Standard Trading Conditions/ Standard Conditions of Supplies and Services by CFR Line NZ Ltd (CFR Line) to Business Customers
1. (i) In these conditions:-
"Company" shall mean CFR Line NZ Ltd, its servants, agents and subcontractors.
"Customer" shall mean the shipper, consignee or bailor of the goods or the person for whom any other services are performed by the Company in connection with the Goods.
"Goods" shall mean the chattels, articles and things tendered for carriage or bailment or other services by the Customer and shall include the container or containers or other packaging containing the same and any pallet or pallets delivered with the same to the Company.
"Dangerous goods" shall mean such of the Goods as shall be in fact or at law noxious, dangerous, hazardous, explosive, radioactive, inflammable or capable by their nature of causing damage or injury to other goods or to any persons or animals or to anything in which those goods are carried or stored.
"These Conditions" means the Standard Trading Conditions/Standard Conditions of Supplies and Services by CFR Line to Business Customers herein set out.
(ii) All and any business undertaken, including any advice, information of service provided whether gratuitously or not by the Company is transacted subject to the Conditions hereinafter set out and each Condition shall be deemed to be incorporated in and to be a Condition of any agreement between the Company and its Customers. The Company is not a common carrier and only deals with goods subject to these Conditions. No agent or employee of the Company has the Company's authority to alter or vary these Conditions.
(iii) These Conditions shall apply to all "business customer services", that is all contracts involving the supply of services by the Company to a Customer for the purposes of a business. Orders must be in writing (and telephone orders confirmed in writing) and orders must be signed by an authorised signatory of the Customer.
When the/any Customer places an order with the Company it is an acknowledgment that the Customer is acquiring services from the Company for business purposes and not as a consumer;
i.e. the Customer acknowledges/confirms that:
a) It requests the Company to supply services according to these Conditions;
b) Acknowledges that it has held out to the Company that it is acquiring from
the Company for the purposes of a business;
c) Acknowledges that it has also held out to the Company, that unless it gives
the Company written notice to the contrary, any acquisitions of services it
makes from the Company (under any local order, contract, agreement or
otherwise) are for the purpose of consuming the freight forwarding service in
the course of a process of supply, production or manufacture;
d) Accordingly acknowledges that the Consumer Guarantees Act 1993 does
not apply to the supply of services.
(iv) 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 or an attempt to exclude or limit any of its responsibilities or liabilities under such legislation and if any part of these Conditions is repugnant to such legislation to any extent, such part shall as regards such business be void to that extent but no further.
2. Customers entering into transactions of any kind with the Company expressly warrant that they are either the owners or the authorised agents of the owners of any Goods to which the transaction relates and further warrant that they are authorised to accept and are accepting these Conditions not only for themselves but also as agents for and on behalf of all other persons who are or may thereafter become interested in the Goods.
3. Any instructions or business accepted by the Company may in the absolute discretion of the Company be fulfilled by the Company itself, by its own servants performing part or all of the relevant services or by the Company employing or instructing or entrusting the Goods to carriers on such conditions as such carriers may stipulate to perform part or all of the services. Where the Company employs or instructs or entrusts the Goods to carriers these Conditions shall apply together with the carrier's conditions including airway bills or bills of lading and in the event of any inconsistency between these Conditions and the carrier conditions or airway bills or bills of lading these Conditions shall apply and take precedence.
4. Subject to express instructions in writing given by the Customer, the Company reserves to itself absolute discretion as to the means, route and procedure to be followed in the handling, storage, and transportation of Goods. Further, if in the opinion of the Company it is at any stage necessary or desirable in the Customer's interests to depart from those instructions, the Company shall be at liberty to do so.
5. In transactions in which the Company is acting as Principals, the agreement between the parties is based upon the understanding that the modes of transport, the manner in which any contract of carriage is entered into by the Company, or any statements relating to the capacity of the Company in any bill of lading or other transport document shall not affect the role of the Company as Principals in their relationship to the Customer.
6. Pending forwarding or delivery, Goods may be warehoused or otherwise held at any place or places at the sole discretion of the Company and the cost thereof shall be for the account of the Customer.
7. Except where the Company is instructed in writing to pack the Goods the Customer warrants that all Goods have been properly and sufficiently packed and/or prepared.
8. The Company is entitled to retain and be paid all brokerages, commissions, allowances and other remuneration's.
9. Quotations are given without engagement and are subject to withdrawals or revisions. Further unless otherwise agreed in writing the Company shall after acceptance, be at liberty to revise quotations or charges with or without notice in the event of any changes occurring in currency exchange rates, rates of freight, insurance premiums or any charges applicable to the Goods, irrespective of whether the Company has acted in a particular transaction as Principals or Agents.
10. The Customer shall be deemed to be bound by and to warrant the accuracy of all descriptions values and other particulars furnished to the Company for Customs, Consular and other purposes and the Customer undertakes to indemnify the Company against all losses, damages, expenses and fines whatsoever arising from any inaccuracy or omission, even if such inaccuracy or omission is not due to any negligence.
11. The Customer shall be liable for any duties, taxes, imposts, levies, deposits or outlays of any kind levied by the authorities at any port or place for or in connection with the Goods and for any payments, fines, expenses, loss or damage whatsoever incurred or sustained by the Company in connection therein and including without limitation to the foregoing, port authority demurrage charges, shipping company container detention charges, airline storage charges.
12. When Goods are accepted or dealt with upon instructions to collect freight, duties, charges or other expenses from the consignee or any other person the Customer shall remain responsible for the same if they are not paid by such consignee or other person immediately when due.
13. No insurance will be effected except upon express instructions given in writing by the Customer and all insurances effected by the Company are subject to the usual exceptions and conditions of the policies of the insurance company or underwriters taking the risk. 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. Should the insurers dispute their liability for any reason the insured shall have recourse against the insurers only and the Company shall not be under any responsibilities or liability whatsoever in relation thereto 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 Customer.
14. The Company shall be entitled to sell or dispose of all Goods which in the opinion of the Company cannot be delivered either because they are insufficiently or incorrectly addressed or because they are not collected or accepted by the Consignee or any other reason, upon giving 21 days notice in writing to the Customer. All charges and expenses arising in connection with the storage and sale or disposal of the Goods shall be paid by the Customer.
15. Except under special arrangements previously made in writing the Company will not accept or deal with any Dangerous goods or any Goods likely to cause damage. Should any Customer nevertheless deliver any Dangerous Goods to the Company or cause the Company to handle or deal with any Dangerous Goods otherwise than under special arrangements previously made in writing, the Customer shall be liable for all loss or damage whatsoever caused by or to or in connection with the Dangerous Goods however arising and shall indemnify the Company against all penalties, claims, damages, costs and expenses whatsoever arising in connection therewith and the Dangerous Goods may 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. If such Dangerous Goods are accepted under arrangement previously made in writing, they may nevertheless be so destroyed or otherwise dealt with on account of risk to other goods, property, life or health. The expression "goods likely to cause damage" includes goods likely to harbour or encourage vermin or other pests.
16. Except under special arrangements previously made in writing the Company will not accept or deal with bullion, coins, precious stones, jewellry, valuables, antiques, pictures, livestock or perishable cargo. Should any Customer handle or deal with any such Goods, otherwise than under special arrangements previously made in writing the Company shall be under no liability whatsoever for or in connection with the Goods however caused.
17. Perishable Goods. Where perishable Goods are accepted by the Company under special arrangements made in writing, the Company will take every measure to ensure that the Goods are handled in the manner as specified by the Customer; however, the Company shall only be responsible for any loss or damage according to the conditions as per Clause 18 following.
18. (i) The company shall only be responsible for any loss of or damage to Goods or for any non-delivery or mis-delivery if it is proved that the loss, damage non-delivery or mis-delivery occurred whilst the goods were in the actual custody of the Company and under its actual control and that such loss damage non-delivery or mis-delivery was due to the wilful neglect or default of the Company or its own servants;
(ii) The Company shall only be liable for any non-compliance or mis-compliance with instructions given to it if it is proved that the same was caused by the wilful neglect or default of the Company or its own servants;
(iii) Same as aforesaid the Company shall be under no liability whatsoever however arising and whether in respect of or in connection with any Goods or any instructions, business, advice, information or service otherwise;
(iv) Further and without prejudice to the generality of the preceding sub-condition, the Company shall not in any event, whether under sub conditions (i) and (ii) or otherwise, be under any liability whatsoever for any consequential loss or loss of market or fire or consequence of fire or delay or deviation however caused, including without limitation to the foregoing: strikes, lock-outs, disputes, power failures, acts of God or any other cause.
19. If the Customer is proven at law to have a valid claim for loss or damages against the Company (it being the intention that no such loss or damages may be recovered), liability of the Company shall in no case exceed:
(1) The invoice value of the Goods lost, destroyed or damaged (plus freight
charges and insurance if paid); or
(2) (a) Where the Goods are carried by airfreight, USD 10.00 per Kilogram of
Goods lost, destroyed or damaged; or,
(b) Where the Goods are carried by seafreight, USD 1.00 per Kilogram of
Goods lost, destroyed or damaged; or,
(c) Where the Goods have been carried by a combination of both airfreight and seafreight Goods, USD 1.00 per Kilogram of Goods lost, destroyed or damaged;
whichever is less provided that where local carriage within New Zealand is concerned, and such carriage either pre-carriage for export consignments or carriage following the importation of Goods, is not covered under the relevant origin and destination of the relevant airway bills or bill of lading, liability for loss or damage incurred during the local New Zealand carriage shall be "at limited carrier's risk" as that term is defined in the Carriage of Goods Act, 1979, i.e. the sum of NZ$ 1,500.00 per unit of Goods, each unit of Goods as defined in the Carriage of Goods Act, 1979.
The Company will not be liable in any event, for any consequential or special damages or other indirect loss (however arising, and whether or not the Company had knowledge that such damages might be incurred) including but not limited to loss of income, profits, interests, utility or loss or market.
20. In respect of claims for Goods lost, destroyed or damaged:
(a) The Company is not liable for and does not have to accept any claim by the
Customer unless the claim is in writing and received by the Company;
(i) In the case of damaged or destroyed Goods, within 3 days of delivery;
(ii) In the case of airfreight Goods that are lost, within 21 days of the date
of issuing the airway bill; and
(iii) In the case of seafreight Goods that are lost, within 21 days of the
original estimated time of arrival of those Goods.
(b) In the case of destroyed or damaged Goods, the Customer must make the
damaged or destroyed Goods available for inspection by the Company, its
agents, representatives or the carrier of those Goods at all reasonable times.
(c) Notwithstanding that a written notification of a claim may have been made
by the Customer to the Company within the time period referred in clause
20(a) the Company shall not be liable in respect of any such claim unless
within 9 months after delivery of the Goods, or in the case of lost airfreight
Goods, within 9 months of the issue of the airway bill, or in the case of lost
seafreight Goods, within 9 monhts of the original estimated time of arrival of the Goods, the Company receives from the Customer a formal written value claim complete with such supporting documentation as the
Company deems necessary, or within those 9 month periods an action is
brought and notice thereof is given to the Company.
(d) Nothing in these conditions shall exclude or restrict any rights or remedies
the Customer may have under the Fair Trading Act, 1986.
21. The Company is not obliged to advise or assist the Customer or any other party in respect of claims or the preparation of claims against carriers. Whether or not it does provide such advice and/or assistance, the Company will not be liable for any loss or damage resulting there-from, howsoever caused. If the Company provides such advice and/or assistance it may make an additional charge for doing so.
22. Without prejudice to Condition 2 the Company shall have the right to enforce any liability of the Customer under these Conditions or to recover any sums to be paid by the Customer under these Conditions not only against or from the Customer but also if it thinks fit against or from the sender and/or consignee and/or owner of the Goods. All sums shall be paid to the Company in cash immediately when due without deduction and payment shall not be withheld or deferred on account of any claim, counterclaim or set-off.
23. All Goods (and documents relating to Goods) shall be subject to a particular and general lien and right of detention for monies due either in respect of such Goods, or for any particular or general balance of other monies due from the Customer or the Sender, consignee or owner to the Company. If any monies due to the Company are not paid within one calendar month after notice has been given to the person from whom the monies are due that such Goods are being detained, they may be sold by auction or otherwise at the sole discretion of the Company and at the expenses of such persons, and the net proceeds applied in or towards satisfaction of such indebtedness.
24. The Customer acknowledges that any payment made to the Company is comprised of two parts.
a) The first is a fee paid to the Company as payment and operating margin on services provided.
b)The second is a payment for disbursements paid out by the Company to various external parties for costs accrued for the Customer's cargoes. These costs may include but are not limited to those from New Zealand Government (Excise Taxes, Import Duties, Goods and Services Tax (GST), Levies, Penalties, Customs and Ministry of Primary Industries (MPI) Inspection Costs), Overseas agents, Shipping Lines, Ports, Trucking companies, Warehouses, Landlords, 3PL providers. These parties being in-house or third party providers. The Company accepts no liability for the aforementioned costs and payments in b) and the Customer is solely responsible for guaranteeing the settlement of those costs.
25. In addition to and without prejudice to the foregoing Conditions the Customer undertakes that he shall in any event indemnify the Company against all liabilities whatsoever suffered or incurred by the Company arising directly from or in connection with the Customer's instructions or their implementation of the Goods, and in particular the Customer shall indemnify the Company in respect of any liability whatsoever it may be under to any servant, agent or subcontractor or any hauler, carrier, warehouses, or other person whatsoever at any time involved with the Goods arising out of any claim made directly or indirectly against any such party by the Customer or by any sender, consignee or owner of the Goods or by any person interested in the Goods or by any other person whatsoever.
26. Where the transaction is carried out by the Company as Principals, the provisions of all Conditions as aforesaid, including those relating to the incidence of liability and maximum limits of liability shall apply unless cogent statutory provisions otherwise provide. This Clause applies to any claims against the Company, founded on whatsoever legal cause.
27. All agreements between the Company and its Customers are governed by New Zealand law and shall be within the exclusive jurisdiction of the New Zealand courts.