Registered Company Number: 2439620
- In these Conditions “SCH” means Southampton Cargo Handling Ltd (also trading as Cruise and Passenger Services Ltd [CPS]) and unless a contrary meaning is given:-
- “Authorised Person” means SCH’s Managing or other Director from time to time or any person specifically authorised in writing by one of them.
- “Container” means any inter-modal freight container whether or not conforming to ISO Standards.
- “Contract” means the contract for the provision of Services by SCH.
- “Inspect” or “Inspected” means a cursory, external visual inspection done in the available light for any obvious defects.
- “Goods” means any cargo, baggage or merchandise whatsoever whether or not within a Container.
- “Services” means the services agreed to be provided by SCH in writing at the beginning of this agreement and shall not include any additional services agreed from time to time between SCH and the User unless such additional services are agreed by SCH in accordance with clause 2.5 below.
- “Ship” means any vessel in respect of which SCH provides, or is to provide, Services.
- “User” means any person, firm or corporation to or for whom or in respect of whom SCH is to provide Services and shall include the shipper, receiver, consignor, consignee, holder of documents of title (including ship’s agents, forwarding agents and hauliers), owner or handler of Goods, registered ship owner, ship manager, line operator and charterer including their respective employees, agents and sub-contractors.
- “Docks” and “Docks Premises” shall have the same meanings as in the general regulations and conditions currently in force upon which services and accommodation are provided at or within the dock at which SCH provides the Services to the User;
- Words in the singular shall include the plural and vice versa.
- Any reference to any statute or statutory provision shall be deemed to include any amendment, replacement or re-enactment thereof for the time being in force and to include any by-laws, statutory instruments, rules, regulations, orders, notices, directions, consents or permissions (together with any conditions attaching to the foregoing) made thereunder.
Basis of Contract
- All Users, Goods, Containers and Ships are subject to these conditions. The contractual terms between SCH and the User are contained exclusively within these conditions and in no circumstances will SCH be bound by any purported addition to, or variation of these conditions, whether oral or in writing, unless any such addition or variation is signed on behalf of SCH by an Authorised Person.
- SCH’s employees, agents and sub-contractors are not authorised to make representations unless confirmed by an Authorised Person in writing. The User acknowledges that it does not rely on any such representation not so confirmed.
- SCH may perform Services by its employees, agents or sub-contractors.
- The terms of any SCH quotation shall be valid for 30 days from the date of the quotation form. Any extension to this must be agreed in writing by an Authorised Person.
- Any service additionally requested by the User which was not included within the Services at the beginning of this agreement shall be undertaken at the entire discretion of SCH on these conditions or on such other terms as may be agreed in writing between the user and an authorised person.
- The benefit of these conditions shall apply in relation to any act or default whatsoever of any employee, agent or sub-contractor of SCH. No User shall proceed against any such employee, agent or sub-contractor in respect of such act or default and shall indemnify SCH in respect of any liability SCH may incur arising from the User not complying with such requirement.
Price and Payment
- The price for the Services shall be as set out in the SCH quotation and (if applicable) the Contract. The price is exclusive of VAT which shall be due at the rate ruling on the date of the relevant invoice. If there is any conflict between the terms of the SCH quotation and the terms of the Contract the Contract shall prevail.
- Payment shall be made to SCH within 28 days of the invoice date.
- The Late Payment of Commercial Debts (Interest) Act 1998 will apply to all payments due under the Contract.
- The User shall comply with and be bound by all statutes, statutory instruments, rules, regulations, orders, notices, directions, consents or permissions including (without limitation) those relating to health and safety and dock operations from time to time in force and the conditions of any applicable regulatory or statutory body.
- The User shall provide to SCH in writing, prior to arrival of the Goods within the Docks:-
- sufficient details of the Goods to enable SCH to identify them, details of all hazardous features and actual or potential hazards involved in handling the Goods, any special lifting required for the Goods, any stowage, storage or delivery requirements for the Goods, and any other information with which anyone providing the Services might reasonably expect to be provided;
- where Goods are to be unloaded from a Ship, instructions as to the onward transport forwarding or dispatch of the Goods; and
- where appropriate, instructions in relation to any activity to be undertaken in respect of the Goods while at the Docks
- and shall further provide to SCH notification in writing of any change to such details, instructions and/or information which arises during the provision of the Services.
- The User shall immediately upon arrival of the Goods at the Docks provide SCH with evidence in writing of their arrival and allow SCH to Inspect the Goods.
- The User warrants that all information provided as required under condition 4.2 was accurate at the time it was provided to SCH and continues to be accurate throughout the period during which SCH provide the Services.
- Notification required under clauses 4.2 and 4.3 shall be made by the User to the e-mail address specified in SCH’s quotation or to such other e-mail address as SCH may specify from time-to-time.
- The User is responsible for checking, or arranging the checking of, the state and condition of the Goods at the time the Goods are loaded onto or unloaded from a Ship (as the case may be).
- If the User requires secure or special storage at the Docks for the Goods, or any of them, the User shall make all arrangements for secure or special storage with the owner or operator of the Docks, shall clearly identify the Goods for which secure or special storage has been arranged and provide SCH with written details of all such arrangements.
- SCH shall not be obliged to comply with any instructions given pursuant to clause 4.2.3 unless SCH has agreed in writing prior to the arrival of the Goods within the Docks to carry out such instructions.
- If the User requires any externally hired plant or equipment or in the opinion of SCH externally hired plant or equipment will be required to perform the Services SCH may request that the User shall contract directly with the owner to hire the equipment. In the event that SCH contract directly with the owner for the hire of the plant and equipment SCH’s liability shall be limited as set out in clause 6.9.
- The User warrants to SCH that:-
- all Goods are properly packed, labelled and if stuffed in Containers are properly stowed and secured therein;
- all Goods, packages, cartons, drums, pallets and Containers are fit for their intended purpose and are in a fit and proper condition to be handled or otherwise dealt with in the normal course of business by the equipment and operational procedures employed by SCH;
- all Containers and Goods comply with and all hazardous or potentially hazardous Goods are labelled in accordance with all applicable laws, orders, regulations, codes of practice or requirements of Government, Customs and Excise, municipal or other authorities.
- all Goods and Containers are insured to their full replacement value.
- The following provisions set out the entire financial liability of SCH (including any liability for the acts or omissions of its employees, agents and sub-contractors) to the User in respect of:-
- any breach of these Conditions; and
- any representation, statement or tortious act or omission, including negligence, arising under or in connection with SCH’s performance of the Services.
- All warranties, conditions and other terms implied by statute or common law (save for the conditions implied by section 12 of the Sale of Goods Act 1979) are, to the fullest extent permitted by law, excluded from the Contract.
- Nothing in these conditions excludes or limits the liability of SCH for death or personal injury caused by SCH’s negligence, or fraudulent misrepresentation.
- SCH shall not be responsible for any loss, damage, liability, costs and/or expenses suffered or incurred by the User or any loss, damage or deterioration to the Goods:
- prior to written evidence of the Goods arrival on the Docks being delivered to SCH and SCH having Inspected the Goods in accordance with clause 4.3; and/or
- where goods are delivered outside SCH’s normal working hours and working areas at the Docks, or in circumstances where SCH has instructed that Goods should not be delivered on certain dates or at certain times
- SCH shall be under no obligation to receive evidence of arrival of Goods at the Docks or Inspect Goods outside SCH’s hours of normal business at the Docks.
- Subject to conditions 6.2 and 6.3, SCH, its employees, agents or sub-contractors shall be liable for any fault or negligence on their part resulting in physical loss or damage subject to the following limits for any one incident or series of incidents arising out of one event:-
- £5,000,000 in respect of damage to a Ship, including its gear.
- £150,000 in respect of loss of or damage to any Container.
- £2.50 per kilo with a maximum limit of £150,000 in respect of loss or damage to any Goods.(but not to exceed in any event the liability of the User with respect thereto under the relevant Bill of Lading or other contract of carriage) and only to the extent that such loss or damage exceeds £100.
- Subject to conditions 6.2 and 6.3 SCH shall not be liable to the User for any loss of profit, loss of business, depletion of goodwill or any indirect or consequential loss or damage, costs, expenses or claims for consequential compensation whatsoever (howsoever caused) which arise out of or in connection with SCH’s provision of the Services.
- SCH (including its employees, agents and sub-contractors) is not responsible for any loss, damage, liability, costs and/or expenses suffered or incurred by the User or any loss, damage or deterioration to Goods by reason of any matter not within the control of SCH in the performance of Services including (without limitation) any loss, damage, liability, costs and/or expenses suffered or incurred by the User arising out of or in connection with:-
- defects in or inadequacy of any equipment not owned or leased by SCH which is used by SCH in connection with the provision of Services;
- faulty slinging or the improper loading of any Goods by persons other than SCH, its employees, agents or sub-contractors;
- any equipment or load colliding with any part of a Ship or any equipment of a Ship resulting from the drifting or movement of the Ship or any part of its equipment howsoever caused;
- the Ship having been improperly or insecurely moored;
- using lifting points and/or lifting equipment specified by the User.
- SCH’s liability for loss damage costs and/or expenses suffered or incurred by the User or any loss damage or deterioration to Goods by reason of any defect in or failure of or unavailability of any equipment leased by SCH and which is used by SCH in connection with the provision of the Services shall be limited to the liability which the owner or lessor of the equipment owes to SCH.
- SCH (including its employees, agents and sub-contractors) is not responsible for any loss, damage, liability, costs and/or expenses suffered or incurred by the User or any loss, damage or deterioration to Goods arising out of or in connection with:-
- SCH operating under the direct supervision or on the express instructions of the User;
- any act, omission, neglect or the fault of any person not employed by or under contract to SCH;
- any misleading, ambiguous or inadequate orders or particulars given by any person to SCH;
- any inadequate or incorrect address or destination information for the Goods, or any imperfect, illegible, misleading, ambiguous, defective or incomplete labelling of any Goods;
- any errors by SCH, its employees, agents or sub-contractors in the sorting or selecting of any Goods or the separating of damaged from sound Goods except where (subject to clause 4.7) such errors are due to the failure of SCH, its employees agents or sub-contractors to follow written instructions regarding such sorting, selecting or separating;
failure by the User to comply with any of these conditions;
- any leakage, loss of weight or measure that may be sustained where the receptacle of any Goods is in a defective or leaky condition, (except upon proof that the receptacle was in a sound condition when delivered to SCH, that it was suitable to contain the Goods, and that such defective or leaky condition was negligently caused by SCH, its employees, agents or sub-contractors);
- vermin, moths, worms, weevils or insects;
- natural causes (including, without limitation, weather conditions and atmospheric effects);
- want of proper packing or improper packing;
- stowage or storage of Goods or Containers contrary to SCH’s advice;
- any deterioration of grain, seed or goods whatsoever through the omission on the part of the User to give orders in writing to SCH to turn or air them, or to take any other precautions in relation to them;
- movement or deviation or late arrival or departure of any Ship;
- vermin, insects, fungal attack, rot or corrosion affecting Goods;
- heat or cold, including heat within Goods and unintended exposure to natural or artificial light;
- improper or insufficient packing, marking, documentation or labelling;
- any act of SCH, its servants or agents which, though deliberate, are reasonably necessary for the safety or preservation of persons, the Docks or any Goods;
- late receipt of Customs Entry or Delivery or Landing Orders, disputes in respect of documents or declarations made for entry purposes by or on behalf of any person, delay in passing Customs Entries or obtaining clearance of any Goods or omission of information from or a statement in any order to SCH relating to the Goods;
- theft or wilful damage unless proved by the User to have been committed by the servants of SCH;
- inherent vice of the Goods;
- any loading or discharging of any Goods during the hours of darkness except that which resulted from the wilful misconduct or negligence of SCH, its employees subcontractors or agents;
- any failure of or interruption to or delay caused by any electronic systems used to send, receive or process documentation, including (without limitation) loss of power supply, loss of network access, breakdown of systems or act or omission of any Internet Service Provider.
- Where the Goods or any part of them are timber:
- Users shall supply SCH with a specification of the timber prior to it being landed, and deposit with SCH, immediately upon the arrival of the ship at the Docks, any delivery order which SCH may be desired to execute; and
- SCH will not be liable for any loss or damage to the timber howsoever caused including without limitation by fire, waste, shrinkage, erroneous remeasurement of timber or any misdescription of quality whether upon the instructions of the user or otherwise.
- SCH shall not in any event be responsible for any loss from, or damage to, Goods unless SCH is notified in writing of the nature and amount of the claim made:-
- in the case of damage, deficiency or partial loss, before the Goods are removed from the Dock Premises (whether for import or export); and
- in the case of total loss or misdelivery of import Goods, within thirty days of collection of the Goods from the Dock Premises;
- in the case of total loss or misdelivery of export Goods to the Dock Premises or where such Goods are due to be exported within 60 days of such delivery by the date of export, whichever is the greater;
- within seven days of the event giving rise to the claim in any other case.
- Any claim not made in accordance with the terms of this condition shall be deemed to be waived, extinguished or absolutely barred.
- The User must satisfy itself as to the appropriateness and nature of any storage facility to be used for the Goods. SCH shall not in any event be responsible for any loss, damage, liability or expenses caused by or arising in connection with the deterioration of Goods stored in accordance with the instructions of the User
- SCH reserves the right to postpone performance of Services if, in SCH’s absolute discretion:-
- additional or alternative resources, personnel or equipment are required to carry out Services;
- Containers or Goods are improperly or insufficiently packed or labelled;
- Containers or Goods are unsafe whether due to their inherent nature, stowage or movement during transit;
- the weather or light make the conditions for the provision of Services unsafe or may cause damage or deterioration to Goods.
- SCH reserves the right to defer the performance of the Services or to cancel the Contract (without liability to the User) if it is prevented from or delayed in the carrying on of its business or in the performance of Services due to circumstances beyond the reasonable control of SCH including, without limitation, acts of God, governmental actions, war or national emergency, riot, civil commotion, fire (and acts to extinguish it), smoke, ionising radiation, radioactive contamination, impact by aircraft or objects dropped or falling from them, scarcity of labour, plant, machinery, fuel or power, act or omission of any internet service provider , war, revolution, riot or civil commotion, restrictions imposed directly or indirectly by HM Government or any person, body or corporation acting under statutory powers, explosion, flood, epidemic, lock-outs, strikes or other labour disputes (whether or not relating to SCH’s workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials.
Disposal of Goods
- Goods and Containers handled by SCH remaining on Dock Premises or any other premises which SCH has been required to use on instructions of the User or ABP may be removed, warehoused or otherwise dealt with if they have not been removed from Dock Premises by or on behalf of the User within thirty days of their delivery to the Dock Premises. Such removal warehousing and dealing shall be at the entire risk and expense of the User and SCH reserves the right to sell the Goods and apply the proceeds to payment of all charges in connection with the Services provided under this Contract or any other contract between SCH and the User under which payment by the User is outstanding.
- Without prejudice to condition 9.1 SCH may in its absolute discretion dispose of:-
- perishable goods which are not immediately collected on arrival at the Dock Premises;
- hazardous goods, or deal with them in such manner as would render them harmless;
- Goods and Containers which can not be delivered in accordance with the instructions of the User for whatever reason provided that SCH shall give at least twenty-one days written notice to the User of its intention to dispose of such Goods and Containers.
- All Goods, Containers and documents of title to those Goods and Containers in possession of SCH shall be subject to a particular and general lien for all sums owed by the User to SCH on any account, and unless payment or security is given within ten days of notice of the exercise of the lien, SCH may sell the goods by auction or otherwise as it thinks fit in its absolute discretion in satisfaction of its lien.
Application of Bill of Lading
- The User shall include in its Bill of Lading a provision that SCH, its employees, agents and sub-contractors shall have the benefit of any terms in such Bill of Lading excluding or limiting the liability of the User in respect of the Goods.
- In any event SCH, as stevedore and/or sub-contractor, shall be entitled to benefit from the provisions of any Bill of Lading (including all defences and limitations of liability) to which Goods and/or Container or Containers are subject as if SCH were a party thereto.
- The User undertakes that it will indemnify SCH against all proceedings, costs, expenses, liabilities, injury, death, loss or damage incurred or suffered by SCH arising out of:-
- the User’s failure to comply with these conditions or the Contract;
- all acts or omissions of the User.
- The User further undertakes that it will indemnify and hold harmless SCH against all proceedings, costs, expenses, liabilities, injury, death, loss or damage incurred or suffered by SCH consequent upon any claim against SCH by any third party arising out of the negligent provision of the Services to be provided to the User (for example the owner of the Goods or Ship or Container or vehicle) insofar as such costs, losses and liabilities (when aggregated with any liability of SCH to the User arising from the same occurrence or circumstance) exceed the potential liability of SCH to the User as limited by the terms of clause 6.
- No waiver of any default or breach of these conditions by either party shall be deemed to be a continuing waiver or a waiver of any other breach or default no matter how similar.
- These Conditions shall be governed by and interpreted in accordance with English Law and the User submits to the non-exclusive jurisdiction of the English Courts.
- Any notice required to be given hereunder shall unless otherwise specified be sufficiently given if sent by registered or recorded delivery post or left at the principal or registered office for the time being of the party to be served. Any such notice shall be deemed to be served at the time the same is handed to or left at the address of the party to be served and if served by post on the third day (not being a Sunday or Public Holiday) following the day of posting.
- The following provisions set out the entire financial liability of SCH (including any liability for the acts or omissions of its employees, agents and sub-contractors) to the User in respect of:-