Our Terms & Conditions

TT Club

Standard Trading Conditions for Australia

The TT Club’s Standard Trading Conditions has been amended to take into account the legislative amendments to the Heavy Vehicle National Law that came into force in October 2018 and to improve Clause 14 in relation to Limits of Liability.

The amendments to the Heavy Vehicle National Law Chain of Responsibility provisions introduces a general primary duty on all parties in the supply chain
involved in road transport to ensure safe practices and heavy vehicle safety. This includes freight forwarders who have an obligation to take all steps, as far as is reasonably practicable, to ensure the safety of their road transport activities.

The primary duty has also been extended to executive officers, who have to undertake due diligence to ensure the legal entity complies with the duty.

Breaches of a primary duty will now attract significantly higher penalties of up to $300,000 and/or 5 years’ imprisonment for an individual and $3 million for a corporation.

Below is a summary of the substantive changes to the Standard Trading Conditions for Freight Forwarders.

Obligations of the Customer

Four additional Customer obligations have been included to provide that Customers
are contractually bound to take steps to improve road safety and have Chain of
Responsibility compliance measures in effect. In particular, the Customer warrants
that it has provided to the freight forwarder accurate and compliant consignment
documentation, including any load or mass declarations.
Obtaining these warranties is one of the reasonable steps that a freight forwarder
should undertake to prevent a breach of the Heavy Vehicle National Law Chain of
Responsibility provisions.
Rights of the Freight Forwarder
The amendments to Clause 10 provide that the freight forwarder is complying with
its primary duty under the Heavy Vehicle National Law Chain of Responsibility
provisions. The freight forwarder has the option to refuse to comply with a
Customer’s instructions or directions if it has the effect of breaching the Heavy
Vehicle National Law or to cease further services.
The amendments also make it clear that the freight forwarder will not be liable to the
Customer for any loss or damage which results from the freight forwarder taking
steps or refrain from taking steps to comply with its obligations under the Heavy
Vehicle National Law.
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Standard Trading
Conditions
TTC405-MMXIX
1. Application
1.1 Subject to Clause 1.2, all Services of the Company whether gratuitous or not
are undertaken subject to these Conditions and not otherwise and:
(a) The provisions of Part I shall apply to all Services.
(b) The provisions of Part II shall only apply to the extent that the Services
are provided by the Company as agents.
(c) The provisions of Part III shall only apply to the extent that the Services
are provided by the Company as principals.
1.2 Where a document is issued by or on behalf of the Company and bears the
title of, or includes the words, “bill of lading” (whether or not negotiable), or
sea or air “waybill” and provides that the Company contracts as carrier, the
provisions set out in that document, if inconsistent with these Conditions,
shall be paramount and prevail over these Conditions to the extent that such
provisions are inconsistent but no further.
1.3 Any variation, cancellation or waiver of these Conditions (or any of them)
must be in writing signed by a Director of the Company. No other person has
or will be given any authority whatsoever to agree to any variation,
cancellation or waiver of these Conditions.
1.4 Any instructions received by the Company from the Customer for the supply
of Services shall constitute acknowledgement by the Customer that it has
received, understands and agrees to be bound by these Conditions and will
be bound by these Conditions. Such instructions received by the Company
from the Customer for the supply of Services and/or any supply of Goods
shall also constitute authorisation for the Company to act on behalf of the
Customer in accordance with these Conditions.
2. Provision of Services
2.1 All Services are provided by the Company as agents only, except in the
following circumstances where the Company acts as principal:
(a) where the Company performs any carriage, handling or storage of Goods,
but only to the extent that the carriage is performed by the Company
itself or its servants and the Goods are in the actual custody and control
of the Company; or
(b) where, prior to the commencement of the carriage of Goods, the
Customer in writing demands from the Company particulars of the
identity, services or charges of persons instructed by the Company to
perform part or all of the carriage, and the Company fails to give the
particulars demanded within 28 days. However, for the purposes of this
subclause, the Company shall only be deemed to be contracting as a
principal in respect of that part of the carriage which the Company fails to
give the particulars demanded; or
(c) to the extent that the Company expressly agrees in writing to act as a
principal, or
(d) to the extent that the Company is held by a court of law to have acted as
a principal.
2.2 Without prejudice to the generality of Clause 2.1;
(a) the charging by the Company of a fixed price for any Services
whatsoever shall not in itself determine or be evidence that the Company
is acting as an agent or a principal in respect of those Services;
(b) the supplying by the Company of its own or leased equipment shall not in
itself determine or be evidence that the Company is acting as agent or a
principal in respect of any carriage, handling or storage of Goods;
Part I: General
Conditions
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(c) the Company acts as an agent where the Company procures a bill of lading,
sea or air waybill or other document evidencing a contract of carriage
between a person, other than the Company, and the Customer or Owner;
(d) the Company acts as an agent and never as a principal when providing
Services as a customs broker in respect of or relating to customs
requirements, taxes, licenses, consular documents, certificates of origin,
inspection, certificates and other similar services or when providing any
other services whatsoever for or on behalf of the Customer.
2.3 The Company is not a common carrier and will accept no liability as such and
it reserves the right to accept or refuse the carriage of any Goods or any other
Service at its discretion. All Services are performed subject only to these
Conditions (and when applicable but subject to Clause 21.6, the conditions on
any bill of lading or sea waybill or air waybill issued by the Company as principal).
3. Definitions
In these Conditions:
(a) “Authority” means a duly constituted legal or administrative person, acting
within its legal powers and exercising jurisdiction within any nation, state,
municipality, port or airport;
(b) “Chain of Responsibility” has the meaning described in the Heavy Vehicle
National Law and recognises the duties of each participant in a supply
chain to ensure the safety of any road transport;
(c) “Company” is ;
(d) “Container” includes any container, flexitank, trailer, transportable tank,
flat, pallet or any article of transport used to carry or consolidate goods
and any equipment of or connected thereto;
(e) “Customer” means any person at whose request or on whose behalf the
Company provides a service;
(f) “Dangerous Goods” includes goods which are or may become of a
dangerous, inflammable, radio-active or damaging nature and goods likely
to harbour or encourage vermin or other pests;
(g) “Force Majeure Event” means any cause or causes beyond the control of
the party whose performance is directly affected by it, including but not
limited to war (declared or undeclared), rebellion, revolution, tumults,
political disturbance, accident to wharf, accidents at works or wharf, at
receivers’ works or wharf, breakdown or stoppage of slurry pipeline,
transfer vessels, motor vehicles or any part of the works from which the
Goods are supplied or to which the Goods are destined, including loading
and/or discharging facilities, installations and/or equipment at or en
route, partial or total stoppage of roads, rivers or channels, riot,
insurrection, civil commotion, epidemics, quarantine, strike, lockout,
blockade, industrial disturbance, labour/industrial disputes or stoppages
of miners, workmen, lightermen, tugboatmen or other hands essential to
the working, carriage, delivery, shipment or discharge of the said Goods
whether partial or general, interference of trade unions, act of God, fire,
floods, storm, tempest, volcanic eruption, earthquake, landslips, frost or
snow, bad weather, intervention of sanitary, customs, and/or other
constituted authorities, act of government (whether de-facto or de-jure)
and supervening illegality, or any other cause beyond the control of the
Company. Act of government shall include, but is not limited to, the
refusal to grant any necessary import or export licence;
(h) “Goods” includes the cargo and any container not supplied by or on behalf
of the Company, in respect of which the Company provides a service;
(i) “Hague-Visby-Rules” means the provisions of the International Convention
for the Unification of certain rules Relating to Bills of Lading signed at
Brussels on 25th August 1924 as amended by the Visby Protocol of
23rd February 1968 and the SDR Protocol of 21st December 1979;
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(j) “Heavy Vehicle National Law” means the Heavy Vehicle National Law Act
2012 (Qld) and all regulations made under that Act, as well as the
associated State and Territory road transport acts and regulations
adopting the Heavy Vehicle National Law Act 2012 (Qld) and includes
any subsequent replacement or modification or amendment to any of
these acts and regulations;
(k) “Incidental Matters” means anything done or to be done in relation to the
Goods or the provision of any Services ancillary to the Goods including
but not limited to moving, storing or leaving the Goods at any warehouse,
terminal, yard, wharf or other place or area, loading or unloading the
Goods from any vehicle, vessel or other conveyance, stowing or packing
the Goods or fumigating, transhipping, inspecting or otherwise handling
the Goods or anything done in relation thereto;
(l) “Insolvency Event” means if any (or more than one) of the following occur
with respect to a Customer:
(i) the Customer becomes insolvent or is otherwise unable to pay its
debts as and when they fall due;
(ii) the Customer (or any third party) institutes any insolvency, receivership
or bankruptcy proceedings with respect to the Customer, for the
settlement of the Customer’s debts;
(iii) the Customer makes a general assignment for the benefit of
creditors; or
(iv) the Customer ceases to conduct business.
(m) “Instructions” means a statement of the Customer’s specific
requirements;
(n) “Load Restraint Guide” means the “Load Restraint Guide: Guidelines and
Performance Standards for the Safe Carriage of Loads on Road
Vehicles”, Second Edition 2004 and includes any subsequent editions;
(o) “Montreal Convention” means the Convention for the Unification of
Certain Rules relating to International Carriage by Air, signed in Montreal
in 1999 (Montreal Convention) as applied respectively by the legislation
of the Commonwealth of Australia;
(p) “Navigation Act 2012” means the Navigation Act 2012 (Cth) and all
regulations made under that Act, including the Australian Maritime Safety
Authorities’ Marine Orders, and includes any subsequent replacement or
modification or amendment to any of these acts and regulations;
(q) “Owner” includes the owner, shipper and consignee of the Goods and any
other person who is or may become interested in the Goods and anyone
acting on their behalf;
(r) “Person” includes individuals, partnerships, firms trusts, associates or any
body or bodies corporate;
(s) “PPSA” means the Personal Property Securities Act 2009 (Cth) and
includes all regulations made under that Act, and any subsequent
replacement or modification or amendment to the act or regulations;
(t) “Services” means the whole of the services provided by the Company to
the Customer and all matters necessarily related to the provision of the
services or ancillary to the provision of the services.
4. Obligations of Customer
4.1 The Customer warrants that it is either the Owner or the authorised agent of
the Owner of the Goods and that it is authorised to accept and accepts these
Conditions, not only for itself, but also as agent for and on behalf of the Owner.
4.2 The Customer warrants that it has reasonable knowledge of matters
affecting the conduct of its business, including, but not limited to, the terms
of sale and purchase of the Goods and all other matters relating thereto.
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4.3 The Customer shall give sufficient and executable instructions.
4.4 The Customer warrants that the description and particulars of the Goods are
complete and correct, and that any consignment documentation provided to
the Company is accurate.
4.5 The Customer warrants that the Goods are properly packed and labelled,
except where the Company has accepted instructions in respect of
packaging and/or labelling.
4.6 The Customer warrants that it will ensure, so far as is reasonably practicable,
the safety of any road transport performed for or on behalf of the Customer
and that it will meet its obligations under the Heavy Vehicle National Law
Chain of Responsibility provisions where the Customer is acting as a
Consignor or Consignee or Loader or Packer of Goods.
4.7 The Customer warrants that any Goods that are delivered to the Company or
that are to be directly received by the Company are secured for road
transport in accordance with Part 1 of the Load Restraint Guide.
4.8 The Customer warrants that a compliant and accurate Container Weight
Declaration will be supplied where the Customer is to provide the
consignment documentation.
4.9 The Customer warrants that for Goods consigned for import or export by sea
the consignment documentation including the verified gross mass is accurate
and compliant with the requirements of Navigation Act 2012, including but
not limited to the requirements of Marine Order 32 and Marine Order 42.
5. Special Instructions, Goods and Services
5.1 Unless agreed in writing, the Customer shall not deliver to the Company, or
cause the Company to deal with or handle, Dangerous Goods.
5.2 If the Customer is in breach of Clause 5.1:
(a) the Customer shall be liable for all loss or damage whatsoever caused by
or to or in connection with the Goods howsoever arising;
(b) the Customer shall defend, indemnify and hold harmless the Company
against all penalties, claims, damages, costs and expenses whatsoever
arising in connection therewith; and
(c) the Company (or any other person in whose custody the Goods may be in
at the relevant time) may, at the Company’s sole discretion, have the
Goods destroyed or otherwise dealt with (without compensation to the
Customer or liability on the Company). For the purposes of this subclause,
notice is not required to be given to any person of the intention to destroy
or otherwise deal with the Goods.
5.3 If the Company agrees to accept Dangerous Goods and then it (or any other
person) reasonably forms the view that those Goods constitute a risk to other
goods, property, life or health, it may (without notice or compensation to the
Customer and without liability on the Customer) have the Goods destroyed or
otherwise dealt with at the expense of the Customer or Owner.
5.4 The Customer undertakes not to tender for transportation any Goods which
require temperature control without previously giving written notice of their
nature and the particular temperature range to be maintained and, in the
case of a temperature controlled Container packed or stuffed by or on behalf
of the Customer, the Customer further undertakes that:
(a) the Container has been properly pre-cooled or pre-heated as appropriate;
(b) the Goods have been properly packed or stuffed in the Container; and
(c) the Container’s thermostatic controls have been properly set by the
Customer.
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5.5 If the requirements of Clause 5.4 are not complied with the Company shall
not be liable for any loss of or damage to the Goods caused by such
non-compliance.
5.6 Unless agreed in writing, the Company shall not be obliged to make any
declaration for the purposes of any statute, convention or contract as to the
nature or value of any Goods or as to any special interest in delivery or to
make any declaration as to specific stowage requirements of any Goods.
5.7 Unless agreed in writing or otherwise provided for under the provisions of a
document signed by the Company, instructions relating to the delivery or
release of Goods against payment or against surrender of a particular
document shall be in writing and the Company’s liability shall not exceed that
provided for in respect of misdelivery of Goods.
5.8 Unless agreed in writing that the Goods shall depart by or arrive by a
particular date, the Company accepts no responsibility for departure or arrival
dates of Goods.
6. Insurance
6.1 Insurance of the Goods is the responsibility of the Customer. The Company
does not issue insurance. Upon request, the Company will provide the Customer
with the contact details of insurance companies / brokers and assist the
Customer so that the Customer can obtain insurance from them directly. All
such insurances are subject to the usual exceptions and conditions of the
policies of the insurance company or underwriters taking the risk.
7. General Indemnities and Liabilities of the Customer and Owner
7.1 The Customer and Owner shall defend, indemnify and hold harmless the
Company against all liability, loss, damage, costs and expenses
howsoever arising:
(a) from the nature of the Goods, other than to the extent caused by the
Company’s negligence;
(b) out of the Company acting in accordance with the Customer’s or Owner’s
instructions; or
(c) from a breach of warranty or obligation by the Customer or arising from
the negligence of the Customer or Owner.
7.2 Except to the extent caused by the Company’s negligence, the Customer and
Owner shall be liable for and shall defend, indemnify and hold harmless the
Company in respect of all duties, taxes, imposts, levies, deposits and outlays
whatsoever levied by any Authority and for all payments, fines, costs,
expenses, loss and damage whatsoever incurred or sustained by the
Company in connection therewith.
7.3 Advice and information, in whatever form it may be given, is provided by the
Company for the Customer only and the Customer shall defend, indemnify
and hold harmless the Company for all liability, loss, damage, costs and
expenses arising out of any other person relying on such advice or
information.
7.4 The Customer shall be liable for the loss, damage, contamination, soiling,
delay detention or demurrage whether arising before, during and after the
Carriage of property of:
(a) the Company (including, but not limited to, Containers);
(b) the Company’s servants, sub-contractors or agents;
(c) independent contractors engaged by the Company for performance of
part or all of the Services;
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(d) any person; or
(e) any vessel
caused by the Customer or Owner or any person acting on behalf of either of
them or for which the Customer is otherwise responsible and will defend,
indemnify and hold harmless the Company in respect of the same.
7.5 Instructions to collect payment on delivery in cash or otherwise are accepted
by the Company upon and on the condition that the Company in the matter of
such collection will be liable for the exercise of reasonable diligence and care
only. Unless express written instructions are received that the Goods are not
to be delivered without payment, the Company accepts no liability if, upon
delivery of the Goods, payment is not made.
8. Sub-contractors
8.1 The Customer undertakes that no claim will be made against any servant,
sub-contractor or agent of the Company which imposes or attempts to
impose upon any of them any liability whatsoever in connection with the
Goods. If any such claim should nevertheless be made, the Customer
undertakes to indemnify the Company against all consequences thereof.
8.2 Without prejudice to Clause 8.1, every servant, sub-contractor or agent of the
Company shall have the benefit of all provisions herein as if such provisions
were expressly for their benefit. In entering into this contract, the Company, to
the extent of those provisions, does so not only on its behalf, but as agent
and trustee for such servants, sub-contractors and agents.
8.3 The Customer shall defend, indemnify and hold harmless the Company
from and against all claims, costs and demands whatsoever and by
whomsoever made or preferred, in excess of the liability of the Company
under these Conditions.
8.4 Without prejudice to the generality of this Clause 8, the indemnity referred to
in Clause 8.3, shall cover all claims, costs and demands arising from or in
connection with the negligence of the Company, its servants, sub-contractors
and agents.
8.5 In this Clause, “sub-contractors” includes direct and indirect sub-contractors
and their respective employees, servants and agents.
9. Invoices and Charges
9.1 The Company is entitled to issue a tax invoice in respect of its Services.
The Customer shall pay to the Company in cash, or as agreed, the invoiced
amount payable in accordance with the terms of the tax invoice and these
Conditions and all or any other sums immediately when due without
deduction or deferment on account of any claim, counterclaim or set-off. The
Company shall under no circumstances be precluded from raising a debit or
invoice in respect of any sums lawfully due to it, notwithstanding that a
previous debit(s) or invoice(s) (whether excluding or partly including the items
now sought to be charged) had been raised and whether or not any notice
was given that further debits or invoices were to follow.
9.2 When the Company is instructed to collect freight, duties, charges or other
expenses from any person other than the Customer, the Customer:
(a) shall remain responsible for these amounts; and
(b) shall pay these amounts to the Company on demand where these
amounts have become due and have not been paid by such other person.
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9.3 On all accounts overdue to the Company, the Company shall be entitled
without notice to charge default interest to be calculated at the rate 4 per
cent above the base interest rate of the Company’s bank applicable during
the periods that such amounts are overdue for the period from the due date
until the date of payment in full.
9.4 The Customer shall be liable for and pay to the Company any additional costs
or expenses the Company may incur and for any loss or damage occasioned
either directly or indirectly to the Company as a result of the Company relying
upon the description and particulars provided by the Customer or by reason
of any illegal, incorrect or insufficient marking, numbering or addressing of
the Goods.
9.5 The charging by the Company of a fixed price for any Services whatsoever
shall not in itself determine or be evidence that the Company is acting as an
agent or a principal in respect of those Services. The Company shall under no
circumstances be precluded from raising a debit in respect of any fee or
disbursements lawfully due to it, notwithstanding that a previous debit or
debits (whether excluding or partly including the items now sought to be
charged) had been raised and whether or not any notice was given that
further debits were to follow. Where any amount charged by the Company is
described as a disbursement (or similar expression), such amount will include
the forwarder’s handling and administration fee in respect of the same and
the fee is not required to be separately disclosed.
9.6 The Customer acknowledges that the Company has a pecuniary interest in all
contracts entered into by the forwarder as its agent in terms of these
Conditions and agrees that the Company may receive and retain all
brokerages, commissions, allowances and other remunerations paid by the
other party to the contract and customarily retained by or paid to forwarding
agents, in addition to the charges and expenses invoiced to the Customer,
and need not disclose to the Customer the nature or amount thereof. The
Company may charge by weight, measurement or value and may at any time
reweigh, remeasure or revalue the Goods (or request same) and charge
additional fees accordingly.
9.7 Unless otherwise stated, all charges quoted are exclusive of Goods and
Services Tax (GST).
10. Liberties and Rights of the Company
10.1 Unless otherwise agreed in writing, the Company shall be entitled to enter
into contracts on behalf of itself or the Customer and without notice to
the Customer:
(a) for the carriage of Goods by any route, means or person;
(b) for the carriage of Goods of any description, whether containerised or
not, on or under the deck of any vessel;
(c) for the storage, packing, transhipment, loading, unloading or handling of
Goods by any person at any place whether on shore or afloat and for any
length of time;
(d) for the carriage or storage of Goods in containers or with other goods of
whatever nature;
(e) for the performance of its own obligations, and to do such acts as the
Company reasonably considers may be necessary or incidental to the
performance of the Company’s obligations.
10.2 The Company shall be entitled (without incurring any additional liability), but
shall be under no obligation, to depart from the Customer’s instructions in any
respect if the Company considers there is good reason to do so in the
Customer’s interest.
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10.3 The Company may at any time comply with the orders or recommendations
given by any Authority. The responsibility and liability of the Company in
respect of the Goods shall cease on the delivery or other disposition of the
Goods in accordance with such orders or recommendations.
10.4 The Company shall be entitled (but under no obligation) at any time and from
time to time to inspect the Goods and for this purpose to open or remove
any Containers.
10.5 If at any time the Company reasonably considers that the carriage of the
Goods should not be undertaken or continued or only continued after
effecting any necessary Incidental Matters or incurring additional expense or
risk, the Company shall be entitled to:
(a) abandon the carriage of such cargo or to effect such additional Incidental
Matters and incur such additional expense, as may be reasonably
necessary in order to enable the carriage to be effected or further
effected; and
(b) be reimbursed by the Customer for the cost of all such additional
Incidental Matters and all such additional expense incurred.
10.6 If the Company (or any person whose services the Company makes use of)
considers:
(a) the performance of the Company’s obligations are likely to be affected by
any hindrance, risk, delay, difficulty or disadvantage whatsoever; and
(b) the hindrance, risk, delay, difficulty or disadvantage cannot be avoided by
reasonable endeavours of the Company or such other person
the Company may (upon giving notice in writing to the Customer or Owner)
treat the performance of its obligations as terminated and may, at the
Customer’s expense, place the Goods or any part of them at the Customer’s or
Owner’s disposal at any place which the Company deems safe and convenient.
10.7 The notice in writing referred to in Clause 10.6 is not required where it is not
reasonably possible to give such notice.
10.8 Where the Company exercises its rights and obligations under Clause 10.6,
responsibility and liability of the Company in respect of the Goods shall
thereupon cease absolutely.
10.9 Where the Company (or any person whose services the Company makes use
of) is entitled to call upon the Customer or Owner to take delivery of the Goods
at a designated time and place and delivery of the Goods, or any part thereof,
is not taken by the Customer or Owner at the designated time and place the
Company (or such other person) shall be entitled to store the Goods in the
open or under cover at the sole risk and expense of the Customer.
10.10 Notwithstanding Clauses 10.6 to 10.9, the Company shall be entitled (but
under no obligation) without any responsibility or liability to the Customer and
Owner, to sell or dispose of:
(a) all Goods which the Company considers cannot be delivered as instructed,
but only upon giving 21 days notice in writing to the Customer; and
(b) without notice, Goods which have perished, deteriorated or altered, or are
in immediate prospect of doing so in a manner which has caused (or may
be reasonably expected to cause) loss or damage to any person or
property or to contravene applicable regulations.
10.11 Where the Company sells or disposes of Goods pursuant to Clause 10.10
the Customer shall be responsible for any costs and expenses of the sale
or disposal.
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10.12 The Company shall be entitled to retain and be paid all brokerages,
commissions, allowances and other remunerations customarily retained by or
paid to freight forwarders without notice to the Customer.
10.13 The Company shall have the right to enforce against the Owner and the
Customer jointly and severally any liability of the Customer under these
Conditions or to recover from them any sums to be paid by the Customer
which upon demand have not been paid.
10.14 The Company is committed to taking all steps, so far as is reasonably
practicable, to ensure that any carriage of Goods is performed safely and in
accordance with the Heavy Vehicle National Law Chain of Responsibility
provisions. The Company shall not comply with any direction or instruction by
the Customer that might have the effect of contributing to a breach of the
Heavy Vehicle National Law or preventing the Company from taking all steps
that it considers to be necessary to prevent any breach of the Heavy Vehicle
National Law or otherwise to comply with its duties under the Heavy Vehicle
National Law.
10.15 The Company will not, under any circumstances or to any extent, be liable to
the Customer or any other person for any loss or damage whatsoever arising
from any action or inaction of the Company, its officers, subcontractors,
servants or agents reasonably undertaken or otherwise in order to comply
with the Heavy Vehicle National Law.
10.16 In the event of a breach of Chain of Responsibility provisions by the
Customer, the Company may refuse to comply with a Customer direction or
instruction or cease the provision of further Services to the Customer.
11. Security Interest
11.1 Special and General Lien: From the time the Company, or its servants or
agents, receive the Goods into its custody, the Company, its servants or agents
shall have a special and general lien on the Goods and a right to sell the Goods
whether by public or private sale or auction without notice, for any unpaid
amounts for freight, demurrage, container detention charges, duty, fines,
penalties, salvage, average of any kind whatsoever and without limitation and
for any and all debts, charges, expenses or any other sums due or which
become due at any time from the Customer or the Customer’s principals,
servants or agents (whether those sums are due from the Customer on those
Goods or documents or on any other Goods or documents). In addition, the
lien shall cover the all costs and expenses of exercising the lien, including the
costs of a public or private sale or auction, including legal costs and
administration costs. The lien and rights granted by this Clause 11.1 shall
survive delivery of the Goods and the Company shall be entitled to retain the
proceeds of sale of the Goods in respect of any outstanding amounts
whatsoever referred to in this Clause. The Customer accepts that any sums
due and owing by the Customer are secured debts and that any payment
made to the Company in discharge of the Company’s lien does not amount to
a preference, priority or advantage in any manner or turn. The Company sells
or otherwise disposes of such Goods pursuant to this Clause 11.1as principal
and not as agent and is not the trustee of the power of sale.
11.2 Continuing Security Interest: From the time the Company, or its servants or
agents, receive the Goods into its custody, the Goods, and all of the
Customer’s present and future rights in relation to the Goods, are subject to a
continuing security interest in favour of Company for the payment of all
amounts for freight, demurrage, container detention charges, duty, fines,
penalties, salvage, average of any kind whatsoever and without limitation and
for any and all debts, charges, expenses or any other sums due and owing by
the Customer or the Customer’s principals, servants or agents. In addition, the
continuing security interest shall cover all the costs and expenses of
exercising the lien, including the costs of a public or private sale or auction,
including legal costs and administration costs.
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11.3 Custody and Possession: For the purposes of these Conditions, and in
particular Clauses 11.1 and 11.2 the Company shall be deemed to have
custody and possession of the Goods whether the Goods are in the actual
physical custody and possession of the Company or of any subcontractors,
servants or agents, and whether or not the Company is in possession of any
documents of title relating to the Goods. The Customer and the Company
agree that the Company has possession of the Goods within the meaning of
section 24 of the PPSA, even if the Goods are in the possession of the
Company’s subcontractors, servants or agents.
11.4 Registration of Security Interest: The Customer acknowledges that the
Company may, at the Customer’s cost, register its security interest in the Goods,
and all of the Customer’s present and future rights in relation to the Goods,
on the Personal Property Securities Register established under PPSA.
11.5 Provide Information: The Customer will immediately inform the Company if
an Insolvency Event occurs with respect to the Customer. The Customer shall
not change its name or other details without first notifying the Company in
writing at least 14 days before such change takes effect.
11.6 Contracting Out and Waiver:
(a) The Company need not give any notice to the Customer or any other
person (including a notice of verification statement) unless the notice is
required to be given by the PPSA and cannot be excluded.
(b) The Customer and the Company agree pursuant to section 115 of the
PPSA that sections 125, 142 and 143 of the PPSA do not apply to this
Agreement.
(c) The Customer, pursuant to section 115 of the PPSA, waives its right to
receive any notice, details or other document from the Company under
sections 95, 121(4), 130, 135, 132(3)(d) and 132(4) of the PPSA.
11.7 Customer’s Obligations: The Customer will not:
(a) permit to subsist any other security interest in relation to the Goods which
would rank ahead of the Company ‘s interest; or
(b) except in the normal course of business, sell, lease or dispose of, or
permit the sale, lease or disposal of, the Goods.
11.8 Company’s Rights: In addition to any rights the Company has under the
PPSA, the Company shall have the right, as the Customer’s agent, at any
time while any amounts owing by the Customer to the Company under any
Contract remains outstanding, to enter into the premises where Goods are
stored and remove them without being responsible for any damage caused in
doing so. The Customer shall indemnify the Company for all such moneys
and all costs, charges and expenses in repossessing the Goods.
11.9 Confidentiality: The Customer and the Company agree not to disclose
information of the kind mentioned in section 275(1) of the PPSA, except in
circumstances required by sections 275(7) (b) to (e) of the PPSA. The
Customer agrees that it will only authorise the disclosure of information
under section 275(7)(c), or request information under section 275(7)(d),
unless the Company approves. Nothing in this Clause 11.9 will prevent any
disclosure by the Company that it believes is necessary to comply with its
other obligations under the PPSA or any other law.
12. Containers
12.1 If a Container has not been packed or stuffed by the Company, the Company
shall not be liable for loss of or damage to the contents if caused by:
(a) the manner in which the Container has been packed or stuffed;
(b) the unsuitability of the contents for carriage in Containers, unless the
Company has approved the suitability;
Standard Trading Conditions for Freight 12 Forwarders – Australia TTC405-MMXIX
(c) the unsuitability or defective condition of the Container, provided that
where the Container has been supplied by or on behalf of the Company
this paragraph (c) shall only apply if the unsuitability or defective
condition of the Container:
(i) arose without any negligence on the part of the Company; or
(ii) would have been apparent upon reasonable inspection by the
Customer or Owner or person acting on behalf of either of them;
(d) the fact that the Container is not sealed at the commencement of the
carriage, except where the Company has agreed to seal the Container.
12.2 The Customer shall defend, indemnify and hold harmless the Company
against all liability, loss, damage, costs and expenses arising from one or
more of the matters referred to in Clause 12.1.
12.3 Where the Company is instructed to provide a Container, in the absence of a
written request to the contrary, the Company is not under an obligation to
provide a Container of any particular type or quality.
12.4 The Customer agrees to indemnify and keep indemnified the Company for all
hire and other charges charged for the Customer’s use of Containers
provided by the Company, and for any costs incurred by the Company for the
cleaning of Containers.
13. General Liability
13.1 Except where otherwise provided in these Conditions, the Company shall not
be liable for any loss or damage whatsoever arising from:
(a) the act or omission of the Customer or Owner or any person acting on
their behalf;
(b) compliance with the instructions given to the Company by the Customer,
Owner or any other person entitled to give them;
(c) insufficiency of the packing or labelling of the Goods, except where such
service has been provided as a Service by the Company;
(d) handling, loading, stowage or unloading of the Goods by the Customer or
Owner or any person acting on their behalf;
(e) inherent vice of the Goods;
(f) riots, civil commotions, strikes, lockouts, stoppage or restraint of labour
from whatsoever cause;
(g) fire, flood, storm, explosion or theft;
(h) any Force Majeure Event; or
(i) any other cause which the Company could not avoid and the consequences
whereof it could not prevent by the exercise of reasonable diligence.
13.2 Subject to Clause 5.8, the Company shall not be liable for loss or damage
howsoever caused (whether or not direct, indirect or consequential) to property
other than the Goods themselves and shall not be liable for any pure economic
loss or loss of profit (or similar claim), delay or deviation howsoever arising.
14. Limits of Liability
14.1 Except in so far as otherwise provided by these Conditions, the liability of the
Company, howsoever arising, shall not exceed the following:
(a) in respect of all claims other than those subject to the provisions of
Clause 14.4 whichever is the lesser of:
(i) the value of; or
Standard Trading Conditions for Freight 13 Forwarders – Australia TTC405-MMXIX
(ii) the equivalent of US$2.00 per gross kilogram in the currency of the
loss or damage, (the exchange rate to apply being the rate as at the date
of the delivery of the Goods) of,
the Goods lost, damaged, misdirected, misdelivered or in respect of which
a claim arises.
(b) in respect of claims for delay where not excluded by the provisions of
these Conditions, the amount of the Company's charges in respect of the
Goods delayed.
14.2 The limitation of liability referred to in Clause 14.1 shall apply notwithstanding
that the cause of the loss or damage is unexplained.
14.3 The value of the Goods referred to in Clause 14.1(a) shall be calculated by
reference to:
(a) the invoice value of the Goods plus freight and insurance if paid, or
(b) if there is no invoice value for the Goods, the value of such Goods at the
place and time when they were delivered to the Customer or Owner or
should have been delivered. The value of the Goods shall be fixed
according to the current market price, or, if there is no commodity
exchange price or current market price, by reference to the normal value
of goods of the same kind and quality.
14.4 If agreed in writing prior to receipt of the Goods, the Company may accept
liability in excess of the limits set out in these Conditions upon the Customer
agreeing to pay the Company’s additional charges for accepting such
increased liability. Details of the Company’s additional charges will be
provided upon request.
14.5 Unless agreed in writing prior to receipt of the Goods, the Company will not
accept or deal with bullion, coin, precious stone, jewellery, antiques, works of
art or other valuable Goods. Should any Customer nevertheless deliver any
such Goods to the Company or cause the Company to handle or deal with
any such Goods other than in accordance with prior written agreement, the
Company shall be under no liability whatsoever for or in connection with such
Goods howsoever arising.
14.6 The liability of the Company arising out of any one incident for breach of any
right or guarantee the Customer may have under the Competition and
Consumer Act 2010 (Cth) and the Australian Consumer Law, or comparable
legislation in each of the States and Territories of Australia, or howsoever
arising is limited to any of the following as determined by the Company:
(a) the supplying of the services again; or
(b) the payment of the cost of having the services supplied again; or
(c) the value of the Goods the subject of the services at the time the Goods
were received by the Company,
whichever is lower.
15. Notice of Loss, Time bar
15.1 The Company shall be discharged of all liability unless:
(a) notice of any claim is received by the Company or its agent in writing
within 14 days after the date specified in Clause 15.2, or within a
reasonable time after that date if the Customer proves that it was
impossible to so notify; and
(b) suit is brought in the proper forum and written notice thereof received by
the Company within 9 months after the date specified in Clause 15.2.
15.2 For the purposes of Clause 15.1, the applicable dates are:
(a) in the case of loss or damage to Goods, the date of delivery of the Goods;
Standard Trading Conditions for Freight 14 Forwarders – Australia TTC405-MMXIX
(b) in the case of delay or non-delivery of the Goods, the date that the Goods
should have been delivered;
(c) in any other case, the event giving rise to the claim.
16. General Average
16.1 The Customer shall defend, indemnify and hold harmless the Company in
respect of any claims of a General Average nature, including any claims or
demands for General Average security which may be made on the Company,
and the Customer shall forthwith provide such security as may be required by
the Company in this connection.
17. Miscellaneous
17.1 Notice
Any notice served by post shall be deemed to have been given on the third
day following the day on which it was posted to the address last known to the
Company to be the address of the recipient of the notice.
17.2 Defences and Limits of Liability
The defences and limits of liability provided in these Conditions shall apply in
any action against the Company whether founded in contract or in tort or
howsoever otherwise founded.
17.3 Legislation
(a) If these Conditions are held to be subject to the laws of the
Commonwealth of Australia or of any particular State or Territory in
Australia then these Conditions shall continue to apply and shall be void
only to the extent that they are inconsistent with or repugnant to those
laws and no further. Nothing in these Conditions is intended to have the
affect of contracting out of any applicable provisions of the Competition
and Consumer Act 2010 (Cth) and the Australian Consumer Law, or
comparable legislation in each of the States and Territories of Australia,
except to the extent permitted by those Acts where applicable.
(b) If any other legislation is compulsorily applicable to any business
undertaken, these Conditions shall, as regards such business, be read as
subject to such legislation and nothing in these Conditions shall be
construed as a surrender by the Company of any of its rights or
immunities or as an increase of any of its responsibilities or liabilities
under such legislation and if any part of these Conditions is held to be
repugnant to such legislation to any extent such part shall as regards
such business be over-ridden to that extent and no further.
17.4 Headings
Headings of clauses or groups of clauses in these Conditions are for
indicative purposes only.
18. Governing Law and Jurisdiction
18.1 These Conditions and any claim or dispute arising out of or in connection
with the Services of the Company shall be subject to the law of the State or
Territory of Australia in which the Company has its principal place of business
and any such claim or dispute shall be determined by the Courts of that State
or Territory and no other Court.
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19. Special Liability and Indemnity Conditions
19.1 To the extent that the Company acts as an agent, the Company does not
make or purport to make any contract with the Customer for the carriage,
storage or handling of the Goods nor for any other physical service in relation
to them and acts solely on behalf of the Customer in securing such services
by establishing contracts with third parties so that direct contractual
relationships are established between the Customer and such third parties.
19.2 The Company shall not be liable for the acts and omissions of third parties
referred to in Clause 19.1.
19.3 The Company, when acting as an agent, has the authority of the Customer
to enter into contracts on the Customer’s behalf and to do acts which bind
the Customer in all respects notwithstanding any departure from the
Customer’s instructions.
19.4 Except to the extent caused by the Company’s negligence, the Customer shall
defend, indemnify and hold harmless the Company in respect of all liability,
loss, damage, costs or expenses arising out of any contracts made in the
procurement of the Customer’s requirements in accordance with Clause 19.1.
20. Choice of Rates
20.1 Where there is a choice of rates according to the extent or degree of liability
assumed by persons carrying, storing, or handling the Goods, no declaration
of value (where available) will be made by the Company unless previously
agreed in writing between the Customer and the Company.
Part II: Company
as Agent
Standard Trading Conditions for Freight 16 Forwarders – Australia TTC405-MMXIX
21 Special Liability Conditions
21.1 Where the Company contracts as principal for the performance of the
Customer’s instructions, the Company undertakes to perform, or in its own
name to procure, the performance of the Customer’s instructions and, subject
to the provisions of these Conditions, shall be liable for the loss of or damage
to the Goods occurring from the time that the Goods are taken into its
charge until the time of delivery.
21.2 Where:
(a) the Company contracts as a principal and sub-contracts the performance
of the Company’s Services; and
(b) it can be proved that the loss of or damage to or in respect of the Goods
arose or was caused whilst the Goods were in the care or custody of the
sub-contractor;
the Company shall have the full benefit of all rights, limitations and exclusions
of liability available to the sub-contractor in the contract between the
Company and the sub-contractor and in any law, statute or regulation and the
liability of the Company shall not exceed the amount recovered, if any, by the
Company from the sub-contractor.
21.3 Notwithstanding other provisions in these Conditions, if it can be proved
where the loss of or damage to the Goods occurred, the Company’s liability
shall be determined by the provisions contained in any international
convention or national law, the provisions of which:
(a) cannot be departed from by private contract, to the detriment of the
claimant; and
(b) would have applied if the claimant had made a separate and direct
contract with the actual provider of the particular service in respect of
that service or stage of carriage where the loss or damage occurred and
received as evidence thereof any particular document which must be
issued if such international convention or national law shall apply.
21.4 Notwithstanding other provisions in these Conditions, if it can be proved that
the loss of or damage to the Goods occurred at sea or on inland waterways
and the provisions of Clause 21.2 do not apply, the Company’s liability shall
be determined by the Hague-Visby Rules. Reference in the Hague-Visby
Rules to carriage by sea shall be deemed to include reference to carriage by
inland waterways and the Hague-Visby Rules shall be construed accordingly.
21.5 Notwithstanding the provisions of Clauses 21.2, 21.3 and 21.4 but subject to
Clause 21.5 if the loss of or damage to the Goods occurred at sea or on
inland waterways, and the Owner, Charterer or operator of the carrying vessel
is entitled to limit its liability at law and establishes a limited fund, the liability
of the Company shall be limited to the proportion of such limitation fund as is
allocated to the Goods.
21.6 In the event of any inconsistency between these Conditions and the
conditions of any bill of lading or air waybill issued by or on behalf of the
Company as principal, the conditions of any such bill of lading or sea waybill
or air waybill shall prevail to the extent of such inconsistency but no further.
22 Both-to-Blame Collision Clause
22.1. The Both-to-Blame Collision Clause as recommended by BIMCO as at the
time of the provision of Services is incorporated into and forms part of
these Conditions.
Part III: Company
as Principal
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23. USA and/or Canada and Additional Responsibility Clause
23.1 With respect to transportation within the USA or Canada, the responsibility of
the Company shall be to procure transportation by carriers (one or more) and
such transportation shall be subject to such carrier’s contracts and tariffs and
any law compulsorily applicable. The Company guarantees the fulfilment of
such carrier’s obligations under their contracts and tariffs.
23.2 If and to the extent that the provisions of the Harter Act of the USA 1893
would otherwise be compulsorily applicable to regulate the Company’s
responsibility for the Goods during any period prior to loading on or after
discharge from the vessel on which the Goods are to be or have been carried,
the Company’s responsibility shall instead be determined by these
Conditions. If such provisions are found to be invalid such responsibility shall
be determined by the provisions in the Carriage of Goods by Sea Act of the
USA Approved 1936.
23.3 If and to the extent that the provisions of the Regulations made pursuant to
the Carriage of Goods by Sea Act 1991 (as amended) of the Commonwealth
of Australia (or any amendments to such Regulations) would otherwise be
compulsorily applicable to regulate the Company’s responsibility for the
Goods during any period prior to loading on or after discharge from the
vessel on which the Goods are to be or have been carried, the Company’s
responsibility shall be determined by these Conditions. If such provisions are
found to be invalid such responsibility shall be determined by the provisions
of the said Carriage of Goods by Sea Act.
23.4 If the Hamburg Rules should be held to be compulsorily applicable to any
carriage of Goods by sea undertaken by the Company as principal, these
Conditions shall be read subject to the provisions of the Hamburg Rules and
any term of these Conditions that is repugnant to the Hamburg Rules shall
be void to the extent of such repugnancy but no further.
24. Air Carriage
24.1 Where the Company acts as a principal in respect of a carriage of Goods by
air, the following notice is hereby given:
If the carriage involves an ultimate destination or stop in a country other than
the country of departure, the Montreal Convention may be applicable and the
Convention governs and in most cases limits the liability of carriers in respect
of loss of or damage to Goods. Agreed stopping places are those places
(other than the places of departure and destination) shown under requested
routing and/or those places shown in carrier’s timetables as scheduled stopping
places for the route. The address of the first carrier is the airport of departure.
24.2 Notwithstanding any other provision of these Conditions, where the Company
acts as a principal in respect of a carriage of Goods by air, the Company’s
liability in respect of loss of or damage to such Goods shall be determined in
accordance with the Montreal Convention.


Standard Trading Conditions for Freight Forwarders – Australia TTC405-MMXIX