BOL Terms & Conditions
1. DEFINITIONS
“Cargo” means the whole or any part of the cargo and any packaging received by Ellerman from the Merchant and any equipment or Container not supplied by or on behalf of Ellerman (but excludes any Container supplied by or on behalf of Ellerman).
“Carriage” means the whole or any part of the transport, the loading, transport, unloading, storage, warehousing and handling of the Cargo and any other operations and services of whatsoever nature undertaken by or performed by or on behalf of Ellerman in relation to the Cargo covered by this bill of lading and related documentary, customs and IT processes.
“Charges” includes all the charges, demurrage, detention costs and all expenses and monetary obligations, including but not limited to duties, taxes and dues, incurred by Ellerman and payable by the Merchant.
“Consolidation” includes stuffing, packing, loading or securing of Cargo on or within Containers and Consolidate shall be construed accordingly.
“Container” includes any container (including but not limited to open top containers), trailer, transportable tank, platform, lift van, flat, pallet or any similar article of transport used to Consolidate Cargo and any ancillary equipment.
“Ellerman” means Ellerman City Liners Ltd (registration number 13433172) of Upminster Court, 133 Hall Lane, Upminster, Essex, England, RM14 1AL, trading as Ellerman.
“Ellerman Agents” include but are not limited to the Ellerman Group company which arranged the Carriage and/or issued this bill of lading and the Ellerman Group company in the country where the Cargo are discharged and/or delivered.
“Ellerman Group” means Ellerman and every other company which from time to time is or becomes a subsidiary or holding company of Ellerman, or a subsidiary of any such holding company or the ultimate holding company of Ellerman (and the terms “subsidiary” and “holding company” shall have the meanings given to them by Section 1159 Companies Act 2006).
“Hague Rules” means the provisions of the International Convention for Unification of certain Rules relating to bills of lading signed at Brussels on 25th August 1924.
“Hague-Visby Rules” means the Hague Rules as amended by the Protocol signed at Brussels on 23rd February 1968. (It is expressly provided that nothing in this bill of lading shall be construed as contractually applying the Hague-Visby Rules).
“Holder” means any Person for the time being in lawful possession of, or lawfully entitled to possession of, this bill of lading or in whom rights of suit and/or liability under this bill of lading have been lawfully vested or transferred.
“Liability” means all costs, claims, expenses (including legal fees and costs), losses, liabilities, orders, awards, proceedings and judgments, of whatever nature howsoever arising, , whether or not arising out or in connection with negligent or non-negligent acts or omissions of Ellerman, his servants, agents or Sub-Contractors.
“Merchant” includes the Owner, the Persons who tendered the Cargo to Ellerman, the Persons named in this bill of lading as Shipper, Consignee and Notify Party, the receiver of the Cargo and the Person entitled to receive the Cargo on notification by the Merchant, the Holder of this bill of lading, any Person owning or lawfully entitled to the possession of the Cargo or this bill of lading, the Person on whose account the Cargo are handed to Ellerman, any Person acting on behalf of any of the above mentioned Persons, including agents, servants and Sub-Contractors.
“Multimodal Transport” arises if an address (and not just the name of a port) is indicated as the Place of Receipt and/or a Place of Delivery on the front hereof in the relevant spaces.
“Owner” the person who owns the Cargo or who is entitled to possession of the Cargo and this bill of lading, and any person who is or may become interested in them.
“Package” where a Container is loaded with more than one package or unit, the packages or other shipping units enumerated on the face of this bill of lading as packed in such Container and entered in the box on the face hereof entitled “Total number of Containers or Packages received by Ellerman” are each deemed a Package.
“Person” includes an individual, corporation or other legal entity.
“Port to Port Transport” arises if it is not Multimodal Transport.
“Sub-Contractor” includes, but is not limited to owners, charterers and operators of Vessels (other than Ellerman), stevedores, terminal and/or groupage operators, road, rail and air transport operators, forwarding agents, liner agents, customs brokers, warehousemen, longshoremen, customs inspection stations, port authorities, pilots and any independent contractors, servants or agents employed by Ellerman in performance of the Carriage and any direct or indirect sub-contractors, servants or agents thereof, whether in direct contractual privity with Ellerman or not.
“Vessel” means any waterborne craft used in the Carriage under this bill of lading including but not limited to ocean vessels, feeder vessels and inland water vessels whether named in the bill of lading or substituted vessels.
2.PARTIAL INVALIDITY
Should any provision in this bill of lading (or any part thereof) be found by any court or other authority of competent jurisdiction to be invalid or unenforceable, that provision or part thereof shall, to the extent required, be deemed not to form part of this bill of lading and the validity of the remaining provisions shall not be affected thereby.
3.VARIATION OF THE BILL OF LADING
No variation to or waiver of any terms of this bill of lading shall be effective unless such waiver or variation is in writing and is specifically authorised or ratified in writing by a director or officer of Ellerman who has the actual authority of Ellerman to waive or vary.
4.NEGOTIABILITY AND TITLE TO THE CARGO
This bill of lading shall be non-negotiable unless made out “to order” in which event it shall be negotiable.
5.METHODS AND ROUTE OF TRANSPORTATION
5.1 Ellerman shall have full liberty at any time and without notice to the Merchant to:
5.1.1 use any means of transport or storage whatsoever;
5.1.2 load or carry the Cargo on any Vessel whether named on the front hereof or not;
5.1.3 transfer the Cargo from one conveyance to another including transhipping or carrying the same on a Vessel other than the Vessel named on the front hereof or by any other means of transport whatsoever and even though transhipment or forwarding of the Cargo may not have been contemplated or provided for herein;
5.1.4 at any place unpack and remove Cargo which have been stuffed in or on a Container and forward the same in any manner whatsoever;
5.1.5 proceed at any speed and by any route in his discretion (whether or not the nearest or most direct or customary or advertised route) and proceed to or stay at any place whatsoever once or more often and in any order;
5.1.6 load or unload the Cargo from any conveyance at any place (whether or not the place is a port named on the front hereof as the intended Port of Loading or intended Port of Discharge);
5.1.7 comply with any orders or recommendations given by any government or authority or any Person or body acting or purporting to act as or on behalf of such government or authority or having under the terms of the insurance on the conveyance employed by Ellerman the right to give orders or directions;
5.1.8 permit the Vessel to proceed with or without pilots, to tow or be towed or to be dry-docked with or without cargo onboard;
5.1.9 permit the Vessel to carry livestock, Cargo of all kinds, dangerous or otherwise, contraband, explosives, munitions or warlike stores and sail armed or unarmed.
5.2 The liberties set out in clause 1 above may be invoked by Ellerman for any purposes whatsoever whether or not connected with the Carriage of the Cargo, including but not limited to loading or unloading the Cargo, bunkering, undergoing repairs, adjusting instruments, towing or being towed, sailing with or without pilots, drydocking, picking up or landing any Persons, including but not limited to Persons involved with the operation or maintenance of the Vessel and assisting Vessels in all situations. Anything done in accordance with clause 5.1 above or any delay arising therefrom shall be deemed to be within the contractual Carriage and shall not be a deviation of whatsoever nature or degree.
6.INSPECTION OF CARGO
Ellerman or any Person authorised by Ellerman shall be entitled, but under no obligation, to open and/or scan any Container or package at any time and to inspect the contents.
If it appears at any time that the Cargo, or any part of them, cannot safely or properly be carried, or carried further, either at all or without incurring any additional expense or taking measures in relation to the Container or Cargo, Ellerman may without notice to the Merchant (but as his agent only) take any measures and/or incur any reasonable additional expense to carry or continue the Carriage thereof, and/or to sell or dispose of the Cargo and/or to abandon the Carriage and/or to store the Cargo ashore them afloat, under cover or in the open, at any place, whichever Ellerman in his absolute discretion considers most appropriate, which sale, disposal, abandonment or storage shall be deemed to constitute due delivery under this bill of lading. The Merchant shall indemnify and hold harmless Ellerman against any Liability so incurred.
Ellerman in exercising the liberties contained in this clause shall not be under any obligation to take any particular measures and shall not be liable for any loss, delay or damage howsoever arising from any action or lack of action under this clause.7
7 .CONTAINERS
7.1 Cargo may be Consolidated by Ellerman in or on Containers and Cargo may be Consolidated with Cargo owned by other Persons.
7.2 The terms of this bill of lading shall govern the responsibility of Ellerman in connection with or arising out of the supply of a Container to the Merchant, whether supplied before or after the Cargo are received by Ellerman or delivered to the Merchant.
7.3 If a Container has been Consolidated by or on behalf of the Merchant, Ellerman shall not be liable for loss of or damage to the Cargo:
7.3.1 caused by the manner in which the Container has been stuffed;
7.3.2 caused by the unsuitability of the Cargo for carriage in Container actually used;
7.3.3 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 Ellerman, this clause 3.3 shall only apply if the unsuitability or defective condition would have been apparent upon reasonable inspection by the Merchant at or prior to the time when the Container was stuffed;
7.3.4 if the Container is not sealed at the commencement of the Carriage except where Ellerman has agreed to seal the Container.
7.4 Where Ellerman is instructed to provide a Container, in the absence of a written request to the contrary accepted by Ellerman, Ellerman is not under an obligation to provide a Container of any particular type or quality.
7.5 Any Container released into the care of the Merchant for packing, unpacking or any other purpose whatsoever shall be at the sole risk of the Merchant until proper redelivery to Ellerman at the time and place prescribed by Ellerman. If the Merchant fails to deliver the Container at such prescribed time and place, the Merchant shall pay Ellerman the applicable demurrage or detention charges arising therefrom. The Merchant is responsible for returning the empty Container, with interiors brushed and clean, to the point or place designated by Ellerman, his servants or agents. The Merchant shall be liable for any charges, loss or any other expenses arising therefrom. The Merchant shall be responsible for any loss and/or damage to, and any liabilities caused or incurred by such Container whilst in its custody and/or control.
7.6 Cargo stowed in closed containers other than flats or pallets, whether by Ellerman or the Merchant, may be carried on deck, on an open lorry, on an open trailer, or an open railway wagon without notice to the Merchant. Such Cargo, whether or not so carried, shall participate in General Average and shall be deemed to be within the definition of Cargo for the purposes of the Hague Rules and Hague-Visby Rules.
7.7 The provisions of clause 3 also apply with respect to trailers, transportable tanks, flats and pallets which have not been filled, packed or stowed by Ellerman.
7.8 The Merchant shall indemnify and hold harmless Ellerman against any Liability arising from any breach of the provisions of this clause 7 or from any cause in connection with the Cargo or the Container for which Ellerman is not responsible.
8.MERCHANT’S WARRANTIES AND RESPONSIBILITIES
8.1 Every Person defined as Merchant is jointly and severally liable to Ellerman for all the Merchant’s undertakings, responsibilities and liabilities under or in connection with this bill of lading and to pay the Charges due under it without deduction or set-off.
8.2 The Merchant warrants that it is the Owner of the Cargo or the authorised agent of the Owner and that in accepting this bill of lading it is doing so for itself, but also for and on behalf of the Owner.
8.3 The Merchant confirms and agrees that in accepting this bill of lading EllermanAgents act as Ellerman’s agents only and that the Merchant has no claim against Ellerman Agents for any claims arising out of the Carriage.
8.4 The Merchant warrants to Ellerman that the description and particulars including, but not limited to, weight, content, measure, quantity, quality, condition, marks, numbers and value set out on the face of this bill of lading are full and accurate.
8.5 The Merchant shall comply with all applicable laws, regulations and requirements (including but not limited to any imposed at any time before or during the Carriage relating to anti-terrorism measures) of customs, port and other authorities and shall bear and pay all duties, taxes, fines, imposts, expenses and losses (including without prejudice to the generality of the foregoing, Charges for any additional Carriage undertaken) incurred or suffered by reason thereof or by reason of any illegal, incorrect or insufficient marking, numbering or addressing of the Cargo.
8.6 The Merchant warrants that the Cargo has been properly and sufficiently packed, stowed, labelled and/or marked, and that the manner in which the Cargo has been packed, stowed, labelled and/or marked is adequate to withstand the ordinary risks of Carriage having regard to their nature and in compliance with all laws, regulations and requirements which may be applicable.
8.7 The Merchant 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 Ellerman or Sub-Contractor (other than the Merchant) caused by the Merchant or any Person acting on his behalf or for which the Merchant is otherwise responsible.
8.8 The Merchant shall indemnify and hold harmless Ellerman against any Liability arising from any breach of the provisions of this clause 8 or from any cause in connection with the Cargo for which Ellerman is not responsible.
9.DANGEROUS CARGO
9.1 Except with Ellerman’s express prior consent in writing, no Cargo which is or may become dangerous (whether or not so listed in codes), inflammable, damaging, injurious (including radioactive materials), noxious or which is or may become liable to damage any property or Person whatsoever shall be tendered to Ellerman for Carriage. Where Ellerman expressly accepts in writing to deal with Cargo of a dangerous nature:
9.1.1 the Merchant shall promptly provide Ellerman with such information as is necessary for Ellerman to perform its obligation in connection with such Cargo in accordance with all applicable laws, regulation and/or requirements, including without limitation information about the nature of the Cargo, the appropriate manner and method of storage, handling and transportation; and
9.1.2 the Container and/or other covering in which the Cargo is to be transported and/or the Cargo itself must be distinctly marked on the outside so as to indicate the nature and character of any such Cargo and so as to comply with all applicable laws, regulations and/or requirements.
9.2 If the Merchant fails to provide such information and Ellerman is unaware of the dangerous nature of the Cargo and the necessary precautions to be taken and if, at any time, it is deemed to be a hazard to life or property, it may at any place be unloaded, destroyed or rendered harmless, as circumstances may require, without compensation, and the Merchant shall be liable for all loss, damage, delay or expenses arising out the Carriage, the destruction or rendering the Cargo harmless. The burden of proof that Ellerman knew the exact nature of the danger constituted by the carriage of the Cargo shall rest upon the Merchant.
9.3 The Merchant shall comply with rules which are mandatory according to the national law or by reason of international convention, relating to the carriage of Cargo of a dangerous nature. If any Cargo shipped with the knowledge of Ellerman as to their dangerous nature shall became a danger to the ship or cargo, it may in like manner be landed at any place or destroyed or rendered innocuous by Ellerman without liability on the part of Ellerman except to General Average, if any.
9.4 The Merchant shall indemnify and hold harmless Ellerman against any Liability arising from any breach of the provisions of this clause 9 or from any cause in connection with the Cargo for which Ellerman is not responsible.
10.TEMPERATURE CONTROLLED CARGO
10.1 The Merchant undertakes not to tender for Carriage any Cargo which requires temperature control without previously giving written notice (and filling in the box on the front of this bill of lading if this bill of lading has been prepared by the Merchant or a Person acting on his behalf) of its nature and particular temperature range to be maintained and in the case of a temperature controlled Container Consolidated by or on behalf of the Merchant further undertakes that the Container has been properly pre-cooled, that the Cargo has been properly Consolidated in the Container and that its thermostatic controls have been properly set by the Merchant before receipt of the Cargo by Ellerman.
10.2 If the above requirements are not complied with Ellerman shall not be liable for any loss of or damage to the Cargo caused by such non-compliance and the Merchant shall indemnify and hold harmless Ellerman for any resulting Liability Ellerman suffers.
10.3 Ellerman shall not be liable for any loss of or damage to the Cargo arising from defects, derangement, breakdown, stoppage of the temperature controlling machinery, plant, insulation or any apparatus of the Container, provided that Ellerman shall before or at the beginning of the Carriage exercise due diligence to maintain the refrigerated Container in an efficient state.
10.4 The Merchant shall indemnify and hold harmless Ellerman an against any Liability arising from any breach of the provisions of this clause 10 or from any cause in connection with the Cargo for which Ellerman is not responsible.
11.DECK CARGO
11.1 Unless it is specifically stipulated that the Cargo will be carried under deck on the front of this bill of lading, the Cargo (whether containerised or not) may be stowed on or under deck without notice to the Merchant and any deck stowage shall not be a deviation of whatsoever nature or degree.
11.2 If carried on deck, Ellerman shall not be required to note, mark or stamp the bill of lading carried on deck, Ellerman shall not be required to note, mark or stamp on the bill of lading any statement of such on deck carriage. Such Cargo whether carried on deck or under deck shall participate in General Average and, subject to clause 3, such Cargo shall be deemed to be within the definition of Cargo for the purposes of the Hague Rules or any legislation making such rules, COGSA or the Hague-Visby Rules compulsorily applicable to this bill of lading.
11.3 Cargo which is stated on the front of this bill of lading to be carried on deck, and which is actually carried on deck, is carried without responsibility on the part of Ellerman for loss or damage of whatsoever nature arising during Carriage by sea or inland waterway whether caused by unseaworthiness or negligence or any other cause whatsoever.
12.COLLECTION AND DELIVERY OF THE CARGO
12.1 This bill of lading shall be prima facie evidence only of the taking in charge by Ellerman of the Cargo as herein described in respect of the particulars which it had reasonable means of checking.
12.2 When collection or delivery takes place at the Merchant’s premises, the place of collection or delivery shall be the usual place of loading or unloading the Cargo into or from the vehicle and:
12.3 Ellerman shall not be under any obligation to provide any plant, power or labour which may be required for the loading or unloading at such premises. This shall be the responsibility of the Merchant at his own risk and expense.
12.3.1 any assistance given by Ellerman additional to the foregoing is given entirely at the Merchant’s risk as to damage to or loss of Cargo or injury to Persons.
12.3.2 If at any time the Carriage is or is likely to be affected by any hindrance, risk, delay, difficulty or disadvantage of any kind (including the condition of the Cargo), whensoever and howsoever arising (whether or not the Carriage has commenced) Ellerman may:
12.3.3 without notice to the Merchant abandon the Carriage of the Cargo and where reasonably possible place the Cargo or any part of them at the Merchant’s disposal at any place which Ellerman may deem safe and convenient, notwithstanding that any charges, dues or other expenses may be or become payable. If crafts are used, other than at the request of the Merchant, in circumstances where the Cargo or that part thereof so discharged could have been discharged ashore without additional delay, the Cargo (or part thereof, as the case may be) shall nevertheless not be deemed to be discharged for the purposes of this clause until it is discharged from such craft. Whereupon delivery shall be deemed to have been made and the responsibility of Ellerman in respect of such Cargo shall cease;
12.3.4 without prejudice to Ellerman’s right subsequently to abandon the Carriage under clause 3.1 above, continue the Carriage;
12.3.5 in any event Ellerman shall be entitled to full Charges on Cargo received for Carriage and the Merchant shall pay any additional costs resulting from the above mentioned circumstances.
12.4 The liability of Ellerman in respect of the Cargo shall cease on the delivery or other disposition of the Cargo in accordance with the orders or recommendations given by any government or authority or any Person acting or purporting to act as or on behalf of such government or authority. This shall amount to due delivery to the Merchant.
12.5 Any mention herein of parties to be notified of the arrival of the Cargo is solely for information of Ellerman, and failure to give such notification shall not involve Ellerman in any liability nor relieve the Merchant of any obligation thereunder.
12.6 If delivery of the Cargo or any part thereof is not taken by the Merchant at the time and place when and where Ellerman is entitled to call upon the Merchant to take delivery thereof, Ellerman shall be entitled and without prejudice to any other rights that he may have against the Merchant without notice to remove from a Container the Cargo or that part thereof if Consolidated in or on a Container and to store the Cargo or that part thereof ashore, afloat, in the open or under cover at the sole risk and expense of the Merchant and the costs of such storage (if paid or payable by Ellerman or any agent or Sub-Contractor of Ellerman) shall forthwith upon demand be paid by the Merchant to Ellerman. Such storage shall constitute due delivery hereunder, and thereupon the liability of Ellerman in respect of the Cargo or that part thereof shall cease.
13.ELLERMAN’S LIABILITY
13.1 Where the Carriage is Port to Port Transport:
13.1.1 the period of responsibility of Ellerman for any loss or damage to the Cargo shall commence only at the moment the Cargo is loaded on board the Vessel and shall end when the Cargo has been discharged from the Vessel.
13.1.2 the liability of Ellerman for loss of or damage to the Cargo shall be determined in accordance with any national law making the Hague Rules or Hague-Visby Rules compulsorily applicable to bills of lading and if no such national law is compulsorily applicable, then in accordance with the Hague Rules Article 1-8 inclusive (excluding Article 3 rule 8).
13.1.3 Ellerman shall be under no liability whatsoever for loss or damage to the Cargo while in its actual or constructive possession before loading or after discharge, howsoever caused. Notwithstanding the foregoing, in case and to the extent that any applicable compulsory law provides to the contrary, Ellerman shall have the benefit of every right, defence, limitation and liberty in the Hague Rules, Hague-Visby Rules, or any other rules as applied by clause 2 during such additional compulsory period of responsibility, notwithstanding that the loss or damage did not occur at sea.
13.1.4 if the Cargo is discharged at a port other than the Port of Discharge or at a Place of Delivery instead of the Port of Discharge, and Ellerman in its absolute discretion agrees to a request to such effect, such further Carriage will be undertaken on the basis that this bill of lading is to apply to such Carriage as if the ultimate destination agreed with the Merchant had been entered on the reverse side of this bill of lading as the Port of Discharge or Place of Delivery.
13.1.5 if Ellerman is requested by the Merchant to procure Carriage by an inland carrier and the inland carrier in his discretion agrees to do so, such Carriage shall be procured by Ellerman as agent only to the Merchant and Ellerman shall have no liability for such carriage or the acts or omissions of such inland carrier.
13.2 Where the Carriage is Multimodal Transport and the Merchant can prove at what stage the loss or damage occurred:
13.2.1 the liability of Ellerman shall be determined by the provisions contained in any international convention or national law, which applies compulsorily to the relevant stage of the Multimodal Transport and cannot be departed from by private contract to the detriment of the claimant; and
13.2.2 where an international convention or national law does not apply compulsorily to the stage of the movement where the loss or damage occurred, any liability of Ellerman shall be determined by clause 3.3
13.3 Where the Carriage is Multimodal Transport but the Merchant cannot prove at what stage the loss or damage occurred or if this clause applies pursuant to clause 13.2:
13.3.1 Ellerman shall be relieved of liability for any loss or damage if such loss or damage arose or resulted from:
(a) the wrongful act or neglect of the Merchant or any Person acting on behalf of the Merchant other than Ellerman or its servant, agent or Sub-Contractor;
(b) compliance with the instructions of a Person entitled to give them;
(c) the lack of, or defective condition of packing in the case of Cargo which, by its nature, is liable to wastage or to be damaged when not packed or when not properly packed;
(d) handling, loading, stowage or unloading of the Cargo by the Merchant, or any person acting on behalf of the Merchant;
(e) inherent vice of the Cargo;
(f) insufficiency or inadequacy of marks or numbers on the Cargo, coverings, or unit loads;
(g) strikes or lockouts or stoppage or restraint of labour from whatever cause whether partial or general;
(h) any act, neglect or default in the navigation or management of the Vessel occurring during carriage by water;
(i) fire, unless the fire was caused by the actual fault or privity of Ellerman or lack of exercise of due diligence to make the Vessel seaworthy, properly to man, equip and supply the Vessel or to make her fit and safe for the reception, carriage and preservation of the Cargo, for which the Merchant shall have the burden of proof;
(j) a nuclear incident;
(k) any other cause or event which Ellerman could not avoid and the consequences whereof it could not prevent by the exercise of reasonable diligence.
13.3.2 The burden of proof that the loss or damage was due to one or more of the causes, or events, specified in clause 3.1 shall, save as expressly stated otherwise, rest upon Ellerman. When Ellerman establishes that in the circumstances of the case, the loss or damage could be attributed to one or more of the causes, or events, specified in clause 13.3.1, it shall be presumed that it was so caused. The claimant shall, however, be entitled to prove that the loss or damage was not, in fact, caused either wholly or partly by one or more of these causes or events.
13.3.3 Where the loss or damage was partly caused by one of the causes at clause 13.3.1 Ellerman shall only be liable to the extent that another cause contributed to the loss or damage.
13.4 Compensation and Limitation
13.4.1 Subject to Ellerman’s right to limit liability as provided for within this bill of lading, Ellerman’s liability shall be calculated by reference to the value of the Cargo at the place and time at which it was accepted for Carriage.
13.4.2 Where the Hague Rules, Hague-Visby Rules or any other rules compulsorily apply to the Carriage Ellerman’s liability shall in no event exceed the amounts provided for in the applicable rules.
13.4.3 In all other cases compensation shall not exceed the limitation of liability of (i) USD 500 per Package where Carriage includes Carriage to, from or through a port in the United States of America and (ii) in all other cases 2SDRs per kilo of gross weight of the Cargo lost, damaged or in respect of which the claim arises.
13.4.4 Ellerman shall not, in any case, be liable for an amount greater than the actual loss to the Person entitled to make the claim.
13.5 Ad Valorem: Declared Value of Package or Shipping Unit.
Ellerman’s liability may be increased to a higher value by a declaration in writing of the value of the Cargo by the Merchant upon delivery to Ellerman of the Cargo for shipment, such higher value being inserted on the front of this bill of lading in the space provided and, if required by Ellerman, extra Charges paid. In such case, if the actual value of the Cargo shall exceed such declared value, the value shall nevertheless be deemed to be the declared value and Ellerman’s liability, if any, shall not exceed the declared value and any partial loss or damage shall be adjusted pro rata on the basis of such declared value.
13.6 Notice of Loss or Damage
Ellerman shall be deemed prima facie to have delivered the Cargo as described in this bill of lading unless notice of loss of, or damage to, the Cargo, indicating the general nature of such loss or damage, shall have been given in writing to Ellerman or to his representative at the place of delivery before or at the time of removal of the Cargo into the custody of the Person entitled to delivery thereof under this bill of lading or, if the loss or damage is not apparent, within three consecutive days thereafter.
13.7 Time-bar
Where the Hague Rules, Hague-Visby Rules or any other rules apply compulsorily to the Carriage, the time limit for bringing claims will be as prescribed by the applicable rules.
In all other cases, Ellerman shall be discharged of all liability whatsoever unless suit is brought within nine months after the delivery of the Cargo or the date when the Cargo should have been delivered.
13.8 Delay, Consequential Loss
Save as otherwise provided herein, Ellerman (i) does not undertake that the Cargo shall arrive at any place at any particular time and (ii) shall in no circumstances be liable for direct, indirect or consequential loss or damage caused by delay or any other cause whatsoever and howsoever caused (whether caused by negligence, breach of statutory duty or otherwise). Without prejudice to the foregoing, if Ellerman is found liable for delay, liability shall be limited to the Charges applicable to the relevant stage of the transport.
13.9 The defences and limits of liability provided for in this bill of lading shall apply in any action against Ellerman whether the action be found in contract, bailment, tort, breach of express or implied warranty or otherwise.
13.10 The Merchant shall indemnify and hold harmless Ellerman against any Liability arising from the Carriage of the Cargo insofar as such claim or liability exceeds Ellerman’s liability under this bill of lading.
14.CHARGES
14.1 The Charges shall be deemed fully earned on receipt of the Cargo by Ellerman and shall be paid and be non-returnable in any event.
14.2 The Merchant’s attention is drawn to the stipulations concerning currency in which the Charges are to be paid, rate of exchange, devaluation and other contingencies relative to Charges in the relevant tariff conditions. If no such stipulation as to devaluation exists or is applicable and if the currency in the Charges are quoted is devalued or revalued between the date of the Charges agreement and the date when the Charges are paid, then all Charges shall be automatically and immediately changed in proportion to the extent of the devaluation or revaluation of the said currency. When Ellerman has consented to payment in other currency than the above mentioned currency, then all Charges shall, subject to the preceding paragraph, be paid at the highest selling rate of exchange for banker’s sight draft current on the day when the Charges are paid. If the banks are closed an the day when the Charges are paid the rate to be used will be the one in force on the last day the banks were open.
14.3 The Charges have been calculated on the basis of particulars furnished by or on behalf of the Merchant. Ellerman shall be entitled to production of the commercial invoice for the Cargo or true copy thereof and to inspect, reweigh, re-measure and revalue the Cargo and if the particulars are found by Ellerman to be incorrect, it is agreed that without prejudice to the rights of Ellerman as per clause 6 a sum equal either to (i) five times the difference between the correct Charges and the Charges charged or (ii) double the correct Charges less the Charges charged, whichever sum is the smaller, shall be payable as liquidated damages to Ellerman notwithstanding any other sum having been stated in this bill of lading as the Charges payable.
14.4 All Charges shall be paid without any set-off, counter-claim, deduction or stay of execution.
14.5 Despite the acceptance by Ellerman of instructions to collect Charges or other expenses from any other Person in respect of the transport under this bill of lading, the Merchant shall remain responsible for such monies on receipt of evidence of demand and the absence of payment for whatever reason.
14.6 All dues, taxes and charges levied on the Cargo and other expenses in connection therewith shall be paid by the Merchant.
14.7 The Merchant shall reimburse Ellerman for any costs for deviation or delay or any other increase of costs of whatever nature caused by war, warlike operations, epidemics, strikes, government directions or force majeure.
15.ELLERMAN’S TARIFF
The provisions of Ellerman’s applicable tariff, if any, are incorporated herein. Particular attention is drawn to the provisions therein, if any, relating to free storage time and to Container and vehicle demurrage. Copies of such provisions are obtainable from Ellerman or his agents upon request or, where applicable, from a government body with whom the tariff has been filed. In the case of inconsistency between this bill of lading and the applicable tariff, this bill of lading shall prevail.
16.LIEN
16.1 Ellerman shall have a lien on the Cargo and any documents relating thereto for all sums whatsoever due at any time to Ellerman under this bill of lading and for General Average contributions to whomsoever due.
16.2 Ellerman shall also have a general lien against the Merchant on the Cargo and any documents relating thereto for all sums due from the Merchant to Ellerman, Ellerman Agents and/or any member of the Ellerman Group under any other contract.
16.3 Ellerman may exercise its lien at any time and at any place in its sole discretion, whether the Carriage is completed or not. In any event any lien shall (a) survive the delivery of the Cargo and (b) extend to cover the cost of recovering any sums due.
16.4 To enforce and satisfy Ellerman ‘s lien, Ellerman shall have the right, at the Merchant’s expense, to sell the aforementioned Cargo and documents by public auction or private treaty, without notice to the Merchant and without any liability towards the Merchant.
17.SUB-CONTRACTING AND INDEMNITIES
17.1 Ellerman shall be entitled to sub-contract on any terms whatsoever the whole or any part of the Carriage and the Merchant agrees (to the extent that the Merchant is entitled to bring claims against Sub-Contractors) that any Sub-Contractor can, at its option, apply its own terms of contract with Ellerman to defend claims brought by the Merchant.
17.2 The Merchant undertakes:
17.2.1 that no claim or allegation shall be made against any Sub-Contractor or Ellerman Group company whatsoever, whether directly or indirectly, which imposes or attempts to impose upon any Sub-Contractor or Ellerman Group company any liability whatsoever in connection with the Cargo or the Carriage of the Cargo, whether or not arising in contract, bailment, tort, negligence, breach of express or implied warranty or otherwise; and
17.2.2 if any claim or allegation should nevertheless be made against a Sub-Contractor or Ellerman Group company, to indemnify and hold harmless Ellerman against all Liabilities arising out of or in connection thereof.
17.3 Without prejudice to the other provisions in this clause 17, every Sub-Contractor and Ellerman Group company shall have the benefit of all provisions herein benefiting Ellerman including clause 20 hereof, the jurisdiction and law clause, as if this bill of lading (including clause 20 hereof) were expressly for its benefit and in entering into this contract Ellerman, to the extent of these provisions, does so not only on his own behalf but also as agent or trustee for such Sub-Contractor and Ellerman Group Company and such Sub-Contractor and Ellerman Group company shall to this extent be or be deemed to be parties to this contract.
17.4 The provisions of clause 3 including but not limited to the undertaking of the Merchant contained therein, shall extend to all claims or allegations of whatsoever nature against other Persons chartering space on the carrying vessel.
17.5 The Merchant further undertakes that no claim or allegation in respect of the Cargo shall be made against Ellerman by any Person other than in accordance with the terms of this bill of lading which imposes or attempts to impose upon Ellerman any liability whatsoever in connection with the Cargo or the Carriage of the Cargo, whether or not arising out of negligence on the part of Ellerman, and if any such claim or allegation should nevertheless be made, to indemnify Ellerman against all consequences thereof.
17.6 If a Sub-Contractor in actual or constructive possession of the Cargo becomes insolvent or subject to an arrangement with creditors or enters into administration (or equivalent) during the course of the Carriage (“Sub-Contractor Insolvency“) then Ellerman will be discharged of any further obligations in respect of the Carriage, including without limitation, completion of the Carriage if Ellerman is unable to obtain repossession of the Cargo without paying additional charges to the Sub-Contractor or a third party. Ellerman will have no liability to the Merchant for any losses of whatsoever nature and howsoever arising out of a Sub-Contractor Insolvency and the Merchant agrees to pay, and hold Ellerman harmless against, any costs required to obtain repossession of the Cargo and completion of the Carriage. For the avoidance of doubt, Ellerman will always be entitled to receive in full the Charges agreed for the full performance of the Carriage notwithstanding its non-completion owing to Sub-Contractor Insolvency.
18.BOTH-TO-BLAME COLLISION
18.1 The latest version of BIMCO’s Both-to-Blame Collision Clause is incorporated herein which is available on request.
19.GENERAL AVERAGE
19.1 General Average to be adjusted at any part or place at Ellerman ‘s option, and to be settled according to the York-Antwerp Rules 1994, this covering all Cargo whether carried on or under deck. The New Jason Clause as approved by BIMCO to be considered as incorporated herein which is available on request.
19.2 Notwithstanding clause 19.1, the Merchant shall indemnify Ellerman in respect of any claims of a General Average nature which may be made on it and shall provide such security as may be required by Ellerman in this connection.
19.3 Such security including a cash deposit as Ellerman may deem sufficient to cover the estimated contribution of the Cargo and any salvage and special charges thereon shall, if required be submitted to Ellerman prior to delivery of the Cargo.
19.4 Ellerman shall be under no obligation to take any steps whatsoever to collect security for General Average contributions due to the Merchant.
20.JURISDICTION AND LAW
20.1 The contract evidenced by or contained in this bill of lading or otherwise arising from the Carriage or in relation to the Cargo shall be governed by and construed in accordance with the laws of England.
20.2 Any claim against Ellerman under this bill of lading or otherwise arising from the Carriage or in relation to the Cargo shall be determined exclusively by the courts of England to which jurisdiction the Merchant hereby irrevocably submit. Merchant agrees that it shall not institute legal proceedings in any other court and shall indemnify Ellerman for all legal costs and expenses incurred by Ellerman to stay or remove a suit files in another forum.
20.3 Ellerman shall be entitled to bring any legal proceedings against Merchant in the courts of England or in any other jurisdiction (including jurisdiction(s) where Merchant has a place of business or assets) and legal proceedings by Ellerman in any one or more jurisdictions shall not preclude legal proceedings by it in any other jurisdiction, whether concurrent or not.
