• Level 27, 45 Clarence Street, Sydney, NSW, 2000

THESE TERMS AND CONDITIONS CONTAIN PROVISIONS BY WAY OF EXCLUSION, LIMITATION AND INDEMNITY IN FAVOUR OF THE COMPANY.
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1. DEFINITIONS AND INTERPRETATION

1.1 Definitions

The following definitions apply unless the context requires otherwise.

“Act or Default” means any act, omission or other conduct however occurring, whether as the result of negligence, breach of contract or statutory duty or wilful or reckless conduct or fundamental breach.

“Bill of Lading” means a bill of lading and any other contract for the carriage of Goods.

“c.i.f.” has the meaning given to it in Incoterms as amended from time to time.

“Company” means Australian Amalgamated Terminals Pty Limited (ACN 098458229).

“Conditions” means these standard terms and conditions and the Tariff.

“Container” means any package, case, vehicle, container, trailer, railcar, transportable tank, flat, pallet, bolster or other article of transport or other thing used or designed to be used to convey, carry, contain, consolidate, protect or support Goods.

“Customer” means any person at whose request or on whose behalf the Company performs the Services.

“Customer Visitor” means all servants, agents, sub-contractors of the Customer, all persons having any interest in the Goods and/or Containers (or, where the Customer is a ship owner/charterer/agent, the Vessel) or any other person whom the Customer may direct or invite to enter the Premises.

“Default Rate” means the rate 2% pa above the overdraft rate published by the Commonwealth Bank of Australia on overdrafts in excess of $100,000.

“Goods” means any cargo including but not limited to cargo which is containerised, breakbulk, dry or liquid bulk, livestock, freight free items, passenger baggage or ship stores or equipment in respect of which Services are to be provided.

“Loss” means any loss, death, injury, theft, damage, expense, payment, cost (including legal costs), penalty or charge occasioned by any Act or Default and any action, claim, proceeding, judgement, demand or liability in respect of any Act or Default, notwithstanding that it may be indirect and/or consequential.

“Premises” means those areas wherever the Company provides the Services pursuant to these Conditions.

“Services” means any or all the services performed by or on behalf of the Company for the Customer, including but not limited to the services set out in Clause 4.

“Special Drawing Rights” has the meaning given to that expression by the International Monetary Fund.

“Tariff” means the Company’s tariff of charges or rates as applicable or quoted from time to time.

“Vessel” means a vessel of any kind used or constructed for use in navigation by water, however it is propelled or moved, in relation to which the Company provides Services.

“Warranties” means the warranties listed in Clauses 7.1,7.2,7.3 and 7.4.

1.2 Interpretation

Headings are for convenience only and do not affect interpretation. The following rules of interpretation apply unless the context requires otherwise:

  • The singular includes the plural and conversely.
  • A gender includes all genders.
  • Where a word or phrase is defined, its other grammatical forms have a corresponding meaning.
  • A reference to a person includes a body corporate, an unincorporated body or other entity and conversely.
  • A reference to a Clause, sub-clause or paragraph is to a clause, sub-clause or paragraph of these Conditions.
  • A reference to any party to these Conditions or any other agreement or document includes the party’s successors and permitted assigns.
  • A reference to “dollars” or “$” is to Australian dollars.

2. APPLICATION

  • The Company is not a common carrier and accepts no liability as such.
  • These Conditions shall apply:
    • to the provision of all Services by the Company to the Customer, whether gratuitous or not, and all agreements for the provision of Services, whether implied, oral or in writing, are entered into by the Company upon these Conditions;
    • to the use of the Company’s wharf facilities by Vessels owned, operated or controlled by ship owners/charterers/agents, whether gratuitous or not, and all agreements for the use of the Company’s wharf facilities, whether implied, oral or in writing, are entered into by the Company upon these Conditions; and
    • to access to Premises by Customer Visitors.
  • In agreeing to these Conditions the Customer is deemed also to be acting as the agent and/or trustee of all persons who have any interest in the Goods and/or Containers and/or Vessel and the Customer agrees on behalf of each of them that they shall be bound by these Conditions.
  • Every exemption, limitation, defence, immunity or other benefit contained in these Conditions to which the Company is entitled as against the Customer, shall also be available to and shall extend to protect and/or benefit the Company as against all persons who have any interest in the Goods and/or Containers and/or Vessel.
  • Every exemption, limitation, defence, immunity, warranty, right of indemnity or other benefit contained in these Conditions to which the Company is entitled shall also be available and shall extend to protect and/or benefit every servant, agent or sub-contractor of the Company. The Customer acknowledges that the Company may sub-contract its obligations under these Conditions.
  • Nothing in these Conditions, whether express or implied, shall affect the authority of the master of a Vessel or his responsibility for the stowage, trim, stability or any other aspect of the Vessel over or for which, apart from these Conditions, he would have such authority or responsibility.
  • The Company reserves the right, in its reasonable discretion, to refuse the provision of Services.

3. PAYMENT

  • Unless otherwise agreed, the Customer shall pay the Company for the Services at the rates set out in the Tariff.
  • All money payable to the company by the Customer for the Services shall be paid by the Customer in full when due without discount, deduction, counterclaim or set-off (whether legal or equitable), and regardless of any dispute between the Company and the Customer.
  • Unless otherwise agreed, payment for Services shall be on the basis of 80% of the estimated disbursements not less than 24 hours prior to the commencement of the Services and the remaining balance of the account shall be payable within 14 days of the receipt of the invoice for the Services at the Customer’s or the Customer’s representative Australian office.
  • Interest at the Default Rate shall be payable upon any sum which remains due and unpaid after 14 days from the date of the Company’s invoice for the Services.
  • The Company may in its sole discretion extend to the Customer services not prescribed in the Tariff on these Conditions. Such other services shall be provided at rates to be agreed between the Company and the Customer.
  • The Customer shall be responsible for the cost to the Company of labour, materials handling equipment and other associated costs where the provision of Services by the Company is prevented and/or interrupted as a result of any Act or Default of the Customer, its servants, agents or sub-contractors or any other party for whose acts or omissions the Company is not responsible or as a result of rain or inclement weather.
  • The Customer shall be responsible for any increase in the cost of the Services incurred during an industrial dispute or as a result of the terms of settlement of any industrial dispute.

4. COMPANY’S OBLIGATIONS

  • The Company shall provide such management, supervision, labour, materials handling equipment and clerical services as it deems necessary in relation to:
    • the Goods and/or Containers; and
    • any Vessel using the Premises, at the times agreed between the parties.
  • Unless otherwise agreed the Company shall perform such of the following services as it deems necessary in respect of the Goods and/or Containers:
    • receive, deliver and consolidate Goods and/or Containers within the Premises;
    • plan the arrangement of Goods and/or Containers within the Premises;
    • make every reasonable endeavour by liaising with the Customer, the Customer Visitors or third parties to achieve the orderly transportation of Goods and/or Containers into and from the Premises; and
    • store Goods and/or Containers subject to all applicable laws.

5. GOODS AND/OR CONTAINERS

5.1 Customer to provide description and instructions

  • a full description of the Goods and/or Containers including, but not limited to packaging, weight, content, measure, quality, quantity, condition, marks and numbers;
  • instructions concerning the delivery and/or storage of the Goods and/or Containers;
  • any special instructions concerning the handling, care and control of the Goods and/or Containers having regard to the nature and packaging of the Goods;
  • any special instructions relating to refrigerated cargo; and
  • details of any explosive, inflammable or otherwise dangerous or potentially damaging Goods.

5.2 Delivery

The Company is entitled to deliver the Goods and/or Containers to the bearer of the appropriate Bill of Lading or delivery order notwithstanding that such Bill of Lading or delivery order provides for delivery to a named party or to that party’s order. The Company shall not be liable for misdelivery due to fraud or misrepresentation or any wrongful act by a third party.

5.3 Goods and/or Containers not removed

All of the Goods and/or Containers shall be removed from the Company’s premises:

  • within 3 days (or such number of days as otherwise agreed by the Company) of discharge of those Goods and/or Containers from a Vessel, or
  • within such lesser time as may be required by the regulations of the relevant port authority.

5.4 Right to refuse or remedy

If at any time:

  • the Goods and/or Containers in the Company’s opinion fail to comply with the requirements of all applicable laws and regulations relating to the carriage, handling and storage of such Goods and/or Containers; or
  • the Goods and/or Containers in the Company’s opinion are or become damaged, hazardous, in danger of deterioration or unsuitable to be handled by the Company using the equipment and operating procedures normally employed by it in providing the Services,
  • the Company exercises its right under Clause 2(g), the Company may, in its discretion:
  • refuse to provide the Services in respect of the Goods and/or Containers or any part of them: in which event the Customer shall promptly remove the Goods and/or Containers from the Company’s premises at the expense of the Customer; or
  • take whatever measures may be necessary to cause the Goods and/or Containers to comply with the requirements of all such laws and regulations or to remedy, repair, render harmless or make suitable to be handled by the Company using the equipment and operating procedures normally employed by it in providing the Services: in which event the measures taken by the Company shall be at the risk and expense of the Customer and the Customer shall, upon demand, refund to the Company all money expended by it in so doing.

5.5 Failure to remove

If all of the Goods and/or Containers are not removed as required by Clauses 5.3 or 5.4, the Company may charge for storage and/or may remove to a warehouse or bondstore and/or may sell or otherwise dispose of the Goods and/or Containers at the risk and expense of the Customer and the Customer shall, upon demand, refund to the Company all money expended by it in so doing.

6. LIEN

  • All Goods and/or Containers and/or documents of title in the Company’s possession shall be subject to a particular and a general lien in favour of the Company for money due either in respect of such Goods and/or Containers and/or documents of title or for any other sums of money due and owing by the Customer to the Company.
  • The Company may charge for storage and/or may remove to a warehouse or bondstore the Goods and/or Containers subject to lien at the risk and expense of the Customer, and the Customer shall upon demand refund the Company all money expended by it in so doing.
  • The Company may on 28 days’ notice to the Customer sell the Goods and/or Containers and/or documents of title subject to lien as agent for, and at the expense and risk of, the Customer and shall be entitled to retain from the proceeds of sale an amount equal to all money due and owing by the Customer to the Company.

7. WARRANTIES

7.1 The Customer warrants to the Company that:

  • the Customer has the authority of all persons having any interest in the Goods and/or Containers and/or Vessel to accept:
    • (i)where such persons are shippers or consignees, Clauses 2, 5.2, 5.3, 5.4, 5.5, 6, 7.3, 9, 11 and 12; and
    • (ii)where such persons are ship owners/charterers/agents, Clauses 2, 7.3 9, 11 and 12, on their behalf as well as on behalf of the Customer;
  • the Goods and/or Containers:
    • are appropriately packed, marked, labelled and that the weight is distributed in a fit and proper manner and, where the Customer is a ship owner/charterer/agent or a cargo forwarder, properly stowed and secured;
    • are in a fit and proper condition to be handled in accordance with any special instructions notified to the Company in accordance with Clause 5.1 or otherwise using the equipment and operating procedures normally employed by the Company in providing the Services; and
    • comply with the requirements of all applicable laws and regulations relating to the carriage, handling and storage of such Goods and/or Containers and that the Customer has complied with all such laws and regulations where relevant.
  • the relevant Vessel (in the case of a ship owner/charterer/agent) and the Goods and/or Containers comply with the requirements of all applicable laws and regulations relating to:
    • public health, including dangerous and/or obnoxious cargo;
    • customs;
    • the environment (including the Environmental Protection Agency);
    • the relevant port authority; and
    • Vessels, Goods and/or Containers such as those in question;
  • a full and accurate description of the Goods and/or Containers and all necessary instructions have been given to the Company as required by Clause 5.1;
  • except as otherwise disclosed in writing to the Company, the Goods are not explosive, inflammable or otherwise dangerous or potentially damaging;
  • the Containers are in a fit and proper condition to convey, protect, consolidate or support the Goods; and
  • each Customer Visitor (including each of their employees) shall at all times comply with all applicable laws and regulations promulgated from time to time, including all safety procedures.

7.2 No proceedings if servant, agent or sub-contractor entitled to protection or benefit

The Customer warrants that it will not commence legal proceedings in respect of any Loss caused by, or any Act or Default of, any servant, agent or sub-contractor of the Company to whom any protection or benefit is stated to be available pursuant to Clause 2(e) in relation to that Loss or Act or Default.

7.3 Customer only to commence proceedings

The Customer warrants that no person other than the Customer having or claiming title to or interest in the Goods and/or Containers shall commence legal proceedings in respect of any Act or Default of the Company, its servants, agents or sub-contractors or any Loss occurring in connection with or arising from the provision of the Services.

  • loss of life of, or personal injury to, any Customer Visitor or any other person;
  • loss or damage to the property of any Customer Visitor;
  • loss or damage to any installation, structure or other property, whether fixed or moveable, owned, possessed or controlled by the Company, the crown or any port authority,

7.4 Provision to be inserted in Bills of Lading (Himalaya clause)

  • This sub-clause 7.4 only applies where the Customer is a ship owner/charterer/agent or a cargo forwarder.
  • The Customer warrants that:
    • it will incorporate a term in its Bills of Lading which provides that the Company, its servants, agents and sub-contractors has as against any other party the benefit of every exemption, limitation, defence, immunity or other benefit of whatever nature contained in the Bills of Lading; and
    • notwithstanding any other provision of such Bill of Lading, the benefit of such provisions shall be available to the Company, its servants, agents and sub-contractors in relation to acts or omissions occurring before loading on board and/or after discharge from the relevant Vessel.
  • Where a Bill of Lading is issued after any Goods and/or Containers are received by the Company (or it was intended that a Bill of Lading be issued but was in fact never issued for whatever reason) and it contains (or would have contained had it been issued) the term referred to in paragraph (b), the term shall be deemed to apply to the Company, its servants, agents and sub-contractors as at the time of the receipt of the Goods and/or Containers.

7.5 No Warranties or Representations

  • Apart from any condition or warranty implied by statute which cannot be excluded, restricted or modified by agreement, and any warranty expressed in these Conditions, the Company makes no warranties or representations in relation to the Services.
  • If any condition or warranty is implied into these Conditions by any statute (which condition or warranty cannot be excluded by agreement), the liability of the Company for breach of that implied condition or warranty shall be limited, at the option of the Company, to supplying the Services again or paying the cost of having the Services supplied again.
  • The Company does not warrant and accept any responsibility for the accuracy of any part of any description of Goods and/or Containers on any document to which these Conditions relate.

8. INDEMNITIES

8.1 Indemnity for breach of Warranty

The Customer indemnifies the Company, its servants, agents and sub-contractors against any Loss arising from or connected with any breach of the Warranties.

8.2 Indemnity for taxes

The Customer indemnifies the Company against any liability for duty, sales tax, penalties or other charges in respect of the Goods and/or Containers and against all costs and expenses incurred in connection with any such liability or claim.

8.3 Indemnity for Customer Visitors

The Customer indemnifies the Company, its servants, agents and sub-contractors against any Loss arising from or connected with any Act or Default of any Customer Visitor including:

  • loss of life of, or personal injury to, any Customer Visitor or any other person;
  • loss or damage to the property of any Customer Visitor;
  • loss or damage to any installation, structure or other property, whether fixed or moveable, owned, possessed or controlled by the Company, the crown or any port authority,

8.4 Indemnity for damage

The Customer indemnifies the Company against any damage done by any Vessel or by any plant or equipment owned or operated by the Customer or by a Customer Visitor or arising from defective or malfunctioning twist locks provided by the Customer or by the Vessel, to any installation, structure or other property, owned or possessed by the Company, the crown or any port authority and all consequential loss arising from such damage.

9. LIABILITY

9.1 Limitation of liability

Unless otherwise agreed, and subject to 9.2 and 9.3 the Company shall not be liable for any Loss arising from or connected with the provision of the Services unless it can be proved that such Loss was caused by the negligence or deliberate act of the Company or its servants, agents or sub-contractors or by the failure or breakage of equipment supplied by the Company, in which event the liability of the Company shall in no case exceed the financial limits set out below:

  • a. GoodsIn respect of physical loss or damage to Goods, the Company shall pay the c.i.f. value of any Goods lost or the reduction in value of any Goods damaged, provided that:
  • where the Customer is a ship owner/charterer/agent or cargo forwarder, the liability of the Company under this sub-clause (a) shall not exceed the lesser of:
    • the amount paid by the Customer; and
    • the legal liability of the Customer

    in respect of such loss or damage pursuant to the Bill of Lading;

  • notwithstanding paragraph (i), the liability of the Company under this sub-clause (a) shall not in any event exceed in the aggregate 2.75 Special Drawing Rights per kilogram of gross weight of the Goods damaged or lost or $50,000 in respect of any one incident or series of related incidents occurring in connection with or consequent upon one event, whichever is the lesser; and
  • the Company shall deduct from payments to be made by it pursuant to this sub-clause (a) the sum of $500 for each incident or series of related incidents.
  • b. Containers
    In respect of physical loss or damage to Containers and/or any ancillary equipment (including but not limited to clip-on refrigeration units, trailers and chassis), the Company shall pay the depreciated value or the market value, whichever is the lesser, of the Container or such ancillary equipment or the reasonable costs of repair, whichever is the lesser, provided that:
  • the liability of the Company under this sub-clause (b) shall not exceed in the aggregate $20,000 in respect of any one incident or series of related incidents occurring in connection with or consequent upon one event; and
  • the Company shall deduct from payment to be made by it pursuant to this sub-clause (b) the sum of $500 for each incident or series of related incidents.
  • c. Other property
    In respect of any physical loss or damage to any property not otherwise referred to in sub-clauses (a) and (b), the Company shall pay the depreciated value or the market value, whichever is the lesser, of such property or the reasonable costs of repair, whichever is the lesser, provided that:
  • the liability of the Company under this sub-clause (c) shall not exceed in the aggregate $20,000 in respect of any one incident or series of related incidents appearing in connection with or consequent upon one event; and
  • the Company shall deduct from payment to be made by it pursuant to this sub-clause (c) the sum of $500 for each incident or series of related incidents.
  • d. Vessels
    In respect of actual, direct and physical loss or damage to a Vessel or its equipment, the Company shall pay the depreciated value of the Vessel or equipment or thee reasonable costs of repair, whichever is the lesser, provided that:
  • the liability of the Company under this sub-clause (d) shall not exceed the aggregate $2,000,000 in respect of any incident or series of related incidents occurring in connection with or consequent upon one event;
  • each sum of $2,000,000 shall be inclusive of any liability of the Company pursuant to other paragraphs of this Clause arising out of the same incident or related series of incidents occurring in connection with or consequent upon one event; and
  • the Company shall deduct from payments to be made by it pursuant to this sub-clause (d) the sum of $500 for each incident or series of related incidents.
  • e. Death or injury In respect of death or injury, the liability of the Company shall not exceed in the aggregate $500,000 in respect of any one incident or series of related incidents occurring in connection with or consequent upon one event.

9.2 No liability

The Company shall not have any liability and no claim under these Conditions shall be made to the extent that any Loss:

  • is recoverable by the Customer or a third party under a policy of insurance in force to the date of the Loss;
  • arises from a deficiency in the description or instructions given under Clause 5.1 or an omission to give such description or instructions;
  • arises from any demurrage which occurs or from any failure in securing Goods and/or Containers on road vehicles or rail wagons;

9.3 Notification of Loss/commencement of proceedings

  • The Company shall not be liable for any Loss unless:
    • notice of such Loss is given to the Company at the time of the relevant incident giving rise to the Loss and, in any event, prior to the time of sailing of the relevant Vessel (so as to enable verification of the Loss); and
    • written notice
  • The Company shall be discharged from all liability for Loss unless proceedings are commenced within one year of the date that written notice of the Loss is given to the Company.

9.4 Joint and several liability

In any case where liability attaches pursuant to these Conditions and more than one party can be defined as the “Customer”, such liability shall be joint and several and may be enforced against one or more parties to the exclusion of other parties.

10. FORCE MAJEURE

The Company shall be released from its obligations under these conditions to the extent that performance is delayed, hindered or prevented whether directly or indirectly, due to force majeure, including but not limited to acts of God, war, civil war, revolution, rebellion, insurrection, civil strife, terrorism, sabotage, riot, civil commotion, government regulations, acts of any semi-government port or other authority, strikes or lock-outs or other industrial disturbance, accidents, inability to obtain any necessary equipment, facilities or qualified employees, the breakdown, insufficiency or unsuitability of any plant or machinery supplied by the Company, or the effect of any applicable laws, orders, rules or regulations and any other matters beyond the reasonable control of the Company.

11. ARBITRATION

Each of the following steps must be taken as a condition precedent to any party commencing or maintaining a cause of action in any court, tribunal or other forum with respect to these Conditions (the “dispute”).

  • One party shall identify the nature of the dispute by written notice to the other (the “notice”).
  • If, within 14 days of service of the notice, the parties fail to agree on the appropriate tribunal or method of resolving the dispute, the dispute shall be referred to the President of the Law Society of New South Wales. The President or his nominee (the “referee”) shall decide which of the following tribunals or procedures shall be used to resolve the dispute.
    • A court of competent jurisdiction.
    • Arbitration by a legally qualified arbitrator.
    • Arbitration by a lay arbitrator.
    • Arbitration by a legal arbitrator and a lay arbitrator.
    • The final and binding decision by an expert not acting as an arbitrator.
  • Failing agreement between the parties on the choice of an arbitrator or an expert,
  • The parties may make written submissions to the referee (in relation to all issues to be determined by him) within 28 days of service of the notice.
  • The referee’s decision shall be implemented.

12. NO WAIVER

No failure to exercise and no delay in exercising any right, power or remedy under these Conditions will operate as a waiver. Nor will any single or partial exercise of any right, power or remedy preclude any other or further exercise of that or any other right, power or remedy.

13. GOVERNING LAW

These Conditions are governed by the laws of New South Wales. The parties submit to the non-exclusive jurisdiction of courts exercising jurisdiction there.

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