BILL OF LADING-TERMS AND CONDITIONS

This Bill of Lading duly endorsed must be surrendered in exchange for the Goods or delivery order. In accepting this Bill of Lading, Merchant agrees to be bound by all the stipulations, terms and conditions on the face and back hereof, whether written, typed, stamped or printed, as ifsigned by Merchant, any local custom or privilege to the contrary notwithstanding, and agrees that all agreements or freight engagements for and in connection with the carriage of the Goods are superseded by this Bill of Lading. In witness whereof, three (3) original Bills of Lading at thesame tenor and date one of which being accomplished the others to stand void have been issued by TRANSCONTAINER (USA) INC or its designated agent on behalf of itself.

1.  DEFINITION

The following words both on the face and back hereof have the meanings hereby assigned.

(a) "Carrier" means TRANSCONTAINER (USA) INC.
(b) "Merchant" includes the shipper, consignor, consignee, owner and receiver of the Goods and the holder of this Bill of Lading.
(c) "Goods" mean the cargo described on the face of this Bill of Lading and, if the Cargo is packed into container(s) supplied or furnished by on behalf of Merchant, include the container(s) as well.
(d) "Subcontractor" includes owners and operators of vessels, stevedores, terminal operators, road and rail transport operators and any independent contractor and their respective servants or agents employed by the Carrier in performance of the whole or any part of the Carriage.
(e) "JAPAN COGSA" means the Carriage of Goods by Sea Act, 1975 of Japan, as amended June 3,1992.
(f) "US COGSA" means the Carriage of Goods by Sea Act, 1936 of the United States of America.
(g) "HAGUE RULES" means the provisions of the International Convention for Unification of Certain Rules Relating to Bills of Lading signed at Brussels
on August 25. 1924.
(h) "HAGUE VISBY RULES" means the Hague Rules as amended by the protocol signed at Brussels on February 23, 1968 as amended December 21, 1979.

2. CLAUSE PARAMOUNT

This Bill of Lading shall have effect to all the terms and provisions of JAPAN COGSA, unless it is adjudged that US COGSA or any other ordinance or statute similar to HAGUE RULES or HAGUE VISBY RULES is compulsorily applicable, then this Bill of Lading is governed by such laws before loading and after discharging and the entire time the goods are in the custody of Carrier.

Carrier shall be entitled to the full benefit of all rights and exemption from and limitation of liability by any laws that shall be compulsorily applicable.

In case any term of this Bill of Lading be inconsistent with JAPAN COGSA, or any other laws mandatory applicable, such terms shall be invalid and void to that extent but no further.

3. NEGOTIABILITY AND TITLE TO THE GOODS

(1) This Bill of Lading shall be deemed to be negotiable, unless marked "nonnegotiable."

(2) By accepting this Bill of Lading Merchant and his transferees agree with Carrier that unless it is marked "non-negotiable" it shall constitute title to the Goods and the holder by endorsement of this Bill of Lading shall to receive or to transfer the Goods herein mentioned.

4. GOVERNING LAW AND JURISDICTION

The contract evidenced in this Bill of Lading shall be governed by Japanese Law except as may be otherwise provided herein, and any action thereunder shall be brought before the Tokyo District Court in Japan.

5. CARRIER'S TARIFF

The provisions of Carrier's tariff are deemed to be incorporated herein. Copies of such provisions of the applicable tariff are obtainable from Carrier or his agents upon request. In the event of incompatibility between this Bill of Lading and the applicable tariff, this Bill of Lading shall prevail.

6. UNDERTAKING AND LIABILITY OF CARRIER

A.

(1) Carrier undertakes to perform or to procure the performance of the entire transport from the place at which the Goods are taken in charge to the place designated for delivery in this Bill of Lading.

(2) Carrier assumes liability in accordance with the provisions of this Bill of Lading. 

(3) For the purposes of and subject to the provisions of this Bill of Lading Carrier shall be responsible for the acts and omissions of any person of whose services he makes use for the performance of the contract evidenced by this Bill of Lading.

B.

(1) Carrier shall be liable for loss of or damage to the Goods occurring between the time when he takes the Goods into his charge and the time of delivery.

(2) Carrier shall, however, be relieved of liability for any loss or damage if such loss or damage was caused by:
a) an act or omission of Merchant, or person other than Carrier acting on behalf of Merchant or from whom Carrier took the Goods in charge;
b) insufficiency or defective condition of the packaging or marks and or numbers;
c) handling, loading, stowage or unloading of the Goods by Merchant or any person acting on behalf of Merchant;
d) inherent vice of the Goods;
e) strike, lockout, stoppage or restraint of labour the consequences of which Carrier could not avoid by the exercise of reasonable diligence;
f) compliance with the instructions of the person entitled to give them;
g) fire unless caused by actual fault or privity of Carrier;
h) any cause or event which Carrier could not avoid and the consequences whereof he could not prevent by the exercise of reasonable diligence.

7. DESCRIPTION OF GOODS

(1) This Bill of Lading shall be prima facie evidence of the receipt by Carrier of the total number of containers or other packages or units enumerated overleaf.

(2) No representation is made by Carrier as to the weight, contents, measure quantity, quality, description, condition, marks, numbers or value of the Goods and Carrier shall be under no responsibility whatsoever in respect of such description or particulars

8. MERCHANT'S RESPONSIBILITY

(1) Merchant warrants to Carrier that the particulars relating to the Goods as set out overleaf have been checked by Merchant on receipt of this Bill of Lading and that such particulars and any other particulars furnished by or on behalf of Merchant are correct. 

(2) Merchant shall indemnify Carrier against all loss, damage and expenses arising or resulting from inaccuracies in or inadequacy of such particulars.

(3) Merchant shall be liable for the loss, damage, contamination, soiling, detention or demurrage caused by Merchant to or in relation to the facility
and equipment of Carrier or any person or vessel or for whatever Merchant is otherwise responsible.

(4) Merchant shall be liable for any loss, damage or injury caused by faulty or insufficient packing of the Goods or by faulty packing within containers or loaded on trailers and on flats when such packing or loading has been performed by Merchant or on behalf of Merchant, or by the defect or unsuitability of the containers, trailers or flats, when supplied by Merchant, and shall indemnify Carrier against any additional expenses so incurred. Carrier is not liable for any loss of or damage to Goods during the normal course of carriage and handling.

(5) For loss or damage by scratch, dent, bent or whatsoever incidental to unprotected cargoes in a normal handling and carriage, Goods shall be accepted by Carrier for the carriage at the sole risk of Merchant for such loss or damage.

9. DEFENCES AND LIMITS FOR CARRIER

The defences and limits of liability provided for in this Bill of Lading shall apply in any action against Carrier for loss of or damage to the Goods whether the action be founded in contract or in tort or otherwise. 

10. SUB-CONTRACTING

(1) The Carrier shall be entitled to sub-contract on any terms the whole or any part of the carriage, loading, unloading, storing, warehousing, handling and any and all the duties whatsoever undertaken by Carrier in relation to the Goods.

(2) Merchant undertakes that no claim or allegation shall be made against any servant, agent or subcontractor of Carrier which imposes or attempts to impose upon any of them or any vessel owned by any of them any liability whatsoever in connection with the Goods, if any such claim or allegation should nevertheless be made, Merchant shall indemnify Carrier against all consequences thereof. Without prejudice to the foregoing, every such servant, agent and sub-contractor shall have the benefit of all provision herein for the benefit of Carrier as if such provisions were expressly for their benefit and in entering into this contract, Carrier, to the extent of those provisions, does so not only on his own behalf, but also as agent and trustee for such servant, agents and sub-contractors. 

11. METHOD AND ROUTE OF TRANSPORTATION

Carrier reserves to himself reasonable liberty as to the means, route and procedure to be followed in the handling, stowage and transportation of the Goods.

12. MATTERS AFFECTING PERFORMANCE

If any time the performance of the contract evidenced by this Bill of Lading is or is likely to be affected by any hindrance, risk, delay, difficulty or disadvantage of whatsoever kind which cannot be avoided by the exercise of reasonable endeavours, Carrier (whether or not the transport is commenced) may without notice to Merchant treat the performance of the contract as terminated and place the Goods or any part of them at Merchant's disposal at any place or port which Carrier may deem safe and convenient, whereupon, the responsibility of Carrier in respect of such Goods shall cease. Carrier shall nevertheless be entitled to full freight and charges on the Goods received for transportation and Merchant shall pay any additional costs of carriage to and delivery and storage at such place or port. 

13. DELIVERY

If delivery of the Goods or any part thereof is not taken by Merchant at the time and place when and where Carrier is entitled to call upon Merchant to take delivery thereof, Carrier shall be entitled to store the Goods or the part thereof at the sole risk of Merchant, whereupon the liability of Carrier in respect of the Goods or that part thereof stored as aforesaid (as the case may be) shall wholly cease and the cost of such storage (if paid by or payable by Carrier or agent or sub-contractor of Carrier) shall forthwith upon demand be paid by Merchant to Carrier. 

14. FREIGHT AND CHARGES

(1) Freight and charges shall be paid in full and in cash and, whether prepayable or payable at the destination, shall be deemed as fully earned on receipt of the Goods by Carrier and not to be returned of relinquished in any event.

(2) The freight has been calculated on the basis of particulars furnished by or on behalf of Merchant. Carrier may at any time open any container(s) or other package(s) or -unit(s) in order to reweigh, remeasure or revalue the contents at the risk and expense of Merchant, and if the particulars furnished by or on behalf of Merchant are incorrect, it is agreed that Merchant shall pay Carrier the balance of the correct charge and the charge paid and the costs incurred by Carrier in establishing the correct details.

(3) Merchant shall be jointly and severally liable to Carrier for the payment of all freight and charges and for the performance of the obligation of each of them hereunder.

(4) Merchant shall comply with all regulations or requirement of customs, port and other authorities, and shall bear and pay all duties, taxes, fines, impost, expenses or losses incurred or suffered by reason thereof or by reason of any illegal, incorrect or insufficient marking, numbering or addressing of the Goods, and indemnify Carrier in respect thereof.

(5) Merchant shall reimburse Carrier in proportion to the amount of freight for any costs for deviation or delay or any other increases of costs of whatever nature caused by war, warlike operations, epidemics, strikes, government directions or force majeure. 

15. MERCHANT’S WARRANTY

Merchant warrants that in agreeing to the terms hereof Merchant is the owner of and entitled to the possession of the Goods or has the authority of the owner and all persons entitled to possession of the Goods. 

16. INSPECTION OF GOODS

Carrier or his agents shall be entitled to open any container or packages to inspect the contents at anywhere and whenever at the discretion of Carrier and Merchant agrees to indemnify Carrier from any costs, fees so incurred. 

17. DANGEROUS GOODS AND IDEMNITY

(1) Merchant undertakes not to tender for transportation any Goods which areof an explosive, inflammable, radioactive, corrosive, or damaging, noxious,hazardous, poisonous, injurious or dangerous nature without giving priorwritten notice of their nature to Carrier and making the Goods andcontainers or other covering on the outside as required by any laws orregulations which may be applicable during the carriage.

(2) If the requirements of sub-clause (1) are not complied with, the Goodsmay, at any time or place or waters during the transport, be unloaded,thrown overboard, destroyed, or rendered harmless or otherwise disposedof at Carriers discretion without compensation and Merchant shallindemnify Carrier against all loss, damage or expense arising out of theGoods being tendered for transportation or handled or carried by Carrier.Further, Carrier shall be under no liability to make any general averagecontribution in respect of such Goods.

(3) If the Goods of an explosive, inflammable, radioactive, corrosive, ordamaging, noxious, hazardous, poisonous, injurious or dangerous naturewhich were tendered in compliance with sub-clause (1), shall become adanger to the vessel, cargo or any other property or person, such Goodsmay in like manner be unloaded, thrown overboard, destroyed, renderedharmless or otherwise disposed of at Carriers discretion withoutcompensation. Merchant shall indemnify Carrier to any loss or damage,fees, costs, expenses so incurred. 

18. THE AMOUNT OF COMPENSATION

(1) When the Carrier is liable for compensation in respect of any loss of or damage to the Goods, it is agreed with the Merchant that Such Compensation shall be calculated by reference to the value of the Goods at the place and time they are delivered to Merchant, or at the place and time they should have been delivered. For the purpose of determining the extent of the Carrier's liability for loss of or damage to the Goods, the sound value of the Goods is presumed to be the Merchant's invoice value of the Goods plus freight, charges and insurance, if paid.

(2) The Carrier shall in no event be or become liable for any loss of or damage, whatsoever and howsoever arising, to the Goods in an amount exceeding the equivalent of 666.67 Units of Account per package or unit or 2 Units of Account per kilogram of gross weight of the Goods lost or damaged, whichever is the higher. The Units of Account mentioned in Paragraph 2 above is the Special Drawing Right (SDR) as defined by the International Monetary Fund. The amounts mentioned in Paragraph 2 above all shall be converted into national currency on the basis of the value of that currency on a date to be determined by the law of the court seizes of the case. In case this Bill of Lading covers the Goods moving to or from the United States of America, US COGSA governs this Bill of Lading and the liability of Carrier shall not exceed Five Hundred Dollars lawful currency of the U.S.A. (US$500) per package or unit.

(3) Higher compensation may be claimed only when, with the consent of Carrier, the value for the Goods declared by Merchant which exceeds the limits laid down in this clause has been stated in this Bill of Lading. In that case the amount of the declared value shall be substituted for that limit. Any partial loss or damage shall be adjusted pro rata on the basis of such declared value.
(4) When the Goods have been packed into a Container by or on behalf of the Merchant, and when the number of packages or units packed into the Container is not enumerated on the face hereof, each Container including the entire contents thereof shall be considered as one package for the purpose of application of the Carrier's limitation of liability.

19. LIABILITY FOR DELAY

Carrier does not undertake that the Goods shall arrive at the Port of discharge or place of delivery al any particular time or in time to meet any particular marketor use and the Carrier shall not be responsible for any direct or indirect loss ordamage that is caused by delay.

20. DECK CARGO

(1) The Goods stowed in poop, forecastle, deckhouse, shelter deck, passenger space or any other covered space shall be deemed to be stowed under deck for all purposes including general average. 

(2) Carrier has the right to carry the Goods in the containers under deck or on deck. When the Goods are carried on deck, Carrier shall not be required to note, mark, stamp any statement of Aon deck stowage" on the face hereof, any custom to the contrary notwithstanding, and the Goods so carried shall be deemed to be carried under deck for all purposes including general average and shall be subject to the applicable Hague Rules or Hague Visby Rules.

(3) The Goods carried on deck and specially stated herein to be so carried, Carrier is not liable for any loss of or damage to the Goods whether or not caused by Carrier's negligence or the vessel's unseaworthiness. 

21. LIEN

(1) Carrier shall have a lien on the Goods and any documents relating hereto for all sums payable to Carrier under this contract and for general average contributions to whomever due and for the cost of recovering the same, and for that purpose shall have the right to sell the Goods by public auction or private treaty without notice to Merchant. If on sale of the Goods, the proceeds fail to cover the amount due and the cost incurred, Carrier shall be entitled to recover the deficit from Merchant. 

(2) If the Goods are unclaimed during a reasonable time, or whenever in Carrier's option, the Goods will become deteriorated, decayed or worthless, Carrier may, at his discretion and subject to his lien and without any responsibility attaching to him, sell, abandon of otherwise dispose of such Goods solely at the risk and expense Of Merchant.

22. NOTICE AND TIME BAR

(1) Unless notice of loss of or damage to the Goods and the general nature ofthe Goods be given in writing to Carrier or his agent at the place of deliverybefore or at the time of the removal of the Goods into the custody at theperson entitled to delivery thereof under this Bill of Lading, or if the loss ordamage be not apparent, within three (3) consecutive days after removal,such removal shall be prima facie evidence of the delivery by Carrier of the Goods as described in this Bill of Lading.

(2) In any event Carrier shall be discharged from all liability in respect of Goodsunless suit is brought within nine (9) months after delivery of the Goods orthe date when the Goods should have been delivered.

23. GENERAL AVERAGE

Merchant shall admit that General Average may be declared during the courseof or in respect the carriage of the Goods by sea and shall in such a caseundertake to make, for settlement of the General Average, such contributiondue from the Goods as is determined in accordance with the Yolk-AntwerpRules 1974 as amended 1990 or any modification thereof.

24. BOTH TO BLAME COLLISION AND NEW JASON CLAUSE

The Both to Blame Collision Clause and New Jason Clause as Published by theBaltic and International Maritime Council is hereby incorporated into this Bill of Lading. 

25. TEMPERATURE CONTROLLED GOODS

Merchant shall give written notice of request for the optimum temperature rangefor the thermostatic controls and the nature of the goods in prior to receipt ofthe goods by Carrier. In case of a temperature controlled container stuffed byMerchant, Merchant undertakes that the goods and the container have beensuitably precooled at the optimum temperature and the Merchant is furtherresponsible for the proper stowage of the goods in the container and for settingthe required temperature before the container is delivered to Carrier.

Carrier is not liable for any loss of or damage to the goods when Merchantfailed to comply with Carrier's requirements stated as above and fordeterioration of the merchandise caused by inherent vice or defect in themerchandise.

Carrier shall exercise due diligence to keep the refrigerated container in acompetent state before or at the initial stage of carriage and shall not be liablefor any loss of or damage to the goods caused by disorder or improper functionof the facilities of the container.

26. LIVE ANIMALS

Live animals, birds, reptiles and fish are received by Carrier for carriage at thesole risk of Merchant for loss or damage inherent in or incidental to carriage ofsuch goods.

27. LOCAL CLAUSE (GOODS TO OR FROM U.S.A.)

In case this Bill of Lading covers the goods moving to or from the United States of America and if it is adjudged that US law is applicable, US COGSA shall govern this Bill of Lading and shall be paramount before the goods are loaded on and after they are discharged from the vessel and throughout the entire time the Goods are in the custody of Carrier.

Carrier procures the service of inland carriage tendered by inland carrier(s) on behalf of or as agent for Merchant for inland carriage before or after the carriage at sea or inland water way in U.S.A., and Carrier assumes no responsibility whatsoever for any loss of or damage to the Goods by such carriage off of the custody of Carrier which is subject to the terms and tariff of the respective inland carrier(s), and to laws compulsorily applicable. Carrier, however, undertakes the liability for the performance of contractual duty by the terms and tariff of the inland carrier(s).

In the event that, by some reasons, Carrier is not entitled to act as agent for procurement of inland carriage, the liability of Carrier shall be as set forth in clause 18. hereof .