Terms & Conditions

BRITISH INTERNATIONAL FREIGHT ASSOCIATION (BIFA) – STANDARD TRADING CONDITIONS 2005 EDITION

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.

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(A)   The Customer warrants:

(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.

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.