall be allowed in General Average, even though the handling of cargo is not necessary for the purpose of effecting repairs to the vessel.
24. FIRE; WAR RISKS: Without waiver or limitation of any exemption from, or limitation of, liability afforded by law or by this bill of lading, neither the carrier nor any corporation owned by, subsidiary to, or associated or affiliated with the carrier shall be liable for any loss or damage wheresoever and whensoever occurring by reason of any fire whatsoever, including that occurring before loading on, or after discharge from, the barge or barge carrying vessel, unless such fire shall have been caused by the design or neglect, or by the actual fault or privity, of the carrier or of such corporation, respectively. In any situation where such exemption from liability may not be permitted by law, neither the carrier nor such corporation shall be liable for any loss or damage by fire unless caused by negligence, including that imputed by law, for which the carrier or such corporation is liable, respectively.
Without waiver or limitation of any exemption from, or limitation of liability afforded by law or by this bill of lading, in the event of war, hostilities, warlike operations, embargoes, blockades, port congestion, strikes, or labor disturbances, regulations of any governmental authority pertaining thereto, or any other governmental interferences with the commercial intercourse arising from the above conditions and affecting the carrier's operations, the carrier and/or any corporation owned by, subsidiary to, or associated with or affiliated with the carrier shall have the right to cancel any outstanding booking or contract of carriage or to increase any affected rate or rates in order to meet such conditions.
25. BARGE CLEANING: Where barges are discharged by receivers/consignees at receivers/consignees facilities, barges must be returned to carrier clean and free of any contamination, otherwise the cost of cleaning/deodorizing shall be borne by consignee.
26. SHIPPER’S OPTION TO LOAD/INDEMNITY: The shipper at his option shall load and stow the cargo aboard the barge furnished by carrier and said loading and stowage will be at shipper's expense, but shipper agrees that should it avail itself of this right to load and stow cargo, it will be performed in a safe and proper manner and agrees to indemnify and save harmless carrier of and from any and all claim or claims for damage to the cargo as a result of the stowage of same aboard barge. If shipper elects not to stow said cargo, then this indemnity agreement will not be operative.
27. BARGE ACCEPTANCE AND SUITABILITY: Stowage of cargo into the presented barge constitutes shipper's satisfaction that the barge has been presented in a seaworthy condition and that all sumps and/or drain wells have been inspected, cleaned, and are dry.
28. DELIVERY AND CUSTOMS OF PORT: Carrier performs its obligations under this bill of lading subject to the terms and conditions of the rules and practices of the ports where it is required to load and/or discharge and/or deliver the barges containing the cargo covered by this bill of lading. Carrier and shipper recognize that conditions, customs and practices in different ports may vary and that the method of performing operations may be different. Carrier will do its utmost to safely deliver the cargo to its port of destination and into the possession of the consignee or receiver of the cargo, but in those situations where the rules or practices or customs of the port dictate that carrier deliver the barges containing the cargo to an entity other than the consignee or receiver and said party is designated by the foreign port or government to be customs or some other terminal area or location, then carrier will make the delivery and discharge as so required and said delivery of the cargo will be deemed to be in full compliance with carrier's obligations for proper delivery and carrier will be thereby relieved from any further responsibility to the goods.
29. NOTICE OF LOSS: Notice of loss or damage or any other claim of whatsoever description and its general nature must be given in writing to the carrier or its agent at the port of discharge before or at the time of the removal of the goods into the custody of the person entitled to delivery; if the loss or damage is not apparent the notice must be given within three days of the delivery. In any event the carrier and the vessel shall be discharged from liability in any capacity unless suit is brought within one year after delivery or the date when the goods should have been delivered.
30. FORUM SELECTION CLAUSE: Any and all disputes relating to claims of damage and/or breach of contract pursuant to this bill of lading shall be instituted exclusively in the United States District Court for the Eastern District of Louisiana.
31. SEPARABILITY: The terms of this bill of lading shall be separable and if any part or provision is invalid or unenforceable, such circumstances shall not affect the validity or enforceability of any other part or term hereof.
32. OTHER AGREEMENTS SUPERSEDED: All freight agreements or other agreements for the shipment of the goods are superseded by this bill of lading. If required by the carrier, a signed bill of lading, duly endorsed, must be surrendered to the carrier on delivery of the goods.
33. HEADINGS: The
headings
of various clauses of this bill of lading are used for convenience of
reference
only and are not to be construed as limiting or in any other matter
affecting
the substance or meaning of the respective clauses.
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