The term „Carrier“ designates the company “SAT Albatros Sea-Air Transport FZE, Dubai”.
The customer is deemed to be the party to the respective contract with the Carrier, the owner of the goods to be transported, any shipper involved, and the recipient.
2. Range of application/ Applicable law
The following applies to all activities of the Carrier, be it as carrier, freight forwarder, warehouse keeper or when dealing with logistics:
2.1 The Conditions of Contract are applicable to all legal relations with the Carrier, particularly to all contracts with the Carrier and to all claims of the Carrier, or against the latter. As far as precedent legal regulations or agreements are to be applied these are given priority, provided they preclude the Conditions of Contract. If the conditions of the contract do not include any provision or if a provision in the conditions of contract is invalid, in so far the corresponding provisions of the German General terms of Forwarding (ADSp) shall be applicable. If the ADSp do not include any provision neither or if the respective provision is invalid, the provisions of the German law on freight, forwarding , storage, and service contracts shall be applicable, unless unalterable statutory provisions of agreements are applicable containing different provisions.
2.2 The legal relations to the Carrier, particularly with regard to all the contracts with the Carrier and all the claims of the Carrier or against the Carrier, are exclusively governed by German law.
3. Offers and Payment
3.1 The Carrier’s offers and agreements made with regard to prices and services always and only refer to own services, or services of third parties as drawn up in detail and only apply to freight of standard volumes, standard weights and standard properties; the premise is standard, unchanged conditions of transport, unimpeded transport routes, the possibility of direct and immediate reshipment and continued applicability of previous freights, value dates and tariffs on which the agreements were based, provided the amendments and changes could have been foreseen taking the circumstances into account. A remark such as for instance “plus the standard incidentals” entitles the Carrier to additionally invoice surcharges and special expenses.
3.2 All the Carriers offers are only applicable for prompt execution of the order concerned when accepted immediately, provided not otherwise determined in the order and only if reference is made to the offer when awarding the order.
3.3 If an order is cancelled or withdrawn, the Carrier is entitled to the claims as drawn up under §§ 415, 417 HGB (German Commercial Code).
3.4 Should the recipient reject acceptance of a consignment or should delivery not be possible for reasons beyond the control of the Carrier, the Carrier is entitled to receive compensation for the return carriage amounting to the same sum as calculated for roll out. The Carrier is also entitled to demurrage should the recipient not accept the consignment or should the transportation/delivery of the goods be delayed for reasons not accounted for by the Carrier. Demurrage amounts to at least € 30,- per hour or fraction thereof.
4. Invoices, foreign Currencies
4.1 Invoices of the Carrier are settled upon receipt.
4.2 The Carrier is entitled, at his own discretion, to demand settlement in national currencies or Euro currency from foreign customers or recipients.
4.3 Should the Carrier have foreign currency liabilities, or should the Carrier disburse foreign currency, the Carrier is entitled
to demand payment either in foreign currency or in Euro currency. Should the Carrier demand Euro currency, official conversion rates as on the day of payment apply, provided proof can be supplied that another exchange rate is due or has been paid.
5. Obligations of the Customer:
5.1 The Customer will inform the Carrier in time about all essential circumstances that influence the execution of the contract before taking carriage in hand. These include, apart from type and character, weight, quantity of goods to be carried, number and contents of the packages, properties of the consignment, also all the other cognisable essential conditions for the proper execution of the contract, dates to be complied with and particular technical demands made on means of carriage and fixtures that may possibly be required. The Customer will particularly declare the value of the goods to be carried. This particularly applies should the value of the consignment be of importance for the means of transport/fixtures placed at disposal, or for the coverage of risks in the scope of an insurance cover for the consignment, or if the value of the consignment indemnity ceilings specified in detail under Point 8 of the Conditions of Contract are exceeded, and to which extent they are laid down in legal regulations (e.g. CMR, Warsaw Convention).
5.2 Notwithstanding which party ( shipper, supplier or any other party ) has declared the weight, measurement, quantity etc.
of the shipment to the carrier or one of its subcontractors, agents etc. the shipper will be fully responsible and liable for
any damage, costs and disadvantage the carrier might suffer due to any discrepancy to the real weight, measurement,
quantity etc. of the shipment.
5.3 Where dangerous goods are concerned, the Customer will inform the Carrier in writing or by printout about the precise type of danger involved and will take the possibly required precautionary measures, particularly of identifying the consignment correspondingly. Where precautionary measures can be taken by the Carrier alone, the Carrier will be informed in writing of such precautionary measures as are to be taken.
5.4 The Carrier is not committed to check or supplement the information given according to above clauses. Neither is the Carrier committed to check the authenticity of the signatures affixed to information or other documents or the authorization of the signatory, unless the Carrier has justified doubts regarding such authenticity or the authorization.
5.5 If the goods concerned are regularly excluded from insurance coverage (e.g. mobile phones, technical appliances, particularly in the range of computers/telecommunications/media, pieces of art, antiquities and articles of value), the Customer will draw up such information in writing or printout upon awarding the contract.
6. Handover of the Consignment
6.1 The Customer will hand the consignment over to the Carrier or to the latter’s agent in a condition fit for carriage and where its properties, taking the agreed upon mode of carriage into account, call for packaging, will pack it in such a manner that it is protected against loss and damage, that no danger emanates from such consignment for the carrier, other goods or people and that no danger arises for the Carrier to a third party handling the carriage or warehousing. The Customer will, furthermore, if the contractual handling provisions stipulate correspondingly, identify the consignment. The necessary and duly filled in accompanying documents will also be handed over by the Customer.
6.2 The outside condition of the consignment and its identification signs and numbering is only checked in as far as the latter is possible and reasonable.
6.3 The number of units, quantity or weight of the consignment will only be checked if the latter is reasonable, possible and agreed upon. The Customer will compensate expenses accrued for the check if the latter is not of minor complexity.
7. Loading and Unloading
7.1 Unless the Carrier has expressly agreed otherwise, the Customer will package the consignment for safe carriage and load/store it in compliance with the relevant legal provisions and state-of-the-art technology, the recipient will unload it correspondingly. Liability for actions or failures of persons acting for the sender or the recipient will be borne by the latter. Where the Carrier takes charge of safe loading for carriage pursuant to an explicit and written agreement, the Carrier will undertake the latter for adequate indemnification. Unloading by the Carrier, that has also been explicitly agreed on, will also be indemnified.
7.2 Where loading is effected by the Carrier, the consignment is to be delivered in time by the Customer and according to the provisions of the Carrier or the latter’s agent.
7.3 The unloading period begins as soon as the recipient receives the transfer of title for the consignment.
Where the Carrier is liable for damages and provided no precedent or binding Conditions of Contract, regulations or compulsory agreements are to be applied, particularly where they do not provide for further, higher or lower compensation, the liability of the Carrier is ruled universally and thus for combined transport, also for known place of damage and also for damage that arises during storage in transport as follows in Points 8.1.1. to 8.6:
8.1.1 Where exclusion of liabilities is contained in legal provisions or agreements, it also applies to the Carrier. The Carrier particularly does not bear liability for the cases drawn up in §§ 426, 427 HGB (German Commercial Code).
Where the Carrier acts as freight carrier or in his own name, the Carrier is liable for damages that have occurred by loss or damage of the consignment in the time as from acceptance of such consignment up to the delivery of the latter. If the Carrier can be claimed against as executing freight carrier in the sense of § 437 HGB (German Commercial Code) the Carrier’s liability is also limited or restricted pursuant to these Conditions of Contract. If the Carrier is liable pursuant to § 437 HGB (German Commercial Code), further liability going beyond § 437 HGB is excluded for no matter what legal reason.
Where the Carrier acts as forwarder, the Carrier is liable for damages that have occurred due to loss or damage of the consignment in the period in which the consignment is entrusted to the Carrier. Where the Carrier only concludes the contracts required to render the contractual performance, the Carrier is only liable for the careful selection of the third parties appointed as agents.
8.1.2 In cases in which the Carrier is liable for loss or damage of the consignment, the Carrier is solely committed to compensate the value and to refund the costs pursuant to §§ 429, 430, 432 HGB (German Commercial Code). Liability for consequential damage to goods, particularly financial loss, is excluded.
8.1.3 Where §§ 425 et seq. and 461, Para. 1 HGB (German Commercial Code) do not apply, the Carrier is only liable for damages arising from:
– insufficient packaging or identification of the consignment by the Customer or third parties,
– agreed upon or corresponding outdoor storage,
– theft and pilferage or robbery (§§ 243, 244, 249 German penal code),
– force majeure, atmospheric exposure, damaged devices or pipes, influence of other goods, damage by animals, natural variance of the consignment,
insofar as can be proven that the Carrier is culpably responsible for the damage. If a damage could be caused by one of the above circumstances, it is assumed that the circumstance was the cause. If the Carrier as forwarder has claims against a third party and for whom the Carrier is not liable, the Carrier will assign these claims to the Customer.
8.1.4 Where the Carrier is liable and no permissible alternative explicit agreement has been concluded, the maximum ceiling for damages applies to loss or damage, even when implementing §§ 431 I, II HGB (German Commercial Code) or fig. 23 ADSp. (German General Terms of Forwarding) 19 SDRs (Special drawing rights) for each kilogram gross weight
8.1.5 If only individual items or parts of a consignment are lost or damaged, the liability ceiling is calculated along the lines of gross weight:
– of the entire consignment, if the entire consignment is devaluated,
– of the devaluated portion of the consignment when only part of the consignment is devaluated.
8.1.6 The liability for damages due to delay is limited in each case to the triple sum of the agreed upon charge of the Carrier.
Pursuant to §§ 433 HGB (German Commercial Code), Fig. 23.3 ADSp. (German General Terms of Forwarding) the liability of the Carrier for damage other than damages to goods – with the exception of bodily injury or damages to goods of third parties – is limited to the triple sum that would be due upon loss of the consignment, at most to a sum of € 100.000,- per claim. §§ 431 Para. 3, 433 HGB (German Commercial Code) will remain unaffected.
8.1.7 Whatever the case may be, the liability of the Carrier is limited to € 1 million, or 19 SDRs for every kilogram per claim, depending on which sum is higher. Furthermore, the liability of the Carrier for one damaging event is limited to € 2 million per claim or 19 SDRs per kilogram of the lost or damaged goods, depending on which sum is higher, no matter how many claims are lodged for one damaging event. In the case of several injured parties, the Carrier is proportionally liable, relative to the respective claims.
8.2.1 The liability of the Carrier for loss or damage of the consignment (goods damages) is limited, in the case of one allotted storage
– to 19 SDRS for every kilogram gross weight of the consignment,
– to a ceiling of € 25.000,- per damage event; if the damage of a Customer is the difference between stock on record and actual stock on hand, liability is also limited to € 25.000,- no matter the amount of original damage events causing the difference in inventory. In both cases, the regulation by which damages amounting to 19 SDR’s are to be compensated for every kilogram gross weight remains unaffected.
If only individual items or parts of the consignment are lost or damaged, the liability ceiling is calculated according to the gross weight
– of the complete consignment, if the complete consignment is devaluated
– of the devaluated portion of the consignment if only part of the consignment is devaluated
In the cases in which the Carrier is liable for loss or damage of the consignment, the Carrier is solely committed to compensate the value and to refund the costs pursuant to §§ 429, 430, 432 HGB (German Commercial Code). Liability for consequential damage to goods, particularly financial loss is excluded.
8.2.2 Pursuant to §§ 433 HGB (German Commercial Code), Fig. 23.3 ADSp. (German General Terms of Forwarding) the liability of the Carrier for damage other than damage to goods – with the exception of bodily injury or damage to goods of third parties – is limited, even for warehousing, to € 25.000,- per claim.
8.2.3 The liability of the Carrier is limited, no matter how many claims are lodged for one damaging event, to € 2 million per damaging event where warehousing is provided; in the case of several injured parties, the Carrier is proportionally liable, relative to the respective claims.
8.3.1 The Customer will, in an event of damage, prove that a consignment totalling a certain quantity and composition and without outwardly recognisable damage was handed over to the Carrier. The Carrier will prove that he delivered the consignment in the condition in which the Carrier had received the said consignment.
The party claiming damages will provide proof that such damage to the goods was incurred during transportation.
8.3.2 Insofar as the liability of the Carrier is ascertained pursuant to the Montreal Convention (MC), the liability for destruction, loss, damage or delay is also limited to a sum of 19 SDRS per kilogram, if the damage was caused wilfully, grossly negligently or frivolously by the Carrier, his representatives, employees or other third parties for whom the Carrier is liable. Where the Montreal Convention is inapplicable, the following applies:
The Carrier may not invoke the exemption of liability contained in these Conditions of Contract / or their limitation if the damage was caused wilfully or by gross negligence of the Carrier or by Carrier’s senior employees or by a violation of essential contractual obligations. In the latter case the liability to pay damages is nevertheless limited to the foreseeable and typical damages.
The liability exemptions contained in the above provisions, or the limitations do not apply either if the damage as per §§ 425 et seq., 461, Para. 1 HGB (German Commercial Code) was caused wilfully or frivolously, well knowing that a damage would highly probably be incurred by the Carrier or the persons named in §§ 428, 462 HGB (German Commercial Code).
8.4 The aforesaid exemptions from liability and limitations apply pursuant to §§ 434, 436 HGB (German Commercial Code) – even to non-contractual claims.
8.5 §§ 438 HGB (German Commercial Code), Clause 26 Warsaw Convention, Clause 31 Montreal Convention, Clause 30 CMR are applied to give notification of a claim.
8.6 Liability for damage arising from war or events similar to war, civil war, uprising and other civil unrest, political or terrorist acts of violence, industrial unrest, strike, lock-out (including where industrial unrest, strike and lock-out occur at third parties) and atomic energy is excluded. The same applies for measures of sovereign powers insofar as they do not result from culpable actions of the Carrier, and for the cases of severe weather conditions and natural catastrophes. However, any liability for transferred fault and failure of duty of care remains unaffected.
9.1 The Carrier handles the insurance of the consignment pursuant to §§ 454, Paras. 2 and 472, Para.1 HGB (German Commercial Code) or fig. 21 ADSp. (German General Terms of Forwarding) with an insurer of Carrier’s own choice based on a written agreement or printout. In such a case the Carrier will decide on type and complexity of the insurance according to best judgement and conclude said insurance at conditions customary on the market – provided the Customer does not provide the Carrier in writing or by means of a printout with information on the type and complexity – giving the sum insured and the dangers to be covered.
9.2 Should the Carrier not be able to provide the coverage demanded pursuant to fig. 7.1 the Carrier will inform the Customer without any further delay whatsoever.
10. COD / Customs Clearance
10.1 Cash on delivery agreements are separate services to be agreed upon in writing and to be entered in the CTD. The COD agreement or the information of the Customer that the order is carriage forward, or the order is for the account of the recipient, or for a third party does not effect the obligation of the Customer towards the Carrier to bear payments and other expenses. Furthermore, the information about clearing the goods carriage forward, or about the order being for the account of the recipient or of a third party does not contain any COD instructions.
10.2 If cash on delivery cannot be collected from the recipient, the Carrier obtains written instructions from the party entitled to dispose. The consignment is not delivered to the recipient before such written instruction is received. The Carrier is entitled to compensation for the idle time until the instructions are received. Furthermore, § 419 Para. 3 HGB (German Commercial Code) is applied.
10.3 The Carrier is not committed to handle customs clearance for the consignment without an explicit written agreement.
Performance impediments that cannot be assigned to the range of Carrier’s risks, release the Carrier for the duration of said impediments from the obligations, the fulfilment of which has become impossible.
12.1 The Carrier is entitled to compensation for expenses that the Carrier considered as being necessary under certain circumstances.
12.2 The Customer will release the Carrier immediately from possible freight liabilities, contributions to general averages or dues, customs duties, taxes and other charges that may be invoiced to the Carrier, particularly as authorized agent or as owner of foreign goods if the Carrier is not responsible for such liabilities. The Carrier is entitled, at own discretionary authority, to take suitable measures for Carrier’s security or release. Should immediate action not be necessary, the Carrier will solicit instructions.
12.3 The Customer is committed to inform the Carrier in time and in a customary business manner about all and any liabilities under public law, e.g. existing obligations towards legal customs or third parties, or copyright obligations, provided it cannot be assumed that the Customer was aware of these obligations based on the Carrier’s offer.
13. Lien and Right of Retention
13.1 The Carrier has a right of retention and a lien on all the goods and other assets within his powers of disposition against the Customer for all receivables due and not yet due for all Carrier´s activities.
The right of retention and lien do not go beyond the legal right of retention and lien. The lien persists even after delivery if the Carrier claims this judicially within three days after the delivery and the asset is still in the possession of the recipient.
13.2 The Carrier is only entitled to exert a lien or retention right for receivables according to these provisions for other contracts concluded with the Customer in as far as such liabilities are undisputed and / or if the financial standing of the debtor jeopardises the receivables of the Carrier.
13.3 A deadline of two weeks replaces the deadline of one month laid down in § 1234 BGB (German Civil Code) in such cases.
13.4 If the Customer is in default, the Carrier, upon threatening with the sale of the goods and values at his disposal, may in single action sell such a quantity as, at his own dutiful discretion, is required to satisfy the outstanding account.
13.5 The Carrier may, whatever the circumstances may be, calculate a sales commission on the net sales profits for the lien or own sale.
14. Pallet, Loading and Packing Devices
The obligation of the Carrier arising from a contract under these Conditions does not include the provision of loading and packing equipment, and particularly not the provision of pallets. Likewise, the Carrier is not obliged to return pallets or other loading and packing equipment to the originator/Customer or recipient, nor to convey them to one of these. In particular the Carrier is not obliged to carry out an exchange of pallets, loading or packing equipment.
15. Default, Balancing Accounts
15.1 Default applies latest 10 days after the invoice or an equivalent demand for payment has been received, if default has not already been registered by law, without requiring prior urging or other conditions.
15.2 Offsetting and claims of retention against entitlements of the Carrier on any legal basis whatsoever is only permissible for counterclaims that are already due and to which no objection has been made.
16. Place of Performance / Court of Jurisdiction
16.1 Place of Performance is the location of the headquarters.
16.2 The court of jurisdiction in any dispute against the Carrier or in favour of the Carrier, on any legal basis whatsoever, is the court of competent jurisdiction for the registered seat of the Carrier, provided the Carrier and/or the respective opposing party are merchants/commercial traders. The registered seat of SAT Albatros Sea-Air Transport FZE, Dubai is Dubai.
17. Severability Clause
Should any provision of the Conditions of Contract or of the contract itself be or become wholly or partly ineffective or unenforceable, the effectiveness of the contract and of the relevant provision of these Conditions of Contract remains otherwise unaffected. The ineffective or unenforceable provision or the ineffective or unenforceable part of the provision becomes replaced by such as comes as close as possible to that which was legally and commercially intended. In cases of doubt, the court decides at its reasonable discretion. This severability clause does not represent merely regulation of the burden of proof.