All transactions entered into by SULLIVAN SHIPPING AGENCIES LIMITED of Exchange Buildings, Republic Street, Valletta, Malta, (hereinafter “the Company”) in connection with or arising out of the Company’s business including Liner Agency,
Port Agency and Freight Forwarding activities shall be subject to the following terms and conditions unless otherwise agreed or stated by the Company in writing
- In these conditions the following expressions have the following meanings respectively:
- “The Company” means Sullivan Shipping Agencies Limited trading under these conditions.
- “Services” means the services which are provided by the Company to the Merchant and Principal, whether or not for reward, whether same be by way of charge, fee, commission or remuneration of any other kind.
- “Supplier” means the company, firm or person who contracts to supply services or goods to the Principal or Merchant through the Company.
- “Merchant” means the company, firm or person (or any agent thereof) who ships, receives, owns or forwards goods or holds the bill of lading in respect of which the Company, whether as agent or principal, has agreed to provide or procure services.
- “Principal” means the company, firm or person who has or whose representatives have instructed the Company and who is the owner or charterer or manager of the vessel represented by the Company and/or the carrier under the bill of lading in connection with which services are provided by the Company.
- “Customer” means any person at whose request or on whose behalf the Company undertakes any business or provides advice, information or services.
- “Goods” means any wares, merchandise and articles of every kind whatsoever including any container, chassis, trailer or similar equipment used for the purpose of carrying cargo.
- “SDR” means a Special Drawing Right as defined by the International Monetary Fund.
- Words importing the singular number shall include the plural and vice versa, words importing the masculine shall include the feminine and neuter and vice versa and words importing persons shall incorporate bodies corporate, unincorporated associations and partnerships.
- The headings in these conditions are for convenience only and shall not affect their interpretation.
2. TRANSACTIONS WITH THE PRINCIPAL
- The following terms and conditions shall apply to transactions with the Principal:
- The Principal shall indemnify the Company in respect of all liabilities incurred by the Company when acting as a port agent or liner agent or booking agent on the Principal’s behalf.
- The Principal shall pay forthwith by telegraphic transfer to the Company’s bank account such sums as the Company may request as an advance on port disbursements which the Company estimates will be incurred whilst the Principal’s vessel is in the Company’s agency. If the Principal should fail to comply with the Company’s request, the Company may at any time give notice of the termination of its agency.
- The definitions, terms, conditions and fees of the Association of Ship Agents (Malta), Dry Cargo, Tanker Agency and FIOS Scales, for the time being in force, shall also apply to relevant transactions with the Principal unless otherwise agreed in writing.
- The Company shall be entitled to deduct from sums held by the Company for the Principal’s account any amounts due to the Company from the Principal.
- The Principal shall indemnify the Company against all third party claims, charges, losses, damages, taxes, duties and expenses that the Company may incur. This indemnity shall not extend to matters arising by reason of the negligence or wilful misconduct of the Company.
- The Company, with the consent of the Principal, shall have authority to appoint sub-agents to perform services on behalf of the Principal, including such services as may be subject to these conditions, remaining at all times responsible for the actions of the sub-agent.
- Where the Company acts as liner agent and/or booking agent for the Principal, the Principal shall give six months’ written notice of termination of the agency. For the purposes of this clause “written notice” shall also include notice by facsimile transmission or by electronic means.
3. TRANSACTIONS WITH THE SUPPLIER
- The following terms and conditions shall apply to transactions with the Supplier:
- Unless otherwise stated in writing, when the Company is acting as a port agent or liner agent or booking agent it acts at all times as agent for and on behalf of the Principal and has authority to enter into contracts with the Supplier as agent for Principal. The Company shall not be personally liable to pay any debt or expense to the Supplier from the Principal.
- Where the Company is acting as a forwarding agent, unless it is acting as agent for the Principal in accordance with clause 2.1.1 hereof or otherwise agreed in writing, it acts at all times as agent for and on behalf of the Merchant and has authority to enter into contracts with the Supplier as agent for the Merchant. The Company shall not be personally liable to pay any debt due from the Merchant.
4. TRANSACTIONS WITH THE MERCHANT
- The following terms and conditions shall apply to transactions with the Merchant:
- When acting as port agent or liner agent or booking agent, the Company acts at all times as agent for and on behalf of the Principal and has authority to enter into contracts with the Merchant as agent for the Principal. The Company shall not be personally liable for the Principal’s liabilities.
- The Company may provide the Services to the Merchant as its agent or as a principal. The Merchant warrants that it is either the owner of the goods or the agent of the owner and that it accepts these terms for itself and as agent for and on behalf of the owner.
- Where the Company arranges services for the Merchant’s goods which are or will be carried in accordance with a contract with the Principal contained in or evidenced by a bill of lading, charter party or other contract of affreightment, all services including forwarding services are arranged by the Company as agent for and on behalf of the Principal. The provision of such services shall be subject to the terms and conditions of the Principal’s bill of lading and tariff rules (if any), which may be inspected on request, or other contract between the Principal and the Merchant.
- Where the Company arranges services for the Merchant’s goods as a forwarder (whether as principal or agent) the provision of such services are subject to these conditions.
- The Company may from time to time issue a house bill of lading covering the transportation of the Merchant’s goods. In the event of any conflict between these conditions and the house bill of lading, the latter shall prevail.
- The Company shall have full liberty to sub-contract the whole or any part of its contracted services to third parties as may be necessary to fulfil the Customer’s instructions and subject to the trading conditions of the sub-contractors.
- The Company shall be relieved of any liability, the Merchant shall hold the Company harmless, for loss or damage if such loss or damage resulted from:
- The act or omission of the Merchant or his representative or any other party from whom the Company took charge of the goods;
- Inherent vice of the goods, including improper packing, labelling or addressing (except to the extent that the Company undertook to be responsible there for);
- Handling, loading, stowage or unloading of the goods by the Merchant or any person acting on his behalf other than the Company;
- Seizure, forteiture or detention under legal process;
- Riot, civil commotion, strike, lock out, general or partial stoppage or restraint of labour from whatever cause;
- Any consequence of war, invasion, acts of foreign enemies, hostilities (whether war be declared or not), civil war, terrorism, rebellion, revolution, insurrection, military or usurped power or confiscation or nationalization or requistion or destruction of or damage to any property or goods by or under the order of any Government or public or local authority.
- Any cause or event which the Company was unable to avoid and the consequences whereof the Company was unable to prevent by the exercise of due diligence.
- The Company shall not effect insurance for the subject matter of the Services save upon express instructions given in writing by the Merchant in relation to which there shall be a specific agreement as to charge. All insurance effected by the Company is subject to the conditions of the insurer. If the Company agrees to effect insurance, it acts as agent of the Merchant in doing so.
- Where the Company agrees to provide or arrange services for the Merchant’s goods, the Merchant shall be deemed to have authorised the Company to conclude all and any contracts necessary to provide those services. The Merchant shall reimburse on demand the Company with all taxes, charges or fines whatsoever incurred by the Company as a result of providing or arranging the services, or undertaking any liability in connection with the services, particularly in respect of any bond issued to Customs or any other statutory authority by the Company.
- The Merchant shall declare to the Company full details of goods which are of a dangerous or damaging nature. Should the Merchant fail to provide such details at the time of contract the Merchant shall be responsible for all costs and damages arising as a result thereof and the Company shall have the right exercisable on behalf of itself or its Principal to rescind the contract.
- The Company shall exercise reasonable care and diligence in providing services.
- Unless otherwise agreed in writing, the liability of the Company shall in all circumstances be limited to the lesser of sums calculated in the following manner:
- where goods are lost or damaged:
- the value of goods so lost or damaged; or
- a sum calculated at the rate of SDRs 2.00 per kilo of the gross weight of any goods lost or damaged, whichever shall be the least.
- in all other circumstances:
- the value of the goods so lost or damaged; or
- a sum calculated at the rate of SDRs 2.00 per kilo of the gross weight of any goods lost or damaged; or
- the amount of the direct loss or SDRs 75,000, whichever shall be the least.
- The Company will not provide Services in connection with bullion, coin, precious stones, jewellery, valuables, antiques, pictures, human remains, livestock, pets or plants but if the Company should, in the course of providing the Services, handle or deal with such goods (otherwise than under special arrangements previously made in writing) the Company shall be under no liability whatsoever for or in connection with such goods however arising.
- The Company shall perform the Services with due despatch but shall not be liable for any loss or damage arising from any delay which it could not reasonably prevent. Without prejudice to the foregoing, in the event that the Company is deemed to be liable for delay its liability shall not exceed the amount of the Company’s charges in respect of the transaction.
- Except in those cases of loss or damage referred to in Clauses 5.3 and 5.4 above and Clause 5.6 below, no liability whatsoever for consequential loss, be it direct or indirect, shall attach to the Company. Such loss shall include (but not be limited to) loss of profit, loss of market or the consequences of delay or deviation, however caused.
- The Company shall not be liable for loss of or damage to goods unless it is advised thereof in writing within three days after the completion of provision of the Services and the claim is made in writing within 42 days, provided always that these limits shall not apply if the Merchant or Principal can establish that it was not reasonably possible for him to make a claim in writing within the time limit and notice was given within a reasonable time. Notwithstanding the above provisions, the Company shall in any event be discharged from all liability whatsoever and howsoever arising in connection with the Services unless suit is brought within nine months of the delivery of the goods or of the date they should have been delivered or of the date of the event giving rise to any other loss.
- In addition to anything else agreed between them, the Parties, in whatever role they may occupy and with respect to any processing of personal data they may be involved in together, undertake to comply with the provisions of the Maltese Data Protection Act (Chapter 586 of the Laws of Malta) (DPA) and any other relevant legislation which is applicable during the term of this Agreement, in so far as the same relates to the provisions and obligations of this Agreement including, as of 25 May 2018, the Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation).
- The type of personal data that the Company shall process pursuant to this Agreement may include.
- In view of its obligations under the DPA and the GDPR, the Company (acting as a data processor in terms of this Agreement and any other agreement with the Principal involving any processing of personal data) shall:
- Act only upon the strict instructions of the Principal (the data controller) and not process any personal data that may be transferred to it by the Principal except as may be necessary for the performance of any service or task provided by the Company to/for the Principal and, in particular, to process the said personal data only on documented instructions from the Principal, including with regard to transfers of personal data to a third country or an international organization, unless required to do so by EU or Maltese law. In such a case, Company shall inform the Principal of that legal requirement before processing, unless that law prohibits such information on important grounds of public interest;
- Ensure that persons authorized to process the personal data (including but not limited to Company’s employees) have committed themselves to confidentiality or are under an appropriate statutory obligation of confidentiality;
- Implement appropriate technical and organizational measures to protect any personal data that may be processed on behalf of the Principal (if any) against accidental destruction or loss or unlawful forms of processing thereby providing the best possible level of security appropriate to the particular risks in question and take any other such measures as required by Company’s direct obligations as a data processor in terms of Article 32 of the GDPR;
- Not engage another data processor without prior specific or general written authorization of the Principal. In the case of general written authorization, the Company shall inform the Principal of any intended changes concerning the addition or replacement of other processors, thereby giving the Principal the opportunity to object to such changes. Where the Company engages another processor for carrying out specific processing activities on behalf of the Principal (as authorized by the Principal), the same data protection obligations as set out in this Agreement shall be imposed on that other processor or sub-processor by way of a contract or other legal act under EU or Maltese law, in particular providing sufficient guarantees to implement appropriate technical and organizational measures in such a manner that the processing will meet the requirements of the GDPR. Where that other processor or sub-processor fails to fulfil its data protection obligations, the Company shall remain fully liable to the Principal for the performance of that other processor or sub-processor’s obligations;
- Assist the Principal by appropriate technical and organizational measures, insofar as this is possible, for the fulfilment of the Principal’s obligation to respond to requests for exercising the data subject’s rights laid down in Chapter III of the GDPR, taking into account the nature of the processing;
- Assist the Principal in ensuring compliance with the obligations pursuant to Articles 32 to 36 of the GDPR (security obligations, notification of personal data breach to the supervisory authority obligation, communication of a personal data breach to the data subject obligation, data protection impact assessment obligation and prior consultation with the supervisory authority obligation) taking into account the nature of processing and the information available to the Company;
In any case, immediately inform the Principal of any personal data breach as defined in GDPR, regardless of whether the breach was caused by the Company;
- At the choice of the Principal, delete or return all the personal data to the Principal after the end of the provision of services relating to processing, and delete existing copies unless EU or Maltese law requires storage of the personal data;
- Make available to the Principal all information necessary to demonstrate compliance with the obligations laid down in this Clause 6 and in the applicable data protection law(s) and allow for and contribute to audits, including inspections, conducted by the Principal or another auditor mandated by the Principal. In this regard, the Company shall immediately inform the Principal if, in its opinion, an instruction infringes the GDPR or other EU or Maltese data protection provisions; and
- Take all such measures necessary to ensure that processing will meet the requirements of the GDPR and ensure the protection of the rights of data subjects.
- If the Merchant or the Principal, as the case may be, fails to make payment in full of any sums due to the Company on demand or within any period agreed in writing, the Company shall be entitled to recover interest on any sums outstanding with effect from the date of first demand at the rate of 2% above the average of the European Inter Bank Ordinary Rate (EURIBOR) applied by the Central Bank of Malta during the period when the sums are outstanding.
- The Company shall have a general lien on all goods and documents relating to goods in its possession, custody or control for all sums due at any time from the Merchant or Principal and shall be entitled to sell or dispose of such goods or documents as agent for and at the expense of the Merchant or Principal and apply the proceeds towards to monies due and the expenses of the retention, insurance, sale and disposal of the goods. Reasonable notice of 28 days of the intention to sell will be given by the Company to the Merchant or Principal unless the goods are liable to perish or deteriorate in which case the Company shall have the right to sell or dispose of the goods immediately. The Company shall, upon accounting to the Merchant or Principal for any balance remaining, be discharged from all liability whatsoever in respect of the goods.
- Where liability for General Average arises in connection with the Goods, the Customer shall promptly provide security to the Company or any other party designated by the Company in a form acceptable to the Company.
- It is hereby expressly agreed that no servant or agent of the Company (which for the purpose of this clause includes every independent contractor from time to time employed by the Company) shall in any circumstances whatsoever be under any liability whatsoever under these Conditions for any loss, damage or delay of whatsoever kind arising or resulting directly or indirectly from any act, neglect or default on his part while acting in the course of or in connection with his employment.
- Without prejudice to the generality of the foregoing provisions, every exemption from liability, limitation, condition and liberty herein contained and every right, defence and immunity of whatsoever nature applicable to the Company or to which the Company is entitled, shall also be available and shall extend to protect every such servant and agent of the Company acting as aforesaid.
- The Company shall be entitled to retain and be paid all customary brokerages, commission, allowances and other remuneration.
- The Merchant, the Supplier and the Principal each undertake with the Company that no claim or allegation of any kind shall be made against any of the Company’s directors, officers, employees, servants or agents (therein collectively called “the Beneficiaries”) for any loss, damage or delay of whatsoever kind arising or resulting directly or indirectly from any negligent act, error or omission of the Beneficiaries in the performance of the services the subject of these conditions. The Beneficiaries shall have the benefit of this undertaking and in entering into this contract the Company, to the extent of this provision, does so not only on its own behalf but also as agent or trustee for the Beneficiaries, who shall to the extent of this clause only be or be deemed to be parties to this contract.
- These conditions shall be subject to Maltese Law. Any dispute arising in connection with the Company’s business shall be determined by arbitration in Malta pursuant to the rules and terms of the Malta Arbitration Centre for the time being in force by a sole arbitrator appointed for that purpose by the parties. Failing agreement as to the identity of the sole arbitrator, each party shall nominate its own arbitrator, and the two so chosen, if they cannot agree, shall nominate an umpire, whose decision shall be final.
- If there is any conflict between the terms set out herein and any other terms and conditions agreed between the parties these Conditions shall prevail unless the Company specifically agrees otherwise in writing.
NOTE: These Conditions contain provisions relating to the exclusion and limitation of liability. Customers may wish to insure against these risks.