Terms and Conditions
Conditions of contract
- Online in these Conditions and on the front of our Consignment Notes:
- “ACS” means Australian Coastal Shipping Pty. Ltd. and “ACS representative” means any person who is or becomes at any time a servant or agent of ACS (including the Master and any of the crew of a vessel owned or operated by ACS), contractor, or servant or agent of a contractor, and Includes two or more such persons.
- “person” includes any person, firm, corporation, governmental authority or any other body corporate or unincorporate.
- “cargo” means articles, goods and chattels of every description (including the contents of Containers, and also Containers other than Containers supplied by and returnable to ACS or any ACS representative) delivered to and accepted for carriage by or on behalf of ACS under the Contract.
- “Container” includes any container, crate, case, vehicle, tray, flat, stake flat, pallet, packet or receptacle and packaging of every description.
- “noxious cargo” means cargo which is or is liable to become dangerous, inflammable, explosive, damaging or offensive (including cargo liable to damage a Container in which it is carried or other cargo).
- “Owner” means and includes the owner or owners of the cargo, the consignor, the consignee and any other person who now or hereafter prior to, and/or at the time when the carriage is completed or terminated owns or has any proprietary, contractual or other interest in the cargo.
- “vessel” includes any ship, barge, lighter, or other water conveyance of any description.
- “governmental authority” means any government, governmental statutory or administrative authority or department, or other like body (including any airway, railway, highway, shipping port, customs, police or municipal authorities) and also any officer or representative of any such government authority department or other like body.
- “the carriage” means the collection or receipt of the cargo by or on behalf of ACS at the place of despatch, the transportation of the same to the place at which it is to be delivered to the consignee, and the delivery thereof at the latter place, in accordance with and subject to the provisions of the Contract and also includes all incidental matters which may be ancillary thereto or which ACS and/or ACS representatives may deem it expedient to effect in relation to cargo while it is in the possession or under the control of ACS or any ACS representative.
- “incidental matters” means anything done or to be done to or in relation to cargo, including (inter alia), moving it to or from and or storing or leaving it at any warehouse, terminal, building, yard, wharf, platform or other place or area, loading it onto and unloading it from aircraft, vehicles, railcars, vessels or other conveyances, stowing or packing it in or onto and removing it from any Container or Containers, fumigating, transshipping, packaging and inspecting it, and handling operations of every description.
- ACS is not a common carrier and does not accept the obligations or liability of a common carrier and reserves the right to refuse to carry any articles at its discretion. No ACS representative has authority under any circumstances to accept cargo for carriage other than upon and subject to these Conditions of Contract and the contract under which the cargo is delivered to and accepted by ACS (in these Conditions called “the Contract”) is that contained in and evidenced by the terms and conditions of this Consignment Note and subject thereto the particulars and instructions furnished by the consignor on the front hereof. No waiver or variation of or addition to the contents hereof, nor any agreement, arrangement or representation of any nature, made or purported to be made by ACS or any ACS representative with respect to cargo or the carriage (other than a freight rate or price specially arranged, either in writing or verbally, as contemplated in Condition 6) shall be recognised or have any effect unless and except to the extent set forth herein or otherwise specifically confirmed in writing by ACS.
- The Carrier shall be at liberty to contract or arrange, on any terms, for the whole or any part or parts of the carriage to be performed by any other person or persons and in these Conditions any such person is called a “contractor”.
- ACS and ACS representatives may effect the whole or any part or parts of the carriage by any means (including {inter alia} transportation of cargo by road, sea, air and or rail) as ACS and/or ACS representatives may deem expedient (notwithstanding any instructions verbal or otherwise of the consignor as to the means by which the carnage or any part thereof is to be effected). In or in connection with effecting the carriage or otherwise while cargo is in its possession or under its control ACS or any ACS representative may at any time and from time to time, without notice to the consignee or any other owner, transport or move cargo by any route or routes whatsoever, and to or between any place or places whatsoever in the Commonwealth of Australia and its Territories, although in a contrary direction to or outside or beyond any customary, intended or advertised route, once or more often in any order backwards or forwards, and whether intentionally or unintentionally for any purpose or under any circumstances, with (inter alia) liberty at any time and from time to time to abandon, alter or repeat any voyage or journey, to deviate from any route or in the course of any voyage or journey for any purpose and in any situation, to store or leave cargo for any period or periods at any such place or places, either intentionally or unintentionally, and to effect during any such transportation, voyage, journey or deviation and/or at any such place or places all such incidental matters as ACS and ACS representatives may deem expedient. Anything done by ACS and/or any ACS representative in the exercise of any of the rights, powers and liberties hereinbefore provided in this Condition shall form part of the agreed carriage.
- The consignor warrants to ACS the correctness of the description and particulars of the cargo appearing on the front hereof which are furnished by the consignor and are unknown to ACS, and ACS has no knowledge of the marks, weight, measure, contents, quality, value, numbers, quantity and/or condition of the cargo. The consignor shall be liable for all extra cost to which ACS or any ACS representative may be put and any loss or damage occasioned either directly or indirectly to ACS or any ACS representative in consequence of ACS or any ACS representative relying upon weight incorrectly specified by the consigner in or any other error in such description or particulars or by reason of any illegal, incorrect or insufficient marking, numbering or addressing of cargo, and the amount of any and all such extra cost, loss and damage shall be paid to ACS as a charge payable under the Contract.
- Freight shall be calculated and charged at ACS’s option, on gross weight, measurement, value or quantity of (including the number of Containers or other units comprised in) the cargo and Containers in which it is carried (including both Containers in which it is consigned by the consignor or into which it may be packed by ACS or any ACS representative during the carriage) in accordance with ACSs standard freight rates and charges operating at the commencement of the carriage for transportation of the cargo from the place of despatch to the place of delivery specified on the front hereof (which freight rates and charges are set forth in ACS’s current freight schedules as from time to time amended and are known to the consignor), unless a special rate or price arranged between the consignor or consignee and ACS is applicable in which case freight shall be calculated and charged as aforesaid in accordance with such specially arranged rate or price. For these purposes the weight, measurement, value or quantify or recount or recounting of the cargo shall be deemed to be as specified on the front hereof, provided always that ACS shall be entitled, (but under no obligation) to reweigh, remeasure, revalue or quantity or recount or recounting cargo at any time, and if the particulars furnished on the front hereof are found to be incorrect the freight shall be adjusted accordingly and any expenses incurred by ACS or any ACS representative in connection with such reweighing, remeasuring, revaluing, or quantify or recount or recounting shall be a charge payable to ACS under the Contract.
- Freight, which shall be deemed earned on acceptance of the cargo from the consignor, and all charges payable to ACS under the Contract shall be paid irrespective of whether or not the cargo is ever delivered in accordance with the Contract or at all, and whether it is damaged or otherwise. All such freight and charges and all other monies which may become due to ACS under or by reason of the Contract may be initially invoiced in accordance with the consignor’s charging instructions on the front hereof, and the person so invoiced will be liable to ACS for the payment thereof, but the consignor will also be and remain responsible for all such freight charges and monies and shall pay the same to ACS on demand.
- ACS shall have a general lien over cargo for all amounts payable to it by any Owner including all freight and charges payable under the Contract or in respect of any other consignment or contract and any other monies whatsoever (including monies payable as damages or compensation payable by virtue of the operation of any statute or law, or by agreement or otherwise howsoever) and may refuse delivery of cargo until all such amounts have been paid in full. If any such amount has been owing or continues to be unpaid for more than 30 days after first becoming due for payment ACS or any ACS representative may at its discretion and without notice to any Owner sell cargo by public auction or private treaty deducting all expense of detaining and selling the same, apply the net balance of the sale proceeds towards amounts payable to ACS as aforesaid. Any excess or leftover portion of such sale proceeds and any cargo remaining unsold after all such amounts have been paid in full shall be payable to the consignee. Neither the existence of such lien nor any such sale shall prejudice or affect ACS’s right at any time to recover any such amount, or any part of any such amount, which remains at that time unpaid, from any Owner or other person liable therefore.
- ACS reserves the right at its discretion to decline to deliver cargo until the identity of the deliveree is established to the satisfaction of ACS or the ACS representative by whom delivery is to be effected, but neither ACS nor any ACS representative shall be under any obligation to refrain from delivering the goods to a person by whom this Consignment Note or a copy thereof is not produced or given up or whose identity is not established to its satisfaction as aforesaid, and (as provided in Condition 13) neither ACS nor any ACS representative shall be under any liability whatsoever for or in respect of wrongful delivery, delay in delivery, mis-delivery or non-delivery of cargo howsoever occurring or arising, or any loss, damage, expense, delay or other thing whatsoever resulting directly or indirectly therefrom.
- ln the event that at any time after cargo is received from the consignor, ACS or any ACS representative at that time having custody or control thereof concludes for any reason whatsoever that it is impracticable, imprudent, unlawful or against the interests of ACS, or such ACS representative, or of any Owner, to continue the carriage or deliver the cargo, or such cargo as is in its custody or control as aforesaid, to the place of delivery specified on the front hereof, in the manner originally or theretofore contemplated or intended by ACS or such ACS representative, or that to do so will be likely to subject the carriage or cargo, or any property of ACS or of any other person to damage or delay of whatsoever nature, ACS or such ACS representative may without notice to the consignee or any other Owner discharge, unload, and/or retain or deliver such cargo at any other place whatsoever which ACS or such ACS representative considers to be convenient and the consignee shall accept delivery thereof at such other place, and any additional costs and expenses incurred by ACS or such ACS representative in effecting such delivery at such other place (including cost of any storage which in its discretion it may cause to be effected) shall be a charge payable to ACS under the Contract.
- In the event that cargo is not made promptly available to ACS, or the ACS representative receiving the same, at the place of despatch specified on the front thereof, at the time arranged between the consignor and ACS or such ACS representative, or the consignee fails to accept delivery of cargo immediately on its arrival at the place at which it is to be delivered or so soon thereafter as ACS or the delivering ACS representative requires the additional costs resulting therefrom, as determined by ACS, shall be an additional charge payable to ACS under the Contract.
- Cargo is accepted for carriage by ACS subject to all applicable conditions and requirements imposed under any regulations or otherwise by any governmental authority, and payment of all duties, imposts, wharfage dues and other charges and expenses payable in respect of the cargo and the carriage thereof. The amount of any such duties, wharfage, dues or other charges or expenses which are paid by ACS or any ACS representative and of any other costs and expenses of whatsoever nature arising out of or incurred by ACS and ACS representatives in complying with applicable conditions and requirements imposed or purported to be imposed as aforesaid, shall be a charge payable to ACS under the Contract.
- At all times and under all circumstances cargo shall be and remain for all purposes and in all respects at the sole risk of the Owners and neither ACS nor any ACS representative shall be under any liability whatsoever, and no claim shall be made or brought by any Owner against ACS or any ACS representative, for or in respect of any loss or damage (including concealed damage) to or deterioration, contamination, evaporation, wrongful delivery, misdelivery, delay in delivery or non-delivery of cargo whensoever and howsoever occurring or any damage injury or loss of any nature whatsoever sustained or arising in consequence thereof, or otherwise howsoever for in respect of anything done purported to be done or omitted to be done by ACS or any ACS representative, or any other matter or thing (including any delay or failure by ACS or any ACS representative to effect the carriage or any part thereof with reasonable despatch or at all) occurring or arising during or in connection with the carriage or otherwise in relation to cargo. The provisions of this Condition shall apply notwithstanding that such loss, damage, deterioration, contamination, evaporation, mis-delivery, delay in delivery, non-delivery, thing done, purported to be done, or omitted to be done, or other matter or thing may constitute involve or be solely or party caused by or otherwise due to default or misconduct (including wilful default or misconduct), negligence breach of the Contract or other wrongful act, omission or conduct on the part of ACS or any ACS representative or arises however otherwise in a way which but for the provisions of this Condition 13 would result in ACS and/or an ACS representative being liable therefore and nothing whatsoever done or omitted to be done or other conduct by ACS and/or any ACS representative, in breach of the Contract or otherwise howsoever lawfully or unlawfully, shall under any circumstances constitute a breach going to the root of the Contract, or a deviation or departure therefrom, or repudiation thereof, such as to have the effect of disentitling ACS and/or any ACS representative from obtaining the benefit of and enforcing all rights, defences, exceptions, immunities and limitations of liability and other like protections of ACS and ACS representatives contained in these Conditions and all such rights, defences, exceptions, immunities, limitations of liability and other like protections shall continue to have full force and effect in any event whatsoever.
- ACS and ACS representatives shall be entitled (but under no obligation) at any time and from time to time to inspect cargo and for this purpose to open or remove any Containers. If at any time (as a result of any such inspection or otherwise) ACS or any ACS representative considers that the carriage of cargo as contemplated by ACS or such ACS representative ought not to be effected or further effected, either at all or without effecting additional incidental matters, or otherwise taking additional measures or incurring additional expense or risk, ACS and any such ACS representative shall be entitled to abandon the carriage or to effect such additional incidental matters and take such additional measures and incur such additional expenses, as may be reasonably necessary in order to enable the carriage to be effected or further effected and the cost of such additional incidental matters and measures and all such additional expenses shall be reimbursed to ACS as a charge payable to it under the Contract.
- Perishable goods and other goods if delivered without marks, or with marks obliterated or which do not correspond with those specified on the front hereof, shall be accepted by the consignee (and all other Owners) if of the same description as appearing on the front hereof, in full satisfaction of the cargo, or that part thereof in satisfaction of which they are delivered by ACS.
- ACS or any ACS representative may at any time sell by public auction or private treaty any cargo being perishable cargo or cargo that has deteriorated or become damaged from any cause whatsoever and which ACS or such ACS representative considers should be sold, rather than further carried, because of its nature or condition, and shall account to the consignee for the net proceeds of such sale after deduction of all selling expenses, and less all freight charges and other monies due to ACS under the Contract or in respect of which ACS had a lien over such cargo under Condition 8 hereof.
- lf and insofar as ACS or any ACS representative is at any time of opinion that any cargo is noxious cargo the same (whether or not Condition 18 has been complied with) may be destroyed, disposed of, abandoned, or rendered harmless, if ACS or any ACS representative considers this necessary or desirable, without compensation to the consignor or any other Owner and without prejudice to ACS’s right to freight and any other charges due under the Contract.
- Noxious cargo must not be tendered for carriage unless the consignor has fully disclosed the nature thereof to ACS and obtained its express consent in writing, any conditions subject to which such consent has been given are fully complied with, and such noxious cargo and any Container in which it is contained is distinctly marked on the outside so as clearly to indicate its nature and so as to comply with any applicable law and the requirements of any governmental authority.
- The consignor and other Owners shall be severally liable for and to indemnify ACS and ACS representatives against all loss and damage directly or indirectly occasioned by noxious cargo or as a result of noxious cargo being tendered for carriage otherwise than in accordance with Condition 18, and all claims brought by any person or otherwise arising in respect of any such loss and damage.
- If in or in connection with the carriage, cargo shall be loaded on board a vessel for transportation by sea, the Contract and in particular these Conditions shall continue to apply and no bill of lading will be issued. ACS does not and shall not be deemed to undertake the seaworthiness of such vessel, either at or after the commencement of the voyage, the cargo may be carried on deck and whether carried on or under deck will contribute to General Average, if any, which will be adjusted in accordance with the York/Antwerp Rules 1974, and any salvage services rendered to the vessel or its cargo during the voyage by a vessel or vessel owned or operated by ACS shall be paid for as fully as if such salvage vessel or vessels belonged to and were operated by a stranger.
- ACS gives no undertaking that the consignee or any other Owner will be notified of arrival of cargo, or of any aircraft, vehicle, vessel or other conveyance carrying the same at the place at which cargo is delivered hereunder nor will ACS or any ACS representative have or undertake any responsibility or obligation for or in relation to cargo once it has been discharged or unloaded at such place, or at any subsequent time. If ACS or any ACS representative shall effect arrangements for storage, transshipment or forward carriage of cargo after delivery as aforesaid, it shall do so only as agent of the consignee and other Owners and solely at their risk and expense, but the provisions of Condition 13 shall nevertheless apply as they would if effectuation of such arrangements and everything connected therewith formed part of the carriage.
- ACS is not responsible for freight and charges forwarded on cargo lost damaged or delayed in transit or otherwise while in the possession or under the control of ACS or any ACS representative, or on cargo which the consignee does not accept or rejects nor for failure by ACS or any ACS representative to demand or collect any freight or charges forwarded on cargo from any person, either before or after delivery of such cargo.
- The consignor warrants that he makes the Contract for himself and for and on behalf of all Owners severally, as the duly authorised agent of each of them, and that he will personally indemnity ACS and each ACS representative against tortious or other non-contractual liability of any description whatsoever (including but not limited to liability on conversion, trespass, detinue, or negligence) which ACS or such ACS representative has or incurs to any Owner, for whom the consignor does not or is not duly authorised in fact to make the Contract and is a liability which ACS or such ACS representative would not have and/or would not have incurred, and/or against which ACS or such ACS representative would have had a good defence by virtue of the terms of these Conditions, if the consignor had been duly authorised to make and had made the Contract for and on behalf of (inter alia) such Owner so as to render such Owner a party to the Contract bound by these Conditions.
- The Contract is subject to all compulsory rules and requirements of law to which the carriage is subject to the intent and effect that if any provision hereof is to any extent repugnant to or inconsistent with any such rule or requirement, such provision shall to that extent but no further, be deemed not to form part of the Contract.
- It is hereby agreed that to the extent necessary to entitle every such ACS representative to enforce and have the benefit of (and rely upon in respect and in defence of any claim brought by any Owner) the provisions of Condition 13 and each and every other provision of these Conditions which by its terms applies or extends to a ACS representative or ACS representatives, ACS in making the Contract in addition to acting for itself is and shall be deemed to be acting as the agent of and trustee for each ACS representative who at any time directly or indirectly takes part in the effectuation of the carriage or is in any other way howsoever involved in any matter included in the carriage or responsible for anything which may occur to or in respect of cargo between commencement and conclusion of the carriage, and each such ACS representative is and shall be deemed to be a party to the Contract for the purpose of entitling him as aforesaid, and so far as may be required to give full effect to this Condition 25 ACS shall hold the benefit of the Contract for all such ACS representatives as well as for itself. Without affecting the generality of the foregoing it is hereby expressly agreed that if at any time any Owner recovers any sum from ACS or any ACS representative pursuant to a claim brought against ACS or such ACS representative contrary to the terms of Condition 13 a like sum shall thereupon become immediately due and payable to ACS and shall be recoverable by it on demand from the consignor or any other Owner as a charge payable under the Contract.