Burke Shipping Services Limited (hereafter referred to as ·the company') undertakes all services subject solely to the following conditions, which can be varied only in writing by a director or partner or duly authorised servant of the company The customer's (the term customer covers customers employees and agents both disclosed and undisclosed) attention is drawn in particular to condition 3.2.
Condition 3.2 has been included herein solely to relieve the Owner of the goods the subject of the contract ('the goods'), or the owner's agent, of the additional costs that the company would need to include to recover insurance charges were its liability not limited as provided for in condition 3.2. Condition 3.2 will become operative at the option of the customer on the terms provided therein
1. The company is not a common carrier and the rights and liabilities of the parties here under shall be determined on the basis that the company is not such a common carrier.
2.1 The customer warrants that it is either the Owner of the goods or is authorised by such Owner to accept these conditions on the owner's behalf
2.2 The customer further warrants that
(a) when presented for warehousing the goods will be securely and properly packed and in such condition as not to cause damage or injury or the likelihood of damage or injury to the property of the company or to any other good, whether by spreading of damp, infestation, leakage or the escape of fumes or substances or otherwise howsoever.
(b) before presentation of the goods for warehousing the customer will inform the company in writing of any special precautions necessitated by the nature or condition of the goods and of any statutory duties specific to the goods with which the company may need to comply.
2.3 The customer acknowledges that these conditions have not been entered into in reliance wholly or partly in any statement or representation made by or on behalf of the company except any such statement or representation that is expressly set out in these conditions.
3.1 except as provided in condition 3.3 below the company does not insure the goods and the customer should make arrangements to coyer the goods against all risks to the full insurable value thereof
3.2 The company is only responsible for any loss or damage to goods or for any non-delivery, mis-delivery or delay or for any non-compliance with instructions if the same has arisen due to the wilful default of the company, its servants or agents. provided always that the liability of the company shall in no case exceed a total of £1000 sterling per tonne weight or that part of the goods in respect of which a claim arises. The company shall in no case be liable for any indirect consequential, special, or punitive-loss or damage of any kind whatsoever ( including but not limited to lost profits, loss of business. depletion of goodwill and/or similar losses). whether or not foreseeable, even if the company has been advised of the likelihood of such loss or damage and regardless of whether the claim for loss or damage is made in negligence, for breach of contract breach of trust or otherwise.
3.3 The company shall not be liable for any claim unless it has been notified in writing to the company by the customer within 21 days of the cause of the claim coming to the customer's knowledge or of the goods being delivered by the company to or to the use of the customer, whichever is the later.
3.4 The company shall not be liable hereunder for any loss or damage to the extent that the same is caused or contributed to by a breach of any of customer's warranties contained in condition 2 (or by any of the circumstances by virtue of which the company is relieved of its contractual obligations in accordance with condition l0)
3.5 In any event the company shall not incur any liability in respect of
(a) damage wholly or partly resulting from the nature and or condition of the means of transport or the nature and/or condition of the goods:
(b) damage which is unavoidable in the applied method of working indicated to the customer if no objection has been raised to such method by or on behalf of the customer of those interested:
(c) damage due to any difference in weight. quality. contamination, mingling including damage caused by dust and/or presence of foreign objects or particles in the goods unless caused by the gross negligence or recklessness of the company or its employees:
(d) damage caused by or resulting from work other than the loading, Unloading, Handling, storage warehousing, stockpiling and delivery. This exemption includes such activities as placing of lamps, carrying out repairs, manipulating hatches, beams, cross beams or moving or removing vessels or vehicles
(e) damage resulting from failure breakage or other defect of the equipment used by the company unless it can be proved that the equipment was not in a good state of maintenance and did not conform to the requirements if any laid down by the relevant authorities in this respect
(f) damage resulting from non-compliance by third parties with regulations laid down by the relevant authorities or issued by the company:
(g) damage arising from any act or any neglect of a third party whether or not the third party was employed by or behalf of the company:
(h) damage done to other goods on board during the performance of the services by the company other than damage resulting from the gross negligence or wilful default of the company or its employees:
(i) Despatch money lost or demurrage due in respect of barges, lighters. railway wagons, trucks. unless caused by the gross negligence or wilful default of the company or its employees:
(j) Delay arising from the repair of damage where such repair is carried out during or after completion of loading or unloading unless the damage has been caused by the gross negligence or wilful default of the company or it employees
3.6 The benefit of these conditions shall extend to all employees from time to time of the company. who shall each be entitled to every right. defence and exemption or limitation of liability to which the company is entitled hereunder.
4.1 In all circumstances. the company shall be entitled to arrange for any part of the service to be performed by other contractors and in this event, these terms and conditions shall apply to such services The company shall not however be responsible for any act or default of such delegates.
4.2 The customer shall reimburse all duties and taxes that the company may be required to pay in respect of the goods, except to the extent that the company is required to accept any responsibility for them in accordance with condition 3.
5. Notwithstanding any notice given in accordance with condition 3. the customer shall indemnify the company against any loss, costs, suits or damage suffered by the company including costs and expenses reasonably incurred by it to the extent that such loss or damage is caused or contributed to by a breach of any of the customer's warranties contained in condition 2. The customer agrees to be responsible for and to keep the company fully indemnified against all damages, losses, costs, expenses, actions, demands, proceedings, claims and liabilities made against or suffered or incurred by the company arising directly or indirectly out of any act omission or negligence of the customer or any persons at the premises expressly or impliedly with the customer's authority and under the customer's control.
The premises being Burke Shipping Services Limited. Lisahally Terminal. Londonderry
6. When reasonably necessary. vehicles or other means of conveyance may be changed and may deviate or depart from their intended route and at the discretion of the company. the goods may be carried. stored or handled with other compatible goods or transferred between stores
7. The company shall not be liable for any loss or damage whatsoever arising to marble. articles of glass or articles contained in glass or any goods of a fragile nature
Charges, payments and liens
8. The company's charges. which may be increased from time to time by not less than 21 days prior notice to the customer, shall be payable at such intervals or on the expiry of such period of credit as may have been agreed between the parties or. in any event. before removal of the goods from the company's custody or control. Interest on amounts due and unpaid shall be payable from the date when payment of such amounts fell due and shall be calculated on a daily basis at the rate of 2% per annum above the prevailing base rate current from time to time Further. the company shall have a general as well as a particular lien on the goods for payment of all amounts due from the customer on any account
9.1 The goods shall be removed by the customer from the custody of the company at such time otherwise where reasonably necessary. the company may at anytime by notice in writing to the customer require the removal of the goods within 28 days from the date of such notice or. in the case of perishable goods within three days.
9.2 In the event of failure by the customer to pay any amount due to the company or to remove any of the goods from the custody or control of the company (notice in accordance with condition 9 having been given) at the due time. the company may. without prejudice to its other rights and remedies against the customer. give notice in writing to the customer of the company's intention to sell otherwise dispose of the goods at the customer's entire risk and expense if such amount is not paid and/or such goods are not removed within 28 days. or in the case of perishable goods. within three days from the date of such notice. On the expiry of such period. if such payment has not been made and/or goods have not been so removed. the company shall be entitled to sell or otherwise dispose of all or any part of the goods at the customer's entire risk and expense by the best method reasonably available and the proceeds of any sale or disposal shall be remitted to the customer after deduction therefrom of all expenses and all amounts due to the company from the customer on any account
(a) the company may as the agent of the customer sell such property and the customer will indemnify the company against any liability incurred by it to any third party whose property shall have been sold by the company in the mistaken belief albeit held in good faith (which shall be presumed unless the contrary be proved) that such property belonged to the customer.
(b) if the company having made reasonable efforts is unable to locate the customer. the company shall be entitled to retain such proceeds of sale absolutely unless the customer shall claim them within 6 months of the date of such notice.
(c) the customer shall indemnify the company against any damage occasioned to the premises any damages. losses. costs. expenses. actions. demands. proceedings. claims. and liabilities made against the company caused by or in relation to the presence of the goods in or on the premises.
9.3 In the case of perishable goods. notice under condition 9.2 May be combined with a notice if any, under condition 9.1
10. The company shall be relieved of the contractual obligations to the extent that their performance is prevented by. or their non-performance is the direct or indirect consequence of the act. neglect. omission. or default of the customer. including any breach by the customer of the warranties contained in condition 2 or by storm. flood. fire. explosion. riot. industrial dispute. labour disturbance failure of a utility service or transport network. act of God. war. riot civil commotion malicious damage. compliance with any law or governmental order. rule. regulation or direction. accident. breakdown of plan or machinery, fire. flood. storm. high or low water or default of suppliers or sub-contractors or other cause beyond the reasonable control of the company
11. Any notice or statement of account given by the company to the customer shall be duly given if left at or sent by registered or recorded delivery to the last known address of the customer and such notice of account shall if posted. be deemed to have been given two week days after posting.
12. These conditions shall prevail over any terms or conditions contained in the customer's order. acceptance or other communication and shall be deemed to have been accepted by the customer in preference to such other terms or conditions. unless the customer has notified the company specifically in writing of any proposed variation of these conditions and such variation has been agreed specifically in writing by a director, partner or duly authorised servant of the company.
13. The customer shall be liable to pay to the company. on demand. all reasonable costs, charges or losses sustained or Incurred by the company (including any direct. indirect or consequential losses. loss of profit and loss of reputation. loss or damage to property and those arising from injury to or death of any person and loss of opportunity to deploy resources elsewhere) arising directly or indirectly from the customer's fraud, negligence. failure to perform or delay in the performance of any of its obligations under the agreement subject to the company confirming such costs. charges and losses to the customer in writing
Payment on Termination
14. On termination of the agreement for any reason:
(a) The customer shall immediately pay to the company all of the company's outstanding unpaid invoices and interest and, in respect of services supplied but for which no invoice has been submitted. the company may submit an invoice. which shall be payable immediately on receipt
(b) The accrued rights of the parties as at termination and the continuation of any provision expressly stated to survive or implicitly surviving termination. shall not be affected.
15. These conditions and any act or contract to which they apply shall be governed by the laws of the Northern Ireland and any dispute arising out of any act or contract to which these conditions apply shall be subject to the exclusive jurisdiction of the courts of Northern Ireland.