These TERMS AND CONDITIONS OF TRANSPORT (“Terms”) are published by James River Barge Line, Ltd., a Virginia corporation (“Carrier”). Carrier operates a barge service between the ocean marine terminals in Hampton Roads, Virginia, including Virginia International Gateway (“VIG”), Norfolk International Terminals (“NIT”), and Portsmouth Marine Terminals (“PMT”), and the Richmond Marine Terminal/Port of Richmond. This service is sometimes referred to as the “64 Express”. Customer may from time to time request Carrier (through its agent Virginia International Terminals, LLC (“VIT”)) to carry Containers on this barge service. These Terms constitute the agreement for such carriage. Customer’s use of the 64 Express constitutes agreement to these Terms.
1. Definitions.
“Carrier” means James River Barge Line, Ltd., a Virginia corporation.
“COGSA” means the U.S. Transport Services of Goods by Sea Act of 1936.
“Container” includes any standard ISO 20’ or 40’ intermodal shipping container.
“Customer” includes the shipper, consignee, receiver of the Goods, beneficial cargo owner, and any person or entity owning or entitled to the possession of the Goods and anyone acting on behalf of such Person.
“Freight” includes all charges payable in accordance with the SOR and these Terms.
“Goods” means the whole or any part of the cargo and any packaging accepted from the Shipper and includes any Container.
“SOR” shall mean the Schedule of Rates No. 1 published by VIT, as it may be amended, restated, or replaced from time to time.
“Transport Services” means the whole or any part of the carriage and any and all other services whatsoever undertaken by the Carrier in relation to the Goods.
“Vessel” means any water borne craft used in the Transport Services under these Terms.
“VIT” means Virginia International Terminals, LLC, a Virginia limited liability company.
2. Transport Services.
2.1 Carrier undertakes to perform the Transport Services from the port of loading to the port of discharge.
2.2 Carrier shall provide the Transport Services in a workmanlike, professional and proper manner and shall comply with all applicable regulations, laws, ordinances and best industry practices (including those applicable to barging, carriage of goods, safety and health). Carrier shall hold all necessary approvals, certificates or licenses for performing the Transport Services.
2.3 Carrier shall employ and maintain sufficiently qualified, trained, directed and supervised staff necessary to properly and safely perform the Transport Services in compliance with these Terms. Carrier shall have complete control and supervision of the Containers while in the Carrier's custody, possession and control, and Carrier shall control the detail of the work of any person, including employee, servant, agent or other sub-contractor of the carrier, transporting, operating or otherwise handling the Goods during such time. Carrier is required to perform the Transport Services safely, in a manner that ensures adequate protection for employees, the public, the environment and the Goods, in full compliance with all applicable Federal, State and local safety, health and environmental laws, rules and regulations.
2.4 Carrier is not agent for, and has no authority whatsoever to incur any liabilities, make contractual commitments or otherwise bind or commit Customer or the owner of any Goods in respect of any matter whatsoever. Carrier may not permit a lien to be created over any Goods. Carrier may not use or refer to Customer’s logo, trademarks, or service marks in any way without Customer’s written consent.
2.5 Carrier shall comply with applicable government regulations and directives and any reasonable security measure requested by Customer from time to time. The Carrier's security procedures will include, but not be limited to, preventing during Carrier’s period of custody (i) tampering with or damage to the Containers or their contents, (ii) introduction or removal of contraband materials or substances into the Containers or their contents, (iii) theft of the Containers or their contents, or (iv) diversion of the Containers and contents for unlawful or unauthorized purposes. If Carrier has any reason to believe that any Containers or their contents have been stolen, tampered with or diverted in violation of the terms of this Agreement or applicable law, or delivered to any carrier other than as specified in this Agreement, the Carrier will promptly notify Customer. The Carrier agrees to use good faith efforts to notify Customer of any change in the Carrier's security status which Carrier reasonably believes would negatively affect Customer’s status as a participant in U.S. Bureau of Customs and Border Protection’s Trade Partnership Against Terrorism program (C-TPAT).
3. Stevedoring. Carrier does not perform stevedoring services. Stevedoring charges for loading and discharging the containers from the barge is included in the rate paid to VIT. Stevedoring at VIG, NIT, and PMT is governed by the terms, conditions, and limitations of the SOR. Stevedoring at Richmond Marine Terminals/Port of Richmond is governed by the terms and conditions of the published schedule of rates for that terminal as it may be amended, supplemented, or replaced from time to time.
4. Payment and Payment Terms.
4.1 The SOR shall contain a rate to be paid by Customer for the loading and discharge of the Goods to and from the vessel and the Freight for the Transport Services. Customer shall make payment to VIT as agent for Carrier in connection with the Transport Services. The terms of the SOR relating to terms of payment, including without limitation remedies upon default, are hereby incorporated by reference.
4.2 Payment of Freight and charges to a freight forwarder, broker or anyone other than as stated herein shall not constitute payment hereunder and shall be made at Customer’s sole risk.
5. Documentation; Electronic Data Interchange.
5.1 Customer shall give Carrier and terminal operators such information required to properly perform the Transport Services and otherwise as may be reasonably required for the efficient planning and conduct of the Transport Services.
5.2 All documents, records, correspondence, information and transactions in any form, concerning the operation or business of any party which shall have been clearly marked or otherwise designated in writing by the disclosing party as "confidential," shall be kept confidential during the term hereof or for a period of two (2) years after disclosure, whichever is longer.
5.3 The parties and their agents shall co-operate with each other to establish procedures for documentation, notifications, and integration of their systems for the use of EDI for data exchanges relating to the Transport Services. Each party shall bear its own cost for integration. It is likely that the EDI will be with VIT’s terminal operating system. The parties may agree on the procedures for documentation and billing by separate correspondence or addendum or appendix to these Terms, EDI, and billing. The parties may agree on a procedure for issuance of bills of lading. In the absence of the issuance of a bill of lading by Carrier, then these Terms, and the Customer’s written instructions, including the shipper’s load and count provided to Carrier (or VIT as its agent) shall constitute the bill of lading. Any bill of lading issued in connection with the Transport Services provided for by these Terms shall incorporate these terms by reference.
6. Subcontracting.
The Carrier may subcontract on any terms whatsoever the whole or any part of the Transport Services. No subcontractor, agent, or servant thereof, nor its vessel, shall in any circumstances whatsoever be under any liability whatsoever to the Customer for any loss, damage or delay of whatsoever kind arising or resulting directly or indirectly from any act, neglect or default on the subcontractor, agent or servant’s part while acting in the course of the Transport Services. The subcontractors, servants, and agents are beneficiaries of this section.
7. Liability and Claims.
7.1 Carrier shall have no liability whatsoever for any loss or damage to the Goods, howsoever caused, if such loss or damage arises before acceptance by the Carrier of custody of the Goods or after the Carrier tenders the Goods for delivery. Notwithstanding the above, to the extent any applicable compulsory law provides to the contrary, the Carrier shall have the benefit of every right, defense, and limitation in COGSA at all times during the performance of the Transport Services any such additional period of responsibility.
7.2 Neither the Carrier nor any vessel shall in any event be or become liable for any loss or damage to or in connection with the transportation of Goods in an amount exceeding $500.00 per package or customary freight unit, lawful money of the United States; provided however, that higher liability may be claimed only when, with the consent of the Carrier, the Customer declares the value of the Goods to VIT and Carrier, and pays Carrier extra Freight in the amount of one percent (1%) of the declared value or such higher amount as Carrier’s insurance company may reasonable require. In that case, the amount of the declared value shall be substituted for the limits in these Terms.
7.3 Nothing in these Terms shall operate to limit or deprive the Carrier of any statutory protection, defense, exception or limitation of liability authorized by any applicable laws, statutes or regulations of any country. The Carrier shall have the benefit of the said laws, statutes or regulations, including without limitation COGSA.
7.4 Without prejudice to any applicable limitation of liability in accordance with the provision set forth in Section 7 hereof, the basis of compensation shall be limited to the fair market value of the Goods so damaged or lost (excluding insurance) and the freight on a pro rata basis, if paid. Neither Carrier nor Customer shall be liable for direct or indirect or consequential loss or damage arising from any other cause whatsoever or for loss of profits.
7.5 If transportation of the Goods are covered by a bill of lading issued by Customer, then Customer represents and warrants that its bill of lading will contain proper terms which makes paramount and applicable to Carrier and VIT and all other servants, agents, or persons performing the contract of carriage, all rights, protections, defenses, limitations of actions, and limitations of liability available to the CARRIER under COGSA, including, but not limited to, the Five Hundred US Dollars ($500) package limitation, as the same may be changed from time to time, and that the bills of lading shall contain a proper "Custody Clause" (Period of Responsibility Clause) that protects both the Carrier and VIT by applying COGSA from the time the goods are received until delivered to the consignee.
7.6 Customer acknowledges and agrees that with respect to the Transport Services, VIT is acting solely in an agency capacity and shall have no liability whatsoever for the Transport Services, or the acts or omissions of Carrier. If the Customer requests VIT to procure carriage by an over-the-road carrier and the Carrier in its discretion agrees to do so, such Transport Services shall be procured by VIT as agent only to the Customer, and VIT shall have no liability for such carriage or the acts or omissions of such carrier. Notwithstanding the foregoing, VIT shall be responsible for arranging for the loading and discharging the Goods to/from the vessel at VIG, NIT, or PMT, as the case may be, subject to the terms and limitations of liability in VIT’s SOR.
7.7 Unless written notice of loss or damage and the general nature of such loss or damage be given in writing to the Carrier or its agents at the port of discharge before or at the time of removal of the Goods from the port of discharge, or if the loss or damage is not apparent within five (5) days after arriving at the final place of delivery, such removal shall be prima facie evidence of the delivery by the Carrier of the Goods in good condition. In any event, the Carrier shall be discharged from all liability whatsoever in respect of the Goods unless suit is brought within one (1) year after their delivery at the port of discharge or the date when they should have been delivered.
7.8 Carrier undertakes to keep in effect (including complying with all conditions of) insurance with reputable insurers as listed on Appendix I hereto.
7.9 General average to be adjusted at the Carrier’s option and to be settled according to the York Antwerp Rules 2004, this covering all Goods carried on or under deck. Security including a cash deposit as the Carrier may deem sufficient to cover the estimated contribution of the Goods and any salvage and special charges thereon, shall, if required, be submitted to the Carrier prior to delivery of the Goods. The Carrier shall be under no obligation to exercise any lien for general average contribution due to the Customer. If a salving ship is owned or operated by the Carrier, salvage shall be paid for as fully as if the said salving ship belonged to strangers.
7.10 Carrier shall immediately notify Customer in writing of any loss of, damage to, theft of or delay to Goods, which occurs at any time during Carrier’s responsibility therefor, and shall fully and promptly assist Customer in the handling and settlement of any claim.
8. Perishable Cargo. Carrier does not provide any inspection, maintenance, refueling, or other services or environmental controls for the Goods/Containers. Accordingly, without limiting the foregoing, Carrier shall not be liable for any loss of or damage to the Goods arising from latent defects, derangement, breakdown, defrosting, stoppage of refrigeration, ventilation, or any other specialized machinery, plant, insulation and/or apparatus of a Container, nor shall Carrier be liable for any freezing, thawing, or overheating of any Goods.
9. Customer's Responsibility.
9.1 All of the persons and entities coming within the definition of “Customer”, shall be jointly and severally liable to the Carrier for the due fulfilment of all obligations undertaken by the Customer in these Terms.
9.2 Customer shall be liable for and shall indemnify the Carrier against all loss, damage, delay, fines, attorney fees and/or expenses arising from any breach of any of the warranties in these Terms and from any other cause whatsoever in connection with the Goods for which the Carrier is not responsible.
9.3 The Customer shall comply with all regulations or requirements of customs, port and other authorities, and shall bear and pay all duties, taxes, fines, imposts, expenses or losses (including, without prejudice to the generality of the foregoing Freight for any additional Transport Services undertaken) incurred or suffered by reason of any failure to so comply, or by reason of any illegal, incorrect or insufficient declaration, marking, numbering or addressing of the Goods, and shall indemnify the Carrier in respect thereof.
9.4 Once the Goods have been received by the Carrier for Transport Services, neither Customer nor anyone claiming by or through Customer, whether a creditor, government agency, or otherwise, shall impede, delay, suspend or stop or otherwise interfere with the Carrier’s intended manner of performance of the Transport Services nor to instruct or require delivery of the Goods at other port or place than the intended port of discharge for any reason whatsoever. Customer shall indemnify the Carrier against all claims, liabilities, losses, damages, costs, delays, attorney fees and/or expenses caused to the Carrier, its subcontractors, servants or agents or to any other cargo or to the owner of such cargo during the Transport Services arising or resulting from any such impediment, delay, suspension, stoppage or interference.
9.5 Customer warrants that the Goods are lawful goods, and contain no contraband, drugs or other illegal substances or stowaways, and that the Goods will not cause loss, damage or expense to the Carrier, or to any other cargo. No Goods which are or which may become of a dangerous, noxious, hazardous, flammable, or damaging nature (including radioactive material) or which are or may become liable to damage any persons or property whatsoever, and whether or not so listed in any official or unofficial, international or national code, convention, listing or table shall be tendered to the Carrier for Transport Services without previously giving written notice of their nature, character, name, label and classification (if applicable) to the Carrier and obtaining his consent in writing and without distinctly marking the Goods and the Container or other covering on the outside so as to indicate the nature and character of any such Goods and so as to comply with any applicable laws, regulations or requirements. Customer shall indemnify the Carrier against all claims, liabilities, loss, damage, delay, costs, fines and/or expenses arising in consequence of the Transport Services of such Goods whether or not Carrier is aware of their dangerous nature.
10. Methods and Routes of Transport Services. The Carrier may at any time and without notice to Customer (a) use any means of transport or storage whatsoever and transfer the Goods from one conveyance to another including transshipping or carrying the same on a vessel, truck, or by any other means of transport whatsoever and even though transshipment or forwarding of the Goods may not have been contemplated or provided for herein; and (b) comply with any orders or recommendations given by any government or authority or any person or body acting purporting to act as or on behalf of such government or authority or having under the terms of the insurance on any conveyance employed by the Carrier the right to give orders or directions. If the Carrier is obliged to discharge the Goods into the hands of any customs, port or other authority, such discharge shall constitute due delivery of the Goods to Customer under these Terms. Carrier does not undertake that the Goods shall arrive at the port of discharge or place of delivery at any particular time or to meet any particular market or use. If, notwithstanding the foregoing, the Carrier is held liable for any delay, it is hereby expressly agreed that the Carrier’s liability shall be limited to the Freight paid for the delayed Goods.
11. Force Majeure; Other Matters Affecting Performance.
11.1 No party shall be liable for any failure to perform under this Agreement where and to the extent performance is prevented or seriously delayed by any event of Force Majeure. "Force Majeure" shall always mean and include events outside the reasonable control of the Party affected, but shall not otherwise be limited to, Acts of God, act of public enemy, terrorism, war, insurrection, authority of law, fire or explosion, lock-out, strike or other labor dispute, derailment. The party affected by the Force Majeure shall notify the other party promptly of a Force Majeure impairing the party’s performance under these Terms and at the end of the Force Majeure event. The affected party is not required to perform any of its obligations which are prevented or seriously delayed by the event(s) of Force Majeure for as long as such event(s) continue and as long as the affected party, using all reasonable efforts, is unable to recommence its affected performance.
11.2 If at any time Transport Services is or is likely to be affected by any hindrance, risk, danger, delay, difficulty or disadvantage of whatsoever kind and howsoever arising which cannot be avoided by the exercise of reasonable endeavors, (even though the circumstances giving rise to such hindrance, risk, danger, delay, difficulty or disadvantage existed at the time this contract was entered into or the Goods were received for Transport Services) the Carrier may at his sole discretion and without notice to Customer, and whether or not the Transport Services is commenced, carry, or cause to be carried, the Goods to the contracted port of loading or the port of discharge by an alternative route or means.
12. Miscellaneous
12.1 Law and Jurisdiction. The substantive law of the Commonwealth of Virginia without consideration of its conflict of law rules, and, to the extent there is no Virginia law, the general maritime law of the United States, shall govern these Terms. The United States District Court for the Eastern District of Virginia, Norfolk Division, and the state courts of Virginia in Norfolk shall be the exclusive venue and have exclusive jurisdiction to hear all disputes in respect thereof.
12.2 No Partnership. Nothing in this Agreement shall be construed as creating a corporation, partnership or joint venture between the parties, and neither party shall so represent or hold out to any third party.
12.3 Entire Agreement. These terms contain the entire understanding between Customer and Carrier with respect to the Transport Services and supersedes and replaces any written or verbal prior agreement, representation, understanding, quotation or response to tender, or any standard terms or conditions of Carrier, including any terms or conditions printed on the documents of the Carrier. Any waiver of, or additions or modifications to, these Terms must be made in writing and signed by Customer and Carrier.
12.4 Severability. If any provision of this Agreement be held invalid or unenforceable, the remainder of this Agreement shall not be affected.
12.5 Public Announcement. Carrier shall not make any public announcement concerning these Terms or the Transport Services for Customer without the prior written consent of Customer.
Appendices
Appendix I - Insurance
APPENDIX I TO TERMS OF CARRIAGE
Insurance
Carrier will maintain at least the following minimum insurance coverages:
a) Workers' Compensation as required by law.
b) Protection and Indemnity insurance, including coverage for crew liability, third party bodily injury and property damage, including collision liability, cargo transit liability and pollution in amounts of at least $25,000,000 per occurrence.
c) Hull and Machinery insurance with limits no less than those customarily carried in the barging industry to cover the full appraised value of any barges used to provide the Transport Services.
d) Automobile Liability $1,000,000 per occurrence as respects transport of Carrier personnel, if any.
e) General Liability $5,000,000 per occurrence, including coverage for third party bodily injury and property damage
4840-8263-7100, v. 1