General Conditions MSC (Nederland)
General Conditions on Agency and Forwarding
Mediterranean Shipping Company (Nederland) B.V.
Deposited with the Registry of the District Court Rotterdam on 1st September 2003 under no140/2003
| 1. Definitions | |
| Bill of Lading: | includes (merely for the purpose of these General Conditions) a Bill of Lading consigned in name, to order or to bearer, or any other document issued in relation to the contract of carriage involved (e.g. non-negotiable waybill, express release); |
| Carrier: | means the party that signed or on whose behalf the Bill of Lading has been signed; |
| Container: | includes any container, trailer, transportable tank, flat or pallet, or any similar article used to consolidate goods and any ancillary equipment; |
| Combined Transport: | arises if the Carrier under the Bill of Lading has agreed to carry the Goods from a Place of Receipt of the Goods (to be designated in the Bill of Lading) to the Port of Loading and/or from the Port of Loading to a Place of Delivery (to be designated in the Bill of Lading); |
| Conditions of Carriage: | the conditions printed on the Bill of Lading, issued or to be issued by the Line; |
| General Conditions: | the General Conditions of MSCNL deposited with the Registry of the District Court Rotterdam on 1st September 2003 under no 140/2003; |
| Goods: | means the whole or any part of the cargo received from the Shipper and includes the packing and any equipment or Container not supplied by or on behalf of the Carrier; |
| Line: | means the Carrier designated in the Bill of Lading; |
| Merchant: | includes any Person who at any time has been or becomes the party with whom any contract of carriage is concluded, the Shipper, Holder of the Bill of Lading, Consignee, Receiver of the Goods, any Person who owns or is entitled to the possession of the Goods or of the Bill of Lading and any Person acting on behalf of any such Person; |
| MSCNL: | Mediterranean Shipping Company (Nederland) B.V. |
| Person: | includes an individual, group, company or other entity; |
| Place of Delivery: | means any place at which the Carrier in case of Combined Transport delivers the Goods, if a Place of Delivery has been filled out on the Bill of Lading; |
| Place of Receipt: | means any place at which the Carrier in case of Combined Transport receives the Goods, if a Place of Receipt has been filled out on the Bill of Lading; |
| Port of Loading: | means any port at which the Goods are loaded on board any vessel as mentioned in the Bill of Lading; |
| Port of Discharge: | means any port at which the Goods are discharged from any vessel after Carriage under the Bill of Lading; |
| Port to port Transport: | arises if Carriage is not Combined Transport; |
2. Applicability | |
| 2.1 | These General Conditions on Agency and Forwarding and the Conditions stipulated in article 4 of these General Conditions apply – depending on the nature of the services rendered – on all contracts concluded with the Line through MSCNL as agents, and contracts concluded between the Merchant and MSCNL. Where mention of these General Conditions is made in the above or the following, the Conditions stipulated in article 4 hereof shall always be included therein. |
| 2.2 | In case of any inconsistency between these General Conditions on Agency and Forwarding and the Bill of Lading, the Bill of Lading shall prevail. |
| 2.3 | In Case of any inconsistency between these General Conditions on Agency and Forwarding and the Conditions stipulated in article 4 hereof, these General Conditions shall prevail. |
| 2.4 | These General Conditions shall be deemed to form part of all contracts between the Merchant and MSCNL. Orders and instructions of the Merchant shall be considered his acknowledgement and acceptance of these General Conditions. |
| 2.5 | General Conditions declared by the Merchant will not be applicable and shall in any way be superseded by these General Conditions. Deviations from these General Conditions and in particular general conditions of the Merchant shall only apply if this has been explicitly agreed in writing. |
3. Nature of Services Rendered by MSCNL | |
| 3.1 | Whether expressly stipulated in letters, quotations, booking confirmations, arrival notices, invoices etc. or not, MSCNL - in relation to Contracts of Carriage evidenced by a Bill of Lading issued or to be issued - shall always act as agents to the Line only, in the performance by the Line of its obligations under the Bill of Lading, these Contracts of Carriage being concluded between the Merchant and the Line, MSCNL not being the Carrier. |
| 3.2 | In arranging for carriage of the Goods from the Port of Loading stipulated or to be stipulated in the Bill of Lading to the actual place where the Goods shall be loaded on board of the ocean-going vessel, or in arranging for carriage of the Goods from the port where the Goods shall be discharged from the ocean-going vessel to the Port of Discharge stipulated in the Bill of Lading, MSCNL shall always also act as agents to the Line only, in the performance by the Line of its obligations under the Bill of Lading. |
| 3.3 | If the Contract of Carriage evidenced by a Bill of Lading issued or to be issued is for Combined Transport, MSCNL in arranging transport from the Place of Receipt to the Port of Loading, and/or from the Port of Discharge to the Place of Delivery, does so as agent to the Line only, in the performance by the Line of its obligations under the Bill of Lading. |
| 3.4 | In the performance of services rendered by MSCNL under the instruction of the Merchant and not as agents to the Line in the performance by the Line of its obligations under the Bill of Lading as defined in article 3.1-3.3, MSCNL will at all times act as forwarding agent to the Merchant only. |
| 3.5 | Without prejudice to the generality of article 3.4, in the performance of services rendered by MSCNL under the instruction of the Merchant in relation to issuance of custom documents for Goods carried or to be carried by the Line or otherwise, or in arranging for custom clearance of Goods carried or to be carried by the Line or otherwise, MSCNL will at all times act as forwarding agent to the Merchant only. |
| 3.6 | Without prejudice to the generality of article 3.3, in the performance of services rendered by MSCNL in making arrangements to have the Goods picked up at the Merchant premises (being his own or those of any third party as per Merchant’s instructions) and to bring the Goods into the custody of the Line, or, as the case may be, in making arrangements to have the Goods conveyed from the place were the Contract of Carriage evidenced by the Bill of Lading ends to the drop off place as per Merchants’ instructions, MSCNL will at all times act as forwarding agent to the Merchant only, irrespective of the wording of instructions provided by the Merchant. Notwithstanding instructions provided by the Merchant include the term "carrier haulage" or "merchant haulage" or "carrier inspired merchant haulage", MSCNL will remain acting as forwarding agent to the Merchant only in the performance of services rendered. |
| 3.7 | In the performance of services by MSCNL in storing of Goods, pursuant to instructions received by the Merchant and not being storage of Goods in the Port of Loading awaiting shipment under Bill of Lading or awaiting delivery at the Port of Discharge under Bill of Lading, MSCNL will act storage keeper as defined in article 7:600-609 Civil Code of the Netherlands. |
4. Conditions applicable on the services rendered by MSCNL | |
| 4.1 |
In performing services as agents to the Line as defined in article 3.1-3.3 of these General Conditions MSCNL shall under no circumstance be under any liability to the Merchant for any loss or damage or delay of whatsoever kind arising or resulting directly or indirectly from any act, neglect or default on the part of MSCNL while acting in the course of, or in connection with the employment of MSCNL as agents to the Line, and without prejudice to the generality of the foregoing provisions every exception, limitation, condition and liberty contained in the Conditions of Carriage and every right, exception from liability, defense and immunity of whatever nature applicable to the Line or to which the Line is entitled under the Conditions of Carriage shall also be available and shall extend to protect MSCNL. |
| 4.2 |
The performance of services by MSCNL as forwarding agent to the Merchant as defined in article 3.4-3.6 of these General Conditions, is subject to the Dutch Forwarding Conditions of the Netherlands Association for Forwarding and Logistics (Fenex) as deposited with the Courts at Amsterdam, Arnhem, Breda and Rotterdam on 4th January 1999. If these conditions are revised, the revised Dutch Forwarding Conditions shall apply. |
| 4.3 | The performance of services by MSCNL as storage keeper as defined in article 3.7 of these General Conditions, is – save for mandatory rules in articles 7:600-609 Civil Code of the Netherlands – subject to the Dutch Storage Conditions of the Netherlands Association for Forwarding and Logistics (Fenex) as deposited with the Court at Rotterdam on 15th November 1995. If these conditions are revised, the revised Dutch Storage Conditions shall apply. |
| 4.4 | In performing services as forwarding agent or storage keeper to the Merchant, MSCNL is at liberty to have orders and/or the work connected therewith carried out by third parties or the servants of third parties at the choice of MSCNL. |
| 4.5 | When performing services as forwarding agent or storage keeper to the Merchant, MSCNL may at any time declare applicable provisions from the conditions stipulated by third parties with whom MSCNL has made contracts for the purpose of carrying out the orders given the MSCNL. |
5. Prices and quotations | |
| 5.1 | Quotations made by MSCNL are without obligation. All prices quoted and agreed shall be based on the rates and exchanges rates at the time of quotation. In case of any change in the rates applicable to the service quoted or agreed, MSCNL is entitled to likewise alter the rates quoted or agreed retroactively to the time such change occurred. |
| 5.2 | Quotations of MSCNL in respect of services meant in article 3.4-3-6 are deemed to include forwarding fees. In respect of services meant in article 3.4-3-7, lumpsum or fixed quotations or prices shall, unless expressly agreed otherwise, always be exclusive of any duties, taxes, levies, consular and attestations fees, or costs in relation to security or insurance premiums. |
6. Liability and indemnity | |
| 6.1 | In respect of damages of whatever nature claimed by the Merchant, MSCNL shall not be liable, unless the Merchant proves that these damages were caused by the willful misconduct or gross negligence of MSCNL itself. |
| 6.2. | In respect of services rendered by MSCNL as forwarding agent to the Merchant, liability of MSCNL shall in all cases be limited to SDR 7,000 per occurrence or series of occurrence with one and the same cause damage, on the understanding that in the event of damaging, loss of value or loss of the Goods, the liability shall be limited to SDR 4 per kilogram damaged or lost gross weight, the maximum being SDR 2,000 per consignment. |
| 6.3 | In respect of services rendered by MSCNL as storage keeper to the Merchant liability of MSCNL shall in all cases be limited to SDR 2 per kilogram of the gross weight of Goods damaged or lost with a maximum of SDR 100,000 per occurrence or series of occurrence with one and the same cause. |
| 6.4 | The damages to be indemnified by MSCNL shall never exceed the invoice value of the Goods, to be proved by the Merchant, in default whereof the market value – to be proved by the Merchant – at the time when the damage has occurred shall apply. MSCNL shall not be liable under any circumstance for loss of profit, consequential loss, duties or fines imposed by any authority or pain and suffering. |
| 6.5 | MSCNL stipulates for the benefit of its employees and servants that every exception, limitation, condition and liberty herein contained and every right, exception from liability, defense and immunity of whatever nature applicable to MSCNL or to which MSCNL is entitled hereunder, shall also be available and shall extend to protect every such servant or employee and for the purpose of the foregoing provisions of this clause MSCNL is or shall be deemed to be acting as agent or trustee on behalf of and for the benefit of all Persons who might be its servant or employee. |
| 6.6 | In so far as third parties referred to in article 4.4 of these General Conditions bear statutory liability towards the Merchant, it is stipulated on their behalf that in doing the work for which MSCNL employs them they shall be regarded as solely under the employment of MSCNL. All the provisions (inter alia) regarding liability and limitation of liability and also regarding indemnification of MSCNL as described herein shall apply to such third parties. |
7. Collection of Freight and Charges | |
| With respect to freight and charges indebted by the Merchant to the Line pursuant to the Contract of Carriage between the Merchant and the Line, MSCNL is empowered by the Line to collect payment of same from the Merchant, in the own name of MSCNL but for the account of the Line. | |
8. Payment | |
| 8.1 | The Merchant shall pay to MSCNL in cash freights, duties and remunerations according to and in the currency mentioned on the invoice issued by MSCNL, the risk of fluctuations in the exchange rate between the invoice amount currency and the payment currency being for account of the Merchant, within the deadline stipulated on the invoice. If the invoice does not make reference to a deadline for payment, the invoice is due and payable immediately from the invoice date. |
| 8.2 |
The Merchant shall at all times by obliged to indemnify MSCNL for any amounts to be levied or additionally demanded by any authority in connection with the order, as well as any related fines imposed upon MSCNL, and any sums indebted by the Merchant in the strength of this article to MSCNL shall be due and payable to MSCNL upon receipt by MSCNL of the notice for payment from the authorities, or the date of payment of such amounts or fines as the case may be. The same applies if a third party called in by MSCNL demands payment from MSCNL of such amounts or fines. |
| 8.3 | The Merchant shall not be entitled to apply any set-off in respect of sums charged by MSCNL to the Merchant under any contract existing or having existed between parties. |
| 8.4 | In case the Merchant fails to arrange payment of any invoice within the deadline mentioned on the invoice, or in absence of such deadline, the deadline mentioned in article 6.1 of these General Conditions (late-payment), MSCNL is entitled to charge interest on the strength of EU Regulation 2000/35. This article supersedes article 17 section 3 of the Dutch Forwarding Conditions and article 27 section 3 Dutch Storage Conditions. |
| 8.5 | The Merchant shall upon demand by MSCNL furnish security for any amount for which the Merchant is or may by indebted to MSCNL. |
9. Lien | |
| MSCNL shall have a lien on the Goods and any documents relating thereto or otherwise in the hands of MSCNL, for all sums payable to MSCNL. MSCNL shall also have a lien against the Merchant on the Goods and any documents for all sums due from him to MSCNL under any other or previous contract. MSCNL may exercise its lien at any time and at any place at its sole discretion, whether the services contracted have been completed or not. In any event the lien shall extend to cover the cost of recovering any sums due, and for that purpose MSCNL shall have the right to sell the Goods by public auction or private treaty, without notice to the Merchant, at any place at the discretion of MSCNL. If on sale of the Goods the proceeds fail to cover the amount due and costs of recovering same incurred, MSCNL shall be entitled to recover the difference from the Merchant. | |
10. Applicable law | |
| 10.1 | Any contract concluded between the Merchant and MSCNL (the latter acting not as agent to the Line) shall be governed and construed by the Law of the Netherlands. |
| 10.2 | Without prejudice to the foregoing, English Law shall apply on the Bill of Lading issued or to be issued by the Line, unless some other law is compulsorily applicable. In case of Goods carried under Bill of Lading to or from the United States of America, the law of the United States of America shall apply. |
11. Disputes | |
| 11.1 | All disputes that may arise between MSCNL and the Merchant shall be decided in arbitration to the exclusion of the ordinary court of law. A dispute shall exist whenever any of the parties declares this to be so. The arbitration rules of the Netherlands Association for Forwarding and Logistics (article 23 Dutch Forwarding Conditions) shall apply. |
| 11.2 | Without prejudice to the foregoing MSCNL shall be at liberty to bring before the court claims for sums of money due payable, the indebtedness of which has not been disputed in writing by the Merchant within four weeks after the invoice date. |
| 11.3 | Without prejudice to the foregoing, claims between the Line and the Merchant arising under or in connection with the Bill of Lading, shall be referred to the jurisdiction of the High Court of London, United Kingdom in accordance with the jurisdiction clause incorporated in the terms of carriage of the Line, to the exclusion of any other jurisdiction, save as stipulated in article 10.4.. |
| 11.4 |
In respect of any sums due by the Merchant to the Line pursuant to the Bill of Lading, to be collected by MSCNL acting as stipulated in article 7 of these Conditions, the court of the Port of Loading and the court at the Port of Discharge and/or at the place of final destination shall have jurisdiction in addition to the Court stipulated in article 10.3. |
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