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British International Freight Association (BIFA)
Standard Trading Conditions 2005 Edition
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The Customer's attention is
drawn to the Clauses hereof which exclude or limit the
Company's liability and those which require the Customer
to indemnify the Company in certain circumstances.
DEFINITIONS AND APPLICATION |
| 1 |
In these conditions:-
| "Company" |
the BIFA member trading under these conditions |
| "Consignee" |
the Person to whom the goods are consigned |
| “Customer” |
any Person at whose request or on whose behalf
the Company
undertakes any business or provides advice, information
or services |
| “Direct Representative” |
the Company acting in the name of and on behalf
of the Customer and/or Owner with H.M. Revenue and
Customs (“HMRC”) as defined by Council
Regulation 2193/92 or as amended |
| “Goods” |
the cargo to which any business under these conditions
relates |
| “Person” |
natural person(s) or any body or bodies corporate |
| “SDR” |
are Special Drawing Rights as defined by the International
Monetary Fund |
| “Transport Unit” |
packing case, pallets, container, trailer, tanker,
or any other device used whatsoever for and in connection
with the carriage of Goods by land, sea or air |
| “Owner” |
the Owner of the Goods or Transport Unit and any
other Person who is or may become interested in
them |
|
| 2(A) |
Subject to sub-paragraph (B) below, all
and any activities of the Company in the course of business,
whether gratuitous or not, are undertaken subject to these
conditions.
|
| (B) |
If any legislation, to include regulations
and directives, is compulsorily applicable to any business
undertaken, these conditions shall, as regards such business,
be read as subject to such legislation, and nothing in
these conditions shall be construed as a surrender by
the Company of any of its rights or immunities or as an
increase of any of its responsibilities or liabilities
under such legislation, and if any part of these conditions
be repugnant to such legislation to any extent, such part
shall as regards such business be overridden to that extent
and no further.
|
| 3 |
The Customer warrants that he is either
the Owner, or the authorised agent of the Owner and, also,
that he is accepting these conditions not only for himself,
but also as agent for and on behalf of the Owner.
THE COMPANY |
| 4(A) |
Subject to clauses 11 and 12 below, the
Company shall be entitled to procure any or all of the
services as an agent, or, to provide those services as
a principal.
|
| (B) |
The Company reserves to itself full liberty
as to the means, route and procedure to be followed in
the performance of any service provided in the course
of business undertaken subject to these conditions.
|
| 5 |
When the Company contracts as a principal
for any services, it shall have full liberty to perform
such services itself, or, to subcontract on any terms
whatsoever, the whole or any part of such services.
|
| 6(A) |
When the Company acts as an agent on behalf
of the Customer, the Company shall be entitled, and the
Customer hereby expressly authorises the Company, to enter
into all and any contracts on behalf of the Customer as
may be necessary or desirable to fulfil the Customer’s
instructions, and whether such contracts are subject to
the trading conditions of the parties with whom such contracts
are made, or otherwise.
|
| (B) |
The Company shall, on demand by the Customer,
provide evidence of any contract entered into as agent
for the Customer. Insofar as the Company may be in default
of the obligation to provide such evidence, it shall be
deemed to have contracted with the Customer as a principal
for the performance of the Customer’s instructions.
|
| 7 |
In all and any dealings with HMRC for and
on behalf of the Customer and/or Owner, the Company is
deemed to be appointed, and acts as, Direct Representative
only.
|
| 8(A) |
Subject to sub-clause (B) below,
the Company:
(i) has a general lien on all Goods and documents relating
to Goods in its possession, custody or control for all
sums due at any time to the Company from the Customer
and/or Owner on any account whatsoever, whether relating
to Goods belonging to, or services provided by or on behalf
of the Company to the Customer or Owner. Storage charges
shall continue to accrue on any Goods detained under lien;
(ii) shall be entitled, on at least 28 days notice in
writing to the Customer, to sell or dispose of or deal
with such Goods or documents as agent for, and at the
expense of, the Customer and apply the proceeds in or
towards the payment of such sums;
(iii) shall, upon accounting to the Customer for any balance
remaining after payment of any sum due to the Company,
and for the cost of sale and/or disposal and/or dealing,
be discharged of any liability whatsoever in respect of
the Goods or documents.
|
| (B) |
When the Goods are liable to perish or
deteriorate, the Company's right to sell or dispose of
or deal with the Goods shall arise immediately upon any
sum becoming due to the Company, subject only to the Company
taking reasonable steps to bring to the Customer's attention
its intention to sell or dispose of the Goods before doing
so.
|
| 9 |
The Company shall be entitled to retain
and be paid all brokerages, commissions, allowances and
other remunerations customarily retained by, or paid to,
freight forwarders.
|
| 10(A) |
Should the Customer, Consignee or Owner
of the Goods fail to take delivery at the appointed time
and place when and where the company is entitled to deliver,
the Company shall be entitled to store the Goods, or any
part thereof, at the sole risk of the Customer or Consignee
or Owner, whereupon the Company’s liability in respect
of the Goods, or that part thereof, stored as aforesaid,
shall wholly cease. The Company’s liability, if
any, in relation to such storage, shall be governed by
these conditions. All costs incurred by the Company as
a result of the failure to take delivery shall be deemed
as freight earned, and such costs shall, upon demand,
be paid by the Customer.
|
| (B) |
The Company shall be entitled at the expense
of the Customer to dispose of or deal with (by sale or
otherwise as may be reasonable in all the circumstances):-
|
| (i) |
after at least 28 days notice in writing
to the Customer, or (where the Customer cannot be traced
and reasonable efforts have been made to contact any parties
who may reasonably be supposed by the Company to have
any interest in the Goods) without notice, any Goods which
have been held by the Company for 90 days and which cannot
be delivered as instructed; and
|
| (ii) |
without prior notice, any Goods which have
perished, deteriorated, or altered, or are in immediate
prospect of doing so in a manner which has caused or may
reasonably be expected to cause loss or damage to the
Company, or third parties, or to contravene any applicable
laws or regulations.
|
| 11(A) |
No insurance will be effected except upon
express instructions given in writing by the Customer
and accepted in writing by the Company, and all insurances
effected by the Company are subject to the usual exceptions
and conditions of the policies of the insurers or underwriters
taking the risk. Unless otherwise agreed in writing, the
Company shall not be under any obligation to effect a
separate insurance on the goods, but may declare it on
any open or general policy held by the Company.
|
| (B) |
Insofar as the Company agrees to effect
insurance, the Company acts solely as agent for the Customer,
and the limits of liability under clause 26(A) (ii) of
these conditions shall not apply to the Company’s
obligations under clause 11.
|
| 12(A) |
Except under special arrangements previously
made in writing by an officer of the Company so authorised,
or made pursuant to or under the terms of a printed document
signed by the Company, any instructions relating to the
delivery or release of the Goods in specified circumstances
(such as, but not limited to, against payment or against
surrender of a particular document) are accepted by the
Company, where the Company has to engage third parties
to effect compliance with the instructions, only as agents
for the Customer.
|
| (B) |
Despite the acceptance by the Company of
instructions from the Customer to collect freight, duties,
charges, dues, or other expenses from the Consignee, or
any other Person, on receipt of evidence of proper demand
by the Company, and, in the absence of evidence of payment
(for whatever reason) by such Consignee, or other Person,
the Customer shall remain responsible for such freight,
duties, charges, dues, or other expenses.
|
| (C) |
The Company shall not be under any liability
in respect of such arrangements as are referred to under
sub-clause (A) and (B) hereof save where such arrangements
are made in writing, and in any event, the Company’s
liability in respect of the performance of, or arranging
the performance of, such instructions shall not exceed
the limits set out in clause 26(A) (ii) of these conditions.
|
| 13 |
Advice and information, in whatever form
it may be given, is provided by the Company for the Customer
only. The Customer shall indemnify the Company against
all loss and damage suffered as a consequence of passing
such advice or information on to any third party.
|
| 14 |
Without prior agreement in writing by an
officer of the Company so authorised, the Company will
not accept or deal with Goods that require special handling
regarding carriage, handling, or security whether owing
to their thief attractive nature or otherwise including,
but not limited to bullion, coin, precious stones, jewellery,
valuables, antiques, pictures, human remains, livestock,
pets, plants. Should any Customer nevertheless deliver
any such goods to the Company, or cause the Company to
handle or deal with any such goods, otherwise than under
such prior agreement, the Company shall have no liability
whatsoever for or in connection with the goods, howsoever
arising.
|
| 15 |
Except pursuant to instructions previously
received in writing and accepted in writing by the Company,
the Company will not accept or deal with Goods of a dangerous
or damaging nature, nor with Goods likely to harbour or
encourage vermin or other pests, nor with Goods liable
to taint or affect other Goods. If such Goods are accepted
pursuant to a special arrangement, but, thereafter, and
in the opinion of the Company, constitute a risk to other
goods, property, life or health, the Company shall, where
reasonably practicable, contact the Customer in order
to require him to remove or otherwise deal with the goods,
but reserves the right, in any event, to do so at the
expense of the Customer.
|
| 16 |
Where there is a choice of rates according
to the extent or degree of the liability assumed by the
Company and/or third parties, no declaration of value
will be made and/or treated as having been made except
under special arrangements previously made in writing
by an officer of the Company so authorised as referred
to in clause 26(D).
THE CUSTOMER |
| 17 |
The Customer warrants:
|
| (A) |
(i) that the description and particulars
of any Goods or information furnished, or services required,
by or on behalf of the Customer are full and accurate,
and
(ii) that any Transport Unit and/or equipment supplied
by the Customer in relation to the performance of any
requested service is fit for purpose, and
|
| (B) |
that all Goods have been properly and sufficiently
prepared, packed, stowed, labelled and/or marked, and
that the preparation, packing, stowage, labelling and
marking are appropriate to any operations or transactions
affecting the Goods and the characteristics of the Goods.
|
| (C) |
that where the Company receives the Goods
from the Customer already stowed in or on a Transport
Unit, the Transport Unit is in good condition, and is
suitable for the carriage to the intended destination
of the Goods loaded therein, or thereon, and.
|
| (D) |
that where the Company provides the Transport
Unit, on loading by the Customer, the Transport Unit is
in good condition, and is suitable for the carriage to
the intended destination of the Goods loaded therein,
or thereon.
|
| 18 |
Without prejudice to any rights under clause
15, where the Customer delivers to the Company, or causes
the Company to deal with or handle Goods of a dangerous
or damaging nature, or Goods likely to harbour or encourage
vermin or other pests, or Goods liable to taint or affect
other goods, whether declared to the Company or not, he
shall be liable for all loss or damage arising in connection
with such Goods, and shall indemnify the Company against
all penalties, claims, damages, costs and expenses whatsoever
arising in connection therewith, and the Goods may be
dealt with in such manner as the Company, or any other
person in whose custody they may be at any relevant time,
shall think fit.
|
| 19 |
The Customer undertakes that no claim shall
be made against any director, servant, or employee of
the Company which imposes, or attempts to impose, upon
them any liability in connection with any services which
are the subject of these conditions, and, if any such
claim should nevertheless be made, to indemnify the Company
against all consequences thereof.
|
| 20 |
The Customer shall save harmless and keep
the Company indemnified from and against:-
|
| (A) |
all liability, loss, damage, costs and
expenses whatsoever (including, without prejudice to the
generality of the foregoing, all duties, taxes, imposts,
levies, deposits and outlays of whatsoever nature levied
by any authority in relation to the Goods) arising out
of the Company acting in accordance with the Customer's
instructions, or arising from any breach by the Customer
of any warranty contained in these conditions, or from
the negligence of the Customer, and
|
| (B) |
without derogation from sub-clause (A)
above, any liability assumed, or incurred by the Company
when, by reason of carrying out the Customer's instructions,
the Company has become liable to any other party, and
|
| (C) |
all claims, costs and demands whatsoever
and by whomsoever made or preferred, in excess of the
liability of the Company under the terms of these conditions,
regardless of whether such claims, costs, and/or demands
arise from, or in connection with, the breach of contract,
negligence or breach of duty of the Company, its servants,
sub-contractors or agents, and
|
| (D) |
any claims of a general average nature
which may be made on the Company.
|
| 21(A) |
The Customer shall pay to the Company in
cash, or as otherwise agreed, all sums when due, immediately
and without reduction or deferment on account of any claim,
counterclaim or set-off.
|
| (B) |
The Late Payment of Commercial Debts (Interest)
Act 1998, as amended, shall apply to all sums due from
the Customer.
|
| 22 |
Where liability arises in respect of claims
of a general average nature in connection with the Goods,
the Customer shall promptly provide security to the Company,
or to any other party designated by the Company, in a
form acceptable to the Company.
LIABILITY
AND LIMITATION |
| 23 |
The Company shall perform its duties with
a reasonable degree of care, diligence, skill and judgment.
|
| 24 |
The Company shall be relieved of liability
for any loss or damage if, and to the extent that, such
loss or damage is caused by:-
|
| (A) |
strike, lock-out, stoppage or restraint
of labour, the consequences of which the Company is unable
to avoid by the exercise of reasonable diligence; or
|
| (B) |
any cause or event which the Company is
unable to avoid, and the consequences of which the company
is unable to prevent by the exercise of reasonable diligence.
|
| 25 |
Except under special arrangements previously
made in writing by an officer of the Company so authorised,
the Company accepts no responsibility with regard to any
failure to adhere to agreed departure or arrival dates
of Goods.
|
| 26(A) |
Subject to clause 2(B) and 11(B) above
and sub-clause (D) below, the Company’s liability
howsoever arising and, notwithstanding that the cause
of loss or damage be unexplained, shall not exceed
|
| (i) |
in the case of claims for loss or damage
to Goods:
(a) the value of any loss or damage, or
(b) a sum at the rate of 2 SDR per kilo of the gross weight
of any Goods lost or damaged
whichever shall be the lower.
|
| (ii) |
subject to (iii) below, in the case of
all other claims:
(a) the value of the subject Goods of the relevant transaction
between the Company and its Customer, or
(b) where the weight can be defined, a sum calculated
at the rate of two SDR per kilo of the gross weight of
the subject Goods of the said transaction, or
(c) 75,000 SDR in respect of any one transaction,
whichever shall be the least.
|
| (iii) |
in the case of an error and/or omission,
or a series of errors and/or omissions which are repetitions
of or represent the continuation of an original error,
and/or omission
(a) the loss incurred, or
(b) 75,000 SDR in the aggregate of any one trading year
commencing from the time of the making of the original
error, and/or omission,
whichever shall be the lower.
For the purposes of clause 26(A), the value of the Goods
shall be their value when they were, or should have been,
shipped. The value of SDR shall be calculated as at the
date when the claim is received by the Company in writing.
|
| (B) |
Subject to clause 2(B) above and sub-clause
(D) below, the Company’s liability for loss or damage
as a result of failure to deliver, or arrange delivery
of goods, in a reasonable time, or (where there is a special
arrangement under Clause 25) to adhere to agreed departure
or arrival dates, shall not in any circumstances whatever
exceed a sum equal to twice the amount of the Company’s
charges in respect of the relevant contract.
|
| (C) |
Save in respect of such loss or damage
as is referred to at sub-clause (B), and subject to clause
2(B) above and Sub-Clause (D) below, the Company shall
not in any circumstances whatsoever be liable for indirect
or consequential loss such as (but not limited to) loss
of profit, loss of market, or the consequences of delay
or deviation, however caused.
|
| (D) |
On express instructions in writing declaring
the commodity and its value, received from the Customer
and accepted by the Company, the Company may accept liability
in excess of the limits set out in sub-clauses (A) to
(C) above upon the Customer agreeing to pay the Company’s
additional charges for accepting such increased liability.
Details of the Company’s additional charges will
be provided upon request.
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| 27(A) |
Any claim by the Customer against the Company
arising in respect of any service provided for the Customer,
or which the Company has undertaken to provide, shall
be made in writing and notified to the Company within
14 days of the date upon which the Customer became, or
ought reasonably to have become, aware of any event or
occurrence alleged to give rise to such claim, and any
claim not made and notified as aforesaid shall be deemed
to be waived and absolutely barred, except where the Customer
can show that it was impossible for him to comply with
this time limit, and that he has made the claim as soon
as it was reasonably possible for him to do so.
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| (B) |
Notwithstanding the provisions of sub-paragraph
(A) above, the Company shall in any event be discharged
of all liability whatsoever and howsoever arising in respect
of any service provided for the Customer, or which the
Company has undertaken to provide, unless suit be brought
and written notice thereof given to the Company within
nine months from the date of the event or occurrence alleged
to give rise to a cause of action against the Company.
JURISDICTION AND LAW |
| 28 |
These conditions and any act or contract
to which they apply shall be governed by English law and
any dispute arising out of any act or contract to which
these Conditions apply shall be subject to the exclusive
jurisdiction of the English courts.
Copyright © BIFA 2004 |
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