Conditions of Carriage – Lindsay Transport
Conditions of Carriage
1.1 “Carrier” includes the servants, agents and subcontractors of Lindsay Transport Pty Ltd ACN 055 792 919 including any “related entity” as that term is defined in the Corporations Act 2001; where the context permits;
1.2 “Goods” means goods or products and any relevant container, packaging or pallets in respect of which the Carrier provides Services;
1.3 “Services” shall mean all services agreed to be undertaken by the Carrier to the Customer from time to time which may include transport services, warehousing, loading, unloading and distribution services.
2.0 CARRIER NOT COMMON CARRIER
2.1 The Carrier is not a common carrier and will not accept liability as such. The Carrier reserves the right to accept or refuse the carriage, transport, storage or custody of any Goods for any person, at its discretion, without giving any reason for so doing.
3.0 COMPLIANCE WITH LAWS
3.1 All Goods are carried or transported and all storage or custody and other Services are performed by the Carrier subject only to these conditions including the following:
(i) the Customer has complied with all applicable laws (including where necessary the Australian Code for the Transport of Dangerous Goods by Road and Rail, Air Navigation Orders Pt 33 and the International Maritime Dangerous Goods Code), or the Heavy Vehicle National Law including the Chain of Responsibility relating to the notification, description (on the consignment note or separately) consigning and packaging of the Goods and the expenses and charges of the Carrier in complying with any such law or with any order or requirement thereunder or with the requirement of any harbour, dock, railway, shipping, customs warehouse or other authority or company shall be paid by the Customer. Additional charges shall be paid on such Goods if deemed necessary by the Carrier.
(ii) the Customer has fully and adequately described the Goods on the consignment note.
(iii) the Carrier is entitled to open any document, wrapping, package or other container in which the Goods are placed or carried to inspect the Goods to determine either their nature or condition or to determine their ownership or destination where any consignment note or identifying document or mark is lost, damaged, destroyed or defaced.
(iv) the Carrier shall not be bound by any agreement purporting to vary these conditions unless such agreement is in writing and is signed on behalf of the Carrier by a director, secretary or other duly authorised officer of the Carrier.
4.0 LIMITATION OF LIABILITY
4.1 The liability of the Carrier shall be limited in accordance with these terms and conditions in respect of the Goods, product or any part thereof to the Customer or the owner or to any other person but is excluded to the extent of any fraud or wilful default of the Carrier.
4.2 Without restricting the generality of sub-clause (a), the maximum liability of the Carrier whether in contract, tort or otherwise shall be limited to the direct resupply of equivalent services, or full value of the invoice. In no circumstances does the Carrier accept liability for indirect or consequential loss, including but not limited to loss of revenue, loss of profit, loss of production, loss of data, loss of contracts, loss of business, damage to reputation or loss of goodwill and any other loss not reasonably considered to arise naturally, in the ordinary course of things, from the relevant breach, act or omission.
4.3 The limitation of liability in clause 4.2 shall apply irrespective of the manner in which or the time at which or the place at which or the reason whereby any such loss, mis-delivery, damage or injury or delay may have occurred notwithstanding that the same may have been due or occasioned by, or may have arisen as a result of or as incidental to any negligence, act or omission or any part thereof by the Carrier, and includes the following circumstances:
(i) any loss or non-delivery or mis-delivery of the Goods or any part thereof; or
(ii) any damage or injury to or any delay in the delivery of the Goods or any pert thereof; or
(iii) any damage directly or indirectly caused by or which may arise out of any such loss, non-delivery, mis-delivery, incorrect description, damage, injury or delay; or
(iv) any damage including deterioration of chilled, frozen, refrigerated or perishable Goods.
(v) any damage, loss or injury arising after transit has ceased.
4.4 The description, quantity and value of the Goods shown in the consignment note or the quotation relating to the Goods (as the case may be) were represented to the Carrier by the Customer and the Carrier does not admit to the accuracy thereof and shall require, in the case of any claim, proof thereof. The Customer or other party who may claim against the Carrier, shall retain the relevant evidence thereof.
4.5 The disclaimer in this clause extends to include not only loss of or damage to itemised equipment and Goods but, loss damage or injury to any person property or thing damaged during the movement and to include any loss consequentially or otherwise arising from any loss damage or injury howsoever caused including but not limited to any negligence or breach by the Carrier.
5.0 RIGHTS OF INDEMNITY
5.1 The Customer shall indemnify the Carrier against all consequences, loss, damage or injury arising out of any fraud, error, act, omission, misstatement, breach of any applicable law or regulation or misrepresentation by the Customer or other owner of the Goods and against the consequences of insufficient or improper packaging, labelling or addressing of the Goods and including:
(i) all claims and demands whatsoever by whoever made in excess of the liability of the Carrier under these terms and conditions.
(ii) all losses or damage suffered by and claims made against the Carrier caused by or arising out of the carriage by the Carrier of dangerous Goods whether or not declared by the Customer as dangerous Goods.
(iii) all customs duty, excise duty and costs which the Carrier becomes liable to pay and shall pay in respect of any Goods.
(iv) all customs and/or excise duties, costs, fines or penalties which the Carrier becomes liable to pay for any reason whatsoever in respect of the Goods and any documentation relating to the Goods pursuant to any applicable laws or regulations.
5.2 The Carrier shall indemnify the Customer against all losses, claims, of demands whatsoever arising directly from the Carrier’s fraud or wilful default.
5.3 The parties acknowledge and agree the obligation to use reasonable endeavours to mitigate and limit the other party’s loss or damage where it is within a party’s capability and capacity to do so.
6.0 AUTHORITY OF CUSTOMER
6.1 It is agreed that the person delivering any Goods to the Carrier for carriage or forwarding is authorised to sign the consignment note for the Customer.
6.2 The Customer expressly warrants with the Carrier that the Customer is either the owner or the authorised agent of the owner of any Goods or property the subject of the contract of cartage and by entering into this contract of cartage the Customer accepts these conditions for the consignee as well as for all other persons on whose behalf the Customer is acting.
7.0 DANGEROUS OR DAMAGING GOODS
7.1 The Customer or its authorised agent shall not tender for carriage any explosive, inflammable or otherwise dangerous or damaging Goods whatsoever without presenting a full description of those Goods and in default of so doing shall be liable for all loss and damage caused thereby.
8.1 These conditions shall apply to the container or containers or other packaging containing the Goods and to any pallet or pallets delivered with the Goods to the Carrier. The Customer shall be responsible for the conformity of such containers packaging and pallets with any requirements of the consignee and for any expenses incurred by the Carrier arising from any failure so to conform.
9.0 LOADING AND UNLOADING
9.1 When the Carrier is, without prior arrangement with the Customer, called upon to load or unload Goods requiring special appliances for loading or unloading the Carrier will provide reasonable assistance to the Customer however the Carrier makes no warranty to the Customer, and shall be under no liability whatsoever to the Customer or other owner of the Goods for any damage, however caused, arising out of such loading or unloading and the Customer’s indemnity shall apply in relation to all claims and demands whatsoever in connection with such loading and unloading services.
10.1 Freight shall be considered earned and the Customer shall be liable to pay freight to the Carrier as soon as the Goods are loaded and dispatched and will not be subject to refund otherwise than in accordance with these terms and conditions.
11.1 Where there are special instructions by the Customer to the effect that charges shall be paid by a third party other than the Customer, and that third party does not pay the said charges within seven (7) days of the date set for payment or, if no date is set for payment, within seven (7) days of delivery or tendered delivery of the Goods, then the Customer shall be obliged to pay the said charges within the invoicing terms.
12.0 ADDITIONAL FREIGHT CHARGES
Subject to the terms of this agreement, the Carrier may charge freight by weight, measurement or value, and if reasonably required at any time, re weigh, revalue or re measure or require the Goods to be re weighed, revalued or re measured and charge proportional additional or less freight charges accordingly. If there is a material increase to the charges arising under this clause, the Carrier will promptly or as soon as practicable (including if possible prior to the completion of the services), notify the Customer of the reason for the change and the revised charges allowing the Customer to amend its instructions to the Carrier accordingly.
13.0 CLAIMS AGAINST CARRIER
13.1 The Carrier relies on these terms and conditions to their full force at law and reserves its rights to plead these terms and conditions in any court as a defence to a claim by the Customer or any third party for any claim against the Carrier, its agents, sub-contractors, principals, directors, employees or customers.
14.0 DELAY IN DELIVERY
14.1 Should the consignee named in the consignment note not be in attendance during normal trading hours or at the time specified, or if the Carrier arrives to effect delivery at the consignee’s premises and is delayed in effecting prompt delivery at the said premises for any reason whatsoever outside the Carrier’s reasonable control, then the Carrier reserves the right to make an additional charge for every call made or for the amount of time of any delay until delivery is effected.
15.0 METHOD OF CARRYING GOODS
15.1 If the Customer instructs the Carrier to carry the Goods by road, rail, sea or air the Carrier will give priority to the method designated, but if that method is not available or would cause undue delay, inconvenience or give rise to potential loss, the Customer agrees and authorises the Carrier to carry or have the Goods carried by alternate method or methods, and these terms and conditions shall apply equally regardless of the method adopted.
16.0 CARRIAGE BY INDEPENDENT CONTRACTOR OR SUBCONTRACTOR
16.1 The Customer authorises the Carrier to arrange with any other person, firm or company (the ‘Subcontractor’ to undertake the carriage of Goods hereby contracted for in any such arrangement; and
16.2 The Carrier shall be liable for the Subcontractor under pursuant to these terms and conditions which shall apply to the same extent as if the Carrier were performing the services and had not designated the services to the Subcontractor.
17.0 CONDITIONS TO HAVE FULL FORCE IN ALL CIRCUMSTANCES
(a) All rights, immunities and limitations of liability in these conditions of carriage shall continue to have their full force and effect in all circumstances and notwithstanding any dispute, or breach or purported breach by any party.
18.1 The Goods are accepted subject to a general lien for all charges now due or which may hereafter become due to the Carrier by the Customer on any account whether in respect of the Goods comprised herein or in respect of any other Goods for which the Carrier provides transport or any other service.
18.2 If any person fails to pay charges due to the Carrier in respect of the services rendered by the Carrier on reasonable demand being made in accordance with this contract, subject to law or the orders of any court of competent jurisdiction the Carrier may detain and sell all or any of the Goods of that person that are in the Carriers possession and out of the money arising from the sale retain the charges so payable and all charges and expenses of the detention and sale and shall render the surplus if any of the moneys arising from the sale of and such of the Goods as remain unsold to the person entitled thereto. Any such sale shall not prejudice or affect the right of the Carrier to recover from the person or such persons liable to pay the same any such charges due or payable in respect of such service or the said detention and sale.
18.3 From the time the Carrier, or its servants or agents, receive the goods into its custody, the goods and all of the consignor’s present and future rights in relation to the goods and any documents relating to those goods, are subject to a continuing security interest in favour of the Carrier for the payment of all the amounts owed for freight, demurrage, container detention charges, duty, fines, penalties, salvage, average of any kind whatsoever and without limitation and for any at all debts, charges, expenses or any other sums due and owing by the consignor or the consignor’s principals, servants or agents. Further, the continuing security interest shall cover all the costs and expenses of exercising the lien, including the costs of a public or private sale or auction, including legal and administration costs.
19.1 Insurance of Goods will not be effected for the benefit of the Customer.
20.0 AUTHORISATION OF CARRIER
20.1 The Customer authorises the Carrier (if the Carrier should think fit so to do) to contract either in the Carrier’s name as principal or as agent for the carriage of the Goods, or for leasing or using any container in which the Goods may be placed or packed and to give any receipt for the Goods or any container whether subject to any terms and conditions or not and any such contract will be made upon the terms and subject to the conditions of any bill of lading or other forms or terms or contract for carriage whether by sea, rail, road or air or of any lease agreement, equipment hand-over agreement, interchange receipt of any other document as the case may require.
21.0 CONSIGNED GOODS POLICY
21.1 The Customer agrees to comply with the following Consigned Goods Policy in respect of all consigned Goods:
(i) all consigned Goods must be packed in appropriate packaging to ensure they arrive at the destination in the same condition they were presented to the Carrier.
(ii) all consigned Goods must be clearly marked with, type of product, sender and receiver’s details, the Customer’s pallet, batch or carton identification numbers.
(iii) all consigned Goods and pallets must be in sound condition and free from dirt, wood, nails, vermin and any contamination.
(iv) all consigned Goods must be stabilised and appropriately secured and fit for road transport.
(v) consigned Goods that are sensitive to temperature must be presented at the correct transit temperature for that product.
(vi) consigned Goods that are sensitive to temperature and are to be collected and pre-cooled on behalf of the sender, the Carrier must be notified with enough lead time prior to pick-up to enable the correct temperature to be obtained prior to dispatch.
(vii) all consigned Goods must be ready for transport prior to the pick-up cut-off times for the destination.
(viii) all relevant paperwork including the Carrier’s consignment note must be completed and ready to travel with the Goods.
(ix) all pallets must be on an exchange basis unless pallets are transferred direct from the Customer’s pallet account.
(x) all charges relating to any consigned Goods must be charged to an approved Carrier customer account.
(xi) all Carrier customer accounts must operate within the Carrier’s stated credit terms.
(xii) the Carrier reserves the right to refuse to carry any consigned Goods presented outside these conditions.
(xiii) for any consigned Goods presented in poor condition or outside the optimum transit temperature for that product and the Carrier is requested by the Customer to transport the Goods to meet time schedules; the Carrier will not be held responsible for any claims made against such product.