COMBINED TRANSPORT BILL OF LADING
(a) “WCS” refers to All West Coast Shipping, Inc., which is licensed by the United States Maritime Commission as a Non-Vessel-Operating Common Carrier.
(b) “Shipper” means the person who has engaged WCS to arrange for shipping of the Cargo.
(c) “Carriage” means transport of the Cargo.
(d) “Cargo” means the items that the Shipper is shipping, as indicated on the face of this bill of lading. If the Containers, equipment or other packaging are not furnished by WCS, those Containers, equipment and other packaging are also "Cargo".
(e) "Combined Transport" means a Carriage from the place of receipt indicated on the face of this bill of lading to the place of delivery indicated on the face of this bill of lading using different modes of transport (such as via ocean vessel, train, truck or other means of transport).
(f) "Container" includes any container (including any open-top container, trailer, flat rack, pallet or any similar device used to consolidate Cargo, together with any ancillary equipment.
(g) "Merchant" means the Shipper and any consignee, notify party, receiver of the Cargo, holder of this bill of lading, and any person, including any corporation, company, or other legal entity, owning the Cargo or entitled to the possession of the Cargo or acting on behalf of the Cargo. Their obligations are joint and several.
(h) "Package" means the largest means used to prepare cargo for transportation, including but not limited to, a skid, pallet, Container, trailer or carton.
(i) "Port to Port Shipment" means a shipment from one port to another port. WCS would be responsible for the Cargo only from the Port of Loading indicated on the face of this bill of lading to the Port of Discharge indicated on the face of this bill of lading.
(j) "Subcontractor" includes but is not limited to owners, operators and charterers (time, voyage and slot) of Vessels, stevedores, terminal and groupage operators, road and rail transport operators and any independent contractor employed directly or indirectly by WCS in performance of the Carriage.
(k) " On-Carriage" means the transfer of the Cargo and the responsibility for the Cargo from WCS to another carrier for transport from the port of discharge to another location. The duty, responsibility, and liability of WCS ceases at on-carriage.
(l) “Vessel” includes the vessel named on the face of this bill of lading and any ship craft, barge or other means of transport that is substituted, in whole or in part, for that vessel.
(m) “COGSA” is an acronym for the United States Carriage of Cargo by Sea Act found at U.S.C. Sections 1300 et seq.
(n) “The Pomerene Act” mean the United States laws regulating bills of lading found at U.S.C. Sections 80101, et seq.
(o) “The Hamburg Rules” means the United Nations Conventions on the Carriage of Cargo by Sea Act of 1978.
(p) “The Hague/Visby Rules” means the International Convention for the Unification of Certain Rules of Law Relating to Bills of Lading, adopted in Brussels on August 25, 1924 (as amended by the Visby Amendments in 1968 and by the Brussels SDR Protocol in 1979).
(q) “Australian COGSA” means the Australian Carriage of Cargo by Sea Act, 1991 as amended.
(r) “The New Zealand Act” means Chapter XVI of the New Zealand Maritime Transport Act of 1994.
2. ACCEPTANCE OF BILL OF LADING AND CARRIER'S TARIFFS, RULES, AND RATES
In accepting this bill of lading, the Merchant agrees to be bound by all its terms, conditions and limitations, whether printed, stamped, or written on the front or back of the bill of lading, as well as the provisions of WCS’ published freight tariffs, rates and Shipping Terms and Conditions, as fully as if they were all specifically accepted in writing by the Merchant, even if local customs or practice are to the contrary. A copy of the relevant tariffs may be obtained from any agent of WCS. In the event of a conflict between the terms of a tariff, Shipping Terms and Conditions and the terms of this bill of lading, the terms of this bill of lading will govern.
3. SCOPE OF THIS BILL OF LADING
This bill of lading, together with the WCS Shipping Terms and Conditions on WCS’ website and WCS’ Order Acknowledgement and/or Invoice which are all incorporated herein (and which can be viewed at http://www.West Coast Shipping.com) evidences the contract of Carriage from the time WCS accepts complete custody and control of the Cargo at the place of receipt or the port of loading described on the face of this bill of lading until WCS delivers custody or control of the Cargo at the port of discharge or the place of delivery described on the face of this bill of lading. The terms and conditions of this bill of lading apply during the Carriage described by this bill of lading on all modes of transportation and storage. These terms and conditions also apply before the Cargo is loaded onboard any means of transportation, and after the Cargo is discharged from any means of transportation as well as while the Cargo is onboard any means of transportation.
4. THIRD PARTY ON-CARRIAGE
The Merchant and WCS may indicate, on the face of this bill of lading, that the Cargo will be on-carried beyond the port of discharge or place of delivery. WCS is not responsible for such On-Carriage and is not liable for loss or damage of or to the Cargo during On-Carriage. WCS will act only as agent of the Merchant to arrange such On-Carriage. WCS’ duties and responsibilities will be completed at the place of On-Carriage as if WCS had delivered the Cargo to its final destination.
5. RECEIPT FOR CONDITION AND QUANTITY OF CARGO
WCS acknowledges receipt only of the external, apparent condition of the Cargo' packaging, including Containers, and the quantity of the Cargo or their packages, including Containers, that are visible and apparent to WCS and that WCS has reasonable means to examine. If WCS receives a sealed Container, WCS is only responsible to deliver the Container intact with the seal intact. WCS shall not be liable for loss, damage, or injury caused by improper stuffing or loading of Containers that has been performed by the Merchant or on the Merchant's behalf. This exception shall include, but shall not be limited to, a defective condition of the Container that should have been obvious to the Merchant, its agent, or servant at the time the Container was loaded. The Merchant shall be liable for, and shall defend, indemnify and hold WCS harmless from, any and all loss, damage, injury or expense (including WCS’ attorneys’ fees) caused by the Cargo, which by their nature are dangerous, fragile, perishable, or are improperly stuffed or secured in the Container or are insufficiently packaged.
Cargo shall not be shipped inside vehicles or other Cargo unless WCS agrees in writing to accept such additional Cargo and extra freight is paid. WCS is not responsible for such additional Cargo unless WCS agrees in writing to carry the Cargo.
WCS will deliver the Cargo by one of the following means:
(a) Place the Cargo at a place, reasonably safe and fit relative to the conditions at the place of delivery, and allow the person entitled to delivery up to five (5) days to assume custody and control of the Cargo unless the nature of the Cargo or custom, law or regulation at the place of delivery suggest a shorter time; or
(b) Relinquish exclusive custody and control of the Cargo to a person entitled to the possession and control of the Cargo; or
(c) Relinquish custody and control of the Cargo to a port authority or other governmental agency or other entity to whom custody and control is customarily relinquished at the place of delivery or port of discharge; or
(d) Any means provided by the applicable tariff.
WCS may remove such Cargo from the Container or other packaging furnished by WCS, and/or place the Cargo in a storage facility or other available place at the sole risk and expense of the Cargo and the Merchant. That facility will act as an agent of the Merchant, not WCS. Demurrage fees will continue to be charged for the Container and other carrier equipment until the Container and other equipment are returned to WCS. The demurrage fee will constitute a lien against the Cargo. Cargo not picked up within thirty (30) days may, at the option of WCS either (i) be sold to exercise liens for freight, demurrage, storage, handling, and other charges under the laws of the jurisdiction where the Cargo was delivered, or (ii) return the Cargo to WCS’ offices, and then sell the Cargo to exercise liens for freight, demurrage, storage, handling, and other charges under local law, including freight charges incurred to return the Cargo to WCS’ offices.
The contract of carriage is complete, and WCS has no further responsibility for the Cargo, after delivery. If the Cargo is on-carried, then, in accordance with Section 4, WCS will have no responsibility for the Cargo during On-Carriage.
7. MERCHANT'S RESPONSIBILITY
The Merchant warrants that it has authority to enter into this bill of lading and that it has properly and accurately described the Cargo on the face of this bill of lading. It also warrants that proper labels and markings are on the Cargo or their packaging, that the Cargo is properly prepared and packaged for transportation, and that all necessary instructions for transportation have been given to WCS.
The Merchant also warrants that the Cargo is safe for transportation on all modes of transportation. The Merchant agrees to comply with all relevant treaties, conventions, laws, and regulations relating to the transport of dangerous or hazardous materials or cargo. The Merchant also acknowledges and agrees that such compliance alone may not be sufficient to satisfy the warranties in this paragraph. If action beyond such compliance is required to assure that the Cargo is safe for transportation, WCS may take whatever action WCS deems necessary, including destroying or otherwise rendering harmless any Cargo that WCS reasonably believes present a danger.
The Merchant warrants that the Vessel will not incur any fine, penalty or other expense because of the Cargo, or due to the preparation for transportation, packing, labeling or any other aspect of the Cargo.
The Merchant agrees to defend, indemnify and hold WCS harmless from, any and all loss, damage, injury or expense (including WCS’ attorneys’ fees) incurred as a result of Merchant’s breach of the foregoing warranties. If the Merchant issues its own bill of lading or other shipping document, it warrants that the terms of its bill of lading or document will be no less favorable to WCS than this bill of lading. The Merchant agrees to indemnify, defend, and hold WCS harmless if the Merchant’s bill of lading or document is less favorable than the WCS bill of lading.
If Containers supplied by or on behalf of WCS are unpacked at the Merchant's premises, the Merchant is responsible for returning the empty Containers, with interiors clean, to the point or place designated by WCS, its servants or agents, within the time prescribed. Should a Container not be returned within the time prescribed in the Tariff, the Merchant shall be liable for any detention, loss or expenses which may arise from such non-return.
Containers released into the care of the Merchant for packing, unpacking or any other purpose whatsoever are at the sole risk of the Merchant while in the Merchant’s control. The Merchant shall indemnify, defend and hold WCS harmless against any and all claims, liability, loss and expense (including attorneys’ fees, court costs and related expenses) arising out of any damage to such Containers. Merchants are deemed to be aware of the dimensions of any Containers released to the Merchant. The Merchant shall indemnify, defend and hold WCS harmless against and from any and all claims, liabilities, costs and expenses (including attorneys’ fees, court costs and related expenses in connection with the release of Containers to the Merchant, whether such claims are predicated on WCS’ alleged negligence, breach of contract or other legal theory.
8. LIMITATIONS ON LIABILITY
If the Carriage described in this bill of lading involves transport to or from the United States, the provisions of COGSA and the Pomerene Act shall apply to this bill of lading, both of which Acts are incorporated into this bill of lading as if they were fully set forth herein. The provisions of COGSA and the Pomerene Act shall apply before and after the Cargo is to be loaded onboard and after they have been discharged from any Vessel or other mode of transportation, as well as while the Cargo is on board any Vessel or other mode of transportation. Unless the Carriage is described in subparagraphs (a), (b) or (c) of this Section 8, under no circumstances shall this bill of lading be construed under or governed by any law other than COGSA and the Pomerene Act.
(a) If this bill of lading is subject of a dispute and is interpreted by a court located in a jurisdiction that requires the application of the Hague/Visby Rules, this bill of lading shall be governed by the Hague/Visby Rules, which Rules are hereby incorporated by reference into this bill of lading as if they were fully set forth herein.
(b) If this bill of lading evidences a contract of carriage from Australia or New Zealand, this bill of lading shall be governed by either Australian COGSA or by the New Zealand Act, whichever is relevant in respect of the Carriage of Cargo by sea. Subject to the compulsory application of Australia and New Zealand laws, the Carriage and this bill of lading shall be subject to COGSA and the Pomerene Act or the Hague-Visby Rules, whichever may be applicable under the circumstances.
(c) If and only if, a dispute that arises from this bill of lading is litigated in a forum that must apply the Hamburg Rules, the following provisions will apply:
(i) This bill of lading shall take effect subject to any national law in force at the place of receipt or place of issuance of the bill of lading making the Hamburg Rules compulsorily applicable to this bill of lading, in which case this bill of lading shall have effect subject to the Hamburg Rules.
(ii) If any term of this bill of lading shall violate the Hamburg Rules, those terms shall be void to the extent that they violate the Hamburg Rules, but the remaining provisions of this bill of sale shall remain in full force and effect.
(d) In the event a dispute arises from this bill of lading, which is litigated in a forum that must apply the Carriage of Cargo by Road Act of 1965 (CMR) or the International Convention Concerning Carriage of Cargo by Rail (CMI 1961), that Act will govern only the portion of the carriage that it governs by the force of law.
Notwithstanding any provision of this bill of lading other than the compulsory application of the Hamburg Rules, no provision of any act, statute or other law or rule will be incorporated by reference into this bill of lading if its incorporation would increase WCS’ liability beyond the requirements of either COGSA and the Pomerene Act or the Hague/Visby Rules, whichever applies to this bill of lading.
9. LIMITATION OF WCS’ LIABILITY
If U.S. COGSA applies to the contract evidenced by this bill of lading, WCS’ liability is limited to U.S. $500 per Package or, for Cargo not shipped in Packages, by the value of a customary freight unit, unless a higher value is declared in the “Declared Value” box on the face of this bill of lading and a higher freight is paid. Each unpackaged vehicle or other piece of unpackaged Cargo on which freight is calculated, constitutes one (1) customary freight unit.
If the Hague/Visby Rules, Australian COGSA or the New Zealand Act apply to this bill of lading, WCS' liability shall be limited to 666.67 Special Drawing Rights of the International Monetary Fund (SDR's) per Package or two (2) SDR's per kilogram, whichever is higher.
10. NOTICE OF DAMAGE
If the Merchant fails to provide prompt written notice of any loss or damage at the time of delivery of Cargo with obvious or patent loss or damage within three (3) days of delivery of Cargo, or if the Merchants fails to provide prompt written notice of any loss or damage at the time of delivery of Cargo with non-obvious or latent loss or damage, such failure shall constitute prima face evidence that WCS delivered the Cargo in the same condition and quantity in which the Cargo was delivered to WCS at the place of receipt or port of loading. Notice of loss or damage shall be addressed to WCS or its representative at the place of delivery, or the port of discharge if no place of delivery is identified on the face of this bill of lading, or if the Cargo has been on-carried by a third party.
11. TIME LIMIT TO COMMENCE SUIT AGAINST CARRIER
WCS shall have no liability to the Merchant unless the Merchant commences a lawsuit against WCS within one (1) year from the date the Cargo was delivered or the date the Date should have been delivered by WCS, whichever is earliest.
The Merchant warrants that it will preserve the time limit within which any action may be commenced by the Merchant or WCS against any party who may be responsible for loss of or damage to the Cargo. The Merchant agrees to hold harmless, indemnify, and otherwise protect WCS against such loss or damage WCS may suffer due to the Merchant's failure to preserve such time limit.
12. CHOICE OF FORUM
All disputes arising from shipments to or from the United States shall be brought and decided exclusively in courts located within Contra Costa County, California where West Coast Shipping’s headquarters is located. Such courts shall have exclusive jurisdiction over such disputes. The general law of the United States, in addition to the law specified in Section 8 of this bill of lading, will apply to these disputes. The Merchant waives any objection to the jurisdiction of such courts in connection with litigation arising under this bill of lading, whether such objections are based on the inconvenience to the Merchant or otherwise.
The Cargo may be carried on several different modes of transportation, whether by water, rail, or road. Within each mode, the Cargo may also be carried on several Vessels, trains, trucks, or other means of transportation. WCS may determine, in its sole and absolute discretion, the route and the means of transport without notice to the Merchant. The Merchant understands and acknowledges that the route chosen by WCS may not be the most direct or shortest route and may be interrupted by unforeseen circumstances. WCS may, if circumstances justify, destroy the Cargo, or may abandon or discharge the Cargo, at any place, and then declare the Cargo delivered and at the risk of the Merchant.
14. SUBCONTRACTORS; “HIMALAYA CLAUSE”
WCS may subcontract, directly or indirectly, the whole or any part of the Carriage on any terms it deems appropriate. The parties to this bill of lading intend to extend and make available to all parties who participate in its performance all of the terms and conditions contained in this bill of lading, including all defenses and limitations. The defenses and limitations, and the laws governing this bill of lading or incorporated by reference into this bill of lading shall extend to all parties that agree directly or indirectly with WCS to perform all or any part of the contract of carriage. These parties shall include, but shall not be limited to, the following entities: underlying carriers, participating land carriers, Subcontractors, stevedores, terminal operators, watching services, vessel operators, voyage charterers, time charterers, slot or space charterers, direct and indirect Subcontractors, independent contractors, and every servant or agent of WCS or its Subcontractors.
For the purpose of this Section 14, WCS is or shall be deemed to be acting as agent or trustee on behalf of and for the benefit of such persons to whom the terms and conditions of this bill of lading are extended, and each of them and all such persons shall to this extent be deemed express third-party beneficiaries of this bill of lading.
15. AGREEMENT TO CLAIM AGAINST NO ONE OTHER THAN WCS
(a) The Merchant shall make no claim or allegation, whether directly or by any other person who is or who may subsequently be interested in the Cargo, against any person (other than WCS) (whether it is a Subcontractor, principal, employer, servant, agent or otherwise) which imposes or attempts to impose upon such person any liability whatsoever and howsoever arising (including, without limiting the foregoing, from negligence or breach of contract or willful act or default of WCS or others) in connection with the Cargo. If any such claim or allegation should nevertheless be made, the Merchant shall defend, indemnify and hold WCS and such person harmless from and against any and all loss, damage, injury or expense (including attorneys’ fees) arising out of such claim or allegation; and
(b) The Merchant shall defend, indemnify and hold WCS harmless from and against any claim or allegation made against WCS by any person (other than the Merchant) in connection with any liability relating to the Cargo.
16. FREIGHT AND OTHER CHARGES
Freight, whether it is pre-payable or collect, is fully earned when the Cargo is delivered to WCS, or its Subcontractors or their respective agents or servants. The freight also is fully earned, without deduction, even if the Cargo is lost or damaged.
WCS has the right, but not the duty, to inspect Cargo inside Containers or other packaging. If the Cargo is not described correctly and, as a result, a lower freight is charged, WCS will be entitled to the correct freight and all the costs of calculating and collecting it, including but not limited to attorney fees and other legal fees, and interest on both the amount due and the cost of collection. If WCS considers the packing insufficient and re-coopers the Cargo, the Merchant will pay WCS’ charge for re-coopering and will pay the freight as computed for the re-coopered Cargo.
WCS shall have a lien on the Cargo and any document relating to the Cargo or any other cargo, documents or property of the Merchant for any amount due WCS, plus interest and the cost of collecting that amount, with interest on those costs. The costs of collecting the amount due will include, but will not be limited to, attorneys’ fees, court costs and related costs and expenses. If, following a lien sale of the Cargo, the proceeds fail to cover the amounts owed WCS (including costs, expenses and interest), WCS shall be entitled to recover the deficit from the Merchant.
18. GENERAL AVERAGE AND SALVAGE; “NEW JASON” CLAUSE
Subject to the provisions of COGSA, in the event of accident, danger, damage, or disaster, before or after commencement of the voyage resulting from any cause whatsoever, whether due to negligence or not, for which, or for the consequences of which, the Carrier is not responsible by statute, contract or otherwise, the goods, shippers, consignees, or owners of the goods shall contribute with WCS 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 in respect of the Cargo.
General Average is to be adjusted at any port or place at WCS' option and is to be settled according to the York-Antwerp Rules of 1994, as amended. In the event the Vessel is placed in peril from any cause, even the negligence or other fault of WCS, for which, or for the consequences of which, WCS is not liable by reason of statute, law, treaty, convention, contract, or otherwise, the Merchant, subject to the provisions of COGSA, if applicable, shall contribute with WCS in General Average according to the Statement prepared by the General Average Adjuster. The parties to this bill of lading agree to accept as binding the decisions of the General Average Adjuster as set forth in the Statement, and agree that the General Average Adjuster or WCS may exercise a lien against the Cargo for General Average or Salvage.
The Merchant shall provide such security and payments on account as are requested by the General Average Adjuster within 30 days of such request. The Merchant agrees to provide such security and to make payments on account before or after the Cargo have been delivered from WCS. The Merchant agrees that if the Cargo have been delivered, or are otherwise not available for the purpose of executing a lien against them, WCS may obtain such security and payments on account by exercising a lien against any other property owned by the Merchant.
The Merchant shall also pay salvage and special charges incurred in respect of the Cargo. If a salvaging vessel is owned operated, or chartered by WCS, salvage shall be paid as fully and in the same manner as if such salvaging vessel belonged to strangers. The Merchant hereby appoints WCS to act on behalf of the Merchant in any salvage proceeding in which the Merchant does not appear.
To the extent, if any, that the provisions of this Section 18 deviate from the provisions of COGSA, the COGSA provisions shall apply.
19. “BOTH TO BLAME” COLLISION
If (i) a Vessel on which the Cargo is being carried collides with another vessel as the result of the negligence or fault of both vessels, and (ii) the Merchant collects payment for loss or damage to the Cargo from the other vessel, and (iii) the other vessel obtains a contribution toward that damage payment from WCS, then under those circumstances the Merchant will reimburse WCS for that contribution.
20. DELAY AND CONSEQUENTIAL DAMAGE
WCS is not responsible for consequential damages unless WCS has agreed in writing to be responsible for the certain, specific damage that occurred.
WCS does not agree to deliver the Cargo at any particular time or for any particular market and thus is not responsible for damages alleged to have been caused by delay. If, despite the foregoing provision, WCS is held liable for damages attributable to delay, those damages are limited to the total amount payable as freight for all of the Cargo shipped under the bill of lading that included the delayed Cargo.
21. DECK STOWAGE
WCS or the Vessel owner or operator, not the Merchant, has sole authority and responsibility to determine the stowage location of the Cargo on Vessels that carry the Cargo. Cargo that is stowed in Containers, or are otherwise protected from the weather, are likely to be stowed on deck. This bill of lading does not require the location of stowage of Cargo in any specific location on any Vessel, and COGSA, the Hague/Visby Rules, the Australian COGSA or the New Zealand Act, whichever applies to this bill of lading, shall apply to such deck cargo as if it were stowed below deck. Cargo that is customarily carried on deck, may be carried on deck without notice to the Merchant and at the Cargos' and the Merchant's risk. Cargo not customarily carried on deck may be carried on deck at the risk of the Cargo and the Merchant with the agreement of the Shipper if the bill of lading notes that the Cargo is carried on deck at the risk of the Cargo or the Merchant.
22. SPECIAL VENTILATION, REFRIGERATION OR HEATING
Special ventilation, refrigeration or heat will not be furnished to the Cargo unless such special service is contracted for on the face of the bill of lading and the Merchant pays any extra freight imposed. The Merchant is responsible for inspecting each Container to determine whether it is fit to carry the Cargo. The Merchant is also responsible to assure that the Cargo is at the proper temperature before it is loaded into a refrigerated Container. The Merchant agrees to determine that the refrigeration equipment is set to the proper temperature, and that the Container is at the proper temperature before the Cargo is loaded into the Container. WCS is not responsible for heating, ventilating or refrigerating equipment when the equipment is not within its custody and control.
23. STEEL, OTHER METAL CARGO, LUMBER AND WOOD
If WCS acknowledges in this bill of sale receipt of steel, other metal Cargo, lumber or wood in apparent, external, good order and condition, such acknowledgement is not a representation by WCS that conditions of rust, oxidation or wetting and the like did not exist on receipt of such Cargo by WCS. The Merchant acknowledges and agrees that (i) superficial rust, white rust, oxidation, wetness or any like condition is not a condition of damage to steel and other metal cargo; and (ii) wetting of lumber and wood is not a condition of damage.
WCS may, after a special inspection of the Cargo, issue a bill of lading describing superficial rust, white rust, oxidation or wetness on such Cargo if the Merchant (i) so requests in writing before delivery of such Cargo to WCS; and (ii) the Merchant pay any additional freight that may be imposed.
Neither WCS nor any party participating in the performance of the Carriage evidenced by this bill of lading shall be liable for any loss or damage caused by fire unless such fire or the failure properly to extinguish it was caused by WCS’ actual gross negligence or intentional misconduct.
25. SEPARABILITY OF TERMS
The terms of this bill of lading shall be separable and, if any provision or this bill of lading or any part of any provision is held to be invalid or unenforceable, such holding shall not affect the validity or enforceability of any other provision or part of this bill of lading.