Appendix B to Part 1035 - Contract Terms and Conditions
49:8.1.1.1.23.0.1.3.2 : Appendix B
Appendix B to Part 1035 - Contract Terms and Conditions Contract
Terms and Conditions
Sec. 1. (a) The carrier or party in possession of any of the
property herein described shall be liable as at common law for any
loss thereof or damage thereto, except as hereinafter provided.
(b) No carrier or party in possession of all or any of the
property herein described shall be liable for any loss thereof or
damage thereto or delay caused by the act of God, the public enemy,
the authority of law, or the act or default of the shipper or
owner, or for natural shrinkage. The carrier's liability shall be
that of warehouseman, only, for loss, damage, or delay caused by
fire occurring after the expiration of the free time allowed by
tariffs lawfully on file (such free time to be computed as therein
provided) after notice of the arrival of the property at
destination or at the port of export (if intended for export) has
been duly sent or given, and after placement of the property for
delivery at destination, or tender of delivery of the property to
the party entitled to receive it, has been made. Except in case of
negligence of the carrier or party in possession (and the burden to
prove freedom from such negligence shall be on the carrier or party
in possession), the carrier or party in possession shall not be
liable for loss, damage, or delay occurring while the property is
stopped and held in transit upon the request of the shipper, owner,
or party entitled to make such request, or resulting from a defect
or vice in the property, or for country damage to cotton, or from
riots or strikes.
(c) In case of quarantine the property may be discharged at risk
and expense of owners into quarantine depot or elsewhere, as
required by quarantine regulations or authorities, or for the
carrier's dispatch at nearest available point in carrier's
judgment, and in any such case carrier's responsibility shall cease
when property is so discharged, or property may be returned by
carrier at owner's expense to shipping point, earning freight both
ways. Quarantine expenses of whatever nature or kind upon or in
respect to property shall be borne by the owners of the property or
be a lien thereon. The carrier shall not be liable for loss or
damage occasioned by fumigation or disinfection or other acts
required or done by quarantine regulations or authorities even
though the same may have been done by carrier's officers, agents,
or employees, nor for detention, loss, or damage of any kind
occasioned by quarantine or the enforcement thereof. No carrier
shall be liable, except in case of negligence, for any mistake or
inaccuracy in any information furnished by the carrier, its agents,
or officers, as to quarantine laws or regulations. The shipper
shall hold the carriers harmless from any expense they may incur,
or damages they may be required to pay, by reason of the
introduction of the property covered by this contract into any
place against the quarantine laws or regulations in effect at such
place.
Sec. 2. (a) No carrier is bound to transport said property by
any particular train or vessel, or in time for any particular
market or otherwise than with reasonable dispatch. Every carrier
shall have the right in case of physical necessity to forward said
property by any carrier or route between the point of shipment and
the point of destination. In all cases not prohibited by law, where
a lower value than actual value has been represented in writing by
the shipper or has been agreed upon in writing as the released
value of the property as determined by the classification or
tariffs upon which the rate is based, such lower value plus freight
charges if paid shall be the maximum amount to be recovered,
whether or not such loss or damage occurs from negligence.
(b) As a condition precedent to recovery, claims must be filed
in writing with the receiving or delivering carrier, or carrier
issuing this bill of lading, or carrier on whose line the loss,
damage, injury or delay occurred, within nine months after delivery
of the property (or, in case of export traffic, within nine months
after delivery at port of export) or, in case of failure to make
delivery, then within nine months after a reasonable time for
delivery has elapsed; and suits shall be instituted against any
carrier only within two years and one day from the day when notice
in writing is given by the carrier to the claimant that the carrier
has disallowed the claim or any part or parts thereof specified in
the notice. Where claims are not filed or suits are not instituted
thereon in accordance with the foregoing provisions, no carrier
hereunder shall be liable, and such claims will not be paid.
(c) Any carrier or party liable on account of loss of or damage
to any of said property shall have the full benefit of any
insurance that may have been effected upon or on account of said
property, so far as this shall not avoid the policies or contracts
of insurance: Provided, That the carrier reimburse the claimant for
the premium paid thereon.
Sec. 3. Except where such service is required as the result of
carrier's negligence, all property shall be subject to necessary
cooperage and baling at owner's cost. Each carrier over whose route
cotton or cotton linters is to be transported hereunder shall have
the privilege, at its own cost and risk, of compressing the same
for greater convenience in handling or forwarding, and shall not be
held responsible for deviation or unavoidable delays in procuring
such compression. Grain in bulk consigned to a point where there is
a railroad, public or licensed elevator, may (unless otherwise
expressly noted herein, and then if it is not promptly unloaded) be
there delivered and placed with other grain of the same kind and
grade without respect to ownership (and prompt notice thereof shall
be given to the consignor), and if so delivered shall be subject to
a lien for elevator charges in addition to all other charges
hereunder.
Sec. 4. (a) Property not removed by the party entitled to
receive it within the free time allowed by tariffs, lawfully on
file (such free time to be computed as therein provided), after
notice of the arrival of the property at destination or at the port
of export (if intended for export) has been duly sent or given, and
after placement of the property for delivery at destination has
been made, may be kept in vessel, car, depot, warehouse or place of
delivery of the carrier, subject to the tariff charge for storage
and to carrier's responsibility as warehouseman, only, or at the
option of the carrier, may be removed to and stored in a public or
licensed warehouse at the place of delivery or other available
place, at the cost of the owner, and there held without liability
on the part of the carrier, and subject to a lien for all freight
and other lawful charges, including a reasonable charge for
storage.
(b) Where nonperishable property which has been transported to
destination hereunder is refused by consignee or the party entitled
to receive it, or said consignee or party entitled to receive it
fails to receive it within 15 days after notice of arrival shall
have been duly sent or given, the carrier may sell the same at
public auction to the highest bidder, at such place as may be
designated by the carrier: Provided, That the carrier shall have
first mailed, sent, or given to the consignor notice that the
property has been refused or remains unclaimed, as the case may be,
and that it will be subject to sale under the terms of the bill of
lading if disposition be not arranged for, and shall have published
notice containing a description of the property, the name of the
party to whom consigned, or, if shipped order notify, the name of
the party to be notified, and the time and place of sale, once a
week for two successive weeks, in a newspaper of general
circulation at the place of sale or nearest place where such
newspaper is published: Provided, That 30 days shall have elapsed
before publication of notice of sale after said notice that the
property was refused or remains unclaimed was mailed, sent, or
given.
(c) Where perishable property which has been transported
hereunder to destination is refused by consignee or party entitled
to receive it, or said consignee or party entitled to receive it
shall fail to receive it promptly, the carrier, may, in its
discretion, to prevent deterioration or further deterioration, sell
the same to the best advantage at private or public sale: Provided,
That if time serves for notification to the consignor or owner of
the refusal of the property or the failure to receive it, and
request for disposition of the property, such notification shall be
given, in such manner as the exercise of due diligence requires,
before the property is sold.
(d) Where the procedure provided for in the two paragraphs last
preceding is not possible, it is agreed that nothing contained in
said paragraphs shall be construed to abridge the right of the
carrier at its option to sell the property under such circumstances
and in such manner as may be authorized by law.
(e) The proceeds of any sale made under this section shall be
applied by the carrier to the payment of freight, demurrage,
storage, and any other lawful charges and the expense of notice,
advertisement, sale, and other necessary expense and of caring for
and maintaining the property, if proper care of the same requires
special expense, and should there be a balance it shall be paid to
the owner of the property sold hereunder.
(f) Property destined to or taken from a station, wharf, or
landing at which there is no regularly appointed freight agent
shall be entirely at risk of owner after unloaded from cars or
vessels or until loaded into cars or vessels, and except in case of
carrier's negligence, when received from or delivered to such
stations, wharves, or landings shall be at owner's risk until the
cars are attached to and after they are detached from locomotive or
train or until loaded into and after unloaded from vessels.
Sec. 5. No carrier hereunder will carry or be liable in any way
for any documents, specie, or for any articles of extraordinary
value not specifically rated in the published classifications or
tariffs unless a special agreement to do so and a stipulated value
of the articles are indorsed hereon.
Sec. 6. Every party, whether principal or agent, shipping
explosives or dangerous goods, without previous full written
disclosure to the carrier of their nature, shall be liable for and
indemnify the carrier against all loss or damage caused by such
goods, and such goods may be warehoused at owner's risk and expense
or destroyed without compensation.
Sec. 7. The owner or consignee shall pay the freight and
average, if any, and all other lawful charges accruing on said
property; but, except in those instances where it may lawfully be
authorized to do so, no carrier by railroad shall deliver or
relinquish possession at destination of the property covered by
this bill of lading until all tariff rates and charges thereon have
been paid. The consignor shall be liable for the freight and all
other lawful charges, except that if the consignor stipulates, by
signature, in the space provided for that purpose on the face of
this bill of lading that the carrier shall not make delivery
without requiring payment of such charges and the carrier, contrary
to such stipulation, shall make delivery without requiring such
payment, the consignor (except as hereinafter provided) shall not
be liable for such charges. Provided, that, where the carrier has
been instructed by the shipper or consignor to deliver said
property to a consignee other than the shipper or consignor, such
consignee shall not be legally liable for transportation charges in
respect of the transportation of said property (beyond those billed
against him at the time of delivery for which he is otherwise
liable) which may be found to be due after the property has been
delivered to him, if the consignee (a) is an agent only and has no
beneficial title in said property, and (b) prior to delivery of
said property has notified the delivering carrier in writing of the
fact of such agency and absence of beneficial title, and, in the
case of a shipment reconsigned or diverted to a point other than
that specified in the original bill of lading, has also notified
the delivering carrier in writing of the name and address of the
beneficial owner of said property; and, in such cases the shipper
or consignor, or, in the case of a shipment so reconsigned or
diverted, the beneficial owner, shall be liable for such additional
charges. If the consignee has given to the carrier erroneous
information as to who the beneficial owner is, such consignee shall
himself be liable for such additional charges. On shipments
reconsigned or diverted by an agent who has furnished the carrier
in the reconsignment or diversion order with a notice of agency and
the proper name and address of the beneficial owner, and where such
shipments are refused or abandoned at ultimate destination, the
said beneficial owner shall be liable for all legally applicable
charges in connection therewith. If the reconsignor or diverter has
given to the carrier erroneous information as to who the beneficial
owner is, such reconsignor or diverter shall himself be liable for
all such charges.
If a shipper or consignor of a shipment of property (other than
a prepaid shipment) is also the consignee named in the bill of
lading and, prior to the time of delivery, notifies, in writing, a
delivering carrier by railroad (a) to deliver such property at
destination to another party, (b) that such party is the beneficial
owner of such property, and (c) that delivery is to be made to such
party only upon payment of all transportation charges in respect of
the transportation of such property, and delivery is made by the
carrier to such party without such payment, such shipper or
consignor shall not be liable (as shipper, consignor, consignee, or
otherwise) for such transportation charges but the party to whom
delivery is so made shall in any event be liable for transportation
charges billed against the property at the time of such delivery,
and also for any additional charges which may be found to be due
after delivery of the property, except that if such party prior to
such delivery has notified in writing the delivering carrier that
he is not the beneficial owner of the property, and has given in
writing to such delivering carrier the name and address of such
beneficial owner, such party shall not be liable for any additional
charges which may be found to be due after delivery of the
property; but if the party to whom delivery is made has given to
the carrier erroneous information as to the beneficial owner, such
party shall nevertheless be liable for such additional charges. If
the shipper or consignor has given to the delivering carrier
erroneous information as to who the beneficial owner is, such
shipper or consignor shall himself be liable for such
transportation charges, notwithstanding the foregoing provisions of
this paragraph and irrespective of any provisions to the contrary
in the bill of lading or in the contract of transportation under
which the shipment was made. The term “delivering carrier” means
the line-haul carrier making ultimate delivery.
Nothing herein shall limit the right of the carrier to require
at time of shipment the prepayment or guarantee of the charges. If
upon inspection it is ascertained that the articles shipped are not
those described in this bill of lading, the freight charges must be
paid upon the articles actually shipped.
Where delivery is made by a common carrier by water the
foregoing provisions of this section shall apply, except as may be
inconsistent with part III of the Interstate Commerce Act.
Sec. 8. If this bill of lading is issued on the order of the
shipper, or his agent, in exchange or in substitution for another
bill of lading, the shipper's signature to the prior bill of lading
as to the statement of value or otherwise, or election of common
law or bill of lading liability, in or in connection with such
prior bill of lading, shall be considered a part of this bill of
lading as fully as if the same were written or made in or in
connection with this bill of lading.
Sec. 9. (a) If all or any part of said property is carried by
water over any part of said route, and loss, damage or injury to
said property occurs while the same is in the custody of a carrier
by water the liability of such carrier shall be determined by the
bill of lading of the carrier by water (this bill of lading being
such bill of lading if the property is transported by such water
carrier thereunder) and by and under the laws and regulations
applicable to transportation by water. Such water carriage shall be
performed subject to all the terms and provisions of, and all the
exemptions from liability contained in the Act of Congress of the
United States, approved on February 13, 1893, and entitled “An act
relating to the navigation of vessels, etc.” and of other statutes
of the United States according carriers by water the protection of
limited liability as well as the following subdivisions of this
section: and to the conditions contained in this bill of lading not
inconsistent with this section, when this bill of lading becomes
the bill of lading of the carrier by water.
(b) No such carrier by water shall be liable for any loss or
damage resulting from any fire happening to or on board the vessel,
or from explosion, bursting of boilers or breakage of shafts,
unless caused by the design or neglect of such carrier.
(c) If the owner shall have exercised due diligence in making
the vessel in all respects seaworthy and properly manned, equipped
and supplied, no such carrier shall be liable for any loss or
damage resulting from the perils of the lakes, seas, or other
waters, or from latent defects in hull, machinery, or appurtenances
whether existing prior to, at the time of, or after sailing, or
from collision, stranding, or other accidents of navigation, or
from prolongation of the voyage. And, when for any reason it is
necessary, any vessel carrying any or all of the property herein
described shall be at liberty to call at any port or ports, in or
out of the customary route, to tow and be towed, to transfer,
trans-ship, or lighter, to load and discharge goods at any time, to
assist vessels in distress, to deviate for the purpose of saving
life or property, and for docking and repairs. Except in case of
negligence such carrier shall not be responsible for any loss or
damage to property if it be necessary or is usual to carry the same
upon deck.
(d) General Average shall be payable according to the
York-Antwerp Rules of 1924, sections 1 to 15, inclusive, and
sections 17 to 22, inclusive, and as to matters not covered thereby
according to the laws and usages of the Port of New York. If the
owners shall have exercised due diligence to make the vessel in all
respects seaworthy and properly manned, equipped and supplied, it
is hereby agreed that in case of danger, damage or disaster
resulting from faults or errors in navigation, or in the management
of the vessel, or from any latent or other defects in the vessel,
her machinery or appurtenance, or from unseaworthiness, whether
existing at the time of shipment or at the beginning of the voyage
(provided the latent or other defects or the unseaworthiness was
not discoverable by the exercise of due diligence), the shippers,
consignees and/or owners of the cargo shall nevertheless pay
salvage and any special charges incurred in respect of the cargo,
and shall contribute with the shipowner in general average to the
payment of any sacrifices, losses or expenses of a general average
nature that may be made or incurred for the common benefit or to
relieve the adventure from any common peril.
(e) If the property is being carried under a tariff which
provides that any carrier or carriers party thereto shall be liable
for loss from perils of the sea, then as to such carrier or
carriers the provisions of this section shall be modified in
accordance with the tariff provisions, which shall be regarded as
incorporated into the conditions of this bill of lading.
(f) The term “water carriage” in this section shall not be
construed as including lighterage in or across rivers, harbors, or
lakes, when performed by or on behalf of rail carriers.
Sec. 10. Any alteration, addition, or erasure in this bill of
lading which shall be made without the special notation hereon of
the agent of the carrier issuing this bill of lading, shall be
without effect, and this bill of lading shall be enforceable
according to its original tenor.
[58 FR 60797, Nov. 18, 1993, as amended at 81 FR 8852, Feb. 23,
2016]