GENERAL TERMS AND CONDITIONS OF RHINECONTAINER B.V. [Dutch plc.]
Article 1 GENERAL
1. Rhinecontainer is maintaining a transport service in European inland waters for loaded and empty containers and similar boxes and performs all business activities associated with this transport.
2. The tasks as contracted by Rhinecontainer’s transport service are based on the following Terms and Conditions, to which sender, customer, unloaders, consignee and owner of the load - hereinafter jointly referred to as "persons involved in the load" - or their subcontractors as well as any persons who will derive rights from the handling of the transport service shall explicitly submit themselves. Insofar as these Terms and Conditions do not stipulate any rules or are not applicable, the following rules shall apply:
a. With respect to transports by inland navigation vessels: Dutch law and the bye-laws, decrees, common practices and trade practices for the corresponding inland navigation section
b. With respect to road and rail transports: the legal regulations applicable to the transport medium in question
c. With respect to shipping services: the Dutch Shipping Terms and Conditions, filed at the Offices of the Arrondissementsrechtbanken [Dutch District Courts] of Amsterdam, Arnhem, Breda and Rotterdam on 2 March 1987.
3. Insofar as mandatory law does not stipulate otherwise, the following rules shall apply with respect to domestic transports in Germany.
4. Rhinecontainer is authorised to agree on regular Terms and Conditions of third parties commissioned by it: insofar as Rhinecontainer has orders executed by third parties, the Terms and Conditions of the latter shall apply.
5. Any contracts which are contrary to these Terms and Conditions, concluded between the persons involved in the load and third parties shall not be taken into consideration.
6. Changes in these Terms and Conditions shall be made in writing.
Article 2
SERVICE AND PRICE FUNDAMENTALS, SET-OFF AND WITHHOLDING
1. For the execution of orders by Rhinecontainer, the following situations shall be fulfilled as a precondition:
- regular transport conditions, unobstructed functioning of means of transport and transhipment installations;
- stable rates, agreements on freight charges and demurrage, adjustment rates as well as insurance premium;
- stable currency exchange rates and passing on of salary and wage rates applicable at the time of granting of the order.
In the event of changes of the conclusion and calculation fundamentals, about which Rhinecontainer is only informed after contracting an order respectively after submission of a confirmation of conclusion, Rhinecontainer, at its discretion, is entitled to withdraw as a party to the contract or to a proportionate increase of the agreed on fee. In addition, Rhinecontainer shall be discharged from its obligation to fulfil the obligations arising from the contract in the event of force majeure, strikes, exclusion and orders to this end by authorities.
2. The fees as agreed on by Rhinecontainer only cover the regular transport, transhipment and processing charges. Therefore, in the absence of any deviating written agreements, costs incurred with respect to any further services as well as advance payments are not included in the contracting rates and will be charged separately.
3. Set-off or withholding by means of payable counterclaims with respect to claims by Rhinecontainer arising from the transport contract and associated non-contractual claims shall only be allowed, if there are no objections to these counterclaims or if these have been established in a legally valid way.
Article 3
FULL FREIGHT, FAILING FREIGHT
1. Rhinecontainer is entitled to claim the entire agreed on service fee up to and including the destination, if:
a. The customer does not or deliver the agreed on shipment or only delivers a part of the shipment;
b. Unloading of the agreed on shipment is required in an intermediate port;
c. Continuation of shipment is obstructed continuously or temporarily;
d. Shipment is only executed partially, the ship in question is wrecked or does not reach its destination otherwise;
e. The goods in question have been destroyed, perished, seized, recovered, damaged, decreased or become worthless in another way.
2. Rhinecontainer is entitled to claim half of the agreed on service fee up to and including the destination , if
a. The customer withdraws from the contract before the start of shipment;
b. The start of shipment is obstructed continuously or temporarily.
3. In order to realise these claims, preparation of the means of transport or the fact that the failure to fulfil the obligations arising from the contract may be accounted for by the sender, customer or consignee is not required. These claims may also be made if the obstruction has occurred as a result of one of the causes as referred to in article 8, with respect to which Rhinecontainer shall not be liable. Claims for damages and demurrage, freight surcharges and general average contributions shall remain excepted from this.
Article 4
SELECTION OF MEANS OF TRANSPORT AND TRANSPORT ROUTES
1. Rhinecontainer is entitled to determine which means of transport will be deployed and which route will be taken for the transport, unless explicit agreements have been made with respect to this. Rhinecontainer is entitled to have the entire transport or part of the transport carried out by other entrepreneurs.
2. Rhinecontainer shall not be held to transport the containers within a certain period of time. It shall not be liable for any delay in the execution of the transport, especially not for connecting terms in the seaport.
3. In the event of inland navigation transports, Rhinecontainer shall determine the parts to be loaded and unloaded. If mooring at the loading / unloading quay is not possible due to ice formation, low or high water, any other dangers threatening the ship or provisions made by authorities, or if this is only possible by incurring particular costs, or if the ship in question is to leave the loading / unloading quay on any of these grounds, Rhinecontainer or the master of the ship are free to determine another loading / unloading quay and another way of loading and unloading. If Rhinecontainer is not at fault, the costs incurred for shifting and any other additional costs shall be at the expense of the load. The persons involved in the load shall be liable jointly and severally. The claim with respect to demurrage shall remain excluded from this.
Article 5
OBSTRUCTIONS IN NAVIGATION
1. Rhinecontainer’s obligation to purchase and to transport shall terminate in any event in any water, irrespective of whether or not the containers have been taken over or have been overloaded, or whether or not shipment has already started, if the following events or circumstances, either in general or with respect to the ship, have occurred or have taken place:
a. Force majeure, mobilisation, military exercises and expeditions, war, riots, strikes, exclusion, sabotage, blockades, requisitions, embargo, import, export or transit restrictions, seizure, measures taken by authorities and violations of any kind;
b. Blockades of any kind, collapsing of bridges or any other works, closing of navigation;
c. Navigation accidents, collisions and averages, wrecking of or damage to the ship;
d. Acts of nature, high water, flooding, ice formation and risks of ice formation, mist, storm;
e. Low water in the traffic below Cologne at a Duisburg water level of 1.80 metres and below; in traffic with quays above Cologne, as well as quays on the Moselle, Saar, Main and Neckar rivers at a Kaub water level of 0.80 metres and below.
f. Low water in the Elbe river area below 1.35 metres
g. Low water in the Danube river area below 3.01 metres (Pfelling water level)
h. As well as in the event of any dangers, events, circumstances or causes which, either directly or indirectly, affect navigation or make it more severe.
2. During the entire period of any one of these events, Rhinecontainer is entitled, at its discretion:
a. either to execute the transport in question and to invoice a freight surcharge for the entire agreed on transport section;
b. or to withdraw completely from the contract and to charge failed freight in accordance with the basic principles as laid down in article 3 and to unload containers which have already been overloaded at a quay to be selected at its discretion at the expense and risk of the goods in question or to have these unloaded and to store these or to resume further transport by using other means. Any additional costs, freights and expenses incurred as a result of unloading in intermediate ports shall be at the expense of the goods.
3. Rhinecontainer is also entitled to these rights if it or the master of the ship should fail to inform the persons involved in the load about occurring of the event in question.
ARTICLE 6
OBLIGATIONS OF THE SENDER
1. The sender shall ensure that the load regulations or regular measures of due care have been obeyed for stowing within the container. He is to hand over the container according to the rules at the loading quay / quay of taking over. The persons involved in the load are to ensure that the containers will be taken from the unloading quay / destination in the order as determined by Rhinecontainer.
2. Before the start of loading of the means of transport to be deployed the sender is to submit any data required for the transport, especially to exactly indicate the container according to type and number, weight and contents as well as to condition and state in the way as used in everyday life and to submit all required accompanying documents, especially pursuant to port, customs, health or any other regulations at the time of handing over of the container in question to Rhinecontainer or its authorised representative.
3. Inflammable, environmentally unfriendly, combustible, toxic, caustic, radiating, radioactive and similar dangerous goods are to be indicated as such in accordance with the applicable regulations - especially according to danger category. The sender undertakes to inform Rhinecontainer at the time of granting of the order about the type of danger and the safety measures to be taken for every separate case. At the time of taking over of the container, the transport emergency card ADR/ADNR (European Agreement covering the international carriage of dangerous goods by road and by inland navigation) or any other documents are to be handed over to Rhinecontainer or its authorised representative according to the applicable regulations in question. Descriptions as used in standard business practice shall not suffice here.
4. The sender shall guarantee the correctness of the description in accordance with article 6, paragraph 3, and the data on marks, number, quantity, weight and / or volume in accordance with article 6, paragraph 2 at the time of take-over. He shall be responsible for any direct and indirect losses, damages, and damages and other setbacks as a result of incorrectness, as well as for any costs incurred as a result of this.
5. The persons involved in the load shall be liable jointly and severally for any losses, damages, setbacks and costs incurred as a result of incorrect stowing of containers themselves or incorrect stowing within the containers, if stowing and loading is executed by one of the persons involved in the load or any of their subcontractors or other assistants. They shall be liable for any incorrect and unsuited containers delivered by them. They are to discharge Rhinecontainer from any additional risks and costs incurred as a result of this.
Article 7
MEASURES IN THE EVENT OF PARTICULAR DANGERS
1. Any goods about the danger of which Rhinecontainer has not been informed contrary to what is laid down in article 6, paragraphs 2 and 3, may be unloaded or rendered harmless at any time and at any suited place without any liability to pay compensation. The costs incurred as a result of this are to be borne by the persons involved in the load. In addition, the claim to the agreed on freight shall remain intact.
2. If there is a justified reason to fear that the means of transport, its crew, or operating personnel and load could be exposed to any obstruction, danger, delay or to any other unexpected difficulties as a result of fulfilling of the contract, Rhinecontainer is entitled to withdraw from the contract entirely or partially and to take the measures in accordance with the above paragraph 1 with the consequences for costs as laid down there.
3. If the means of transport is held up or obstructed at the start of shipment as a result of failure, inaccuracy or incorrectness of the declaration or accompanying documents, disobedience with respect to import, export en transit regulations or any other legal requirements from the part of the persons involved in the load and measures by authorities being taken on the basis of this, the goods are seized or any other setbacks with respect to handling of the transport in accordance with the rules occur, the persons involved in the load shall be liable jointly and severally towards Rhinecontainer and the remaining persons involved in the load for any delays, damages, demurrages, costs, penalties, fines and any other setbacks as a result of this, irrespective whether or not they are at fault here.
Article 8
LIABILITY OF RHINECONTAINER
Within the framework of article 9 of these Terms and Conditions, Rhinecontainer shall be liable for any damage occurred as a result of loss or damage to containers and / or their contents from take-over to delivery only if it is at fault itself and / or in the event of gross negligence of its staff and any other persons employed by it in order to fulfil its contractual obligations, unless a different liability is laid down in mandatory law.
Article 9
SPECIAL SITUATIONS OF EXEMPTION FROM LIABILITY
1. Rhinecontainer shall not be liable for damage as a result of:
a. Acts or failure to act by the persons involved in the load or their representatives or their subcontractors as well as by third parties, who have not been commissioned by Rhinecontainer to perform activities;
b. Insufficiencies in packaging or marking;
c. Loading, stowing, transhipment and unloading of containers by persons involved in the load or any of the third parties commissioned by them;
d. State and properties of the goods and related defects;
e. With respect to goods in sealed containers, if the seals were not broken at the time of delivery;
f. Failing suitability of the goods for transport in containers or as a result of failing suitability or defect state of the containers used for transport;
g. Force majeure, coincidence, fault of third parties, mobilisations, military exercises and expeditions, war, sabotage, riots, civil commotion, strikes, exclusion, interruption or obstruction of work irrespective of reason and scale, blockade, requisitions, seizure of the means of transport or the goods, quarantine restrictions, measures taken by authorities and governments and violations of any kind;
h. Acts of nature and of elements, high and low water, floods, storm, ice formation, frost, thunderstorms, rain, hail, snow, sun, heat, cold, differences in temperature as well as water and fire;
i. Breaking or any other kind of malfunctioning of loading, unloading and lifting devices, breaking or breaking down of containers and crashing of lifting devices as a result of this or other damage by the transhipment installations, careless or incorrect handling at the time of loading, stowing, transhipment or unloading, insofar as this has not been caused by gross negligence;
j. Nautical failure, insofar this has not been caused by gross negligence of the ship management;
k. Assistance, salvage or saving of life or property performed or attempted by the ship and its crew;
l. With respect to dangers or accidents on roads, rails and in navigable waters;
m. Events or incidents, which could neither be foreseen by Rhinecontainer nor be avoided to occur or to have effect, despite due care being taken.
2. If Rhinecontainer demonstrates that, under the circumstances of the specific case, the loss or the damage could be the result of one or more than one of the circumstances as referred to in this article under subsections a up to and including m, it is expected that the damage has occurred as a result of this. In this case, the persons involved in the load are to prove that the damage in question has not or not exclusively occurred as a result of one of these dangers.
Article 10
SCOPE OF RHINECONTAINER’S LIABILITY
1. If there is any liability for Rhinecontainer to pay compensation in the event of loss of the container or its contents - subject to the liability limits as referred to in paragraph 4 - the quoted value or the market value or, if these are not available, the general value of the containers in addition to their contents at the place and time of take-over of the container is to be compensated for. Except for situations of own gross negligence, Rhinecontainer shall not be liable for any circumstantial, indirect or consequential damages.
2. In the event of damage to any container and its contents the lower value of the value as determined in accordance with paragraph 1 and the sales value of the container in addition to its contents in a damaged state is to be compensated for, however not an amount in excess of the compensation in the event of a total loss.
3. In the situations as referred to in paragraphs 1 and 2, the amounts saved with respect to declarations, especially import duties, as a result of the loss of or damage to the container shall be deducted.
4. Rhinecontainer’s liability as referred to in paragraphs 1 and 2 shall at any rate be limited as follows:
a. to € 6.806 with respect to the container and to € 27.227 with respect to its contents;
b. to 666.67 calculation units for every unit of goods or to 2 calculation units for every kilogram of the gross weight, in which stipulation calculation unit is defined as the special drawing right of the International Monetary Fund: at any rate, the liability shall be limited to € 6.806 for every container and to € 27.227 for its contents;
c. to € 6,8 million for every total case of damage, provided that this amount is to be divided among more than one person involved in the load, involved in the total case of damage, proportionally to the mutual liability amounts.
5. If the transport contract stipulates that the place of take-over and the place of delivery is within the Federal Republic of Germany, the liability, in deviation of the above subsections a., b. and c. and §§ 449, paragraph 2, subsection 1, 431 of the German Handelsgesetzbuch [Commercial Code] shall basically be limited to two calculation units (special drawing rights of the International Currency Fund) for every kilogram of the gross weight.
6. If and insofar as more strict liability restrictions may be applied on the basis of applicable law, these shall take precedence.
Article 11
COMPENSATION FOR DELAYS
Rhinecontainer shall only be liable for any damage as a result of delayed delivery of containers if a transport or delivery deadline has been agreed on in writing. In these situations, the same liability conditions shall apply as in the event of loss or damage. However, Rhinecontainer shall only be liable to the extent of the freight as agreed on for the container in question.
Article 12
TIMELY REALISATION OF CLAIMS, EXPIRY OF CLAIMS FOR DAMAGES
1. After acceptance of goods by the authorised consignees, Rhinecontainer shall only be held liable for damage, if apparently identifiable damage, respectively apparently unidentifiable damage is reported at the time of delivery, respectively within 7 days after delivery. The type and form of the damage report shall be in accordance with the laws and business practices applicable at the destination. In the event of untimely written reporting, any claims by the persons involved in the load shall expire.
2. Moreover, if the damage is reported after delivery of the goods in question, proof that the defect occurred in the period between the take-over for transport and the delivery, is to be furnished. Refusal to pay the load and associated costs shall not apply as a reservation and shall have no effect on expiry of the claims for damages.
3. Rhinecontainer is not entitled to invoke the stipulations as referred to in paragraphs 1 and 2, if the damage is the result of foul play or gross negligence.
Article 13
PRESCRIPTION
1. Any claims with respect to a transport, to which the stipulations as referred to in this paragraph apply, shall become prescribed after one year. In the event of foul play, or faults similar to foul play, the period of prescription shall amount to three years.
2. The prescription shall start at the end of the day of delivery of the goods. If the goods were not delivered, prescription shall start at the end of the day on which the goods were to be delivered.
3. Any prescribed claims shall not be taken into consideration.
Article 14
GENERAL AVERAGE
1. In the event of general average, the 1979 IVR (Internationale Vereniging Het Rijnschepenregister, International Association for the Rhine Ships Register) Rhine Regulations shall apply.
2. The average adjustment with respect to the general average shall be drawn up and settled at the place to be determined by Rhinecontainer or by an average adjuster to be designated by it. The entire load on board the ship shall be involved in the general average.
3. The persons involved in the load shall be liable jointly and severally towards Rhinecontainer for any general average contributions due with respect to their goods on the basis of the average adjustment. Rhinecontainer is entitled to demand a written statement for these contributions and to require payment of a deposit for costs. If the required deposit for costs is refused or is not paid in time, Rhinecontainer is entitled to exercise a right of pledge with respect to the containers and goods in question.
4. In any situations in which Rhinecontainer’s liability is exempted or restricted, in the event of dangers as a result of faults by any one of its assistants, it shall not be liable for contributions to be paid by the persons involved in the load with respect to general average either. These are not entitled to refuse payment of any amounts due by them or to set off these amounts against claims for damages or recourse claims. Any right of retention with respect to general average contributions is herewith explicitly excluded.
Article 15
INSURANCE
1. Without written order to this end, Rhinecontainer shall not be held to insure the loaded and / or empty containers which have been taken over in its transport service against dangers and risks. The order to take out an insurance is to describe the insured value for containers and goods as well as the dangers to be covered. The sender is to account for any underestimation or incorrect information. Rhinecontainer will only provide taking out of any ordered insurance by proxy at the expense and risk of the customer to the exemption of any own liability.
If Rhinecontainer has taken out an insurance in accordance with the order, Rhinecontainer’s liability - subject to the entire exemption of liability in accordance with article 9 and the liability limits in accordance with article 10 - shall be limited to the damages as covered by the insurance and only to the extent of the insurance benefits and, in the event of underinsurance as a result of incorrect estimation of the value, to the extent of the deducted insurance benefit. Except in situations of own gross negligence, any further liability of Rhinecontainer shall be exempted.
Article 16
RIGHT OF PLEDGE, RIGHT OF RETENTION
1. Pursuant to any payable and non-payable claims as well as to any unchallenged claims from other freight, shipment or storage contracts concluded with the sender or other persons involved in the load, Rhinecontainer BV [besloten vennootschap, Dutch plc.) shall have a right of pledge and a right of retention with respect to the goods. These rights shall also apply with respect to the accompanying documents.
2. The right of pledge and the right of retention shall remain in force as long as Rhinecontainer BV holds the goods, especially as long as it has these goods at its disposal pursuant to bills of lading, consignment notes or warehouse warrants.
3. The right of pledge and the right of retention shall also remain in force after delivery, if Rhinecontainer BV realises these by judicial intervention within three days after delivery and the goods are still held by the consignee.
4. With respect to exercise of the right of pledge, Rhinecontainer is always entitled to charge a sales commission with respect to the gross proceeds calculated on the basis of the local rates.
Article 17
COMPETENT COURT / FINAL STIPULATIONS
1. In the event of any disputes, Rotterdam shall be the place of performance and competent court. However, Rhinecontainer is free to take action against the sender or consignee at the court which is competent in accordance with the procedural regulations.
2. Any contracts within the framework of these Terms and Conditions shall be governed by Dutch law.
3. If any of the above stipulations turns out to be ineffective, this shall not affect the remaining stipulations. Insofar as the ineffectiveness concerns a violation of mandatory legal regulations, the legal regulations in question shall take the place of the ineffective stipulation in question. In any other cases of ineffectiveness, parties shall be held to replace the ineffective stipulation by an effective stipulation, the effect of which shall be similar to the economic result of the ineffective stipulation to the best possible extent.
4. These Terms and Conditions have been drawn up in a Dutch and German version and in an English translation. In the events of any disputes, the Dutch text shall take precedence.
