10. TIME LIMIT FOR CLAIMS
(1) The Carrier shall not be liable:-
(a) for damage to the whole or any part of the Consignment, or physical loss, deviation, mis-delivery, delay or detention where the Consignee has acknowledged (by signing a delivery note or otherwise) upon delivery that the Consignment has been received in good condition, and failing such acknowledgement unless the Carrier is advised thereof in writing within three (3) days and a claim in respect thereof made in writing within fourteen (14) days after the termination of transit;
(b) for any other loss unless the Carrier is advised of the loss or non-delivery in writing (other than upon a consignment note or delivery document) within twenty eight (28) days and the claim is made in writing within forty two (42) days after the commencement of transit
(2) The Carrier shall in any event be discharged from all liability whatsoever and howsoever arising in respect of the Consignment unless court proceedings are issued within one year of the date when transit commenced.
(3) In the computation of time where any period provided by these Conditions is seven days or less, Saturdays, Sundays and all statutory public holidays shall be excluded.
11. LIABILITY FOR LOSS AND DAMAGE
(1) The terms set out in paragraph (2) of this Condition shall be applicable unless, before the transit commences, the Customer has agreed in writing that the Carrier shall not be liable for any loss or mis-delivery of or damage to or in connection with the Consignment however or whenever caused and whether or not caused or contributed to directly or indirectly by any act, omission, neglect, default or other wrongdoing on the part of the Carrier, its servants, agents or sub-contractors.
(2) Subject to these conditions the Carrier shall be liable for any loss, or mis-delivery of or damages to the Consignment occasioned during transit unless such loss, mis-delivery or damage has arisen from:-
(a) act of God;
(b) any consequences of war, invasion, act of foreign enemy, hostilities (whether war or not), civil war, rebellion, insurrection, terrorist act, military or usurped power, confiscation, requisition, destruction of, or damage to property by or under the order of any government or public or local authority;
(c) seizure or forfeiture under legal process;
(d) act or omission misrepresentation or mis-statement of the Customer or owner of the Consignment or of the servants or agents of either;
(e) inherent liability to wastage in bulk or weight, faulty design, latent defect or inherent defect, vice or natural deterioration of the Consignment;
(f) insufficient or improper packing or (where the Carrier has not supervised the loading of the Consignment) loading;
(g) insufficient or improper labelling or addressing;
(h) riots, civil commotion, strikes, lockouts, industrial disputes, general or partial stoppage of restraint of labour from whatever cause;
(i) any breach by the Customer of these Conditions including where the Consignee has not taken any Consignment or has made available for collection or accepted delivery of any such Consignment within a reasonable time after Consignment has been tendered;
(j) where goods which have been loaded into or onto a container or other unit load instrument and sealed by the sender or Customer and received as such by the Carrier and entered at the usual place of delivery at the Consignee’s first address with the seal unbroken and the Carrier has not broken the seal.
(3) Where the Carrier has been afforded with no opportunity to verify the quantity of the Consignment upon loading the Carrier shall in no event be responsible or liable to the Customer in respect of any alleged shortage in the Consignment upon delivery.
(4) In no event shall the Carrier be liable to the Customer for delay in delivery due to any matter beyond the Carrier’s control, including without limitation the matters referred to in sub-paragraphs (2) (a) and (b) of this Clause 11.
12. LIMITATION OF LIABILITY
(1) Except as otherwise provided in these Conditions, the liability of the Carrier in respect of claims for physical loss, mis-delivery of or damage to goods comprising the Consignment, however arising, shall in all circumstances be limited to the lesser of:
(a) the value of the goods actually lost, mis-delivered or damaged; or
(b) the cost of repairing any damage or of reconditioning the goods; or
(c) a sum calculated at the rate of one thousand one hundred euro (_1,100) per tonne on the gross weight of the goods actually lost, mis-delivered or damaged;
and the value of the goods actually lost, mis-delivered or damaged shall be taken to be their invoice value if they have been sold and shall otherwise be taken to be the replacement cost thereof to the owner at the commencement of transit, and in all cases shall be taken to include any Customs and Excise duties or taxes payable in respect of those goods
(2) Where the loss, damage or mis-delivery however sustained is in respect of part of a Consignment the liability of the Carrier shall be limited to the proportion of the sum ascertained in accordance with paragraph (1) of this Condition which the actual value of that part of the Consignment bears to the actual value of the whole of the Consignment.
(3) The liability of the Carrier in respect of claims for any other loss whatsoever (including indirect or consequential loss or damage and loss of market), and howsoever arising in connection with the Consignment, shall not exceed the amount of carriage charges in respect of the Consignment or the amount of the claimant’s proved loss, whichever is the lesser, unless:
(a) at the time of entering into the Contract with the Carrier the Customer declares to the Carrier a special interest in delivery in the event of physical loss mis-delivery or damage or of an agreed time limit being exceeded and agrees to pay a surcharge calculated on the amount of the interest, and
(b) at least 7 days prior to the commencement of transit the Customer has delivered to the Carrier written confirmation of the special interest, agreed time limit and amount of the interest.
13. GENERAL LIEN
(1) The Carrier shall have a general lien against the Customer, where the Customer is the owner of any Consignment, for any monies whatsoever due from the Customer to the Carrier. If any lien is not satisfied within a reasonable time the Carrier may at its absolute discretion sell the Consignment or part thereof as agents for the Customer and apply the proceeds towards the monies due and the expense of the retention, insurance and sale, and shall upon accounting to the Customer for any balance remaining, be discharged from all liability whatsoever in respect of the Consignment.
(2) Where the Customer is not the owner of the Consignment, the Carrier shall have a particular lien against the said owner, allowing the Carrier to retain possession, but not to dispose of, the Consignment against monies due from the Customer in respect of the Consignment.
14. UNREASONABLE DETENTION
The Customer shall be liable for the cost of unreasonable detention of vehicles, containers, trailers and other equipment to the extent that such detention is beyond the control of the Carrier, but the Carrier’s rights against any other person in respect thereof, shall remain unaffected. To the extent that any such detention occurs at the premises of the Customer or of the Consignee, the Customer shall be liable for demurrage at the Carrier’s current rate of demurrage for the period during which such detention continues.
15. USE OF FORMS
The use of Customer’s own contract forms, purchase orders, invoices or other forms shall not derogate from these Conditions but shall be deemed to be supplemental thereto.
16. INDEMNITY TO THE CARRIER
The Customer shall indemnify the Carrier against:
(1) All liabilities and costs incurred by the Carrier (including but not limited to claims, demands, proceedings, fines, penalties, damages, expenses and loss or damage to the carrying vehicle and to other goods carried) by reason of any error, omission, mis-statement or misrepresentation by the Customer or other owner of the Consignment or by any servant or agent of either of them, insufficient or improper documentation or packing, labelling or addressing of the Consignment or fraud as contemplated by Condition 17.
(2) All claims and demands whatsoever (including for the avoidance of doubt claims alleging negligence) by whomsoever made and howsoever arising (including but not limited to claims caused by or arising out of the carriage of Dangerous Goods and claims made upon the Carrier by Customs and Excise in respect of dutiable goods consigned in bond) in excess of the liability of the Carrier under these Conditions in respect of any loss or damage whatsoever to, or in connection with, the Consignment whether or not caused or contributed to directly or indirectly by any act, omission, neglect, default or other wrongdoing on the part of the Carrier, its servants, agents or sub-contractors.
The Carrier shall not in any circumstances be liable in respect of a Consignment where there has been fraud on the part of the Customer or the owner, or the servants or agents of either, in respect of that Consignment, unless the fraud has been contributed to by the complicity of the Carrier or of any servant of the Carrier acting in the course of his employment.
If any provision of these Conditions is held by any competent authority to be invalid, unlawful or unenforcable in whole or part, the validity of the other provisions of these Conditions and the remainder of the provision in question shall not be affected thereby.
Failure or neglect by the Carrier to enforce at any time any of the Conditions hereof shall not be construed nor deemed to be a waiver of the Carrier’s rights hereunder, nor in any way affect the validity of the whole or any part of these Conditions, nor prejudice the Carrier’s rights to take subsequent action.
(1) Any notice or other communication given or made under this Agreement shall be in writing and may be delivered to the relevant party or sent by pre-paid post or telecopier to the address of that party (which in the case of the Carrier shall be the address appearing at the head of this Agreement and in the case of the Customer shall be the address set out in the relevant purchase order) or to that party’s telecopier number there at or to that party’s electronic mail address (if notified to the other party) or to such other address, number or electronic mail address as may be notified in writing by that party from time to time for this purpose and will be effective notwithstanding any change of address, telecopier number or electronic mail address not so notified.
(2) Unless the contrary is proved, each such notice or communication will be deemed to have been given or made and delivered, if by post 48 hours after posting, if by delivery when left at the relevant address, if by telecopier upon transmission during normal business hours (otherwise on the next following Business Day), subject to the correct answerback code or telecopier number being received on the transmission report, or if by electronic mail when actually received in the incoming mail box of the recipient.
21. GOVERNING LAW
These Conditions shall be governed by and shall be read and construed in all respect in accordance with Irish law and each of the parties hereto submit to the jurisdiction of the Irish courts. This jurisdiction shall not (and shall not be construed so as to) limit the right of the Carrier to issue proceedings against the Customer in any other court or regulatory body of a competent jurisdiction.