Terms of use

GENERAL CONDITIONS OF BUSINESS OF MAASKADE BEVRACHTERS B.V.
Established at Maasboulevard 268, 3331 ML Zwijndrecht

GENERAL PROVISIONS

Unless something else has been agreed in writing, these General Conditions of Business shall apply to all agreements concluded with Maaskade Bevrachters B.V. (“Maaskade”), including offers made by it and/or all orders given to it and/or operations performed and/or transport activities undertaken and/or any other performance rendered in the widest sense of the word. These General Conditions of Business shall also apply to all documents handed over or issued by Maaskade by virtue of an agreement or otherwise, also including bills of lading, proofs of reservation, charterparties, waybills, receipts, notices of arrival or any other document whatsoever.

Where Maaskade’s General Conditions of Business apply, any conditions of Maaskade’s clients and/or third parties shall explicitly not apply unless accepted by Maaskade explicitly and in writing.

If consequently these General Conditions of Business should be invalid or void in part, the applicable part shall remain in force.

SPECIAL CONDITIONS/APPLICABLE STANDARD CONDITIONS

Depending on the nature of the order, operations or other performance or any part thereof to be considered independent in reason, the following rules and/or standard conditions shall apply alongside and in addition to these General Conditions of Business, in the case of:

a) domestic and border-crossing on the inland waterways
Dutch law shall apply in the event of transport inside the Netherlands. In the event of border-crossing transport or transport outside the Netherlands the CMNI (Budapest Convention on the Contract for the Carriage of Goods by Inland Waterway) shall apply, supplemented by Dutch law and the Dutch chartering conditions 2009. In the event of cabotage in Germany the CNMI shall be supplemented by the Verlade- und Transportbedingungen of 1 January 2009;
b) transport by road and/or land
General Transport Conditions 2002, filed at the court registry of the District Court of Rotterdam or, in the event of border-crossing transport, the Convention on the Contract for the International Carriage of Goods by Road (CMR), concluded in Geneva on 19 May 1956;
c) combined transport in the sense of section 40 of Book 8 of the Dutch Civil Code

the provisions of the sections 40 thru 52 of Book 8 of the Dutch Civil Code;

d) forwarding operations
the General Conditions of the Netherlands Association for Forwarding and Logistics (FENEX), filed at the court registry of the District Court of Rotterdam on 1 July 2004;
e) shipbroker operations
the General Conditions and Rules for Dutch Shipbrokers and Agents, filed at the court registry of the District Court of Rotterdam on 1 December 1992;
f) storage operations
the Amsterdam-Rotterdam Warehousing Conditions, filed at the court registry of the District Courts of Amsterdam and Rotterdam on 3 October 2006;

or in the event of tank storage in particular, the General Conditions for Tank Storage in the Netherlands, filed at the court registry of the District Court of Rotterdam on 21 December 1992;

g) stevedoring operations
the Rotterdam Stevedoring Conditions, filed at the court registry of the District Court of Rotterdam on 12 August 1976;
h) crane or jacking operations
the General Conditions for the Performance of Orders by Crane Operators, filed at the court registry of the District Court of Rotterdam on 1 January 1991;
i) towing operations
the General Towing Conditions, Dutch Towing Conditions 1951, Towing Conditions 1965;
j) pushing operations
the General Pushing Conditions 1994, or at any rate the latest version;
k) use of sheerlegs
the Sheerleg Conditions of Use 1976, filed inter alia at the court registry of the District Court of Rotterdam on 1 January 1977;
l) all other or additional work and/or collateral work
de Physical Distribution Conditions, filed at the court registry of the District Court of Rotterdam on 1 September 2000.

All the above-mentioned general conditions are available for inspection at Maaskade and will be sent on request.

GENERAL PROVISIONS
1. If the standard conditions are revised, the new text shall apply from the date of filing.
2. The standard conditions applicable to any case on the strength of the above-mentioned provisions or otherwise shall apply on the understanding that in all cases all the following provisions included in these General Conditions of Business shall always take precedence in so far as something else has not been provided or agreed explicitly.

PERFORMANCE OF THE AGREEMENT
1. Maaskade shall be free in the method of performance of orders and operations, unless something else should specifically have been agreed on the subject. All orders shall be performed in a sequence to be determined by Maaskade, in which connection the capacity of the available machine and equipment and the extent of its occupation shall be partly determinative for the beginning and the end of the operations. Dates and/or periods shall not be guaranteed. The prior or interim supply of information shall be done without entailing any obligations or liability on Maaskade.
2. The client must ensure that Maaskade is provided in good time with all data relevant to the performance of the order, such as those:

concerning the (technical) loading and unloading facilities and also the further data relevant to loading and unloading;
listing the nature, behaviour and treatment of the cargo to be carried;
concerning the desired condition of the tanks and the fittings;

and that everything that must be provided on the client’s part in tools, is present in good time and with sufficient capacity and equipment.
When offering cargo for transport the client must make it available to Maaskade in the agreed place, time and way and accompanied by the required and necessary documents.
The client shall guarantee the correctness, exactness, clearness and completeness of all the statements, communications, direction and instructions supplied by or on behalf of him, of any nature whatsoever.

Prior to the loading the client must (have others) visually inspect the tank(s) and any fittings suitable for the relevant transport, for which Maaskade shall give the client an opportunity, while furthermore Maaskade must be given a sample of the cargo, which has been taken, if possible from the loading line before loading and from every compartment of the tank(s) after the loading has been completed.
Maaskade shall be free to carry all or part of the cargo in another tank or means of transport, transship it, convey it to lighters or unload it and/or store it on land, where and when circumstances make this necessary or if Maaskade deems this desirable in the interest of the means of transport used by it and/or the cargo.
The client shall be liable for all omissions of the client, his personnel and/or auxiliary persons and/or third parties engaged by the client and their employees and/or for all incorrect statements, communications etc. in the sense of the provisions included under article 4(a) through (d) and any damage resulting there from for Maaskade, and the client shall indemnify Maaskade in respect of claims of third parties with regard to that damage.
In so far as the agreement concerns a contract of carriage, the carriage shall start as soon as the cargo has passed the first flange of the lines of the ship. Delivery shall have been made as soon the cargo passes the last flange of the ship. Maaskade shall not be liable prior to loading and after unloading. The client and/or parties interested in the cargo shall indemnify Maaskade for claims of third parties.

FORCE MAJEURE
1. In the event of temporary force majeure the order shall remain in effect, but Maaskade’s obligations shall be suspended for the duration of the force majeure, all this subject to Maaskade’s right – only at our option –to cancel the order in such a case if not carried out or in so far as not yet carried out, and to charge the part already carried out. All extra costs incurred as a result of the force majeure situation shall be for account of the client.
2. Regarded as force majeure shall inter alia be:

any defect, inherent vice or natural properties of the goods, changes in quality as a result of the passage of time, isomerization, formation of sediments, dregs and deposit, diminishing, mould, fermentation, rust, sweating, freezing, melting, coagulating, evaporation, shrinkage, loss of weight, spoiling, odour absorption etc.;
war, danger of war, measures of higher authorities, quarantine, insurrection, sabotage, war risk, strike, lock-out, traffic disruptions, lack of labour, sickness and/or accidents of workers; storm, mist, lightning strike, flooding, high and low water, frost, freezing, floating ice and similar weather conditions and natural phenomena;
fire, smoke, explosion, fire extinguishing water, subsidence, collapse and dampness;
acts performed by Maaskade for which it had received an order from the client;
all circumstances that Maaskade could not have avoided or prevented in reason.

LIABILITY

Maaskade’s liability shall be regulated, in accordance with the nature of the operations performed, by the conditions that apply to the operations performed on the strength of article 2 of the present General Conditions.

Moreover it shall be true in all cases:

Shall never be liable for any damage unless the client proves that the damage has been caused by wilfulness or deliberate recklessness of the persons charged with the management of Maaskade;
Shall never be liable for loss due to delay, consequential loss and/or immaterial loss;
If Maaskade is liable, its liability shall be limited, depending on the nature of the operations performed, to the amounts laid down in the conditions mentioned in article 2, and shall be limited in all other cases to a maximum of SDR 50,000.00 per event or series of events with the same cause of damage or per shipment, on the understanding that in the event of damage, reduction in value or loss of the goods included in the order the liability shall be limited to a maximum of SDR 2.00 per kilo of damaged or lost gross weight with observance of the above-mentioned maximum.
Maaskade must be given written notice of alleged damage and/or loss, at the latest at the end of the operations or at the end of the agreement. Failing this, any liability of Maaskade shall cease.

CLIENT’S LIABILITY
1. The client shall be liable for all damage and/or loss or short deliveries, caused in any way by himself, his goods, his employees, or third parties engaged by him and their employees and/or goods or equipment to Maaskade, its personnel or to third parties engaged by or via Maaskade including their personnel or auxiliary persons, also including to goods carried, stored by Maaskade or being at Maaskade’s risk.
2. The client shall be liable for all damage and/or loss or short deliveries, caused by the non-fulfilment, untimely fulfilment or improper fulfilment of any obligation(s) imposed by him in these General Conditions of Business or by separate agreement, in so far as no arrangement has already been included on the subject in these General Conditions and/or applicable standard conditions.
3. The client shall furthermore be liable for all damage that is the result of unsafe and/or unsuitable unloading and/or loading places or places where operations are being performed by Maaskade.
4. If unloading is not done within the agreed period, Maaskade shall be entitled to unload the cargo at the expense and risk of the client, without prejudice to the right to demurrage and/or compensation of costs incurred in connection therewith.

PERSONNEL AND AUXILIARY SERVICES

Maaskade shall be entitled to perform any operation with its own personnel or auxiliary persons and equipment owned by it or third parties.

Everything that these General Conditions of Business and the standard conditions declared applicable therein provide about Maaskade’s liability shall also govern the liability of contractors, personnel and/or auxiliary persons of Maaskade and/or third parties engaged by Maaskade, directly or indirectly arisen through any act or omission or any error in or relating to the ordinary task performance of its personnel and/or auxiliary persons and/or third parties engaged by it, this in so far as it is not set aside by applicable provisions/arrangements under mandatory law, this including the following indemnification clause.

INDEMNITY

The client shall indemnify Maaskade – and on the conditions in conformity with article 8 also personnel and/or third parties working for Maaskade – against claims of third parties in respect of which Maaskade, it personnel and/or third parties cannot rely on these General Conditions of Business and the standard conditions declared applicable therein.

CONDITIONS OF PAYMENT
1. All offers shall be without engagement and based on the rates, taxes etc., that apply on the date of the offer or the conclusion of the agreement or the actual performance. In the event of change of one or more of these factors Maaskade reserves the right to change the prices accordingly, and these changed prices shall be binding also in respect of current agreements, this subject to any explicitly different clause in the relevant agreement.
2. All our prices shall be net and must be paid within fourteen days after the invoice date. Payment must be made at the office of Maaskade. Failing payment within fourteen days after the invoice date the client shall be in default and Maaskade can desire interest on the basis of 1% a month. Maaskade also reserves the right to charge 15% of the invoice amount to cover its administration costs.
  If in the event of non-payment by the client collection must be obtained by judicial or extrajudicial measures, all costs involved therein shall be for account of the client. The basis for the calculation of these debt collection charges shall then be the applicable collection rate of the Dutch Bar.
3. The client shall not be entitled to set off anything with amounts that Maaskade charges to the client by virtue of any agreement concluded with it.

RIGHT OF RETENTION
1. Maaskade reserves the right to exercise a right of retention on all goods, documents, and moneys or any other asset that it has in its possession or will get into its possession for any reason and for any purpose, which right of retention shall serve as security for all claims that Maaskade has or should get at the expense of its client, both from the agreement to which those goods, documents and moneys relate, and also from earlier agreements concluded with the client.
  This right of retention shall also comprise the power to retain matters for the costs that Maaskade has had to make on the strength of its statutory obligation to exercise due care.
2. On request Maaskade can have the right of retention replaced by other equivalent security, entirely at its discretion.

INSURANCE

Insurance of any nature whatsoever shall only be taken out in the name and at the expense and risk of the client after an explicit written order. On that occasion the risks to be insured must be accurately stated.

GROSS AVERAGE

In the event of gross average the Gross Average Rules of the IVR in their latest version shall apply (published on www.ivr.nl). This text is available on request. The persons interested in the cargo shall be obliged to make immediate payment of the contributions and/or advances, irrespective of and without prejudice to their possible rights under the contract of carriage to reclaim the contributions to be paid. They shall be jointly and severally liable to the carrier for all contributions in Gross Average bearing on their goods on the strength of an average adjustment. The carrier shall be entitled to desire a guarantee and a cost advance for these contributions. A right of suspension with regard to the contributions in Gross Average shall be excluded. The right to reclaim paid contributions in Gross Average shall be excluded in those cases in which, with applicability of the CMNI, the Gross Average event was caused by a nautical error in the sense of article 25(2a) of the CMNI, by fire or explosion or by a defect to the ship not recognizable at the time of the start of the journey. The right to reclaim amounts paid in Gross Average shall not cease in the above-mentioned cases, if in the case of a nautical error it is a question of qualified culpability of the carrier or in the case of fire or explosion or defect to the ship at the time of the beginning the journey it is a question of culpability of the carrier.

LIMITATION PERIOD AND EXPIRY

Any right (of claim) in respect of Maaskade shall lapse on the mere expiry of 12 months after the creation of the claim and shall lapse 18 months after the creation of the claim in so far as the applicable standard conditions do not already provide for a limitation/ expiry period.

APPLICABLE LAW AND JURISDICTION

All offers, orders, operations, transport activities or other performances as referred to in article 1 shall be governed exclusively by Dutch law, in so far as it is not set aside by applicable provisions/arrangements under mandatory law, on the understanding that in that case only and exclusively those provisions of mandatory law shall apply and for the rest Dutch law. The District Court of Rotterdam shall have exclusive jurisdiction to take cognizance of any dispute whatsoever in the first instance. This provision shall prevail over the jurisdiction provision that has been declared applicable in standard conditions to which reference is made in these General Conditions of Business.