Services offered by Nippon Yusen Kaisha are mainly covered by the contract of carriage, the terms of which appear in the Bill of Lading terms and conditions and/or Tariff for the trade in question. However some services are offered which fall outside the scope of the contract of carriage.
In order to formalise the relationship of Nippon Yusen Kaisha with its Customers on such occasions the following Standard Trading Conditions are published.
(The Customer???s attention is drawn to the clauses herein which exclude or limit Nippon Yusen Kaisha???s liability and those which require the customer to indemnify Nippon Yusen Kaisha in certain circumstances).
In these conditions:
???Nippon Yusen Kaisha??? means Nippon Yusen Kaisha and their subsidiary and associated companies and other parties operating as subcontractors and/or agents for and on behalf of Nippon Yusen Kaisha.
???Customer??? means any person at whose request or on whose behalf Nippon Yusen Kaisha undertakes any business or activities or provides advice, information or services.
???Person??? includes individuals, groups, companies, bodies corporate or any other legal entity.
???Owner??? means the owner of the goods to or in respect of which Nippon Yusen Kaisha provides any services and any other Person who has or may acquire an interest in them.
???Goods??? means all or any part of the goods (including any packaging, containers or equipment supplied by the Customer or Owner) which are the subject of any Services.
???Conditions??? means the provisions of this contract.
???Instructions??? means any statement of the Customer???s requirements, whether verbal or written.
???Service(s)??? means all or any business undertaken by Nippon Yusen Kaisha for the Customer including the provision of advice, information, services and any activities whatsoever.
???Acts of Terrorism??? means acts of person(s) acting on behalf of or in connection with any organisation (to include any association or combination of persons) which carries out activities directed towards the overthrowing or influencing by force of any government de jure or de facto.
???Sub-contractor??? means direct and indirect sub-contractors and their respective servants, agents and sub-contractors.
Any reference in these Conditions to agreement in writing that varies these terms and conditions must be on Nippon Yusen Kaisha stationery and signed by an authorised official of the company.
All and any Services provided by Nippon Yusen Kaisha, whether gratuitous or otherwise, shall be subject to these Conditions unless:
(A) Nippon Yusen Kaisha contract in writing with the Customer on alternative terms and conditions, including, but not limited to, issuing Bills of Lading, Air or Sea Waybills or any other contract for carriage or any other Service to Goods, or
(B) Any Conditions herein are contrary to any mandatory applicable law relating to the Services undertaken by Nippon Yusen Kaisha on behalf of the Customer.
In which case the alternative terms and conditions or mandatory applicable law shall be paramount and prevail to the extent of any inconsistency with these Conditions (but no further) and nothing in these Conditions shall be construed as a surrender by Nippon Yusen Kaisha of any of its rights or immunities or as an increase of any of its responsibilities or liabilities thereunder. In the case of A) or B) these Conditions shall continue to operate in respect of any Services to which the alternative terms and conditions or mandatory law do not apply or in respect of any matter upon which they are silent.
(A) Unless specifically agreed in writing between the Customer and Nippon Yusen Kaisha prior to the commencement of the Service, Nippon Yusen Kaisha shall be at liberty to provide the Service as a principal or to procure it as an agent, in either case subject to the appropriate Conditions herein.
(B) The agreement of a price (inclusive or otherwise) for any Service is not of itself an indication or determination of whether Nippon Yusen Kaisha is acting as a principal or as an agent.
4. Nippon Yusen Kaisha???s General Conditions
(A) Performance: Nippon Yusen Kaisha will undertake the tasks necessary to provide the contracted Services to the Customer with a reasonable degree of care and skill and, subject to Clause 8(D) & (E), within a reasonable timescale.
(B) Deviation from Customer???s Instructions: Whilst, subject to these Conditions, Nippon Yusen Kaisha will take reasonable steps to perform the Customer???s Instructions, if at any time Nippon Yusen Kaisha, in its sole discretion, considers that there is good reason to depart from any of the Customer???s Instructions, it shall be free to do so without prior notice to the Customer or incurring any additional liability as a result thereof.
(C) Customer fails to take Delivery: If Services provided involve the handling and/or carriage of Goods and the Customer, Consignee or Owner fails to take delivery thereof at the time and place when and where Nippon Yusen Kaisha is entitled to call upon such Person to take delivery thereof, Nippon Yusen Kaisha shall be entitled to store said Goods or any part thereof, at the sole risk of the Customer, whereupon Nippon Yusen Kaisha???s liability (if any) for the Goods or any part thereof shall wholly cease. The cost of such storage, if paid or payable by Nippon Yusen Kaisha or any of its agents or Sub-Contractors, shall forthwith, upon demand, be paid by the Customer to Nippon Yusen Kaisha.
(D) Disposal of Goods: If the Services provided involve the handling, storage and/or carriage of Goods and the Customer fails to take delivery thereof in accordance with Clause 4(C), Nippon Yusen Kaisha shall be entitled to dispose of the Goods or any part thereof, at the expense of the Customer, by sale or otherwise at Nippon Yusen Kaisha???s sole discretion, after the Goods have been in Nippon Yusen Kaisha???s control for 30 days.
Nippon Yusen Kaisha shall give 14 days notice in writing to the Customer of any intention to dispose of the Goods or where the Customer cannot be traced, Nippon Yusen Kaisha will take reasonable efforts over that 14 day period to contact any parties who may reasonably be supposed by Nippon Yusen Kaisha to have any interest in the Goods.
However, in respect of Goods that, in the sole opinion of Nippon Yusen Kaisha, are likely to deteriorate, perish, decay, become worthless or incur charges in excess of their value, or Goods which may cause loss or damage to other Goods, injury to Persons or contravene any applicable laws or regulations, Nippon Yusen Kaisha may dispose of such Goods immediately without prior notice to the Customer.
The proceeds of sale, after deducting the cost of sale and any sums whatsoever due by the customer to Nippon Yusen Kaisha for this or any earlier Services, shall be held by Nippon Yusen Kaisha to the credit of the Customer. The Customer shall forthwith upon demand remit any shortfall between the proceeds of sale and the sums owed by him to Nippon Yusen Kaisha.
(E) Separate Service to Goods: Services to Goods may be undertaken in conjunction with goods of other customers or third parties, unless specifically agreed in writing prior to commencement of the Services.
(F) Effecting Insurance: No insurance will be effected, except upon express instructions given in writing by the Customer, and all insurances effected by Nippon Yusen Kaisha are subject to the usual exceptions and conditions of the policies of the insurance company or underwriters taking the risk. Unless otherwise agreed in writing, Nippon Yusen Kaisha shall not be under any obligation to effect a separate insurance on each consignment but may in its sole discretion declare it on any open or general policy held by Nippon Yusen Kaisha.
Insofar as Nippon Yusen Kaisha agrees to arrange insurance, it acts solely as agent for the Customer using its best endeavours to arrange such insurance and does so subject to the limits of liability provided in Clause 8 hereof.
(G) Declarations: Except in accordance with Instructions in writing previously received and accepted by Nippon Yusen Kaisha, Nippon Yusen Kaisha shall not be obliged to make any declaration for the purpose of any statute, convention, contract or other requirement as to the nature or value of the Goods, any characteristic of any Goods or Services to any Goods.
(H) Special Delivery Arrangements: Except by prior written agreement or under the terms of a printed document signed by Nippon Yusen Kaisha, any Instructions relating to the delivery or release of Goods in specified circumstances only, such as (but without prejudice to the Generality of this Clause) against payment or against surrender of a particular document, are accepted by Nippon Yusen Kaisha only as agents for the Customer if third Persons are engaged to effect compliance with the Instructions. Nippon Yusen Kaisha shall not be under any liability in respect of such arrangements unless such arrangements are made in writing. In any event, Nippon Yusen Kaisha???s liability in respect of the performance of such Instructions shall not exceed that provided for in these Conditions in respect of loss of or damage to Goods.
5. Nippon Yusen Kaisha as a Principal
If, in accordance with Clause 3 hereof, Nippon Yusen Kaisha agrees to act as a principal, then it will perform, or in its own name procure the performance of the Services contracted, subject to the provisions of any specific contract for Services which it may issue subject to Clause 2(A), failing which these Conditions in general and this Clause in particular shall apply.
(A) Liberties: Nippon Yusen Kaisha is not a common carrier and, except to the extent provided in Clause 2 hereof, contracts on the basis of these Conditions alone. Nippon Yusen Kaisha reserves to itself the liberties as to the means, routes and procedures to be followed in the handling, storage and carriage of Goods.
(B) Period of Responsibility: If Nippon Yusen Kaisha contracts to provide Services as a principal, it accepts liability for loss of or damage to Goods occurring between the time when it takes the Goods into its charge and the time when it is entitled to call upon the Customer, Consignee or Owner to take delivery of the Goods. Nippon Yusen Kaisha shall be deemed to have taken the Goods into its charge when the Goods have been received by Nippon Yusen Kaisha or have been released or handed over by the Customer, or any Person acting on behalf of the Customer, to any Person acting on behalf of Nippon Yusen Kaisha in accordance with any directions of Nippon Yusen Kaisha for the performance of the Services. Nippon Yusen Kaisha shall be deemed to have delivered the Goods, either when they have been placed at the disposal of the Customer (or its nominee) and notice thereof has been given to the Customer (or its nominee) at the address provided by the Customer, following completion of the contracted Service(s), or following the implementation of Clause 4(B), (C) or (D).
(C) Liabilities: Nippon Yusen Kaisha???s liabilities will be as provided in Clause 8 hereof.
6. Nippon Yusen Kaisha as an Agent
If, in accordance with Clause 3 hereof, Nippon Yusen Kaisha acts as an agent then, without prejudice to the general applicability of these Conditions, its responsibilities shall be as follows:
(A) Agency: Nippon Yusen Kaisha shall be entitled and the Customer hereby expressly authorises Nippon Yusen Kaisha, except in so far as has been otherwise specifically agreed between Nippon Yusen Kaisha and the Customer, to enter into contracts with third parties on behalf of the Customer for the Service required and do such acts as may, in the opinion of Nippon Yusen Kaisha, be reasonably necessary in the performance of its obligations to the Customer. (Third parties, for the purpose of this Clause, includes Nippon Yusen Kaisha???s parent, subsidiary and/or associated companies, who shall be entitled to the same rights, immunities and limitations of liability hereunder). When acting as an agent Nippon Yusen Kaisha does not make, or purport to make, any contract with the Customer for Services, but acts solely on behalf of the Customer by establishing contracts with third parties for the services required, so that a direct contractual relationship is established between the Customer and such third parties.
(B) Contracting Terms with Third Parties: If there is a choice of prices according to the extent or degree of the liability assumed by third parties, no declaration of value will be made, except under prior Instructions received in writing and accepted by Nippon Yusen Kaisha; nor shall Nippon Yusen Kaisha be under any liability to the Customer by reason of having entered into any contract on behalf of the Customer, whereby the extent or degree of the liability assumed by a third party is in any respect excluded or limited, unless such contract is entered into contrary to prior written Instructions given by the Customer and accepted in writing by Nippon Yusen Kaisha.
(C) Evidence of Contract with Third Party : Nippon Yusen Kaisha shall, on demand by the Customer, provide evidence of any contract entered into as agent for the Customer. Insofar as Nippon Yusen Kaisha may be in default of this obligation, it shall be deemed to have contracted with the Customer as a principal for the performance of the Customer???s Instructions.
7. Customer???s Warranties and Indemnities
(A) Goods: The Customer warrants that, unless the Customer provides prior written notification to and obtains written agreement from Nippon Yusen Kaisha, the Customer will not tender for Services any Goods which are:
(a) Hazardous/Obnoxious Goods:
(i) classified by the IMO Dangerous Goods Code as being hazardous.
(ii) nevertheless of a dangerous, damaging or obnoxious nature, so as to be liable to cause damage to, taint or otherwise affect any other goods or to be a risk to property, life or health, or
(iii) likely to harbour or encourage vermin or other pests.
(b) High Value Goods: of a valuable nature (which description shall include but not be restricted to bullion, coin, precious stones, jewellery, works of art, antiques and valuables of all kinds).
(c) Perishables: perishable and require temperature controlled conditions or have a short shelf-life.
(d) Packing/Marking: not properly, appropriately and sufficiently prepared, packed, stowed, labelled and/or marked for the Services for which they are being tendered, unless those Services include said tasks.
(B) Details of Goods: The Customer warrants that the description and particulars of the Goods furnished by or on behalf of the Customer or Owner are complete and accurate and include all data necessary to accomplish the required Services safely, effectively and promptly in accordance with any applicable laws or regulations including but not limited to customs, import and export restrictions, trade sanctions, health and safety, environmental protection and transport regulations.
(C) Transport Unit: If the Goods are tendered in/on containers, trailers, flats, railway wagons, tanks, igloos, or any other unit load device specifically constructed for the carriage of goods by land, sea or air (each hereafter individually referred to as ???transport unit???), then, unless Nippon Yusen Kaisha has accepted Instructions as principal to load the transport unit, the Customer also warrants that:
(i) the Goods have been properly and competently loaded into/onto the transport unit;
(ii) The Goods are suitable for carriage in/on the transport unit being utilised, and
(iii) the transport unit is in a suitable condition to carry the Goods loaded therein/on,
and if nevertheless Goods which breach any of the warranties in Clause 7 (A), (B)or (C) hereof are tendered for Services, the Customer shall indemnify Nippon Yusen Kaisha, its servants, agents and Sub-Contractors against all penalties, claims, damages, costs and expenses of whatsoever nature and howsoever arising in connection with such Goods.
Unless prior arrangements have been made and prior written acceptance obtained from Nippon Yusen Kaisha (the onus of proof for which lies with the Customer), no liability whatsoever, howsoever arising, will be accepted by Nippon Yusen Kaisha in connection with such Goods and Nippon Yusen Kaisha, their servants, agents and/or Sub-Contractors may remove or otherwise deal with such Goods as they, in their sole discretion, consider appropriate at the expense of the Customer.
(D) Authority: The Customer warrants that he is either the Owner or has the authority of the Owner to contract with Nippon Yusen Kaisha for the Services and also that he is accepting these Conditions not only for himself but also as agent for and on behalf of the Owner.
(E) Circular Indemnity: The Customer warrants that no claim or allegation shall be made by any Person against any parent, subsidiary or associate company, director, servant, agent, Sub-Contractor or employee of Nippon Yusen Kaisha (hereinafter referred to as ???such Persons???) which imposes or attempts to impose upon any of such Persons any liability whatsoever in connection with any Services and/or Goods (whether or not arising out of negligence on the part of such Persons) unless Nippon Yusen Kaisha is acting as an agent only in accordance with Clause 6 and such Persons are independent contractors providing a Service to the Customer through the agency of Nippon Yusen Kaisha, in which case the Customer may proceed against such Persons under the terms of the contract procured on its behalf from such Persons by Nippon Yusen Kaisha acting as an agent only. Excepting for such instance, if any such claim or allegation should nevertheless be made, the Customer will indemnify Nippon Yusen Kaisha and such Persons against all consequences thereof.
Without prejudice to the foregoing, unless trading directly with the Customer under its own conditions through the agency of Nippon Yusen Kaisha, every such Person shall have the benefit of every right, defence, limitation and liberty of whatsoever nature herein contained or otherwise available to Nippon Yusen Kaisha as if such provisions were expressly for his benefit; and in entering into this contract Nippon Yusen Kaisha, to the extent of these provisions, does so not only on its own behalf but also as agent and trustee for such Persons.
The Customer further warrants that no claim or allegation in respect of any Services or Goods shall be made against Nippon Yusen Kaisha by any Person other than in accordance with these Conditions which imposes or attempts to impose upon Nippon Yusen Kaisha any liability whatsoever, whether or not arising out of negligence or breach of duty on the part of Nippon Yusen Kaisha and, if any such claim or allegation should nevertheless be made, to indemnify Nippon Yusen Kaisha against all consequences thereof.
(F) Acting on Customer???s Instructions: The Customer shall indemnify Nippon Yusen Kaisha against all liability, loss, damage, cost and expense whatsoever and howsoever arising as a result of Nippon Yusen Kaisha acting in accordance with the Customer???s Instructions or arising from any breach by the Customer of any warranty contained in these Conditions or from the negligence of the Customer.
(G) Duty, Fines etc.: The Customer shall be liable for and shall indemnify Nippon Yusen Kaisha in respect of all duties, taxes, imposts, levies, deposits and outlays of whatsoever nature levied by any authority in relation to the Goods and for all payments, fines, costs, expenses, loss or damage whatsoever and howsoever incurred or sustained by Nippon Yusen Kaisha in connection therewith.
(H) General Average: The Customer shall indemnify Nippon Yusen Kaisha in respect of any claims of a General Average or Salvage nature which may be made on it and shall forthwith provide such security (to Nippon Yusen Kaisha or to any other party) as may be required by Nippon Yusen Kaisha in this connection on demand.
(I) Information Indemnity: Advice and information, in whatever form it may be given, is provided by Nippon Yusen Kaisha for the Customer only and the Customer shall indemnify Nippon Yusen Kaisha against any liability, claim, loss, damage, cost or expense arising out of any other Persons relying upon such advice or information. Except under special arrangements previously made in writing, advice and information which is not related to Instructions accepted by Nippon Yusen Kaisha is provided gratuitously and without liability.
(J) Electronic Transactions: In the event of Instructions data being transmitted via electronic communication, the Customer accepts that the sender is responsible for the quality of such Instructions or data and it shall be the sole responsibility of the Customer to check the accuracy of all Nippon Yusen Kaisha confirmations and acknowledgments thereto.
(A) Time Bar: Any claim by the Customer against Nippon Yusen Kaisha in respect of any Service (whether provided for the Customer or which Nippon Yusen Kaisha has undertaken to provide) must be made in writing without delay and notified to Nippon Yusen Kaisha. In the event of delay in presentation of a claim causing prejudice to Nippon Yusen Kaisha???s ability to investigate said claim or reserve its rights against its Sub-Contractors, Nippon Yusen Kaisha shall be relieved of any liability in respect of such claim.
In any event, Nippon Yusen Kaisha shall be discharged of all liability whatsoever and howsoever arising in respect of any Service provided for the Customer unless suit be brought and written notice thereof given to Nippon Yusen Kaisha within nine months from the date of any event or occurrence alleged to give rise to a cause of action against Nippon Yusen Kaisha.
(B) Exclusions: Whether Nippon Yusen Kaisha acts as agent or principal it shall be relieved of liability for loss, damage or expense if and to the extent that same was caused by:
(a) the act or omission of the Customer, or Person other than Nippon Yusen Kaisha acting on behalf of the Customer, Owner of or the Person from whom Nippon Yusen Kaisha took the Goods in charge;
(b) insufficiency of the packing and/or marks and/or labels and/or numbers unless Nippon Yusen Kaisha had undertaken to carry out the packing, application of marks or labelling or numbering of the Goods;
(c) handling, loading, stowage or unloading of the Goods by the Customer, Owner or any Person other than Nippon Yusen Kaisha acting on behalf of the Customer or Owner;
(d) inherent vice of the Goods;
(e) strike, lock out, stoppage or restraint of labour;
(f) fire occurring at any time
(g) Acts of Terrorism, riots, civil commotion, sabotage or vandalism
(h) a nuclear incident;
(i) any cause or event which Nippon Yusen Kaisha was unable to avoid and the consequences whereof Nippon Yusen Kaisha was unable to prevent by the exercise of reasonable diligence;
(j) any act or omission of Nippon Yusen Kaisha the consequences of which it could not reasonably have foreseen;
(k) compliance with the instructions of any Person entitled to give them. The burden of proving that the loss or damage was due to one or more of the above causes or events shall rest upon Nippon Yusen Kaisha.
(C) Limits of Liability: Subject to Clause 2, unless Nippon Yusen Kaisha agrees in writing to accept alternative levels of liability (in which case such limits as agreed shall be substituted for those provided in this Clause), Nippon Yusen Kaisha???s liability (if any and whether acting as principal or agent), howsoever arising, and notwithstanding that the cause of loss, damage or expense is unexplained, shall not exceed:
(a) in the case of claims for loss or damage to Goods:
(i) the value of any Goods lost or damaged, or
(ii) a sum at the rate of two Special Drawing Rights as defined by the International Monetary Fund, (hereinafter referred to as SDRs), per kilo of gross weight of any Goods lost or damaged.
whichever shall be the lesser.
(b) in the case of all other claims:
(i) the value of the Goods the subject of the relevant Service or
(ii) a sum at the rate of two SDRs per kilo of the gross weight of the Goods the subject of the said Service, or
(iii) 75,000 SDRs in respect of any one Service,
whichever shall be the lesser.
For the purposes of this Clause the value of the Goods shall be their value at the place and time they are delivered to the Consignee in accordance with the relevant Service or should have been so delivered. The exchange from SDRs to settlement currency shall be calculated at the rate applicable on the date when the claim is paid.
Details of Nippon Yusen Kaisha???s additional charges for accepting increased liability will be provided on request.
(D) Departure/Arrival Dates: Except by prior written agreement, Nippon Yusen Kaisha accepts no responsibility for departure or arrival dates of Goods.
(E) Consequential Loss/Delay: Except by prior written agreement, Nippon Yusen Kaisha shall not in any circumstances, whatsoever or howsoever arising, be liable for indirect or consequential loss, such as (but not limited to) loss of profits, loss of market or the consequences of delay or deviation howsoever caused.
However, if pursuant to these Conditions Nippon Yusen Kaisha accepts any liability for delay, liability shall in no circumstances exceed a sum equal to twice the amount of Nippon Yusen Kaisha???s charges in respect of the relevant Service.
The defences and limits of liability provided for in these Conditions shall apply in any action against Nippon Yusen Kaisha whatsoever, howsoever arising, whether the action be founded in contract, tort or otherwise.
9. Payments, etc.
(A) Payment of Nippon Yusen Kaisha???s Invoices: The Customer shall pay to Nippon Yusen Kaisha in cash or as otherwise agreed all sums immediately when due, without reduction or deferment on account of any claim, counterclaim or set off. If any sum due is still unpaid 30 days after the date of the invoice or a mutually agreed due date as appropriate, Nippon Yusen Kaisha shall be entitled to add interest at 2% above the minimum lending rate of the local national bank for any period in excess thereof.
(B) Collecting Charges for Customer: Despite the acceptance by Nippon Yusen Kaisha of Instructions to collect freight, duties, charges, service charges or other expenses from the Consignee or any other Person, the Customer shall remain responsible for such freight, duties, charges, service charges or expenses on receipt of evidence of proper demand and in the absence of evidence of payment (for whatever reason) by such Consignee or other Person when due.
(a) Subject to sub-clause (b), Nippon Yusen Kaisha shall have a general lien on all Goods and documents relating to Goods in its possession, custody or control for all sums due at any time from the Customer or Owner, in respect of Services to the Goods under lien or of any earlier Services on other Goods, and shall be entitled without notice to sell or dispose of such Goods or documents as agent for and at the expense of the Customer and apply the proceeds in or towards the payment of such sums. Upon accounting to the Customer for any balance remaining after payment of any sum due to Nippon Yusen Kaisha and the costs of sale or disposal, Nippon Yusen Kaisha shall be discharged of any liability whatsoever in respect of the Goods or documents.
(b) If the Goods, in the sole opinion of Nippon Yusen Kaisha, are liable to perish or deteriorate, Nippon Yusen Kaisha???s right to sell or dispose of the Goods shall arise immediately upon any sum becoming due to Nippon Yusen Kaisha subject only to Nippon Yusen Kaisha taking reasonable steps to bring to the Customer???s attention its intention of selling or disposing of the Goods before doing so.
(D) Brokerages, Commissions, etc: Nippon Yusen Kaisha shall be entitled to be paid and retain all brokerages, commissions, allowances and other remunerations customarily retained by or paid to freight forwarders.
10. Law and Jurisdiction
(A) Law and Jurisdiction: The Services undertaken pursuant to and the interpretation of these Conditions shall be governed by Japanese Law and any claim or dispute arising under or pursuant to these Conditions shall be referred to the Tokyo District Court in Japan to the exclusion of the jurisdictions of the courts of any other places, unless Nippon Yusen Kaisha appeals to the jurisdiction of any other place and voluntarily submits thereto.
(B) Arbitration: Nothing herein shall prevent the parties to any dispute under these Conditions agreeing to refer it to arbitration on mutually acceptable terms.