GENERAL TERMS & CONDITIONS USED FOR THE ORGANIZATION OF CARRIAGE OF GOODS FROM THE COMPANY “CONSIGNACIONES & OPERACIONES MARITIMAS S.A.”
C.I.F. A-36867430
1 -. SCOPE OF APPLICATION.
These Terms and Conditions shall apply to all services requested “Consignaciones & Operaciones Marítimas S.A.”, rendered in its capacity as Agent of shipping line, forwarder or commission of transport, which are fully accepted by the customer at the time of ordering the service.
Furthermore the customer accepts that these General Terms and Conditions apply to any order either verbally transmitted by telex / fax, email or any other means, even though no specific reference to these General Terms and Conditions is made.
The economic limitations of liability as defined in the clauses of these General Terms and Conditions shall apply to all claims (extrajudicial and / or judicial, civil, criminal, administrative or any other nature) that can be undertaken against “Consignaciones & Operaciones Marítimas S.A., the client also agree to communicate to third parties, who might have contracted with them the services; the existence, validity and acceptance of these conditions subcontracted with “Consignacioines & Operaciones Marítimas S.A.
2 -. ACCEPTANCE.
The client expressly agrees to submit all the services contracted with “Consignaciones & Operaciones Marítimas S.A., to these General Conditions.
3 – DEFINITIONS
“Comarsa & Operaciones Marítimas S.A. (hereinafter COMARSA) is a company acting as an agent of shipping line, freight or transportation commission. As such and in virtue of an explicit mandate received from a third party (customer), will assume, in accordance, the organization of transportation of goods in conformity with the instructions received from his customer. The carriage of goods will be organized by hiring external means of transport, use all kinds of transportation and/or sub-agents, contracted for and on behalf of the client. COMARSA also offers other services such as customs clearance, storage and logistics in general.
As consideration for these services, COMARSA will send the corresponding invoice to the customer.
Client / Sender / Shipper (hereinafter CUSTOMER), physical person or legal entity that engages the services of COMARSA for the organization of the carriage of goods from one place to another, Custom Clearance, warehouse, etc..
As consideration for the services received, is the person directly liable for payment of the invoice to be issued by COMARSA, independently and without prejudice, will not renounce to the rights which COMARSA might have against the beneficiaries of the services.
4 – GENERAL OBLIGATIONS OF THE CUSTOMER
4.1.- The CUSTOMER and / or where applicable, its agents or servants, guarantee COMARSA the accuracy of the declaration of goods in respect of their characteristics, description, marks, number, quantity, weight and volume.
In any case, the customer will indemnify COMARSA for all losses, damages, penalties and/or expenses which COMARSA may incur as a result of inaccuracies on those points made in the declaration. Additionally, COMARSA reserves the right to make, at the time of receipt of the goods, the reserves it may consider convenient or necessary.
4.2. – The CUSTOMER and / or where applicable, its agents or servants shall be liable for all losses, damages, and expenses arising from packaging: inadequate, defective or misused, of the goods.
Likewise, the CUSTOMER is liable for damages, losses and breakdown, arising from the handling equipment, or means of transportation, as well as the expenses incurred due to a faulty or inadequate packaging.
In this sense, COMARSA reserves the right to make, at time of receipt of the goods, the appropriate reservations about packaging of the goods.
4.3. – The client and / or where applicable, its agent or servants will be obliged to inform COMARSA previously about any inflammable, explosive or hazardous nature of the goods being transported, stored or handled, as well as the Special precautions, if necessary, to be taken.
In case of omission or insufficient information, the customer will be liable for damages and expenses incurred concerning the goods and those produced either directly or indirectly to COMARSA for having shipped, stored or handled them.
In this case, COMARSA is empowered to, disembark, destroy or neutralize the goods, prior to discharge without the customer or the consignee of the goods being entitled to any compensation for this concept.
4.4. – The guarantees and obligations of the customer, listed in the preceding paragraphs are extended, in the case of consignments to the U.S.A., the previous information and documentation necessary for importation in that country required at all times through the same, being the customer responsible for its accuracy and punctuality, taking charge of all damages and costs which could result from the breach, without COMARSA be held responsible for the consequences of not having been able to inform the U.S. Customs about the shipping nature required or failure in the advance import documentation.
In case of omission or insufficient information, the customer will be liable for damages caused to the goods, being COMARSA entitled to reimburse the costs incurred for that reason and being exempted from any liability if the goods are to be discharge, destroyed, neutralized or send back to origin, as circumstances require and without payment of compensation to the Shipper and/or Consignee.
5 – GENERAL OBLIGATIONS OF COMARSA
5.1. – COMARSA agrees to organize at its own discretion the transportation, handling, carriage and storage of the goods which have been entrusted in the most appropriate way using due diligence, unless they receive from the customer explicit instructions regarding the mode how to organize any of the aforementioned services.
5.2. – In order to organize the services described in before mentioned paragraph 5.1, unless otherwise instructions received from the CUSTOMER, COMARSA can select and hire third parties acting in their capacity as freight forwarders, carriers, warehouse operators, Customs brokers and other which may require the transportation, storage, handling and delivery of goods, all of whom shall be considered independent Agents of COMARSA.
COMARSA will contract, as far as possible, the provision of such services to those companies, or firms, which are subject to International Conventions in force. For the case in which this is not possible, COMARSA will contract companies with acknowledged prestige and solvency.
The goods will be entrusted to such third parties subject to the terms and conditions, such as limitations of liability for loss, damage, expense or delay in delivery, as stated in the waybills, bills of lading and receipts extended by said forwarders, carriers, warehouse operators and others. Or either the standards contained in National or International Conventions.
5.3. – Waybills or bills of lading relating to the effective implementation of all or part of the carriage, storage or other activity necessary for the final execution of shipping of the goods, will be available for full enforcement.
6 – LIMITATION OF LIABILITY
6.1. – COMARSA will be only liable to the CUSTOMER for loss of damage to the goods, arising from negligence, misconduct or breach of its contractual obligations.
The responsibility of COMARSA, arising from events or acts occurring during the execution of transport, in no event exceed the responsibility which will be the same as for railway companies, shipping lines, airlines, trucking companies, or any other intermediary involved during transport in accordance with international norms and conventions in force and in particular will be governed:
a) In the case of domestic Road Transport, by the provisions of Law 15/2009 of the Contract of Road Transport of Goods Act (LCTTM), Law 16/1987 of 30 July, on Organic Law of Road Transport (LOTT) and its implementing regulation (ROTT) in force at the time and that are applicable.
b) In the case of international road transport, by the provisions of the Convention on the Contract for International Carriage of Goods by Road (CMR), adopted at Geneva on 19 May 1956.
c) In case of maritime transport for both domestic and international, by the provisions of the International Convention for the Unification of Certain Rules relating to Bills of Lading of 25 August 1924, as amendments to the Protocols of 1968 and 1979 (“Hague-Visby Rules”).
d) In the case of domestic rail transport, by the provisions of the
Law 15/2009 of the Contract of Road Transport of Goods Act (LCTTM), Law 39/2003, of 17 November, of the Railway Industry, and the implementing regulations and the provisions of the LOTT, that are applicable.
e) In the case of rail transport international, by the provisions of the International Convention concerning International Carriage by Rail, adopted at Geneva on May 9, 1980 and Appendix B thereto (“CIM-COTIF”) in force at any time.
f) For both domestic and international air transport, of the Convention for the Unification of Certain Rules for International Carriage by Air, done at Montreal on 28 May 1999 air transport.
g) In the case of combined or multimodal transport each phase, stage or mode of transport shall be governed by the rule or the International Convention for according to the preceding paragraphs and when stage of the journey can not be determined in that ensued damages under the established in LCTTM.
h) In the case of combined or multimodal transport each phase, stage or mode of transport shall be governed by the rule or the International Convention with regard to the preceding paragraphs and when it can not be determined the stage of the journey when ensued the damages, under the established in LCTTM.
The responsibility of COMARSA under this heading means starting upon receipt of the goods until actual delivery thereof to the customer, the addressee or authorized representative of any of these, or the carrier whom performed the transport of goods to its final destination.
COMARSA will be only responsible for the damage caused to the goods, not reaching its liability under any circumstances for consequential damages or financial losses.
6.2. – The direct or indirect liability for COMARSA to partial loss or damage to the goods shall be limited to the sums resulting from applying, to each case, the amounts indicated below:
a) In road transport within Spain, it will be the limitation of liability contained in Article 3 of the Regulations of the Organic Law of Road Transport (LOTT).
b) In the case of international road transport, the amount of SDR 8.33 (*) for each kilogram of gross weight of lost or damaged goods.
c) In the case of carriage by sea, the amount of 666.67 SDR per package or unit load or a 2 SDR per kilogram of gross weight of lost or damaged goods, whichever is higher.
d) In the case of transport by air, the amount of 17 SDR per kilogram of gross weight of lost or damaged merchandise.
(*) SDRs (Special Drawing Rights): SDR means the unit of account in the terms that come defined by the International Monetary Fund.
6.3. – In any case, the aggregate liability of COMARSA to partial damage or loss of the goods shall be limited to the total value of the goods declared by the customer.
6.4. – For the case where COMARSA was found liable for damages caused by the failure to deliver the goods within the time specified in the documentation relating to transportation or for any indirect loss or damage other than the loss or damage of the goods, shall be limited the harm that such delay would have caused and in no case the amount may exceed its responsibility corresponding to the retribution payable under the contract made with COMARSA.
6.5. – The present limitations apply to all claims that are filed against COMARSA, whether the claim is based on contractual or tort liability.
6.6. – When liability arising from facts or events that occurred during the execution of transport, if it would have to be subrogated COMARSA, in no case exceed the responsibility that face the railroad companies, shipping, airlines, trucking company, warehouse depository or any other intermediary which involved in the course of transport, in accordance with the regulations and international conventions in force.
6.7. – In any case, COMARSA reserves the right of recourse against any third party directly responsible for the loss or total or partial damage of the goods.
6.8. – Any legal action against COMARSA and / or their employees, either jointly or individually, for loss or damage to the goods, shall be subject to the limitations set forth in the preceding paragraphs.
7 – EXONERATIONOF LIABILITY
7.1. – COMARSA shall be exonerated from any responsibility if the choice of third parties acting in their capacity as carriers, freight forwarders, warehouse operators, customs brokers and others that require the transportation, storage, handling and delivery of the goods has taken place in accordance with instructions received from the client.
Also shall be exonerated from any responsibility when shipping instructions have been transmitted to third parties contracted in accordance with the transport order given by the customer.
In these cases, COMARSA may waive the exercise of their rights against such third, transferring them in favor of the customer.
7.2. – COMARSA shall not be liable for loss or damage to goods unless such loss or damage occurs whilst the goods are in the custody and control of COMARSA.
7.3. – COMARSA shall not be responsible if the goods have been transported by the customer or his representative.
7.4. – COMARSA shall not be liable for the consequences arising in the loading and unloading operations that have not been carried out by Comarsa.
7.5. – COMARSA shall not be liable for loss, damage or expenses arising in connection with the number, content, weight, marks, or description of the goods.
7.6. – COMARSA shall not be liable for any loss or expenses incurred by the customer, such as lost profits, loss of customers, fines, losses due to depreciation or penalization clauses, fluctuations in currency exchange rates or taxes increased through the Authorities, incurred by the customer in connection with the contracted transport.
7.7. – COMARSA shall not be liable for any loss or damage that may occur if the goods are subject to any for circumstances listed below:
a) Fault or negligence of the customer or his authorized representative.
b) Packaging, labeling and faulty stowage or lack thereof, provided that COMARSA has not been in charge of executing packing, marking and stowage of the goods. Also COMARSA shall not be responsible for the packaging of the goods of which can not verify the content.
c) War, rebellion, revolution, insurrection, usurpation of power or confiscation, nationalization or requisition by or under the orders of a Government or public or local Authority.
d) Strike, lockouts and other industrial disputes affecting work.
e) Damage caused bynuclearenergy.
f) Natural disasters.
g) Force majeure, in accordance with the provisions of Article 1105 of the Spanish Civil Code.
h) Robbery.
i) Circumstances COMARSA could not have avoided and whose consequences could not foresee.
j) Decreased volume or weight or any other loss or damage resulting from hidden defects, special nature or vice of the goods.
k) Other causes of exoneration set out in conventions or statutory provisions in force.
8 – INSURANCE
8.1. – COMARSA shall not insure losses or damages that may be caused to the goods during handling, storage or transportation, unless the customer specifically instructed in writing. In this case, COMARSA will proceed to hire the appropriate insurance for the client, acting in capacity as policyholder or as Agent.
8.2. – In case there have been subscribed an insurance coverage at customer’s request, the general conditions for transport shall comply with those of the policy that covers the transport and / or storage.
8.3. – COMARSA shall not be liable for any disputes or claims that may arise between the customer/shipper and the insurance company contracted as a consequence of ensuring the goods.
9 – PRICE
9.1. – The prices of the corresponding transport and other services contracted with COMARSA shall be based on the prevailing rates at the time of contracting and within the limits provided. In the absence of rates at the time of contracting, the customary or the corresponding market prices shall apply in the place in which the service is contracted.
9.2. – The additional costs that occur as a result of events or circumstances after the contract date or, if applicable, on the date of issue or expedition, shall be borne by the customer, provided they are duly justified and not due to the fault or negligence of COMARSA.
9.3. – Payment of the price and any expenditure are made in cash, unless there have been special conditions agreed previously.
10 – CLAIMS
10.1. – Upon delivery of the goods, the addressees should verify the conditions under which the goods are found, as well as the amount, number and weight of the packages corresponding to the information provided in the transport documentation, and must inform COMARSA immediately of any defects or apparent loss of any part.
10.2. – In the case that a irregularity or loss is not observed immediately by the receiver of the goods, he must state his reservations in writing within 48 hours after delivery of the goods or in terms and conditions outlined in the transport document, bills of lading, etc.., or failing that, on the terms and conditions set forth in international conventions that regulate by mode of transport in question. Otherwise be lost the right to make any claim against COMARSA.
10.3. – The statute of limitations, or where appropriate, to initiate expiration action against COMARSA, will be 1 year from the date of delivery of the goods the consignee or, in the case of a total loss, from the date on which hypothetically the goods should have been delivered. Nevertheless, prescription, or where applicable, the expiration of the actions resulting from the physical execution of the different transport operations will take place in the time span pointed out in the transport documents, knowledge, etc.., Or where appropriate international conventions, governing the different modes of transportation, starting to run the statute of limitations in accordance of what documents or agreements have been established.
10.4. – In no case, the customer may withhold payment of the invoices due to COMARSA, including costs and expenses as a result of lawsuits or claims arising from bookings, made by the customer, for alleged loss or damage to the goods.
11 – LIEN
Regardless of whatever reason, COMARSA has the right in general and in particular to to retain the goods carried for customers who have not paid the sums due under the services assigned. COMARSA may enforce this right by any means it deems appropriate and admissible under the law. If the goods are lost or destroyed, COMARSA shall have the same rights, regarding the aforementioned indemnities, payable by insurance companies, transportation companies or others.
12 – APPLICABLE LAW AND JURISDICTION
The services provided by COMARSA shall be governed and construed in accordance with Spanish Law. For any claim, it shall be the competent Courts and Tribunals, corresponding to the office of COMARSA with which the customer had contracted the service.
13 – INDEPENDENCE
The terms of these general terms and conditions are independent of each other and if any part of these conditions is declared invalid or void, this shall not affect the validity and enforceability of compliance with any of the other parts of the conditions