Haulier Terms and Condition
TruckTrain Brokerage Limited
Trading as FreightArranger
TERMS AND CONDITIONS OF CARRIAGE
Effective Date: 1 May 2014
Certain supplies of rail and road transportation by FreightArranger are made through services purchased directly by FreightArranger. FreightArranger is the trade name of TruckTrain Brokerage Limited, hereinafter referred to as “TTBL”. Services provided directly by FreightArranger are identified on the FreightArranger Booking Confirmation and Booking Reports through having the following supplier names:
The contractual relationship for transport services provided by these supplier names is with TruckTrain Brokerage Limited and the consignor, and the terms and conditions are set out below.
Please note that these Terms and Conditions contain limitations or exclusions of liability on the part of TruckTrain Brokerage Limited. In order to minimise its charges TruckTrain Brokerage Limited considers it reasonable to limit its liability and to share risk with the Customer in the manner set out in these Terms and Conditions.
TruckTrain Brokerage Limited incorporated and registered in England and Wales with company number 07172795 whose registered office is at West View, Brownshill, Stroud, Gloucestershire, GL6 8AQ (FreightArranger).
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1. TTBL is not a common carrier and accepts goods for carriage only upon that condition and the Conditions set out below. No servant or agent of TTBL is permitted to alter or vary these Conditions unless expressly authorised in writing to do so by a Director of TTBL. If any part of these conditions is incompatible with applicable legislation, such part shall be overridden by the legislation to that extent and no further.
In these Conditions:
“Customer” means the person or company who contracts for the services of TTBL including any other carrier who gives a Consignment to the Carrier for carriage.
“Contract” means the contract of carriage between the Customer and TTBL.
“Consignee” means the person or company to whom the Carrier contracts to deliver the Consignment.
“Consignment” means goods, , whether a single item or in bulk or contained in one parcel, package or container, as the case may be, or any number of separate items, parcels, packages or containers, or any container or swapbody whether laden or empty sent at one time in one load, by or for the Customer from one address to another address.
“Dangerous Goods” means those substances and articles the carriage of which is prohibited by the provisions of the European Agreement Concerning the International Carriage of Dangerous Goods by Road (ADR) as applied in the United Kingdom, or authorised only under the conditions prescribed in accordance therewith.
“In writing” includes, unless otherwise agreed, the transmission of information by electronic, optical or similar means of communication, including, but not limited to electronic meal or electronic data interchange (EDI), provided the information is readily accessible so as to be usable for subsequent reference.
“Trader” means the owner of the Consignment, any other person having an interest therein and anyone acting on behalf of such owner or other person, including, as the case may be, the Customer, sender and Consignee.
3. Parties and Sub-Contracting
(1) The Customer warrants that he is either the owner of the Consignment or is authorised by such owner to accept these Conditions on such owner’s behalf.
(2) TTBL and any other carrier employed by the Carrier may employ the services of any other carrier for the purpose of fulfilling the Contract in whole or in part.
(3) TTBL contracts for itself and as agent of and trustee for its servants and agents and all other carriers referred to in (2) above and such other carriers’ servants and agents and every reference in these Conditions to “the Carrier” shall be deemed to include every other such carrier, servant and agent with the intention that they shall have the benefit of the Contract and collectively and together with the Carrier be under no greater liability to the Customer or any other party than is TTBL hereunder.
(4) Notwithstanding Condition 2(3) the carriage of any Consignment by rail, sea, inland waterway or air is arranged by TTBL as agent of the Customer and shall be subject to the Conditions of the rail, shipping, inland waterway or air carrier contracted to carry the Consignment. TTBL shall be under no liability whatsoever to whomsoever and howsoever arising in respect of such carriage provided that where the Consignment is carried partly by road and partly by such other means of transport any loss, damage or delay shall be deemed to have occurred while the Consignment was being carried by road unless the contrary is proved by TTBL.
4. Dangerous Goods
Dangerous Goods must be disclosed by the Customer and if TTBL agrees to accept them for carriage they must be classified, packed, marked, labelled and documented in accordance with the statutory regulations for the carriage by road of the substance declared.
5. Loading and Unloading
(1) Unless TTBL has agreed in writing to the contrary with the Customer:
a. TTBL shall not be under any obligation to provide any plant, power or labour, other than that carried by the vehicle, required for loading or unloading the Consignment.
b. The Customer warrants that any plant, power or labour required for loading or unloading the Consignment which is not carried by the vehicle will be provided by the Customer or on the Customer’s behalf.
c. TTBL shall be under no liability whatsoever to the Customer for any damage whatsoever, howsoever caused, if TTBL is instructed to load or unload any Consignment requiring plant, power or labour which in breach of the warranty in (b) above has not been provided by the Customer or on the Customer’s behalf.
d. TTBL shall not be required to provide service beyond the usual place of collection or delivery but if any such service is given by TTBL it shall be at the sole risk of the Customer.
(2) The Customer shall indemnify TTBL against all claims and demands whatsoever which could not have been made if such instructions as are referred to in (1)(c) of this Condition and such service as is referred to in (1)(d) of this Condition had not been given.
6. Signed Receipts
TTBL shall, if so required, sign a document or electronic record prepared by the sender acknowledging the receipt of the Consignment but the burden of proving the condition of the Consignment and its nature, quantity or weight at the time of collection rests with the Customer.
(1) Transit commences when TTBL takes possession of the Consignment whether at the point of collection or at the Carrier’s premises.
(2) Transit ends (unless otherwise previously determined) when the Consignment is tendered at the usual place of delivery at the Consignee’s address within the customary cartage hours of the district provided that:
a. If no safe and adequate access or no adequate unloading facilities there exist than transit shall be deemed to end at the expiry of one clear day after notice in writing (or by telephone if so previously agreed in writing) of the arrival of the Consignment at the Carrier’s premises has been sent to the Consignee; or
b. When for any other reason whatsoever a Consignment cannot be delivered or when a Consignment is held by TTBL “to await order” or “to be kept until called for” or upon any like instructions and such instructions are not given or the Consignment is not called for and removed within a reasonable time, then transit shall also be deemed to end.
8. Undelivered or Unclaimed Consignments
Where TTBL is unable for any reason to deliver a Consignment to the Consignee or as he may order, or where by virtue of the proviso to Condition 7(2) hereof transit is deemed to be at an end, TTBL may sell the Consignment and payment or tender of the proceeds after deduction of all proper charges and expenses in relation thereto and of all outstanding charges in relation to teh carriage and storage of the Consignment shall (without prejudice to any claim or right which the Customer may have against TTBL otherwise arising under these Conditions) discharge TTBL from all liability in respect of such Consignment its carriage and storage provided that:
(1) The Carrier shall do what is reasonable to obtain the value of the Consignment; and
(2) The power of sale shall not be exercised where the name and address of the sender or of the Consignee is known unless TTBL shall have done what is reasonable in the circumstances to give notice to the sender or if the name and address of the sender is not known to the Consignee that the Consignment will be sold unless within the time specified in such notice, being a reasonable time in the circumstances from the giving of such notice, the Consignment is taken away or instructions are given for its disposal.
9. TTBL’s Charges
(1) TTBL’s charges shall be payable by the Customer without prejudice to TTBL’s rights against the Consignee or any other person provided that when any Consignment is consigned “carriage forward” the Customer shall not be required to pay such charges unless the Consignee fails to pay after a reasonable demand has been made by TTBL for payment thereof.
(2) Charges shall be payable on the 28th calendar day from the invoice date without reduction or deferment on account of any claim, counterclaim or set-off. If the Customer becomes insolvent or any sums owed by the Customer on any invoice or account with TTBL become overdue for payment, any credit terms shall be cancelled with immediate effect and all invoices or accounts issued by TTBL shall immediately be deemed due for payment and thereupon become payable. The Late Payment of Commercial Debts (Interest) Act 1998 as amended applies to all sums due from the Customer.
(3) TTBL will add to its charges at cost any Ancillary Supplementary or Additional Charges made by its contractors, sub-contractors or agents. Such charges include but are not limited to vehicle demurrage, vehicle detention, “reefer” surcharge, Saturday after 12:00 hours surcharge, Sunday surcharge, public holiday surcharge, overnight travel surcharge, wasted day charges, storage charges. All motorway, road and bridge tolls will be charged at cost. All such charges are payable on the 28th calendar day from the invoice date.
(4) TTBL will charge full transit fees for containers which have been booked through FreightArranger but have not arrived at the train loading point by the train loading cut-off time unless the Customer consigns an alternative container with the same dimensions and gross weight.
10. Liability for Loss and Damage
(1) The Customer shall be deemed to have elected to accept the terms set out in (2) of this Condition 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 howsoever or whensoever 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 TTBL, its servants, agents or subcontractors.
(2) Subject to these conditions TTBL shall be liable for:
a. Physical loss, mis-delivery of or damage to living creatures, bullion, money, securities, stamps, precious metals or precious stones comprising the Consignment only if:
i. TTBL has specifically agreed in writing to carry any such items; and
ii. The Customer has agreed in writing to re-imburse TTBL in respect of all additional costs which result from the carriage of the said items; and
iii. The loss, mis-delivery or damage is occasioned during transit and is proved to be due to the negligence of TTBL, its servants, agents or sub-contractors;
b. Physical loss, mis-delivery of or damage to any other goods comprising the Consignment unless the same has arisen from and the Carrier has used reasonable care to minimise the effects of:
i. Act of God;
ii. Any consequences of war, invasion, act of foreign enemy, hostilities (whether war or not ), civil war, rebellion, insurrection, terrorist act, military or usurped power or confiscation, requisition, or destruction or damage by or under the order of any government or public or local authority;
iii. Seizure or forfeiture under legal process;
iv. Error, act, omission, mis-statement or misrepresentation by the Customer or other owner of the Consignment or by servants or agents of either of them;
v. Inherent liability to wastage in bulk or weight, faulty design, latent defect or inherent defect, vice or natural deterioration of the Consignment;
vi. Insufficient or improper packing;
vii. Insufficient or improper labelling or addressing;
viii. Riot, civil commotion, strike, lockout, general or partial stoppage or restraint of labour howsoever caused;
ix. Consignee not taking or accepting delivery within a reasonable time after the Consignment has been tendered.
(3) TTBL shall not in any circumstances be liable for loss or damage arising after transit is deemed to have ended within the meaning of Condition 7(2) hereof, whether or not caused or contributed to directly or indirectly by any act, omission, neglect, default or other wrongdoing on the part of TTBL, its servants, agents or sub-contractors.
(4) In respect of all goods comprising the Consignment and the Containers the Customer warrants and represents that:
a. none of them are toxic or liable to give up any injurious dust, gas, fumes, liquid or radiation;
b. none of them are infested, verminous, rotten or subject to fungal attack or likely to become so;
c. none of them are likely to contaminate, cause danger, injury or pollution or damage to any person or property or any other goods or equipment or to the immediate environment;
d. none of them require and are likely to require for safekeeping any special protection arising from vulnerability to heat, cold, moisture, pilferage or proximity to other goods but will remain safe;
e. none of them contain any unauthorised controlled drugs, contraband, pornographic or other illegal matter or persons;
f. they are properly and sufficiently packed in accordance with all regulations and rules prevailing from time to time;
g. they are properly and sufficiently marked, accurately documented and labelled for all cargo handling, reception, dispatch, road and rail purposes;
h. they are fit for the intended purpose and in a fit and proper condition to be handled or otherwise dealt with by us or anyone dealing with them for us.
TTBL 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 TTBL or of any servant of TTBL acting in the course of his employment.
12. Limitation of Liability
(1) Except as otherwise provided in these Conditions, the liability of TTBL in respect of claims for physical loss, mis-delivery of or damage to goods comprising the Consignment, howsoever 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 £1,300 Sterling 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 and Customs and Excise duties or taxes payable in respect of those goods provided that:
i. In the case of loss, mis-delivery of or damage to a part of the Consignment the weight to be taken into consideration in determining the amount to which TTBL’s liability is limited shall be only the gross weight of that part regardless of whether the loss, mis-delivery or damage affects the value of other parts of the Consignment;
ii. Nothing in this Condition shall limit the liability of TTBL to less than the sum of £10;
iii. TTBL shall be entitled to proof of the weight and value of the whole of the Consignment and of any part thereof lost, mis-delivered or damaged;
iv. The Customer shall be entitled to give TTBL notice in writing to be delivered at least seven days prior to commencement of transit requiring that the £1,300 per tonne limit in 12 (1)(c) above be increased, but not so as to exceed the value of the Consignment, and in the event of such notice being given the Customer shall be required to agree with TTBL an increase in the carriage charges in consideration of the increased limit, but if no such agreement can b reached the aforementioned £1,300 per tonne limit shall continue to apply.
(2) TTBL shall not be liable for claims for demurrage or late restitution charges payable by the Customer unless:
a. The demurrage or late restitution charges became payable as a result of the negligence or wilful misconduct of TTBL its agents or sub-contractors, and
b. The container was returned or restituted at least 24 hours later than stated in the FreightArranger Booking Confirmation.
(3) In respect of any demurrage or late restitution charges for which TTBL is liable under Clause 12(2) above the maximum liability of TTBL shall not exceed the sum of £10 per day effective from the second day of lateness subject to a maximum of 6 days lateness.
(4) The liability of TTBL 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 the 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 TTBL the Customer declares to TTBL 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 that interest, and
b. At least seven days prior to the commencement of transit the Customer has delivered to TTBL confirmation in writing of the special interest, agreed time limit and amount of the interest.
13. Refusal of Containers
TTBL or its agents contractors or sub-contractors may refuse to accept for transit damaged or distorted Containers or of any Container which in TTBL’s opinion or the opinion of our agents contractors or sub-contractors is in an unsatisfactory condition.
14. Indemnity to TTBL
The Customer shall indemnify TTBL against:
(1) All liabilities and costs incurred by TTBL (including but not limited to claims, demands, proceedings, fines, penalties, damages, expenses and loss of 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 packing, labelling or addressing of the Consignment or fraud as in Condition 11;
(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 TTBL by HM Revenue and Customs in respect of dutiable goods consigned in bond) in excess of the liability of TTBL 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 an act, omission, neglect, default or other wrongdoing on the part of the Carrier, its servants, agents or sub-contractors.
15. Time Limits for Claims
(1) TTBL shall not be liable for:
a. Damage to the whole or any part of the Consignment, or physical loss, mis-delivery or non-delivery of part of the Consignment unless advised thereof in writing within seven days, and the claim is made in writing within fourteen days, after the termination of transit;
b. Any other loss unless advised thereof in writing within twenty-eight days, and the claim is made in writing within forty-two days, after the commencement of transit. Provided that if the Customer proves that,
i. It was not reasonably possible for the Customer to advise TTBL or make a claim in writing within the time limit applicable, and
ii. Such advice or claim was given or made within a reasonable time, TTBL shall not have the benefit of the exclusion of liability afforded by this condition.
(2) TTBL shall in any event be discharged from all liability whatsoever and howsoever arising in respect of the Consignment unless suit is brought and notice in writing thereof given to TTBL 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.
(1) TTBL shall have:
a. A particular lien on the Consignment, and
b. A general lien against the Trader for sums unpaid on any invoice, account or Contract whatsoever.
If such lien, whether particular or general, is not satisfied within a reasonable time, the Carrier may sell the Consignment, or part thereof, as agent for the owner and apply the proceeds towards any sums unpaid and the expenses of the retention, insurance and sale of the Consignment and shall, upon accounting to the Customer for any balance remaining, be discharged from all liability whatsoever in respect of the Consignment.
(2) TTBL may exercise its lien on its own behalf or as agent for any assignee of its invoices at any time and at any place at its sole discretion whether or not sums have become payable in accordance with Condition 8(2) hereof and whether or not the contractual carriage has been completed and these Conditions shall continue to apply during the period of exercise of such lien.
17. Unreasonable Detention
The Customer shall be liable to pay demurrage for unreasonable detention of any vehicle, trailer, container or other equipment at TTBL’s current rates of demurrage but the rights of TTBL against any other person in respect thereof shall remain unaffected.
18. Force Majeure
Neither party shall be deemed to be in breach of the Contract or otherwise liable to the other for any failure or delay in performing its obligations under the Contract due to Force Majeure. If a party’s performance of its obligations under the Contract is affected by Force Majeure it shall give notice to the other party, specifying the nature and extent of the Force Majeure, as soon as reasonably possible upon becoming aware of the Force Majeure and will at all times use reasonable endeavours to mitigate the severity of the Force Majeure.
19. Law and Jurisdiction
Unless otherwise agreed in writing, the Contract and any dispute arising thereunder shall be governed by English law and shall be subject to the jurisdiction of the English courts alone.