CONTRACT CONDITIONS FOR LOGISTICS (2014)
The Company provides all items and services on the following Conditions which can be varied only in writing by an Officer of the Company.
The Company is a member of UKWA and is not a common carrier.
If a Customer’s acceptance document, purchase order or other communication, received by the Company before or after notification of these Conditions, contains terms at variance with these Conditions, then every such term shall be of no effect.
CONDITION 3 LIMITS THE COMPANY’S LIABILITY. PLEASE READ IT CAREFULLY. It has been included to relieve the Customer of the additional amount that the Company would need to charge to recover insurance costs (or an amount in lieu to reflect risk) were its liability not limited as provided for in Condition 3.
THE COMPANY’S OBLIGATIONS
1.1. The Company will provide its services with reasonable skill and care. In the absence of prior written instruction to the Company giving sufficient warning and detail, no particular precautions nor any special treatment need be taken or provided for the Goods, nor shall time be of the essence for performance by the Company.
1.2. In the case of bulk Goods, unless the parties have agreed otherwise the Company may deal with and/or mix apparently similar goods consigned by or for the Customer without distinguishing between consignments.
1.3. In the case of carriage the Company’s responsibility for the Goods starts when loading on the vehicle is complete and ends when the Goods are tendered for unloading. In the case of storage and / or processing it starts when they are accepted into store and ends when they are tendered for collection, or the Company becomes aware of the grounds for their removal under Condition 2.2 or on the expiry of notice under Condition 7.1 or 7.2. Where the Company provides storage and carriage it shall also be responsible for the Goods while they are transferred from its vehicle into its store and vice versa. In the case of forwarding, the Company’s responsibility is only to engage or propose apparently competent contractors and to give them adequate instructions (on the basis of matters known to the Company) in relation to the Goods; and in this case, or where the contract is for advice, it is not responsible for the Goods themselves.
1.4. The Company’s duty is to the Customer only and not to any third party. Any advice given is for the Customer only.
1.5. Unless it states otherwise in writing, where the Company provides forwarding services it operates as the Customer’s agent in engaging contractors to deal with the Goods.
2.1. It is a condition of the contract, and the Customer warrants and undertakes, that:-
2.1.1 It is either the owner of the Goods, or is authorised by the owner to accept these Conditions on the owner’s behalf.
2.1.2 The Goods shall be presented to the Company (and/or anyone else dealing with them) securely and properly packed in compliance with any applicable statutory regulations, recognised standards and good practice and are and will remain in a condition to be safely handled, stored and/or carried and so as not to cause injury, damage, contamination or deterioration (or the possibility of them) to any person, premises, equipment or to any other items in any way. Where the Company is performing an operation or process on the Goods, they will be delivered to the Company in a condition where that operation or process can be done without further work (other than unpacking) by the Company.
2.1.3 Before the Company assumes any responsibility for or by reference to the Goods, the Customer will inform the Company in writing of any relevant matters; including any special precautions necessitated by the nature, weight or condition of the Goods and any statutory or other duties specific to the Goods with which the Company or others may need to comply; and will promptly after invoicing pay the Company’s reasonable extra charges for complying.
2.1.4 It will promptly after invoicing reimburse all duties, taxes and expenses that the Company may be required to pay in respect of the Goods including where the liability to pay them arises due to the fault, other act or omission of the Company or its employees or sub-contractors.
2.1.5 Except to the extent previously notified in detail to, and accepted by, the Company in writing none of the Goods: are hazardous or contaminated; may cause pollution of the environment or harm to human health if they escape from their packaging; require any official consent or licence to handle, possess, deal with or carry; will at any time whilst in the care or control of the Company constitute Waste.
2.1.6 Where the Company is carrying the Goods, the Customer will provide a risk assessment and/or method statement appropriate for the Goods and any location in which they are being handled. Unless otherwise previously agreed the Customer will provide suitable facilities and equipment for, and will procure, safe and prompt loading and unloading of the Goods.
2.1.7 It will comply with any reasonable regulations of the Company relating to handling, packing, carriage, storage or forwarding of Goods (and ancillary matters) which are notified in writing from time to time.
2.1.8 Information given by or on its behalf shall be materially correct and complete.
2.2 The Customer will indemnify the Company against any loss or damage it suffers as a result of carrying out the Customer’s instructions or which is related to any breach of the Customer’s obligations, and will pay all costs and expenses (including professional fees) incurred in, and the Company’s reasonable charges for, dealing with the breach and its consequences. The Customer will pay an extra charge equal to the amount of any fine or penalty payable by the Company wholly or partly as a result of a breach by the Customer. If the Company suspects a breach of Condition 2, it may refuse to accept the Goods, demand their immediate removal, or itself arrange their removal without notice, at the Customer’s expense.
INSURANCE AND THE COMPANY’S LIABILITY
3.1 Unless expressly agreed, the Company does not insure the Goods and the Customer shall self-insure or make arrangements to cover the Goods against all insurable risks to their full insurable value (including all duties and taxes). The insurance referred to in Condition 3.5 is insurance against the Company’s potential liability for breach of its obligations and not to cover the Goods themselves against loss, damage, etc .
3.2 Subject to Condition 3.3, the Company shall have no liability for Loss however arising.
3.3 If and to the extent that Loss is directly caused by negligence or wilful act or default of, or breach of duty by, the Company, its employees (acting in furtherance of their duties as employees) or sub-contractors or agents (acting in furtherance of their duties as sub-contractors or agents) and subject to Conditions 3.4, 3.7 and 3.8, the Company will accept liability for Loss assessed on normal legal principles but not exceeding the Limit fixed by Condition 3.5. Any quantification of amount or value includes duties and taxes.
3.4 In no case shall the Company be liable for any lost profit, income or savings, wasted expenditure, liquidated damages payable by or on behalf of the Customer, or indirect or consequential loss.
3.5 In no case shall any liability of the Company (including inter alia any liability in respect of duties and taxes) exceed the Limit, fixed as follows:-
3.5.1 The Customer may specify the Limit as an amount (in Sterling, US Dollars or Euros) per tonne weight of the Goods by notice in writing stating the Limit and the nature and maximum value of the Goods, including duty and taxes. The Limit nominated by the Customer shall apply in respect of any cause of action arising after the Date for so long as the nomination remains in effect. It is a condition of the contract that the Customer pays within 7 days of receipt the Company’s invoices for its costs in insuring against its potential liability up to the Limit, and/or to the extent that the Company elects to carry the risk itself, its extra charge equivalent to the estimated or likely cost of such insurance.
3.5.2. If the Company having made reasonable efforts is unable to obtain insurance on reasonable terms to cover its liability up to the Limit nominated by the Customer, or if the Customer has not yet paid any invoice issued under Condition 3.5.1, the Company may give 3 working days written notice, and the Limit for causes of action arising after expiry of the notice shall be £100 sterling per tonne weight of the Goods.
3.5.3 Unless and until a higher Limit has been fixed under Condition 3.5.1 and continues in effect, the Limit shall be £100 sterling per tonne.
3.6 Without prejudice to the Company’s rights under Condition 6 to be paid free from deduction or set-off, any limitation of liability on the part of the Company shall be applied to any claim by the Customer before any set off or counterclaim is asserted against money due to the Company.
3.7.1 The Company shall not be liable for any claim unless:
it has received written notice of it within 10 days of the event giving rise to the claim coming to the knowledge of the Customer or consignee; and
it has received, within 21 days of the event giving rise to the claim coming to the knowledge of the Customer or consignee, sufficient detail in writing to enable investigation. In the case of failure to deliver, time shall run from the first working day after the expected date of delivery.
3.7.2 No legal proceedings (including any counterclaim) may be brought against the Company unless they are issued and served within 9 months of the event giving rise to the claim.
3.8 The Company shall not be liable for any Loss to the extent that it is caused or contributed to by a breach of any of the Customer’s obligations, or by a person for whom the Company is not responsible, or by any of the circumstances by virtue of which the Company is relieved of its obligations under Condition 8.
EMPLOYEES, SUB-CONTRACTORS AND OTHERS
4.1 The Company shall be entitled to sub-contract on reasonable or industry standard terms all or any part of its obligations and in this event these Conditions shall continue to apply as between the Company and the Customer. However, except in case of emergency the Company will obtain the Customer’s consent (not to be unreasonably withheld or delayed) before storage is subcontracted and will on request notify the Customer of the location of the Goods.
4.2 No Interested Party will make a claim or issue proceedings in respect of Loss against any Additional Party.
4.3 Without prejudice to Condition 4.2, if an Additional Party pays or is liable to make a payment to an Interested Party in connection with a claim for Loss, the Interested Party will fully indemnify the Company against any claim (including all costs and expenses) by the Additional Party against the Company for reimbursement of, contribution to or indemnity against that payment to the extent that it exceeds the Limit applicable at the time of the event giving rise to the claim.
CHANGE OF CUSTOMER
5. The Customer may give written authority for the Goods or any part to be transferred to the account of another party on condition that before the effective date of the transfer the other party notifies the Company in writing that it is to become the Customer and is to be bound by these Conditions and by any notice given under Condition 3 and will pay the Company’s charges for the period after the effective date. The Customer will pay the charges for the period until the later of the effective date or receipt and acceptance by the Company of the other party’s written notification. In any event the Customer will remain jointly liable for charges relating to Goods consigned by it to the Company until the Company releases that liability in writing. The Goods remain subject to any lien which applies at the time of transfer.
CHARGES, PAYMENTS AND LIEN
6.1 The Company’s charges are subject to VAT and may be increased by prior notice to the Customer. The notice shall be at least 7 days for increases reflecting any rise in fuel costs and at least 21 days otherwise. If the Customer does not agree to the increase it shall notify the Company in writing and will remove the Goods within 21 days after receipt of the Company’s notice. If the Goods are not so removed then the increased charges will apply from expiry of the Company’s notice. The Company has the right to charge for storage of the Goods for so long as it has custody of or is responsible for them.
6.2 The Customer will pay demurrage at the Company’s standard rate (or a reasonable rate set by the Company if there is no standard rate) if the vehicle used by or on behalf of the Company to deliver the Goods is delayed for more than 60 minutes beyond the time reasonably needed for loading or unloading; and demurrage and storage charges if delivery is refused.
6.3 The charges shall be paid free of any deduction or set-off at such periodic intervals as may have been agreed between the parties and in any event on the earlier of (a) the expiry of any agreed period of credit and (b) the time immediately before any of the Goods cease to be in the Company’s care or control. The Company shall be entitled to payment for carriage at the time the Goods are loaded onto the vehicle. Absence of a delivery note shall not justify a refusal by the Customer to pay.
6.4 Interest shall be paid on money overdue to the Company at the rate of 1.5% for each calendar month during all or part of which it is overdue.
6.5 The Company shall (on its own behalf and as agent for any assignee of its invoices) have a general and particular lien on the Goods (and any associated documentation or records) as security for payment of all sums (whether due or not) claimed by the Company from, or actually or prospectively payable to the Company by, the Customer or another Interested Party on any account (relating to the Goods or not), or otherwise claimed in respect of the Goods or other property of an Interested Party. Where a lien secures sums payable to or claimed by the Company, it shall continue to cover those sums notwithstanding any transfer of ownership of Goods, or change of customer. Storage shall be charged for any goods detained under lien or where the Company is required by any competent authority to retain them.
REMOVAL AND DISPOSAL OF GOODS
7.1 The Goods shall be removed by the Customer at the time agreed between the parties. The Company may at any time by notice in writing to the Customer require the removal of the Goods within 14 days from the date of such notice or, in the case of perishable goods, 3 days.
7.2 Where the Customer fails to comply with Condition 7.1, or any payment from the Customer is overdue, the Company may, without prejudice to its other rights and remedies against the Customer, notify the Customer in writing that the Goods may be sold or otherwise disposed of if such payment is not made within 14 days from the date of such notice (or if applicable such Goods are not removed within the time stipulated by the Company). On expiry of the period, if such payment has not been made (or if applicable the Goods have not been so removed) the Company may surrender, sell or otherwise dispose of the Goods or any part at the Customer’s entire risk and expense by an appropriate method at such price as it considers appropriate, and any proceeds of sale or disposal shall be remitted to the Customer after deduction of all expenses and all amounts claimed by the Company and any assignee of its invoices. The Company shall not be liable for any alleged failure to achieve a sufficient sale price for the Goods.
7.3 Notice or action by the Company under this condition shall not in itself terminate the contract between the parties unless the Company expressly states so.
7.4 The time periods in this Condition may be extended by the Company in its discretion.
8. The Company shall be relieved of its obligations to the extent that their performance is prevented or delayed by, or their non-performance results wholly or partly from, the act or omission of the Customer or its agent or an Interested Party (including any breach by the Customer of these Conditions) or by storm, flood, fire, explosion, civil disturbance, governmental or quasi-governmental action, breakdown or unavailability of premises, equipment or labour, or other cause beyond the reasonable control of the Company.
DATA AND CONFIDENTIALITY
9.1 The Company may use data supplied by or on behalf of the Customer for any purpose appropriate in connection with the performance of the Company’s obligations, the exercise of the Company’s rights or for business planning by the Company;. The Company may share that data with any party providing services to the Company relevant to the provision of services to the Customer, and with any government authority where appropriate.
9.2 Subject to 9.1, the Company and the Customer shall each keep confidential information or data supplied by or on behalf of the other which is expressed to be confidential or which is of such a nature that it should clearly be regarded as confidential by a reasonable person.
TUPE AND SERVICE PROVISION CHANGE
10. Where there is a TUPE Transfer, the Customer will indemnify the Company against all liability and expense which the Company may incur in connection with:
10.1 the employment or the termination of employment, before the Effective Time, of any Employee;
10.2 any failure by the Transferor to comply with its legal obligations in respect of any of the Employees;
10.3 the transfer to the Company, by virtue of TUPE, of the employment of any person or the applicability of terms of employment, other than those previously notified in writing to, and previously accepted by, the Company;
10.4 any act or omission of the Transferor, on or before the Effective Time, for which the Company becomes liable by virtue of TUPE; or
10.5 the Transferor's failure to comply with its obligations under regulation 13 of TUPE.
11.1 Each exclusion or limitation in these Conditions exists separately and cumulatively.
11.2 Signature on a delivery note is evidence that the Goods have been received in apparently good order save as noted
11.3 The Company may open up packaging to inspect Goods
11.4 Any notice shall be duly given if left at or sent by first class prepaid post to the last known address of the other party or by facsimile to the last notified number evidenced by a successful transmission record, or by email to the last address notified for the purpose of service; and shall be deemed to have been received if posted 2 working days after posting, and if sent by facsimile or email, one working day after sending subject to confirmation of successful transmission (fax) or delivery (email).
12 All contracts between the Company and the Customer and any claims relating to the Goods shall be governed by the law of England and disputes dealt with exclusively by the English courts.
13 Terms used in these Conditions have the following meanings:
“Additional Party” means any employee, agent or sub-contractor of the Company, or anyone entitled to an indemnity, reimbursement or contribution from the Company in respect of a claim by an Interested Party.
“Company” means the party agreeing to provide the services and/or items under the contract “Customer” means the party requesting the services and/or items under the contract (and if different, also the person to whom they are supplied).
“Date” means the 10th working day after the relevant notice is actually received by the Company “Effective Time” means the time at which the employment of any person (or liabilities relating to that person) are transferred to the Company under TUPE “Employee” means a person employed or previously employed by the Transferor and who is, or whose rights are, affected by the TUPE Transfer
“Goods” means goods (including any associated documents, packaging and equipment) to which the contract relates or which are in the possession of the Company.
“Interested Party” means the Customer and/or anyone with an interest in the Goods; any obligation of the Interested Party is borne jointly and severally.
“Limit” means a limit per tonne gross weight of that part of the Goods in respect of which a claim arises.
“Loss” includes (without limitation) loss (including theft), destruction, damage, unavailability, contamination, deterioration, delay, non-delivery, mis-delivery,
unauthorised delivery, non-compliance with instructions or obligations, incorrect advice or information, loss or corruption of data, interference with or disruption of computer systems, breach of duty; and any event giving rise to any liability of an Interested Party to any other person or authority.
“Officer” includes a Director, Company Secretary, Partner, or member of an LLP
“Subcontractor” means a party engaged at the behest of the Company to perform some or all of the Company’s obligations
“Transferor” means a transferor as defined by TUPE
“TUPE” means the Transfer of Undertakings (Protection of Employment) Regulations 2006
“TUPE Transfer” means a situation where the Company is a transferee as defined by TUPE as a result of providing services to or for the benefit of the Customer (or intending to do so)
“Waste” bears its general meaning and also means “Waste” and “Directive Waste” as defined legislatively.
Copyright reserved 2014
Registered with the Office of Fair Trading .
In these Conditions:
“Customer” means the person or company who contracts for the services of the Carrier including any other carrier who gives a Consignment to the Carrier for carriage.
“Contract” means the contract of carriage between the Customer and the Carrier.
“Consignee” means the person or company to whom the Carrier contracts to deliver the Consignment.
“Consignment” means goods, whether a single item or in bulk or contained in one parcel, package or container, as the case may be, or any number of separate items, parcels, packages or containers sent at one time in one load by or for the Customer from one address to one address.
“Dangerous Goods” means those substances and articles the carriage of which is prohibited by the provisions of the European Agreement Concerning the International Carriage of Dangerous Goods by Road (ADR) as applied in the United Kingdom, or authorised only under the conditions prescribed in accordance therewith.
“In writing” includes, unless otherwise agreed, the transmission of information by electronic, optical or similar means of communication, including, but not limited to, facsimile, electronic mail or electronic data interchange (EDI), provided the information is readily accessible so as to be usable for subsequent reference.
“Trader” means the owner of the Consignment, any other person having an interest therein and anyone acting on behalf of such owner or other person, including, as the case may be, the Customer, sender and Consignee.
2. Parties and Sub-Contracting
(1) The Customer warrants that he is either the owner of the Consignment or is authorised by such owner to accept these Conditions on such owner’s behalf.
(2) The Carrier and any other carrier employed by the Carrier may employ the services of any other carrier for the purpose of fulfilling the Contract in whole or in part and the name of every other such carrier shall be provided to the Customer upon request.
(3) The Carrier contracts for itself and as agent of and trustee for its servants and agents and all other carriers referred to in (2) above and such other carriers’ servants and agents and every reference in these Conditions to “the Carrier” shall be deemed to include every other such carrier, servant and agent with the intention that they shall have the benefit of the Contract and collectively and together with the Carrier be under nogreater liability to the Customer or any other party than is the Carrier hereunder.
(4) Notwithstanding Condition 2(3) the carriage of any Consignment by rail, sea, inland waterway or air is arranged by the Carrier as agent of the Customer and shall be subject to the Conditions of the rail, shipping, inland waterway or air carrier contracted to carry the Consignment. The Carrier shall be under no liability whatsoever to whomsoever and howsoever arising in respect of such carriage: Provided that where the Consignment is carried partly by road and partly by such other means of transport any loss, damage or delay shall be deemed to have occurred while the Consignment was being carried by road unless the contrary is proved by the Carrier.
3. Dangerous Goods
Dangerous Goods must be disclosed by the Customer and if the Carrier agrees to accept them for carriage they must be classified, packed, marked, labelled and documented in accordance with the statutory regulations for the carriage by road of the substance declared.
4. Loading and Unloading
(1) Unless the Carrier has agreed in writing to the contrary with the
(a) The Carrier shall not be under any obligation to provide any plant, power or labour, other than that carried by the vehicle, required for loading or unloading the Consignment.
(b) The Customer warrants that any plant, power or labour required for loading or unloading the Consignment which is not carried by the vehicle will be provided by the Customer or on the Customer's behalf.
(c) The Carrier shall be under no liability whatsoever to the Customer for any damage whatsoever, howsoever caused, if the Carrier is instructed to load or unload any Consignment requiring plant, power or labour which, in breach of the warranty in (b) above, has not been provided by the Customer or on the Customer's behalf.
(d) The Carrier shall not be required to provide service beyond the usual place of collection or delivery but if any such service is given by the Carrier it shall be at the sole risk of the Customer.
(2) The Customer shall indemnify the Carrier against all claims and demands whatsoever which could not have been made if such instructions as are referred to in (1)(c) of this Condition and such service as is referred to in
(1)(d) of this Condition had not been given.
5. Signed Receipts
The Carrier shall, if so required, sign a document or electronic record prepared by the sender acknowledging the receipt of the Consignment but the burden of proving the condition of the Consignment and its nature, quantity or weight at the time of collection shall rest with the Customer.
(1) Transit shall commence when the Carrier takes possession of the Consignment whether at the point of collection or at the Carrier’s premises.
(2) Transit shall (unless otherwise previously determined) end when the Consignment is tendered at the usual place of delivery at the Consignee’s address within the customary cartage hours of the district:
(a) if no safe and adequate access or no adequate unloading facilities there exist then transit shall be deemed to end at the expiry of one clear day after notice in writing (or by telephone if so previously agreed in writing) of the arrival of the Consignment at the Carrier’s premises has been sent to the Consignee;
(b) when for any other reason whatsoever a Consignment cannot be delivered or when a Consignment is held by the Carrier ‘to await order’ or ‘to be kept till called for’ or upon any like instructions and such instructions are not given or the Consignment is not called for and removed within a reasonable time, then transit shall also be deemed to end.
7. Undelivered or Unclaimed Consignments
Where the Carrier is unable for any reason to deliver a Consignment to the Consignee or as he may order, or where by virtue of the proviso to Condition 6(2) hereof transit is deemed to be at an end, the Carrier may sell the Consignment and payment or tender of the proceeds after deduction of all proper charges and expenses in relation thereto and of all outstanding charges in relation to the carriage and storage of the Consignment shall (without prejudice to any claim or right which the Customer may have against the Carrier otherwise arising under these Conditions) discharge the Carrier from all liability in respect of such Consignment, its carriage and storage:
(1) the Carrier shall do what is reasonable to obtain the value of the Consignment; and
(2) the power of sale shall not be exercised where the name and address of the sender or of the Consignee is known unless the Carrier shall have done what is reasonable in the circumstances to give notice to the sender or, if the name and address of the sender is not known, to the Consignee that the Consignment will be sold unless within the time specified in such notice, being a reasonable time in the circumstances from the giving of such notice, the Consignment is taken away or instructions are given for its disposal.
8. Carrier’s Charges
(1) The Carrier’s charges shall be payable by the Customer without prejudice to the Carrier’s rights against the Consignee or any other person: Provided that when any Consignment is consigned ‘carriage forward’ the Customer shall not be required to pay such charges unless the Consignee fails to pay after a reasonable demand has been made by the Carrier for payment thereof.
(2) Charges shall be payable when due without reduction or deferment on account of any claim, counterclaim or set-off. If the Customer becomes insolvent or any sums owed by the Customer on any invoice or account with the Carrier become overdue for payment, any credit terms shall be cancelled with immediate effect and all invoices or accounts issued by the Carrier shall immediately be deemed due for payment and thereupon become payable. The Late Payment of Commercial Debts (Interest) Act 1998, as amended, shall apply to all sums due from the Customer.
9. Liability for Loss and Damage
(1) The Customer shall be deemed to have elected to accept the terms set out in (2) of this Condition unless, before the transit commences, the Customer has agreed in writing that the Carrier shall not be liable for any loss or misdelivery of or damage to or in connection with the Consignment howsoever or whensoever caused and whether or not caused or contributed to directly or indirectly by any act, omission, neglect, default or other wrongdoing on the part of the Carrier, its servants, agents or subcontractors.
(2) Subject to these Conditions the Carrier shall be liable for:
(a) physical loss, mis-delivery of or damage to living creatures, bullion, money, securities, stamps, precious metals or precious stones comprising the Consignment only if:
(i) the Carrier has specifically agreed in writing to carry any such items; and
(ii) the Customer has agreed in writing to reimburse the Carrier in respect of all additional costs which result from the carriage of the said items; and
(iii) the loss, mis-delivery or damage is occasioned during transit and is proved to be due to the negligence of the Carrier, its servants, agents or sub-contractors;
(b) physical loss, mis-delivery of or damage to any other goods comprising the Consignment unless the same has arisen from, and the Carrier has used reasonable care to minimise the effects of:
(i) Act of God;
(ii) any consequences of war, invasion, act of foreign enemy, hostilities (whether war or not), civil war, rebellion, insurrection, terrorist act, military or usurped power or confiscation, requisition, or destruction or damage by or under the order of any government or public or local authority;
(iii) seizure or forfeiture under legal process;
(iv) error, act, omission, mis-statement or misrepresentation by the Customer or other owner of the Consignment or by servants or agents of either of them;
(v) inherent liability to wastage in bulk or weight, faulty design, latent defect or inherent defect, vice or natural deterioration of the Consignment;
(vi) insufficient or improper packing;
(vii) insufficient or improper labelling or addressing;
(viii) riot, civil commotion, strike, lockout, general or partial stoppage or restraint of labour howsoever caused;
(ix) Consignee not taking or accepting delivery within a reasonable time after the Consignment has been tendered.
(3) The Carrier shall not in any circumstances be liable for loss or damage arising after transit is deemed to have ended within the meaning of Condition 6(2) hereof, whether or not caused or contributed to directly or indirectly by any act, omission, neglect, default or other wrongdoing on the part of the Carrier, its servants, agents or sub-contractors.
The Carrier shall not in any circumstances be liable in respect of a Consignment where there has been fraud on the part of the Customer or the owner, or the servants or agents of either, in respect of that Consignment, unless the fraud has been contributed to by the complicity of the Carrier or of any servant of the Carrier acting in the course of his employment.
11. Limitation of Liability
(1) Except as otherwise provided in these Conditions, the liability of the Carrier in respect of claims for physical loss, mis-delivery of or damage to goods comprising the Consignment, howsoever arising, shall in all circumstances be limited to the lesser of
(a) the value of the goods actually lost, mis-delivered or damaged; or
(b) the cost of repairing any damage or of reconditioning the goods; or
(c) a sum calculated at the rate of £1,300 Sterling per tonne on the gross weight of the goods actually lost, mis-delivered or damaged; and the value of the goods actually lost, mis-delivered or damaged shall be taken to be their invoice value if they have been sold and shall otherwise be taken to be the replacement cost thereof to the owner at the commencement of transit, and in all cases shall be taken to include any Customs and Excise duties or taxes payable in respect of those goods:
(i) in the case of loss, mis-delivery of or damage to a part of the Consignment the weight to be taken into consideration in determining the amount to which the Carrier’s liability is limited shall be only the gross weight of that part regardless of whether the loss, mis-delivery or damage affects the value of other parts of the Consignment;
(ii) nothing in this Condition shall limit the liability of the Carrier to less than the sum of £10;
(iii) the Carrier shall be entitled to proof of the weight and value of the whole of the Consignment and of any part thereof lost, misdelivered or damaged;
(iv) the Customer shall be entitled to give to the Carrier notice in writing to be delivered at least seven days prior to commencement of transit requiring that the £1,300 per tonne limit in 11 (1)(c) above be increased, but not so as to exceed the value of the Consignment, and in the event of such notice being given the Customer shall be required to agree with the Carrier an increase in the carriage charges in consideration of the increased limit, but if no such agreement can be reached the aforementioned £1,300 per tonne limit shall continue to apply.
(2) The liability of the Carrier in respect of claims for any other loss whatsoever (including indirect or consequential loss or damage and loss of market), and howsoever arising in connection with the Consignment, shall not exceed the amount of the carriage charges in respect of the Consignment or the amount of the claimant’s proved loss, whichever is the lesser, unless:
(a) at the time of entering into the Contract with the Carrier the Customer declares to the Carrier a special interest in delivery in the event of physical loss, mis-delivery or damage or of an agreed time limit being exceeded and agrees to pay a surcharge calculated on the amount of that interest, and
(b) at least 7 days prior to the commencement of transit the Customer has delivered to the Carrier confirmation in writing of the special interest, agreed time limit and amount of the interest.
12. Indemnity to the Carrier
The Customer shall indemnify the Carrier against:
(1) all liabilities and costs incurred by the Carrier (including but not limited to claims, demands, proceedings, fines, penalties, damages, expenses and loss of or damage to the carrying vehicle and to other goods carried) by reason of any error, omission, mis-statement or misrepresentation by the Customer or other owner of the Consignment or by any servant or agent of either of them, insufficient or improper packing, labelling or addressing of the Consignment or fraud as in Condition 10;
(2) all claims and demands whatsoever (including for the avoidance of doubt claims alleging negligence), by whomsoever made and howsoever arising (including but not limited to claims caused by or arising out of the carriage of Dangerous Goods and claims made upon the Carrier by H.M. Revenue and Customs in respect of dutiable goods consigned in bond) in excess of the liability of the Carrier under these Conditions in respect of any loss or damage whatsoever to, or in connection with, the Consignment whether or not caused or contributed to directly or indirectly by any act, omission, neglect, default or other wrongdoing on the part of the Carrier, its servants, agents or sub-contractors.
13. Time Limits for Claims
(1) The Carrier shall not be liable for:
(a) damage to the whole or any part of the Consignment, or physical loss, mis-delivery or non-delivery of part of the Consignment unless advised thereof in writing within seven days, and the claim is made in writing within fourteen days, after the termination of transit;
(b) any other loss unless advised thereof in writing within twenty-eight days, and the claim is made in writing within forty-two days, after the commencement of transit.
Provided that if the Customer proves that,
(i) it was not reasonably possible for the Customer to advise the Carrier or make a claim in writing within the time limit applicable, and
(ii) such advice or claim was given or made within a reasonable time, the Carrier shall not have the benefit of the exclusion of liability afforded by this Condition.
(2) The Carrier shall in any event be discharged from all liability whatsoever and howsoever arising in respect of the Consignment unless suit is brought and notice in writing thereof given to the Carrier within one year of the date when transit commenced.
(3) In the computation of time where any period provided by these Conditions is seven days or less, Saturdays, Sundays and all statutory public holidays shall be excluded.
(1) The Carrier shall have:
(a) a particular lien on the Consignment, and
(b) a general lien against the Trader for sums unpaid on any invoice, account or Contract whatsoever. If such lien, whether particular or general, is not satisfied within a reasonable time, the Carrier may sell the Consignment, or part thereof, as agent for the owner and apply the proceeds towards any sums unpaid and the expenses of the retention, insurance and sale of the Consignment and shall, upon accounting to the Customer for any balance remaining, be discharged from all liability whatsoever in respect of the Consignment.
(2) The Carrier may exercise its lien on its own behalf or as agent for any assignee of its invoices at any time and at any place at its sole discretion whether or not sums have become payable in accordance with Condition 8(2) hereof and whether or not the contractual carriage has been completed and these conditions shall continue to apply during the period of exercise of such lien.
15. Unreasonable Detention
The Customer shall be liable to pay demurrage for unreasonable detention of any vehicle, trailer, container or other equipment at the Carrier’s current rates of demurrage but the rights of the Carrier against any other person in respect thereof shall remain unaffected.
16. Law and Jurisdiction
Unless otherwise agreed in writing, the Contract and any dispute arising thereunder shall be governed by English law and shall be subject to the jurisdiction of the English courts alone.
STATUS OF THE CONDITIONS
The RHA Conditions of Carriage 2009 result from a review of the RHA Conditions of Carriage 1998. They will take effect from 1st September 2009 and include amendments reflecting changes in the law and members' experience in using the RHA Conditions of Carriage 1998. Other specialist group conditions are in the process of revision to take account of the new RHA Conditions of Carriage and will be re-issued over the coming months.
The use of the RHA Conditions by members is not compulsory but members are recommended to use them as they are designed to enable a reasonable contractual balance to be struck between the interests of members as carriers and those of their customers. Members should always seek professional advice before making or agreeing any variation in the conditions to meet special circumstances.
The Conditions are the copyright of the RHA and may not be used by nonmembers. It is most important that members should arrange to have the printed forms stamped or overprinted with their details in the box provided at the top and with their membership number in the space provided as this will deter the use of the form by non-members. There have been instances in the past where nonmembers using the RHA Conditions have been prosecuted under the provisions of the Trades Descriptions Act.
TO USE THE CONDITIONS
A member who intends to trade under these Conditions, or any of the specialist group conditions, should take the following action:-
I. Refer the Conditions to his insurers or brokers and secure any necessary adjustments to existing insurance covers.
2. Inform existing customers in writing, preferably by Recorded Delivery, of the intention to trade subject to the new Conditions saying for example: "Please note that as from the _ day of _ 2009 goods will be accepted for carriage only subject to the RHA Conditions of Carriage 2009 a copy of which is attached/available free on request". If it is intended to use the specialist group conditions reference should instead be made to the relevant specialist conditions.
3. Inform existing sub-contractors in writing, preferably by Recorded Delivery, that as from the _ day of _ 2009 goods will be accepted for carriage and subcontracted only subject to the RHA Conditions of Carriage 2009. If it is intended to use the specialist group conditions reference should instead be made to the relevant specialist conditions.
4. Retain Recorded Delivery receipts or, if the above letters are not sent by Recorded Delivery, maintain a permanent record of customers and subcontractors and the dates on which letters were dispatched.
5. Print or overprint at the foot of all letterheads, quotation forms, fax forms, emailed documents, confirmation forms and notes, Consignment Notes and invoices etc: "Goods are accepted for carriage (and sub-contracted) only subject to the RHA Conditions of Carriage 2009 a copy of which is available free on request.” If it is intended to use the specialist group conditions reference should instead be made to the relevant specialist conditions. If present letterheads, etc refer to the "current RHA Conditions of Carriage" this will probably suffice provided that all existing customers and sub-contractors have been informed in accordance with 2-4 above that you are now using the 2009 conditions.
6. Maintain a stock of the printed Conditions for issue to customers or subcontractors as and when requested.
7. Specifically mention that the Conditions will apply during any telephone call in which the terms of the contract are first agreed verbally, and confirm this immediately afterwards to the customer by fax, e-mail, letter, note or memo at the same time as any quotation. Clear, simple, contemporary, dated and timed documents provide better proof than later conflicting oral evidence of recollections of conversations.
EFFECT OF THE CONDITIONS
The intention in revising the RHA family of Conditions has been to retain their familiar style, layout and content, wherever outside factors have not suggested changes, so that they retain their status as an industry standard. The principal amendments to the Conditions of Carriage are set out below:-
CONDITION 1: The definition of “Dangerous Goods” has been revised to take account of the application of the European Agreement Concerning the International Carriage of Dangerous Goods by Road (ADR) as domestic law. A definition of what constitutes “writing” has been introduced to take account of the use of e-mail and similar means of communication. A definition of “Trader” has been introduced for use with the revised lien clause.
CONDITION 2: There are no substantive changes.
CONDITION 3: The use of TREMCARDS in the carriage of dangerous goods has been phased out since 1st July 2009 in favour of documentary provisions based around the ADR Agreement. The revised Condition 3 takes this into account. A separate guidance note for members is in preparation. Members are again reminded of the statutory requirement for specialist knowledge, training and equipment before undertaking most dangerous goods haulage.
CONDITION 4: References to “special appliances” have been replaced by references to “plant power or labour” throughout to achieve greater consistency across the clauses.
CONDITION 5: The wording has been simplified in the interests of greater clarity
CONDITION 6: There are no substantive changes.
CONDITION 7: There are no substantive changes.
CONDITION 8: The opportunity has been taken to introduce a provision to cancel credit terms immediately if a customer becomes insolvent or fails to pay invoices when due. This is intended to work with the revised lien clause to improve the position of carriers when faced with defaulting customers. Any overdue accounts are made specifically subject to the benefit of the whole of the Late Payment of Commercial Debts (Interest) Act 1998, as amended, in favour of the carrier. A separate guidance note for members on how to make best use of the Act if customers default is under preparation.
CONDITION 9: There are no substantive changes.
CONDITION 10: There are no substantive changes.
CONDITION 11: There are no substantive changes.
CONDITION 12: There are no substantive changes.
CONDITION 13: The working of the time period of one year within which legal proceedings must be brought against the carrier has been brought into line with some other conditions by requiring that written notice of any proceedings must be given within the one year period itself.
CONDITION 14: This Condition has been substantively revised for the first time since 1991 to reflect both the practical manner in which the exercise of liens has developed in recent years and the way in which courts have tended to validate a wider general lien for carriers when certain conditions have been met. The right of lien is potentially exercisable against a range of persons coming within the definition of “Trader” and the clauses have been re-written to widen and accelerate the potential circumstances in which a lien may be validly exercised at a time when carriers are facing increasing difficulties from defaulting customers. More detailed guidance is being separately developed for members on factors to take into account when seeking to exercise a lien. It should be emphasised that liens remain a contentious area of law and members should always seek clarification of their rights in specific circumstances from their legal advisers at the earliest opportunity to avoid possible later difficulties.
CONDITION 15: This now stipulates that demurrage will be due at the carrier’s current rate of demurrage for unreasonable detention of any vehicle, trailer, container or other equipment such as pallets. Carriers must establish their own individual scales for demurrage based on their actual operating costs as competition law prevents the RHA from making any recommendations in this area. However, it is intended to provide members with information from which they can construct a framework for setting demurrage charges based on their own real-time costs of vehicle operation.
CONDITION 16: The law and jurisdiction clause introduced in the 1998 Conditions has been slightly modified to take account of international practice. It now states that English law applies to the contract and any dispute arising under it and that proceedings should be brought only in the English courts. As under the previous Conditions, carriers in Scotland and Northern Ireland may wish to vary the Condition to apply a local law and jurisdiction and separate guidance will be available to members on how to do so.
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