A. Generally: Subject to subsections B, C, D, E and F, below, Company’s liability with respect to the Project Cargoes, and whether for loss, damage, delay, shortage, misdelivery, failure to deliver or otherwise, shall be the lesser of the actual cost to repair, replace and/or deliver the Project Cargoes or ten cents (US$0.10) per pound, not to exceed in either case the sum of US$100,000.00 per claim, per project. However, if Customer has declared in writing to Company a higher valuation for the Project Cargoes and Company has agreed in writing to accept such higher valuation, then Customer shall pay increased fees to Company and Company’s liability shall be the lesser of the higher value so declared and agreed or the actual cost to repair, replace and/or deliver the Project Cargoes. Company shall not be liable to Customer or any other claiming by, through or with respect to the Project Cargoes, whether for loss, delay, shortage, misdelivery, failure to deliver or otherwise, or in tort, contract or upon any other theory, other than as set forth in these Terms and Conditions, and Customer agrees to indemnify and hold Company harmless (including legal fees and costs) from any illness, injury or death of any person, or damage to any property, or any other loss, damage, expense, liability, claim, lien, penalty, delay, and/or suit arising out of or in any fashion relating to the Project Cargoes or any act or omission of Customer, including but not limited to any damage to any vessel, dock or other equipment used at any stage of transporting, loading, or discharging the Project Cargoes however so caused.
B. Transportation by Air: In the event of international transportation by air, any applicable agreement, air waybill and the Montreal Convention will be applicable. In such an event, the transportation by air shall be subject to said Convention and the applicable Air Waybill, and the limitations of liability set forth therein shall apply to all claims against Company for all loss or damage to the Project Cargoes transported by air.
C. Transportation by Water: In the event of transportation by water, the U.S. Carriage of Goods by Sea Act (COGSA) shall be incorporated into these Terms and Conditions and be applicable. In such an event, the transportation by water shall be subject to COGSA and Company’s liability for loss/damage to the Project Cargoes or portion thereof transported by water shall be limited in accordance with COGSA. For purposes of COGSA, the single largest Customer provided unit, such as a single container, flatrack, platform, trailer or pallet, whichever is largest, or an entire machine or piece of equipment, shall constitute the “package”, rather than any individual contents, boxes or pieces thereof, or in or on such unit.
In addition, in the event of transportation by water the following provisions shall apply:
(1). General Average: General average shall be adjusted, stated and settled according to York-Antwerp Rules 1994, at such port or place selected by Company and as to matters not provided for by said Rules according to the laws and usage of the port of entry, with the Tug and Barge(s) not deemed involved in a common maritime adventure unless each such vessel is actually and directly exposed to a common peril; a vessel is not in common peril with another vessel if by disconnecting from such other vessel it is in a position of safety or ceases to be actually and directly exposed to such peril. For purposes of said Rules, the parties expressly acknowledge that the Project Cargoes are carried in accordance with the recognized custom of the trade. To the extent required by Company, average agreement, bond and/or additional security shall be furnished by Customer prior to discharge/release of the Project Cargoes. Any cash deposit shall be payable in U.S. currency, remitted to an average adjuster of Company’s choosing and held in a special account in the adjuster’s name, with interest thereon to become a part thereof pending settlement of general average.
In the event of accident, danger, or disaster before or after commencement of voyage, resulting from any cause whatsoever, whether due to negligence or not, for which or for the consequences of which Company is not responsible by statute, contract or otherwise, the Project Cargoes and Customer shall contribute with Company and vessel(s) in general average to the payment of any sacrifices, losses or expenses of a general average nature that may be made or incurred, and shall pay salvage and special charges incurred with respect to the Project Cargoes. The contribution of Project Cargoes and Customer to general average shall be paid to Company even when such average is the result of fault, neglect or error of the vessel master, pilot or crew. If a salving ship is owned and/or operated by Company, salvage shall be paid for as fully and in the same manner as if such salvage ship belonged to strangers.
(2). Both-to-Blame Collisions: In the event of cargo damage resulting from collision, if the vessel(s) (or either of them) should collide or come into contact with another ship or object as a result of the negligence of the other ship or object and any act, neglect or default of master, mariners, pilot or servants of Company in the navigation, management or maintenance of the vessels, Customer shall indemnify Company and the vessel(s) from and against all loss and liability to the other or non-carrying ship, her owners and any third parties insofar as such loss and liability represents a loss of, damage to or any claim whatsoever of Customer, the owners of the cargoes and/or their underwriters, paid or payable by the other or non-carrying ship, her owners or third parties to Customer, the owners of the cargoes or their underwriters and set off, recouped or recovered by the other or non-carrying ship, her owners or any third parties as a part of their claim(s) against Company and/or the vessel(s). The foregoing shall apply when the owners, operators or those in charge of any ship or object other than or in addition to those colliding are at fault with respect to such collision or contact.
D. Transportation by Truck or Rail: In the event of interstate surface transportation by motor truck or rail, the Carmack Amendment to the Interstate Commerce Act (Carmack) will be applicable. In such an event, the transportation by air shall be subject to said Convention and any applicable waybill, and the limitations of liability set forth therein shall apply to any claims against Company for all loss or damage to the Project Cargoes transported by truck or rail.
E. Exceptions: Company shall not be liable for any loss, damage, delay, shortage, misdelivery, failure to deliver or other result involving the Project Cargoes caused by: act of God; peril of land, sea or air; threat or act of terrorism; act of public enemy; act of war; act of public or government authority or other with apparent public or government authority; fire; quarantine; act or omission of Customer or its agent or representative; strike, lockout or other labor dispute; sabotage; riot or other civil commotion; wastage in bulk or weight or arising from the nature of the goods; inherent vice; improper and/or insufficient packing, securing, packaging, marking or addressing; latent defect not discoverable by due diligence; compliance with instructions from Customer; goods loaded by Customer into sealed container or other packages, providing the seal or package remains unbroken and not physically damaged; errors in operation or navigation of a vehicle, vessel or other conveyance; and/or resulting from a vessel owner succeeding in any limitation of liability or similar provision.
F. Delivery and Claims: Delivery of the Project Cargoes without written notification of loss/damage to Company shall be prima facie evidence that the Project Cargoes have been delivered in the same good order, count and condition as when initially received by Company. As a condition precedent to any recovery against Company:
(1). The Project Cargoes must be carefully inspected by Customer immediately upon delivery, and any loss/damage which would then be evident must be noted in writing to Company, or the Project Cargoes shall be conclusively presumed to have been delivered in the same good order, count and condition as when initially received by Company.
(2). In the event of loss/damage not ascertainable at delivery, or in the event the Project Cargoes are delayed, lost or otherwise not timely delivered, written notice must be given to Company within three (3) days, after which it shall be conclusively presumed that the Project Cargoes were delivered in the same good order, count and condition as when initially received by Company.
(3). Company shall have a reasonable opportunity to inspect the Project Cargoes in the same condition as upon delivery and before any alteration or destruction. In furtherance of the foregoing, Customer shall immediately notify Company of any problem or issue with respect to the condition of the Project Cargoes upon ascertaining such condition and thereafter hold the Project Cargoes, together with all packing material, crates, containers pallets, etc. in which the Project Cargoes were packed or upon which the Project Cargoes were transported, at the disposition or Company or its designated surveyor or other authorized representative.
(4). A formal written claim for loss/damage, along with all supporting documentation specifying the full particulars thereof and the amount(s) being claimed, must be filed with Company within three (3) months of delivery, the date on which the Project Cargoes should have been delivered, or the date on which Company disallowed the claim or pertinent part of the claim, whichever is later, except in the case of a claim arising from interstate surface transport, in which event the claim must be made within nine (9) months.
(5). Suit against Company for any claims, loss, damage of any nature must be filed within one (1) year from delivery or release of the goods or the date which the goods should have been delivered or released for air and ocean claims, and within two (2) years from the date of denial of the claim for interstate surface transport claim.
(6). Contactor shall not be obliged to entertain or adjust any claim and there shall be no recovery against Company until fees and other amounts due Company with respect to the Project Cargoes have been fully paid and received by Company.