Terms & Conditions of Transport

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Terms & Conditions of Transport

Terms and Conditions of Transport (Version 3.0: Last updated in June 2020)

1. Transport Terms And Conditions:

The following provisions shall apply to all transportation of goods and vehicles licensed under the Motor Vehicle Transport Act (Canada R S C 1970 M-14) or under provincial statutes.

2. Definitions:

2.1 “Ship” means the vessel named in this Bill of Lading, or any conveyance owned, chartered, towed or operated by Viamar or used by Viamar for the performance of this contract.

2.2 “Viamar” means Viamar Scilla Transport International Inc., on whose behalf this Bill of Lading has been drafted.

2.3 “Merchant” includes the Shipper, the Receiver, the Consignor, the Consignee, the Holder of this Bill of Lading and any person having a present or future interest in the Goods, or any person acting on behalf of any of the above-mentioned persons.

2.4 “Package” is the largest individual unit of partially or completely covered or contained cargo made up, by or for the Shipper which is delivered and entrusted to Viamar, including palletized units and each container stuffed and sealed by the Shipper or on its behalf, although the Shipper may have furnished a description of the contents of such sealed container on this bill of lading.

2.5 “Container” includes any container, trailer, transportable tank, lift van, flat, pallet, or any similar article of transport used to consolidate goods.

2.6 “Viamar’s container” or “Viamar’s equipment” includes containers or equipment owned, leased or used by Viamar in the transportation of the Merchant’s goods.

2.7 “Goods” mean the cargo described on the face of this Bill of Lading and, if the cargo is packed into container(s) supplied or furnished by or on behalf of the Merchant, include the container(s) as well.

3. Subcontracting:

Viamar shall be entitled to subcontract directly or indirectly on any terms the whole or any part of the handling, storage or carriage of the goods and all duties undertaken by Viamar in relation to the goods. Every servant, agent, subcontractor (including sub-subcontractors), or other person whose services have been used to perform this contract shall be entitled to the rights, exemptions from or limitations of liability, defenses and immunities set forth herein. For these purposes Viamar shall be deemed to be acting as agent or trustee for such servants, agents, subcontractors, or other persons who shall be deemed to be parties to this contract.

4. Route Of Transport:

Viamar is entitled to perform the transport in any reasonable manner and by any reasonable means, methods and routes. The Ship shall have the liberty, either with or without the goods on board, to, at any time, adjust navigational instruments, make trial trips, dry dock, go to repair yards, shift berths, take in fuel or stores, embark or disembark any persons, carry contraband and hazardous goods, sail with or without pilots and save or attempt to save life or property. Delays resulting from such activities shall not be deemed a deviation.

5. Hindrances Affecting Performance:

5.1 Viamar shall use reasonable endeavors to complete transport and to deliver the goods at the place designated for delivery.

5.2 If at any time the performance of this contract as evidenced by this Bill of Lading in the opinion of Viamar is or will be affected by any hindrance, risk, delay, injury, difficulty or disadvantage of any kind, including strike, and if by virtue of the above it has rendered or is likely to render it in any way unsafe, impracticable, unlawful or against the interest of Viamar to complete the performance of the contract, Viamar, whether or not the transport is commenced, may without notice to the Merchant elect to: (a) treat the performance of this contract as terminated and place the goods at the Merchant’s disposal at any place Viamar shall deem safe and convenient, or (b) deliver the goods at the place of delivery.
In any event, Viamar shall be entitled to, and the Merchant shall pay, full freight for any goods received for transportation and additional compensation for extra costs and expenses resulting from the circumstances referred to above.

5.3 If, after storage, discharge or any actions according to subpart 5.2 above, Viamar makes arrangements to store and/or forward the goods, it is agreed that he shall do so only as agent for and at the sole risk and expense of the Merchant, without any liability whatsoever in respect of such agency.

5.4 Viamar, in addition to all other liberties provided for in this Article, shall have liberty to comply with orders, directions, regulations or suggestions as to navigation or the carriage or handling of the goods or the ship howsoever given by any actual or purported government or public authority, or by any committee or person having under the terms of any insurance on the Ship the right to give such order, direction, regulation or suggestion. If by reason of and/or in compliance with any such order, direction, regulation or suggestions anything is done or is not done, the same shall be deemed to be included within the contract of carriage and shall not be a deviation.

6. Basic Liability:

6.1 Viamar shall be liable for loss of or damage to the goods occurring between the time when it takes goods into its custody and the time of delivery but shall not be liable for any consequential or special damages arising from such loss or damage.

6.2 Where a shipment is accepted to carriage by more than one carrier, the carrier issuing the Bill of Lading (hereinafter called the originating carrier) and the carrier who assumes responsibility for delivery to the consignee (hereinafter called the delivering carrier), in addition to any other liability hereunder, are liable for any loss or damage to the goods while they are in the custody of any other carrier to whom the goods are or have been delivered and from which liability the other carrier is not relieved.

6.3 The originating carrier or the delivering carrier, as the case may be, is entitled to recover from any other carrier to whom the goods are to have been delivered the amount of the loss or damage that the originating carrier or delivering carrier, as the case may be, may be required to pay hereunder resulting from loss of or damage to the goods while they were in the custody of such other carrier. When shipments are interlined between carriers, settlement of concealed damage claims shall be prorated on the basis of revenues received.

6.4 Viamar shall not be liable for loss, damage or delay to any of the goods described in the Bill of Lading caused by riots, strikes, lockouts, labour disputes, weather-related delays, a defect or inherent vice in the goods, the act or default of the consignor, owner or consignee authority of law, quarantine or differences in weights of grain, seed or other commodities caused by natural shrinkage .

6.5 Viamar does not undertake that the goods shall be delivered at any particular time or for any particular market and shall not be liable for any direct or indirect losses caused by any delay.

6.6 Viamar shall not be liable for any loss or damage arising from:

(a) an act or omission of the Merchant or person other than Viamar acting on behalf of the Merchant from whom Viamar took the goods in charge,

(b) compliance with the instructions of any person authorized to give them,

(c) handling, loading, stowage or unloading of the goods by or on behalf of the Merchant,

(d) inherent vice of the goods or concealed damage to or shortage of goods packed by the Merchant,

(e) lack or insufficiency of or defective condition of packing in the case of goods which by their nature are liable to wastage or damage when not packed or when not properly packed,

(f) insufficiency or inadequacy of marks or numbers on the goods, coverings or unit loads,

(g) fire, unless caused by actual fault of or privity of contract by Viamar,

(h) any cause or event which Viamar could not avoid and the consequences of which he could not prevent by the exercise of due diligence.

6.7 When Viamar pays claims to the Merchant, Viamar shall automatically be subrogated to all rights of the Merchant against all others, on account of the losses or damages for which such claims are paid.

6.8 The defences and limits of liability provided for in this Bill of Lading shall apply in any action or claim against Viamar relating to the goods, or the receipt, transportation, storage or delivery thereof, whether the action be founded in contract, tort or otherwise.

7. Compensation For Loss And Damage:

7.1 Unless otherwise mandated by compulsorily applicable law, Viamar’s liability for compensation for loss of or damage to goods shall in no case exceed a certain amount, unless the Merchant, with the consent of Viamar, has declared a higher value for the goods in the space provided on the front of this Bill of Lading and paid extra freight per Viamar’s tariff, in which case such higher value shall be the limit of Viamar’s liability. Any partial loss or damage shall be adjusted pro rata on the basis of such declared value. Where a container is stuffed by Shipper or on its behalf, and the container is sealed when received by Viamar for shipment, Viamar’s liability will be limited with respect to the contents of each such container, except when the Shipper declares the value on the face hereof and pays additional charges on such declared value as stated in Viamar’s tariff. Viamar shall not in any case be liable for an amount greater than the actual loss to the person entitled to make the compensation claim. Viamar shall have the option of replacing lost goods or repairing damaged goods.

7.2 Compensation shall be calculated by reference to the value of the goods according to their current market price at the time and place they are delivered, or should have been delivered, in accordance with this contract.

7.3 If the value of the goods is less than a certain amount (as decided by Viamar), their value for compensation purposes shall be deemed to be the invoice value, plus freight and insurance, if paid.

7.4 Viamar shall not be liable to any extent for any loss of or damage to or in connection with precious metals, stones, or chemicals, jewelry, currency, negotiable instruments, securities, writings, documents, works of art, curios, heirlooms, or any other valuable goods, including goods having particular value only for the Merchant, unless the true nature and value of the goods have been declared in writing by the Merchant before receipt of the goods by the shipping partner, the same is inserted on the face of this Bill of Lading, and additional freight has been paid as required.

7.5 Viamar will not arrange for insurance on the goods except upon express instructions from the Consignor and then only at Consignor’s expense and presentation of a declaration of value for insurance purposes prior to shipment.

8. Consignor’s Risk:

Where it is agreed that the goods are carried at the risk of the consignor of the goods, such agreement covers only such risks as are necessarily incidental to transportation and the agreement shall not relieve the carrier from liability for any loss or damage or delay which may result from any negligent act or omission of the carrier, his agents or employees and the burden of proving absence from negligence shall be on the carrier.

9. Viamar’s Containers:

If goods are not received by Viamar already in containers, Viamar may pack them in any type of container as deemed fit. The Merchant shall be liable to Viamar for damage to Viamar’s containers or equipment if such damage occurs while such equipment is in control of the Merchant or his agents. The Merchant indemnifies Viamar for any damage or injury to persons or property caused by Viamar’s containers or equipment during handling by or when in possession or control of the Merchant.

10. Container Packed By The Merchant:

If Viamar receives the goods already packed into containers:

10.1. This Bill of Lading is prima facie evidence of the receipt of the particular number of containers set forth, and that number only. Viamar accepts no responsibility with respect to the order and condition of the contents of the containers;

10.2. Viamar warrants that the stowage and seals of the containers are safe and proper and suitable for handling and carriage and indemnifies Viamar for any injury, loss or damage caused by breach of this warranty;

10.3. Delivery shall be deemed as full and complete performance when the containers are delivered by Viamar with the seals intact;

10.4. Viamar has the right but not the obligation to open and inspect the containers at any time without notice to the Merchant, and expenses resulting from such inspections shall be borne by the Merchant; and

10.5. The Merchants shall inspect containers before stuffing them, and the use of the containers shall be prima facie evidence of their being sound and suitable for use.

11. Dangerous Goods:

11.1 The Merchant may not tender goods of a dangerous nature without written application to Viamar and Viamar’s acceptance of the same. In the application, the Merchant must identify the nature of the goods with reasonable specificity as well as the names and addresses of the shippers and consignees.

11.2 The Merchant shall distinctly and permanently mark the nature of the goods on the outside of the package and container in a form and manner as required by law and shall submit to Viamar or to the appropriate authorities all necessary documents required by law or by Viamar for the transportation of such goods.

11.3 If the goods subsequently, in the judgment of Viamar, become a danger to Viamar, the Ship, or other cargo, Viamar may dispose of the goods without compensation to the Merchant and the Merchant shall indemnify Viamar for any loss or expenses arising from such action.

12. Deck Cargo:

Viamar has the right to carry the goods in any container under deck or on deck. Viamar is not required to note “on deck stowage” on the face of this Bill of Lading, and goods so carried shall constitute under deck stowage for all purposes, including General Average. Except as otherwise provided by any law applicable to this contract, if this Bill of Lading states that the cargo is stowed on deck then Viamar shall not be liable for any non-delivery, misdelivery, delay or loss to goods carried on deck, whether or not caused by Viamar’s negligence or the ship’s fault.

13. Weight Certification:

Merchant acknowledges that it is required to provide verified weights obtained on calibrated, certified equipment of all cargo that is to be tendered to steamship lines. Shipper agrees that Viamar is entitled to rely on the accuracy of such weights and to countersign or endorse it as Viamar’s own certified weight to the steamship line carrying the cargo. The Merchant agrees that it shall indemnify and hold Viamar harmless from any and all claims, losses, penalties or other costs resulting from any incorrect or questionable verification of the weight provided by the Merchant or its agent or contractor on which Viamar relies.

14. Heavy Lift:

14.1 Single packages with a weight exceeding a certain amount not presented to Viamar in enclosed containers must be declared in writing by the Merchant before receipt of the packages by Viamar. The weight of such packages must be clearly and durably marked on the outside of the package in letters and figures not less than two inches high.

14.2 If the Merchant fails to comply with the above provisions, Viamar shall not be liable for any loss of or damage to the goods, persons or property, and the Merchant shall be liable for any loss of or damage to persons or property resulting from such failure and the Merchant shall indemnify Viamar against any loss or liability suffered or incurred by Viamar as a result of such failure.

14.3 The Merchant agrees to comply with all laws or regulations concerning overweight containers and the Merchant shall indemnify Viamar against any loss or liability suffered or incurred by Viamar as a result of the Merchant’s failure to comply with such laws or regulations.

15. Delivery:

Viamar shall have the right to deliver the goods at any time at any place designated by Viamar within the commercial or geographic limits of the port of discharge or place of delivery shown in this Bill of Lading. Viamar’s responsibility shall cease when delivery has been made to the Merchant, any person authorized by the Merchant to receive the goods, or in any manner or to any other person in accordance with the custom and usage of the port of discharge or place of delivery. If goods should remain in Viamar’s custody after discharge from the ship and possession is not taken by the Merchant, after notice, within the time allowed in Viamar’s applicable tariff, the goods may be considered to have been delivered to the Merchant or abandoned at Viamar’s discretion, and may be disposed of or stored at the Merchant’s expense.

16. Notice Of Claim:

Written notice of claims for loss of or damage to goods occurring or presumed to have occurred while in the custody of Viamar must be given to Viamar at the port of discharge before or at the time of removal of the goods by one entitled to delivery. If such notice is not provided, removal shall be prima facie evidence of delivery by Viamar. If such loss or damage is not apparent, Viamar must be given written notice within three days of the delivery.

17. Freight And Charges:

17.1 Freight may be calculated on the basis of the particulars of the goods furnished by the Merchant, who shall be deemed to have guaranteed to Viamar the accuracy of the contents, weight, measure or value as furnished by him at the time of receipt of the goods, but Viamar for the purpose of ascertaining the actual particulars may at any time and at the risk and expense of the Merchant open the container or package and examine contents, weight, measure and value of the goods. In case of incorrect declaration of the contents, weight, measure and or value of the goods, the Merchant shall be liable for and bound to pay to Viamar: (a) the balance of freight between the freight charged and that which would have been due had the correct details been given, plus (b) expenses incurred in determining the correct details, plus (c) as liquidated and ascertained damages, an additional sum equal to the correct freight. Quotations as to fees, rates of duty, freight charges, insurance premiums or other charges given by Viamar to the Merchant are for informational purposes only and are subject to change without notice and shall not under any circumstances be binding upon Viamar, unless Viamar in writing specifically undertakes the handling of transportation of the shipment at a specific rate and that rate is filed in Viamar’s tariff.

17.2 Freight shall be deemed earned on receipt of goods by Viamar, the goods lost or not lost, whether the freight is intended to be prepaid or collected at destination. Payment shall be in full and in cash without any offset, counterclaim, or deduction, in the currency named in this Bill of Lading, or another currency at Viamar’s option. Interest at 1% per month shall run from the date when freight and charges are due. Payment of freight charges to a freight forwarder, broker or anyone other than directly to Viamar shall not be deemed payment to Viamar. The Merchant shall remain liable for all charges hereunder, notwithstanding any extension of credit to the freight forwarder or broker by Viamar. Full freight shall be paid on damaged or unsound goods.

17.3 The Merchant shall be liable for all dues, fees, duties, fines, taxes and charges, including consular fees, levied on the goods. The Merchant shall be liable for return freight and charges on the goods if they are refused export or import by any government. The Merchant shall be liable for all demurrage, detention or other charges imposed on the goods or their containers by third parties.

17.4 The Shipper, consignee, holder hereof, and owner of the goods, and their principals, shall be jointly and severally liable to Viamar for the payment of all freight and charges, including advances, and shall, in any referral for collection or action for monies due to Viamar, upon recovery by Viamar, pay the expenses of collection and litigation, including reasonable attorneys’ fees. This provision shall apply regardless of whether the front of this bill of lading has been marked “prepaid” or “freight prepaid” so long as freight and charges remain unpaid.

17.5 The Shipper, consignee, holder hereof, and owner of the goods, and their principals, shall jointly and severally indemnify Viamar for all claims, fines, penalties, damages, costs and other amounts which may be incurred or imposed upon Viamar by reason of any breach of any of the provisions of this Bill of Lading or of any statutory or regulatory requirements.

18. Lien:

Viamar shall have a lien on any and all property (and documents relating thereto) of the Merchant in its actual or constructive possession, custody or control or en route, which lien shall survive delivery, for all claims for charges, expenses or advances incurred by Viamar in connection with this shipment, or any previous shipment of the Merchant, or both, which lien shall survive delivery, and if such claim remains unsatisfied for 30 days after demand for its payment is made, Viamar may sell at public auction or private sale, upon 10 days written notice, registered mail to the Merchant, the goods, wares and/or merchandise or so much as may be necessary to satisfy such lien and the costs of recovery, and apply the net proceeds of such sale to the payment of the amount due Viamar. Any surplus from such sale shall be transmitted to the Merchant, and the Merchant shall be liable for any deficiency in the sale.

19. Time Bar:

Viamar shall be discharged from all liability for loss of or damage to goods unless suit is brought within one (1) year after delivery of the goods or the date when the goods should have been delivered. Suit shall not be deemed brought against Viamar until jurisdiction shall have been obtained over Viamar by service of summons. The time bar for overcharge claims shall be set forth in Viamar’s applicable tariff.

20. Jurisdiction:

No service shall be rendered by Viamar in the transportation of any shipment which is prohibited by law or regulations of any federal, state, provincial or local government in the origin or destination countries.

21. Taxes

Rates and charges are subject to all applicable government taxes. Rates and charges may also be subject to industry surcharges such as, but not limited to, fuel surcharges. Rates are subject to change without notice.ice.

22. Both-to-blame Collision Clause:

If the ship comes into collision with another vessel as a result of negligence of the other vessel and any negligence or fault on the part of Viamar or its servants or subcontractors, the Merchant shall indemnify Viamar against all loss or liability to the other or non-carrying vessel or her owners, as such loss or liability represents loss of, or damage to, or any claim whatsoever of the Merchant paid or payable by the other or non-carrying vessel or her owners to the Merchant and set off, recouped or recovered by the other or non-carrying vessel or her owners as part of their claim against the carrying ship or her owner. This provision shall apply as well where the owners, operators or those in charge of any ship or ships or objects other than, or in addition to, the colliding ships or objects are at fault with respect to a collision or contact.

23. Perishable Cargo:

23.1 Goods of a perishable nature shall be carried in ordinary containers without special protection, services or other measures unless there is noted on the reverse side of this Bill of Lading that the goods will be carried in a refrigerated, heated, electrically ventilated or otherwise specially-equipped container, or are to receive special attention in any way. Viamar shall not be liable for any loss of or damage to goods in a special hold or container arising from latent defects, breakdown or stoppage of the refrigeration, ventilation or heating machinery, insulation, ship’s plant, or other such apparatus of the vessel or container, provided that Viamar shall before or at the beginning of the transport exercise due diligence to maintain the special hold or container in an efficient state.

23.2 The Merchant undertakes not to tender for transportation any goods that require refrigeration without given written notice of their nature and the required temperature setting of the thermostatic controls before receipt of the goods by Viamar. In case of refrigerated containers packed by or on behalf of the Merchant, the Merchant warrants that the goods have been properly stowed in the container and that the thermostatic controls have been adequately set before receipt of the goods by Viamar.

23.3 The Merchant’s attention is drawn to the fact that refrigerated containers are not designed to freeze down cargo which has not been presented for stuffing at or below its designated carrying temperature. Viamar shall not be responsible for the consequences of cargo tendered at a higher temperature than that required for the transportation.

23.4 If the above requirements are not complied with, Viamar shall not be liable for any loss of or damage to the goods whatsoever.

24. Severability:

The terms of this Bill of Lading shall be severable, and, if any part or term hereof shall be held invalid, such holding shall not affect the validity or enforceability of any other part or term hereof.

25. Variation Of The Contract:

This contract supersedes all prior agreement between the parties with respect to its subject matter.

No servant or agent of Viamar shall have power to waive or vary any of the terms hereof unless such variation is in writing and is specifically authorized or ratified in writing by Viamar.

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