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BRITISH
INTERNATIONAL FREIGHT ASSOCIATION (BIFA) STANDARD TRADING CONDITIONS
2005 EDITION, © BIFA 2004
THE CUSTOMER’S ATTENTION IS DRAWN TO SPECIFIC CLAUSES HEREOF
WHICH EXCLUDE
OR LIMIT THE COMPANY’S LIABILITY AND THOSE WHICH REQUIRE THE
CUSTOMER TO
INDEMNIFY THE COMPANY IN CERTAIN CIRCUMSTANCES AND THOSE WHICH LIMIT
TIME
BEING CLAUSES 8, 10, 12-14 INCLUSIVE, 18-20 INCLUSIVE, AND 24-27
INCLUSIVE
Insurance
may only be effected by the Company under clause 11(A) if so authorised
by the
Financial Services Authority or its successor
All
headings are indicative and do not form part of these conditions.
DEFINITIONS AND APPLICATION
1 In these conditions the following words shall have the following
meanings:-
“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.
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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.
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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.
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(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
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(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.
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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,
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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.
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.
(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.
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