PART I: GENERAL CONDITIONS
1.1 In these conditions
Company is Delta Global Freightways s.r.l.
Container includes, unless otherwise indicated, any vehicle, container, flat, pallet, trailer, transportable tank and similar items used for the Consolidation of goods as well as mobile plant and timber packages.
Customer means and includes the owner, shipper and consignee of the Goods and/or any person at whose request or on whose behalf the Company provides a Service.
Dangerous Goods includes goods that are or may become of a dangerous, inflammable, radio-active or damaging nature, goods liable to taint or affect other goods and goods likely to harbour or encourage vermin or other pests.
Goods includes the cargo and any container not supplied by or on behalf of the Company, in respect of which the Company provides a service.
Service means the whole or any part of the operations and services of whatsoever nature undertaken by the Company in relation to the Goods, including, but not limited to, carriage of goods by air, sea, inland waterway, rail and/or road; loading, unloading, storage, packing, unpacking, consolidation, de-consolidation, collection, delivery, warehousing and/or handling of the goods.
1.2 Heading of clauses or groups of clauses in these conditions are for indicative purposes only.
1.3 The Customer’s attention is drawn to the Clauses hereof that exclude or limit the Company’s liability and those that require the Customer to indemnify the Company in certain circumstances.
2.1 Subject to sub-clause 2.2 below, all services and activities of the Company in the course of business of the Company whether gratuitous or not are subject to these Conditions.
The provisions of Part I shall apply to all such services and activities.
The provisions of Part II shall only apply to the extent that the Company provides such services and activities as forwarding agents.
The provisions of Part III shall only apply to the extent that the Company provides such services and activities as carrier.
2.2 All services and activities are provided by the Company as forwarding agents and its obligations are exclusively those of forwarding agents as for art. 1737 Civil Code. The performance of services ancillaries to the transport is contracted by the Company to third parties in its capacity as forwarding agents for the Customer.
The only exception to the foregoing is where the Company issues its own waybill, bill of lading, haulage receipt, forwarder cargo receipt, combined transport document or other documents of carriage naming the Company as the carrier.
The obligations mentioned at art. 1741of Italian Civil code are expressly excluded.
2.3 Quotations are given on the basis that immediate acceptance and are subject to the right of withdrawal or revision. If any changes occur in the rates of freight, insurance premiums or other charges applicable to the goods, quotations and charges shall be subject to revision accordingly with or without prior notice but shall be subsequently communicated by the Company.
2.4 Every variation, cancellation or waiver of these Conditions must be in writing signed by a Director of the Company. Notice is hereby given that no other person has or will be given any authority whatsoever to agree to any variation, cancellation or waiver of these Conditions.
2.5 Without prejudice to the generality of clause 2.2:
(a) the charging by the Company of a fixed price for a service or services of whatsoever nature shall not in itself determine or be evidence that the Company is acting as a forwarding agent or a carrier in respect of such service or services;
(b) the supplying by the Company of their own or leased equipment shall not in itself determine or be evidence that the Company is acting as a forwarding agent or a carrier in respect of any carriage, handling or storage of Goods;
(c) the Company acts as a forwarding agent where the Company procures a bill of lading or other document evidencing a contract of carriage between a person, other than the Company, and the Customer;
(d) the Company acts as a forwarding agent and never as a carrier when providing services in respect of or relating to customs requirements, taxes, licenses, consular documents, certificates of origin, inspection, certificates and other similar services.
3. Obligations of the Customer
3.1 The Customer warrants that he is either the Owner or the authorized agent of the Owner of the Goods and that he is authorized to accept and is accepting these Conditions not only for himself but also as agent for and on behalf of the Owner of the Goods.
3.2 The Customer warrants that he has reasonable knowledge of matters affecting the conduct of his business, including but not limited to the terms of sale and purchase of the Goods and all other matters relating thereto.
3.3 The Customer shall give sufficient and executable Instructions.
3.4 The Customer warrants that the description and particulars of the Goods are complete and accurate.
3.5 The Customer warrants that the Goods are properly packed, marked, labelled and stowed in a manner appropriate to any operations or transactions affecting the Goods and the characteristics of the Goods except where the Company has accepted instructions in respect of such services.
3.6 The Customer’s liability under these Conditions shall be joint and several.
4. Special Instructions, Goods and services
4.1 Unless otherwise previously agreed in writing, the Customer shall not deliver to the Company or cause the Company to deal with or handle Dangerous Goods.
4.2 If the Customer is in breach of sub-clause 4.1 above, he shall be liable for all loss or damage whatsoever caused by or to or in connection with the Goods howsoever arising. The Customer shall defend, indemnify and hold harmless the Company against all penalties, claims, damages, costs and expenses whatsoever arising in connection therewith and the goods may without notice be destroyed or otherwise dealt with at the sole discretion of the Company or any other person in whose custody they may be at the relevant time.
4.3 If the Company agrees to accept Dangerous Goods and then, in the opinion of the Company or any other person, they constitute a risk to other goods, property, life or health they may without notice be destroyed or otherwise dealt with at the expense of the Customer and the Customer shall have nothing to claim against the Company.
4.4 The Customer undertakes not to tender for transportation any Goods that require temperature control without previously giving written notice of their nature and particular temperature range to be maintained. In the case of a temperature-controlled Container stuffed by or on behalf of the Customer by a third party, the Customer further undertakes that the Container has been properly pre-cooled or preheated as appropriate, and the Goods have been properly stuffed in the container, and its thermostatic controls have been properly set by the Customer or the third party. If the above requirements are not complied with the Company shall not be liable for any loss of or damage to the Goods caused by such non-compliance.
4.5 The Company shall not be obliged to make, nor held liable for not making, any declaration for the purposes of any statute, convention or contract as to the nature or value of any Goods, or as to any special interest in delivery unless express written instructions to that effect have been received and accepted by the Company.
4.6 Unless otherwise previously agreed in writing or otherwise provided for under the provisions of a document signed by the Company, instructions relating to the delivery or release of Goods against payment or against surrender of a particular document shall be in writing. The Company’s liability resulting from such instructions relating to the delivery or
release of the goods other than in writing shall not exceed that provided for in respect of mis-delivery of Goods.
4.7 Unless otherwise previously agreed in writing that the Goods shall depart or arrive by a particular date, the Company accepts no responsibility for departure or arrival dates of Goods beyond the one it may be required to assume by applicable law.
5.1 No insurance will be effected by the Company except upon express instructions given in writing by the Customer. All insurance effected by the Company is subject to the usual exceptions and conditions of the policies of the insurance Company or underwriters taking the risk.
5.2 The Company is an agent of the Customer in respect of effecting insurance. On request of the Company, the Customer shall effect insurance on the Goods at its own care and expenses.
5.3 Unless otherwise agreed in writing, the Company shall not be under any obligation to effect a separate insurance on each consignment but may declare it on any open or general policy.
5.4 Should the insurers dispute their liability for any reason the insured shall have recourse against the insurers only. The Company shall not have any responsibility or liability whatsoever in relation to the insurance notwithstanding that the premium upon the policy may not be at the same rate as that charged by the Company or paid to the Company by its customers.
6. General Indemnities
6.1 The Customer shall defend, indemnify and hold harmless the Company against all liability, loss, damage, costs and expenses arising:
– from the nature of the goods unless caused by the Company’s negligence,
– out of the Company acting in accordance with the Customer’s instructions, or
– from a breach of warranty or obligation by the Customer or arising from the negligence of the Customer.
6.2 Except to the extent caused by the Company’s negligence, the Customer shall be liable for and shall defend, indemnify and hold harmless the Company in respect of all duties, taxes, imposts, levies, deposits and outlays of whatsoever nature levied by an Authority in respect of the Goods, Dangerous Goods and/or Container and for all liabilities, payments, fines, costs, expenses, loss and damage whatsoever incurred or sustained by the Company in connection therewith.
6.3 Advice and information in whatever form it may be given is provided by the Company for the Customer only and the Customer shall defend, indemnify and hold harmless the Company for all liability, loss, damage, costs and expenses arising out of any other person relying on such advice or information. The Customer shall not pass such advice or information to any third party without the Company’s written agreement and the Customer shall indemnify the Company against any loss suffered because of a breach of this condition.
6.4 The Customer undertakes that no claim be made against any servant, sub-contractor or agent of the Company. Without prejudice to the foregoing, every such servant sub-contractor or agent shall have the benefit of all provisions herein, as if such provisions were expressly for their benefit. In entering into this contract, the Company, to the extent of those provisions, does so not only on his behalf but as agent and trustee for such servants, subcontractors and agents.
6.5 The Customer shall defend, indemnify and hold harmless the Company from and against all claims, costs and demands whatsoever and by whomsoever made or preferred in excess of the liability of the Company under the terms of these Conditions and without prejudice to the generality of this clause this indemnity shall cover all claims, costs and demands arising from or in connection with the negligence of the Company, its servants, sub-contractors and agents.
6.6 In this clause, “sub-contractors” includes direct and indirect sub-contractors and their
respective servants and agents.
6.7 The Customer shall be liable for the loss, damage, contamination, soiling, detention or demurrage before, during and after the carriage of property (including, but not limited to, Containers) of the Company or any person referred to in 6.5, 6,6 and 6.7 above caused by the Customer or any person acting on its behalf or for which the Customer is otherwise responsible.
7.1 The Customer shall pay to the Company in cash or as agreed all sums immediately when due without reduction or deferment on account of any claim, counterclaim or set-off.
7.2 When the Company is instructed to collect freight, duties, charges or other expenses from any person other than the Customer, the Customer shall be responsible for the same on receipt of evidence of demand and non-payment by such other person when due.
7.3 On all amounts overdue to the Company, the Company shall be entitled to the maximum default interest rate applicable in Italy during the period that such amounts are overdue.
8. Liberties and Rights of Company
8.1 Subject to clause 2 above, the Company shall be entitled, except insofar as has been otherwise agreed in writing, to enter into contracts, on any terms whatsoever, on behalf of itself or the Customer and without notice to the Customer:
(a) for the carriage of Goods by any route, means or person,
(b) for the carriage of Goods of any description whether containerized or not on or under the deck of any vessel,
(c) for the storage, packing, transhipment, loading, unloading or handling of Goods by any person at any place whether on shore or afloat and for any length of time,
(d) for the carriage or storage of Goods in containers or with other goods of whatever nature,
(e) for the performance of its own obligations,
and to do such acts as in the opinion of the Company may be necessary or incidental to the performance of the Company’s obligations.
8.2 The Company reserves to itself absolute discretion as to the means, the manner, the routes and the procedures to be followed in the performance of the Services including the carriage, the storage and the other handling of the goods. The Company has liberty to use any means, routes or procedures, including using any vessel or stowing the goods on or under deck. Anything done in accordance with the aforesaid discretion or liberty shall not be a deviation of whatsoever nature or degree. The Company shall be entitled, but under no obligation, to depart from the Customer’s instructions in any respect if in the opinion of the Company there is good reason to do so in the Customer’s interest and it shall not thereby incur any additional liability.
8.3 The Company may at any time comply with the orders or recommendations given by any Authority. The responsibility of the Company in respect of the Goods shall cease on the delivery or other disposition of the Goods in accordance with such orders or recommendations.
8.4 If at any time the performance of the Company’s obligations, in the opinion of the Company or any person whose services the Company makes use of, is or is likely to be affected by any hindrance, risk, delay, difficulty, or disadvantage whatsoever and which cannot be avoided by reasonable endeavours by the Company or such other person, the Company may, on giving notice in writing to the Customer or without notice where it is not reasonably possible to give such notice, treat the performance of its obligations as terminated and place the Goods or any part of them at the Customer’s disposal at any place which the Company may deem safe and convenient, whereupon the responsibility of the Company in respect of the Goods shall cease. The Customer shall be responsible for any additional costs of carriage to, and delivery and storage at, such place and all other expenses incurred by the Company.
8.5 If the Customer does not take delivery of the Goods or any part thereof at the time and place when and where the Company, or any person whose services the Company makes use of, is entitled to call upon the Customer to take delivery thereof, the Company or such other person shall be entitled, without further notice, to store the Goods or any part of the Goods in the open or under cover at the sole risk and expense of the Customer. Such storage shall constitute delivery of the Goods and the liability of the Company shall wholly cease.
8.6 Notwithstanding clauses 8.4 and 8.5, the Company shall also be entitled, but under no obligation, at the expense of the Customer payable on demand and without any liability to the Customer, to sell or dispose of:
(a) on giving 21 days’ notice in writing to the Customer, all Goods which in the opinion of the Company cannot be delivered as instructed or which the Customer did not take delivery of, and
(b) without notice, Goods which have perished, deteriorated or altered, or are liable to do so, in a manner which has caused or may be reasonably expected to cause loss or damage to any person or property or to contravene applicable regulations or requirements.
8.7 The Company shall have a particular and general lien on all Goods and/or documents relating to Goods in its possession for all sums of whatsoever kind and nature due at any time from the Customer and on giving 28 days’ notice in writing to the Customer, shall be entitled to sell or dispose of such Goods and/or documents at the expense of the Customer and without any liability to the Customer and apply the proceeds in or towards the payment of such sums. Upon accounting to the Customer for any balance remaining after payment of any sum due to the Company and the costs of sale or disposal the company shall be discharged of any liability whatsoever in respect of the Goods and/or documents. If on the sale of the Goods the proceeds fail to realize the amount due, the Company shall be entitled to recover the difference from any of the parties included in the terms Customer. In any event any lien shall (i) survive the delivery of the goods, and (ii) extend to cover the cost of recovering any sums due, and for that purpose the Company shall have the right to sell the Goods and documents by public auction or private treaty, without notice to the Customer and at the Customer’s expense and without any liability towards the Customer.
8.8 The Company shall be entitled to retain and be paid all brokerages, commissions, allowances and other remunerations customarily retained by or paid to freight forwarder, after the corresponding legal proceedings is concluded.
8.9 The Company shall have the right to enforce against the owner and the Customer jointly and severally any liability of the Customer under these Conditions or to recover from
them any sums to be paid by the Customer, which upon demand have not been paid.
8.10 The Company shall be entitled to sub-contract on any terms to any agents or sub-contractors the whole or any part of the Services whatsoever undertaken by the Company.
9.1 If a Container has been packed or stuffed by or on behalf of the Customer, the Company shall not be liable for loss of or damage to the Goods if:
(i) caused by the manner in which the Container has been packed or stuffed,
(ii) caused by the unsuitability of the contents for carriage in the Container actually used, unless the Company has approved the suitability.
(iii) caused by the unsuitability or defective condition of the Container actually used provided that where the Container has been supplied by or on behalf of the Company this paragraph (iii) shall only apply if the unsuitability or defective condition:
a) was not caused by negligence on the part of the Company, or
b) would have been apparent upon reasonable inspection by the Customer or person acting on behalf of either of them at or prior to the time when the Container was packed or stuffed.
(iv) the Container is not sealed at the commencement of the carriage except where the Company has agreed to seal the Container.
9.2 The Customer shall defend, indemnify and hold harmless the Company against any claim, liability, loss, damage, costs and expenses arising from one or more of the matters covered in 9.1 above.
9.3 Where the Company is instructed to provide a Container, in the absence of a written request to the contrary accepted by the Company, the Company is not obliged to provide a Container of any particular type or quality.
10. General Liability
10.1 Except insofar as otherwise provided by these Conditions, the Company shall not be liable for any loss or damage whatsoever arising from:
(i) the act or omission of the Customer or any person acting on its behalf,
(ii) compliance with the instructions given to the Company by the Customer or any other person entitled to given them,
(iii) insufficiency of the packing or labelling of the Goods except where such service has been provided by the Company,
(iv) handling, loading, stowage or unloading of the Goods by the Customer or any person acting on its behalf,
(v) inherent vice of the Goods,
(vi) riots, civil commotions, strikes, lockouts, stoppage or restraint of labor from whatsoever cause,
(vii) fire, flood or storm, or
(viii) any cause which the Company could not avoid and the consequences whereof it could not prevent by the exercise of reasonable diligence.
10.2 Where under sub-clause 10.1 above the Company is not under any liability for loss or damage caused by one or more of the causes, events or occurrence above, the Company shall only be liable to the extent that the causes, events or occurrences for which it is liable under these Conditions have contributed to the loss or damage.
10.3 The Company shall not be liable for loss or damage to property other than the Goods themselves howsoever caused.
10.4 Subject to clause 4.7, the Company shall not be liable for economic loss in any form, such as indirect or consequential loss or damage, loss of profit, delay, deviation, howsoever caused.
10.5 If the Company is anyway legally held liable for the aforesaid claim despite the aforesaid provision, the limitations set out in Clause 11 shall apply.
11. Limitation of Liability and amount of compensation
11.1 Except in so far as otherwise provided by these Conditions, the liability of the Company for loss or damage of Goods, howsoever arising, and notwithstanding that the cause of loss or damage may be unexplained, shall not exceed the limits established in the applicable laws:
(i) for inland transportation within Italy, the limitation provided for in Article 1696 of the Italian Civil Code;
(ii) for domestic inland waterway transport the limitation provided for in Article 423 of the Italian Code of Navigation;
(iii) for international land transport the limitation provided in the CMR Convention;
(iv) for international maritime transport the limitation provided for in the Hague- Visby Rules;
(v) for air transport the limitation provided for in the Montreal Convention.
11.2 In respect of claims for delay, where not excluded by the provisions of these Conditions, Company’s liability shall be limited to the amount of the Company’s freight charges in respect of the Goods delayed.
11.3 In respect of all other claims the liability of the Company shall be limited to whichever is the least of
(i) the amount of the Company’s freight charges in respect of, or
(ii) 2,- SDR per gross kilogram of,
the Goods lost, damaged, misdirected, mis-delivered or in respect of which a claim arises.
11.4 The aforementioned limitations apply to all claims that are directed against Company, regardless of whether the claim arises in contract or tort or otherwise.
11.5 The aforementioned limitations have been contractually set, negotiated and agreed by the Parties to apply to all claims that are directed against the Company regardless of whether the Company acted as forwarding agent or carrier.
11.6 Every time that under these Condition or applicable law the Company is entitled to claim compensation against the Customer, said compensation shall be calculated by reference to 5% of the ex-works invoice value of the Goods, plus Carriage charges and insurance, if paid. If there is no invoice value for the Goods, the compensation shall be calculated by reference to the value of such Goods at the place and time when they are delivered to the Customer or should have been so delivered. The value of the Goods shall be fixed according to the current market price, or, if there is no commodity exchange price or current market price, by reference to the normal value of goods of the same kind and quality. The Company is always entitled to a higher Compensation, in which case relevant amount shall be proven by the Company.
12. Notice of Loss, Time Bar
12.1 The Company shall be discharged of all liability unless:
(i) notice of any claim is received in writing by the Company or its agent within 24 hours (in case of maritime or road claims ) or 10 days (air claims) after the date specified in 12.2 below, except where the Customer can show that it was impossible to comply with this time limit and that the claim has been made as soon as it was reasonably possible so to do, and
(ii) suit is brought in the proper forum and written notice thereof received by the Company within 1 year for maritime claims and road transportation and two years for air claims after the date specified in 12.2 below.
12.2 Applicable dates for the purposes of this Clause 12 are the following:
(i) in the case of loss or damage to Goods, the date of delivery of the Goods.
(ii) In the case of delay or non-delivery of the Goods, the date that the Goods should have been delivered.
(iii) In any other case, the event giving rise to the claim.
Otherwise any claim shall be deemed to be waived and absolutely barred.
13. General Average
13.1 The Customer shall defend, indemnify and hold harmless the Company in respect of any claims for General Average contribution that may be made on the Company, irrespective of whether the carriage charges are pre-paid or not. The Customer shall provide such security as may be required by the Company for General Average contributions promptly and in a form acceptable to the Company.
14.1 Any notice served by post shall be deemed to have to be given on the third day following the day on which it was posted to the address of the recipient of such notice last known to the Company.
14.2 The defenses and limits of liability provided for by these Conditions shall apply in any action against the Company whether such action be founded in contract or tort.
14.3 If any legislation is compulsorily applicable to any business undertaken, these Conditions shall, as regards such business, be read as subject to such legislation and nothing in these Conditions shall be construed as a surrender by the Company of any of its rights or immunities or as an increase of any of its responsibilities or liabilities under such legislation and if any part of these Conditions be repugnant to such legislation to any extent such part shall as regards such business be over-ridden to that extent and no further.
14.4 Headings of clauses or groups of clauses in these Conditions are for indicative purposes only.
14.5 Should any clause, or part of a clause, be found to be void or unenforceable, the remainder of that clause or section of the Conditions shall remain unaffected.
15. Jurisdiction and Governing Law
15.1 These conditions and any act or contract to which they apply shall be governed by Italian law and any dispute against the Company arising out of or in connection with any act or contract to which these Conditions apply shall be resolved by the Courts of Italy in accordance with Italian Law, being the exclusive competent court the Court of Genova, whilst any action by the Company against the Customer may be brought before the said Jurisdiction and/or Court or any other competent Jurisdiction and/or Court at the Company’s option.
PART II: COMPANY AS FORWARDING AGENT
16. Special Liability and Indemnity Conditions
16.1 To the extent that the Company acts as a forwarding agent, the Company does not make or purport to make any contract with the Customer for the carriage, storage or handling of the Goods nor for any other physical service in relation to them and acts solely on behalf of the Customer in securing such services by establishing contracts with third parties in the name and on behalf of the Customer so that direct contractual relationship are established between the Customer and such third parties.
16.2 The Company shall not be liable for the acts and omissions of such third parties referred to in sub-clause 16.1 above.
17.1 The Company, when acting as a forwarding agent has the authority of the Customer to enter into contracts in the Customer’s name and on the Customer’s behalf and to do such acts so as to bind the Customer by such contracts and acts in all respects notwithstanding any departure from the Customer’s instructions.
17.2 Except to the extent caused by the Company’s negligence, the Customer shall defend, indemnify and hold harmless the Company in respect of all liability, loss, damage, costs or expenses arising out of any contracts made in the procurement of the Customer’s.
PART III: COMPANY AS CARRIER
18. Special Liability Conditions
18.1 Where the Company is held to be a carrier, the Company shall be entitled to all the rights, immunities, exceptions and limitations conferred on the carrier by any applicable law or legislation.
18.2 Notwithstanding other provisions in these Conditions, if it can be proved that the loss of or damage to the Goods occurred at sea or inland waterway and the provisions of clause 18.2 do not apply, the Company’s liability shall be determined by the Hague Visby Rules. Reference in the Hague Visby Rules to carriage by sea shall be deemed to include reference to carriage by inland waterways and the Hague Visby Rules shall be construed accordingly.
18.3 Notwithstanding the provisions of clause 18.2, if the loss of or damage to the Goods occurred at sea or on inland waterways, and the owner, Charterer or operator of the vessel establishes a limitation fund, the liability of the Company shall be limited to the proportion of the said limitation fund allocated to the Goods.
19. Air Carriage
19.1 If the Company acts as a carrier in respect of a carriage of Goods by air, If the carriage involves an ultimate destination or stop in a country other than the country of departure, the Montreal Convention may be applicable and the Convention governs and in most cases limits the liability of carriers in respect of loss of or damage to cargo. Agreed stopping places are those places (other than the places of departure and destination) shown under requested routing and/or those places shown in carriers’ timetables as scheduled stopping places for the route. The address of the first carrier is the airport of departure.
20. Both to Blame Collision Clause
20.1 The current Both-to-Blame Collision Clause as adopted by BIMCO is incorporated in these conditions
(a) in respect of all claims other than those subject to the provisions of sub-clause 20.1.(b) below, whichever is the least of the value of, or 2 Special Drawing Rights (SDR’s) per gross kilogram of, the Goods lost, damaged, misdirected, mis-delivered or in respect of which a claim arises. The SDR shall be as defined by the International Monetary Fund and the value of a SDR shall be calculated as at the date when settlement is agreed or judgement.
(b) in respect of claims for delay, where not excluded by the provisions of these Conditions, the amount of the Company’s charges in respect of the Goods delayed.