Article 1: DEFINITIONS
Means except when the context otherwise requires, any person who has authority, express or implied, to act for or on behalf of carrier in relation to the carriage of cargo.
1.2 AIR WAYBILL
Means the document entitled "Air Waybill" made out by or on behalf of the shipper which evidences the contract between the shipper and carrier for carriage of cargo over routes of carrier.
(which is equivalent to the term "goods"), means anything carried or to be carried in an aircraft except mail, or baggage carried under a passenger ticket and baggage check, but includes baggage moving under an air waybill or shipment record.
(Which is equivalent to the term “Transportation”) means carriage of cargo by air or by another means of transport, whether gratuitously or for reward.
Includes the air carrier issuing the air waybill or preserving the shipment record and each of the [all] carriers that carry or undertake to carry the cargo or to perform any other services related to such carriage, as the context requires.
1.6 CHARGES COLLECT
The charges entered on the air waybill or shipment record for collection from the Consignee against delivery of the shipment.
Means the person whose name appears on the air waybill or shipment record, as the party to whom the shipment is to be delivered by carrier.
1.8 CONVENTION - WHICHEVER OF THE FOLLOWING APPLY:
The Convention for the Unification of Certain Rules Relating to International Carriage by Air, signed at Warsaw, 12 October 1929 (referred to below as the Warsaw Convention). The Warsaw Convention as amended at The Hague on 28 September 1955. The Warsaw Convention as amended by Additional Protocol No.1 of Montreal (1975). The Warsaw Convention as amended at The Hague and by Additional Protocol No. 2 of Montreal (1975). The Warsaw Convention as amended at The Hague and by Additional Protocol No. 4 of Montreal (1975). The Guadalajara Supplementary Convention (1961) The Convention for the Unification of Certain Rules for International Carriage by Air, signed at Montreal, 28 May 1999 (referred to below as the Montreal Convention).
Means full calendar days, including Sundays and legal holidays; provided that for purposes of notification the balance of the day upon which notice is despatched shall not be counted.
(Which is equivalent to the term “Consignment”) means except as otherwise provided herein, one or more packages, the piece or pieces of cargo accepted by carrier and covered by one air waybill or shipment record
1.11 SHIPMENT RECORD
Means any record of the contract of carriage preserved by carrier, evidenced by means other than an air waybill.
Means the person whose name appears on the air waybill or shipment record, as the party contracting with carrier for carriage.
1.13 SPECIAL DRAWING RIGHT
Means a special Drawing Right as defined by the International Monetary Fund.
ARTICLE 2 - GENERAL APPLICABILITY
These conditions shall apply to all carriage of domestic cargo, and all other services incidental thereto, performed by or on behalf of carrier; provided however that if such carriage is “International Carriage” as defined in the applicable convention (see 1.3) such carriage shall be subject to the provisions of the applicable Conventions and to these conditions to the extent that these conditions are not inconsistent with provisions of such Conventions
2.1 APPLICABLE LAWS
To the extent not in conflict with 2.1 all carriage and other services performed by carrier are subject to: Applicable laws (including national laws implementing a Convention or extending the rules of the applicable Convention to carriage which is not “International Carriage” as defined in the applicable convention) government regulations, orders and requirements; These conditions and other applicable conditions, rules, regulations and time-tables (but not the times of departure and arrival therein specified) of carrier which may be inspected at any of its offices and at airports from which it operates regular services.
2.2 GRATUITOUS CARRIAGE
With respect to gratuitous carriage, carrier reserves the right to exclude the application of all or any part of these conditions.
With respect to carriage of cargo performed pursuant to a charter agreement with carrier, such carriage shall be subject to the terms and conditions of the charter contract entered into by carrier, and these conditions shall not apply except to the extent provided in said charter conditions. In case of divergence between the applicable provisions of these conditions and the conditions contained or referred to in the charter agreement, the latter shall prevail and the shipper, by accepting carriage pursuant to a charter agreement, whether or not concluded with the shipper, agrees to be bound by the applicable terms thereof. Where there is no separate charter contract applicable to such charter agreement, these conditions shall apply to such charter agreement except that carrier reserves the right to exclude the application of all or any part of these conditions.
2.4 CHANGE WITHOUT NOTICE
These conditions and the published rates and charges are subject to change without notice except to the extent otherwise provided by applicable law or government regulations or order. However, no such change shall apply to a contract of carriage after the date of issuance of the air waybill by carrier or after the date the rate or charge for the carriage has been entered in the shipment record.
2.5 EFFECTIVE RULES
All carriage of cargo governed by these conditions shall be subject to carrier's rules, regulations and tariffs in effect on the date of issuance of the air waybill by carrier or on the date of the shipment record, whichever is applicable, provided that in the event of inconsistency between these conditions and carrier's rules, regulations and tariffs, these conditions shall prevail.
It is agreed that no servant or agent of carrier nor any other person has any power to waive or vary any of these conditions unless such waiver or variation is in writing and signed by an executive officer of carrier.
2.7 EXEMPTIONS FROM LIABILITY TO SUBSIST
All the rights, immunities and exemptions from liability in these conditions shall continue to have their full force and effect in all circumstances and notwithstanding any breach of this contract or of any of its provisions by carrier or any other person entitled to benefit from such provisions and irrespective of whether such may constitute a fundamental breach of contract or a breach of a fundamental term.
It is hereby agreed that if any provision or part of any provision of these conditions is unenforceable such unenforceability shall not affect any other part of such provision or any other provision hereof.
ARTICLE 3 - ACCEPTABILITY OF GOODS FOR CARRIAGE
3.1 CARGO ACCEPTABLE
Carrier undertakes to transport, subject to the availability of suitable equipment and space, all shipments, unless otherwise excluded by carrier's regulations and provided: - The transportation, or the exportation or importation thereof is not prohibited by the laws or regulations of any country to be flown from, to or over; - They are packed in a manner suitable for carriage; - They are accompanied by the requisite shipping documents; - They are not likely to endanger aircraft, persons or property, or cause annoyance to passengers.
3.2 REFUSAL OF CARRIAGE
Carrier reserves the right without assuming any liability to refuse carriage of cargo in its own absolute discretion.
3.3 PACKING & MARKING OF CARGO
3.3.1 SUITABLE AND SAFE PACKING
Shipper is responsible for ensuring that cargo is packed in an appropriate way for air carriage and carriage by other means of transportation so as to ensure that it can be carried safely with ordinary care in handling and so as not to injure or damage any persons, goods or property.
Each package shall be legibly and durably marked with the name and full address of the shipper and consignee or one or more pieces in a shipment shall be so marked with all other pieces in the shipment being appropriately referenced thereto.
3.3.3 PROTECTION FROM EXPOSURE TO WEATHER
Shipper is responsible for packing cargo so as to protect it from all weather conditions to which it may be exposed, including but not limited to rain, wind, heat and cold.
Packages containing valuables must be sealed if so requested by carrier by a method approved by carrier.
3.3.5 VALUATION OF SHIPMENT
Carrier may refuse carriage of shipments having a declared value for carriage in excess of N100,000.00 save and except where shipper provides Overland Airways with indemnity letter absorbing Overland Airways of any liability that may result from loss, damage, delay and any other defect that may be occasioned thereof.
3.3.6 REFUSAL OF C.O.D. SHIPMENTS
Carrier will not accept shipments on a cash-on-delivery basis
3.4 CARGO ACCEPTABLE ONLY UNDER PRESCRIBED CONDITIONS
Dangerous goods, live animals, perishables, fragile goods, human remains and other special cargo are acceptable only under the conditions laid down by carrier for carriage of such cargo.
3.5 CARRIAGE OF PERISHABLES
Shipments of perishables must be packed and documented strictly in accordance with carrier's special handling procedures set out by the Carrier incorporated and forms part of these conditions. In the event of deterioration of such a shipment for whatever reason, carrier in its sole discretion may take such steps as it deems appropriate.
3.6 RESPONSIBILITY FOR NON-OBSERVANCE OF CONDITIONS RELATING TO SPECIAL CARGO
The shipper shall indemnify carrier for any loss, damage, delay, liability or penalty which carrier may incur because of any non-observance of any condition relating to carriage of any special cargo.
3.7 DANGEROUS GOODS
The shipper shall not tender for carriage any incendiary device, volatile or explosive cargo or cargo which is or may become dangerous, inflammable or offensive or which is or may become liable to damage any property whatsoever without presenting a full description disclosing the nature of such cargo, and in any event the shipper shall be liable for all loss and damage caused thereby. If in the sole opinion of carrier the cargo becomes or is liable to become dangerous, inflammable, explosive, volatile, offensive or damaging in nature, the same may at any time be retained, destroyed, disposed of, abandoned or rendered harmless by carrier without compensation to the shipper and without prejudice to carrier's right to any charges hereunder and at the cost of the shipper.
3.8 COMPLIANCE WITH LAWS AND REGULATIONS
The shipper warrants that they have complied with all the laws and regulations relating to the nature, packaging, labelling, storage or carriage of cargo, and that the cargo is packed in a manner adequate to withstand the ordinary risks of carriage having regard to its nature, and further the shipper hereby indemnifies carrier for any liability whatsoever and all costs and expenses resulting from or arising out of the shipper's failure to comply with each of these warranties, including but not limited to compliance with the applicable Dangerous Goods Regulations.
3.9 CARRIER'S RIGHT OF INSPECTION
Carrier reserves the right to inspect the packaging and contents of all shipments (which may include security screening by Explosive Trace Detection, X-Ray and/or physical search) and to enquire into the correctness or sufficiency of information or documents tendered in respect of any shipment but carrier shall be under no obligation to do so, and assumes no liability with regard to such inspection or enquiry.
3.10 UNIT LOAD DEVICES
When the shipper undertakes to load a unit load device (ULD) they must comply with carrier's loading instructions, are liable for, and shall indemnify carrier against all consequences of any non-compliance with such instructions.
ARTICLE 4 - DOCUMENTATION
4.1 AIR WAYBILL
Subject to clause 3.6, the shipper shall make out, or have made out on their behalf; an air waybill in the form, manner and number of copies prescribed by carrier, and shall deliver such air waybill to carrier simultaneously with the acceptance of cargo by carrier for carriage. However, charges for carriage, other charges and the correct gross weight of the shipment, insofar as they have been ascertained, shall be inserted and or corrected in the air waybill by carrier. Carrier may require the shipper to make out, or have made out on their behalf, separate air waybills when there is more than one package or when the shipment cannot be carried in one aircraft or cannot, without breach of government or carrier's regulations, be carried on one air waybill.
4.2 SHIPMENT RECORD
Carrier may accept in substitution for the delivery of an air waybill a shipment record to preserve a record of the carriage to be performed. If such shipment record is used carrier shall, if so requested by the shipper, deliver to the shipper in accordance with carrier's regulations a goods receipt permitting identification of the shipment and access, in accordance with carrier's regulations, to the information contained in the shipment record.
4.3 APPARENT CONDITION/ PACKING OF CARGO
If the apparent order and condition of cargo and/or packing is in any way defective the shipper shall, if an air waybill is delivered, include on the air waybill a statement of such apparent order and condition. If no air waybill is delivered the shipper shall advise carrier of the apparent order and condition of cargo, to enable carrier to insert an appropriate reference thereto in the shipment record. However, if the shipper fails to include such statement in the air waybill or to advise carrier of the apparent order and condition of cargo, or if such statement or advice is incorrect, carrier may include in the air waybill or insert in the shipment record a statement of the apparent order and condition of cargo, or note a correction thereto but carrier is under no obligation to do so.
4.4 PREPARATION, COMPLETION OR CORRECTION BY CARRIER
Carrier may at the request of the shipper express or implied, make out the air waybill in which event, subject to proof to the contrary, carrier shall be deemed to have done so on behalf of the shipper. It is the responsibility of the shipper to ensure that the air waybill handed over with cargo or, where applicable, contains all the required particulars which must be complete and correct. Should any of the required particulars in the air waybill be irregular, incorrect or incomplete, the Carrier shall be entitled to correct and alter the relevant particulars to ensure their accuracy and completeness. The Carrier's particulars as to gross weight of the cargo shall be conclusive evidence as against the shipper and consignee, of the gross weight of the shipment.
4.5 RESPONSIBILITY FOR PARTICULARS
The shipper is responsible for the correctness of the particulars and statements relating to cargo inserted by the shipper or on their behalf in the air waybill or furnished by the shipper or on their behalf to carrier for insertion in the shipment record. The shipper shall indemnify carrier against all damage suffered by the shipper or by any other person (including the shipper) to whom carrier is liable, by reason of the irregularity, incorrectness or incompleteness of the particulars and statements furnished by the shipper or on their behalf. The shipper's particulars as to value, unless no value be declared, shall be conclusive evidence, as against the shipper and consignee, of the value of the shipment. Where no value is declared, the shipper warrants that the shipment requires no special security or handling.
Air waybills, the writing on which has been altered or erased, need not be accepted by carrier.
ARTICLE 5 - RATES AND CHARGES
5.1 APPLICABLE RATES AND CHARGES
Rates and charges for carriage governed by these conditions are those duly published by carrier and in effect on the date of issuance of the air waybill by carrier or on the date the rate or charge for the carriage has been entered in the shipment record.
5.2 BASIS OF RATES AND CHARGES
Rates and charges will be based on the units of measurement and subject to the rules and conditions published in carrier's regulations and rate tariffs.
5.3 SERVICES NOT INCLUDED IN PUBLISHED RATES AND CHARGES
Except as otherwise provided in carrier's regulations, rates and charges apply only from airport to airport and do not include any ancillary service given by carrier in connection with carriage.
5.4 PAYMENT OF CHARGES
5.4.1 PAYMENT RATE
Rates and charges are published in the currency shown in the applicable rate tariffs, and may be paid in any currency acceptable to carrier. When payment is made in a currency other than in the currency in which the rate or charge is published, such payment will be made at the rate of exchange established for such purpose by carrier, the current statement of which is available for inspection at carrier's office where payment is made.
5.5 PAYMENT DUE
Full applicable charges, fees, duties, taxes, charges, advances and payments, made or incurred or to be incurred by carrier and any other sums payable to carrier, will be deemed fully earned, whether or not cargo is lost or damaged, misdelivered or fails to arrive at the destination specified in the air waybill or shipment record. All such charges, sums and advances will be due and payable upon receipt of the cargo by carrier, except that they may be collected by carrier at any stage of the service performed under the contract of carriage
5.5.1 SHIPPER'S GUARANTEE
The shipper guarantees payment of all unpaid charges, advances and disbursements of carrier. The shipper also guarantees payment of all costs, expenditures, fines, penalties, loss of time, damage and other sums which carrier may incur or suffer by reason of the inclusion in the shipment of articles the carriage of which is prohibited by law, or the illegal, incorrect or insufficient marking, numbering, addressing or packing of packages or descriptions of cargo, or incorrect statement of weight or volume.
5.5.2 PAYMENT FOR EXCESS
If the gross weight, measurement, quantity or declared value of cargo exceeds the gross weight, measurement, quantity or declared value on which charges for carriage have been previously computed, carrier shall be entitled to require payment of the charge on such excess.
All charges applicable to a shipment are payable at the time of acceptance thereof by carrier in the case of a prepaid shipment (i.e. a shipment on which the charges are to be paid by the shipper).
5.5.4 CANCELLATION OF CARRIAGE FOR NON-PAYMENT
Carrier may cancel the carriage of the shipment upon refusal by the shipper, after demand by carrier, to pay the charges or portion thereof so demanded, without carrier being subject to any liability therefore.
5.6 CARRIER'S GENERAL LIEN
Carrier shall have a lien on the cargo and any documents relating thereto and on any other cargo of the shipper in the possession of carrier or any documents relating to all amounts unpaid and, in the event of non-payment thereof, shall have the right to sell the cargo by public auction or private sale provided that prior to such sale carrier shall have given notice thereof by telex, facsimile or mail to the shipper or to the consignee at the address stated in the air waybill or shipment record, and to pay itself out of the proceeds of such sale. No such auction or sale shall discharge any liability to pay any deficiencies, for which the shipper and the consignee shall remain jointly and severally liable. By taking delivery or exercising any other right arising from the contract of carriage, the consignee agrees to pay such amounts.
ARTICLE 6 - SHIPMENTS IN COURSE OF CARRIAGE
6.1 COMPLIANCE WITH GOVERNMENT REQUIREMENTS
The shipper shall comply with all applicable laws, customs and other government regulations, including those relating to the packing, carriage or delivery of cargo, and shall, together with the shipment, furnish such information and deliver such documents as may be necessary to comply with such laws and regulations. Carrier shall not be obliged to enquire into the correctness or sufficiency of such information or documents. Carrier shall not be liable to the shipper or any other person for loss or expense due to shipper's failure to comply with this provision. The shipper shall indemnify carrier against any damage occasioned by the failure of the shipper to comply with this provision. Carrier shall not be liable for refusing to carry any shipment if carrier reasonably determines in good faith that such refusal is required by any applicable law, government regulation, demand, order or requirement.
6.2 DISBURSEMENTS AND CUSTOMS FORMALITIES
Carrier is authorized (but shall be under no obligation) to advance any duties, taxes or charges and to make any disbursement with respect to cargo and the shipper and consignee shall be jointly and severally liable for the reimbursement thereof. No carrier shall be under obligation to incur any expense or to make any advance in connection with the forwarding or re-forwarding of cargo except against prepayment by the shipper.
6.3 SCHEDULES, ROUTINGS, DELAYS AND CANCELLATIONS
Times shown in carrier's timetables or elsewhere are approximate and not guaranteed and form no part of the contract of carriage. No time is fixed for commencement or completion of carriage or delivery of cargo. Unless specifically agreed otherwise and so indicated in the air waybill or shipment record, carrier undertakes to carry cargo with reasonable dispatch but assumes no obligation to carry cargo by any specified aircraft or over any particular route or routes, or to make connections at any point according to any particular schedule. Carrier is hereby authorized to select or deviate from the route or routes of the shipment, notwithstanding that the same may be stated on the face of the air waybill or in the shipment record. Carrier is not responsible for errors or omissions either in timetables or other representations of schedules. No employee, agent or representative of carrier is authorized to bind carrier by any statements or representations of the dates or times of departure or arrival, or of operation of any flight.
6.3.2 SUBSTITUTION OF CARRIER AND CARRIAGE
Carrier may without notice substitute alternate carriers or other means of carriage.
Carrier reserves the right without notice, to cancel, terminate, divert, postpone, delay or advance any flight, or the further carriage of any cargo, or to proceed with any flight without all or any part of cargo, and without assuming any liability in its own absolute discretion. However, where the shipper cancels or terminates carriage of cargo in its own absolute discretion and seeks refund of applicable charges. Such refund will attract a 5% administrative fee.
6.3.4 NO LIABILITY IN EVENT OF DELAY
In the event any flight is so cancelled, diverted, postponed, delayed or advanced or is terminated at a place other than the place of destination or in the event the carriage of any shipment is so cancelled, diverted, postponed, delayed, advanced or terminated, carrier shall not be under any liability with respect thereto.
6.3.5 STORAGE OR TRANSFER IN EVENT OF TERMINATION
In the event any flight is cancelled, diverted, postponed, delayed or advanced or is terminated at a place other than the place of destination or in the event the carriage of any shipment is so cancelled, diverted, postponed, delayed, advanced or terminated, carrier shall not be under any liability with respect thereto. In the event the carriage of the shipment or any part thereof is so terminated, delivery thereof by carrier to any transfer agent for transfer or delivery or the placing of such shipment in storage shall be deemed completed delivery under the air waybill or shipment record, and carrier shall be without any further liability with respect thereto, except to give notice of the disposition of the shipment to the shipper or to the consignee, at the address stated in the air waybill or shipment record. Carrier may, but shall not be obliged to, forward the shipment for carriage by any other route or forward the shipment as agent for the shipper or the consignee for onward carriage by any means of transportation on behalf of the shipper or the consignee. The cost of doing so attaches to cargo.
6.3.6 PRIORITY OF CARRIAGE
Subject to applicable government laws, regulations and orders, carrier is authorized to determine the priority of carriage as between shipments, and as between cargo and mail or passengers. Carrier may likewise decide to remove any articles from a shipment, at any time or place whatsoever, and to proceed with the flight without them. If, as a result of determining such priority, cargo is not carried or carriage thereof is postponed or delayed or if any articles are removed from a shipment, carrier will not be liable to shipper or consignee or to any other party for any consequences.
6.4 CARRIER'S RIGHT TO STORE OR DELIVER TO ANOTHER CARRIER
If in the opinion of carrier it is necessary to hold the shipment at any place for any purpose, either before, during or after carriage, carrier may, upon giving notice thereof to the shipper at the address stated in the air waybill or shipment record, store the shipment for the account and at the risk and expense of the shipper, in any warehouse or other available place, or with the customs authorities, or carrier may deliver the shipment to another transportation service for onward carriage to the consignee. The shipper shall indemnify carrier against any expense or risk so incurred.
ARTICLE 7 - SHIPPER'S RIGHT TO ALTER DELIVERY INSTRUCTIONS
7.1 RIGHT TO ALTER DELIVERY INSTRUCTIONS
Every exercise of this right must be made by the shipper or the shipper’s designated agent, if any, and must be applicable to the whole shipment under a single air waybill or shipment record. The right of alteration over cargo may only be exercised if the shipper or such agent produces the part of the air waybill or shipment record which was delivered to him, or communicates such other form of authority as may be prescribed by carrier. Alteration of delivery instructions must be given (in writing) in the form prescribed by carrier. In the event that the exercise of the right results in a change of consignee, such new consignee shall be deemed to be the consignee appearing on the air waybill or in the shipment record.
7.2 SHIPPER'S OPTION
Subject to the shipper's liability to carry out all its obligations under the contract of carriage and provided that this right of alteration of delivery instructions is not exercised in such a way as to prejudice carrier or other shippers, the shipper may at its own expense dispose of cargo either by:
- withdrawing it at the airport of departure or of destination; or - stopping it in the course of the journey on any landing; or - calling for it to be delivered at the place of destination or in the course of the journey to a person other than the consignee named in the air waybill or shipment record; or - requiring it to be returned to the airport of departure If, in the opinion of carrier, it is not reasonably practicable to carry out the order of the shipper, carrier shall so inform him promptly and carrier shall thenceforth be under no obligation to carry out any such order.
7.3 PAYMENT OF EXPENSES
The shipper shall be liable for and shall indemnify carrier for all loss or damage suffered or incurred by carrier as a result of the exercise of its right to alter delivery instructions and shall reimburse carrier for any expenses occasioned by the exercise of this right.
7.4 EXTENT OF SHIPPER'S RIGHT
The shipper's right to alter delivery instructions shall cease at the moment when, after arrival of cargo at the destination, the consignee takes possession or requests delivery of cargo or air waybill, or otherwise shows acceptance of cargo. Nevertheless, if the consignee declines to accept the air waybill or cargo, or if the consignee cannot be communicated with, such right of alteration shall continue to vest in the shipper.
ARTICLE 8 - DELIVERY
8.1 NOTICE OF ARRIVAL
Notice of arrival of the shipment will, in the absence of other instructions, be sent to the consignee and any other person whom carrier has agreed to notify as evidenced in the air waybill or shipment record; such notice will be sent by ordinary methods. Carrier is not liable for non-receipt or delay in receipt of such notice.
8.2 DELIVERY OF SHIPMENT
Except as otherwise specifically provided in the air waybill or shipment record, delivery of the shipment will be made only to the consignee named therein, or its agent or such other person as produces the shipper's authority to carrier for delivery of the goods. Carrier shall not be bound to enquire into the correctness of such authority. Delivery to the consignee shall be deemed to have been effected:
- When carrier has delivered to the consignee or its agent any authorization from carrier required to enable the consignee to obtain release of the shipment; or - if applicable law or regulation does not require delivery to government authorities, when consignee, its agent or person presenting consignee's authority takes delivery of cargo from carrier.
8.3 PLACE OF DELIVERY
The consignee must accept delivery of and collect the shipment at the airport of destination.
8.4 RECEIPT BY CONSIGNEE
Receipt of cargo by the consignee without complaint is prima facie evidence that the same has been delivered in good condition and in accordance with the contract of carriage.
8.5 FAILURE OF CONSIGNEE TO TAKE DELIVERY
8.5.1 SHIPPER'S INSTRUCTIONS
Subject to the provisions of 8.2 hereof, if the consignee refuses or fails to take delivery of the shipment after its arrival at the airport of destination, carrier will endeavor to comply with any instructions of the shipper set forth on the face of the air waybill or shipment record.
8.5.2 RIGHT OF SALE IF NO INSTRUCTIONS
If such instructions are not so set forth or cannot reasonably be complied with, carrier shall notify the shipper of the consignee's failure to take delivery and request his instructions. If no such instructions are received within 30 days, in respect of non-perishables, and immediately, in respect of perishables, carrier may sell the shipment in one or more lots at public or private sale, or destroy or abandon such shipment.
8.5.3 SHIPPER'S LIABILITY FOR CHARGES AND EXPENSES
The shipper is liable for all charges and expenses resulting from or in connection with the failure to take delivery of the shipment, including, but not limited to, storage and carriage charges incurred in returning the shipment if so required by the shipper's instructions. If the shipment is returned to the airport of departure and the shipper refuses or neglects to make such payments within 7 days after such return, carrier may dispose of the shipment or any part thereof at public or private sale after giving the shipper ten days' notice of its intention to do so.
8.6 DISPOSAL OF PERISHABLES 8.6.1 CARRIAGE
When a shipment containing perishables is delayed in the possession of carrier, is unclaimed or refused at place of delivery, or for other reasons is liable to deteriorate, carrier may immediately in its sole discretion take such steps as it deems appropriate, including but not limited to:-
8.7 PROCEEDS OF SALE
- The disposal of the shipment or any part thereof at public auction or private sale without notice;
- the storage of the shipment or any part thereof; or
- the destruction or abandonment of all or any part of the shipment.
In the event of sale, carrier is authorised to pay it’s self out of the proceeds, all charges, advances and expenses and to account to the shipper in respect of any balance of such proceeds.
8.8 CONSIGNEE'S AND SHIPPER'S LIABILITY FOR COSTS AND CHARGES
By accepting delivery of the air waybill and/or the shipment the consignee shall become liable for payment of all costs and charges in connection with the carriage. Unless otherwise agreed the shipper shall not be released from his own liability for these costs and charges and will remain jointly and severally liable with the consignee. Carrier may make delivery of the shipment or the air waybill conditional upon payment of these costs and charges.
ARTICLE 9 - AUTHORITY AND INDEMNITY OF SHIPPER
9.1 AUTHORITY TO TENDER CARGO FOR CARRIAGE
It is agreed that any person who tenders cargo to carrier for carriage for or on behalf of the shipper is authorised to do so subject to these conditions.
9.2 SHIPPER'S AUTHORITY
The shipper warrants that in agreeing to these conditions it has the authority of the person or persons owning or having any interest in the cargo or any part thereof.
9.3 SHIPPER'S INDEMNITY
Without prejudice to the generality of the foregoing, shipper undertakes to indemnify carrier in respect of any liability whatsoever and howsoever arising (including without limitation, negligence or breach of contract or wilful act or default of carrier or others) in connection with carriage of cargo to any person (other than shipper) who claims to have, who has or who may hereafter have any interest in cargo or any part thereof. It is agreed that this indemnity operates irrespective of whether carrier's liability arises in events which may constitute a fundamental breach of contract or a breach of a fundamental term.
ARTICLE 10 - CARRIER'S RIGHT TO SUBCONTRACT
10.1 CARRIER'S RIGHT
The carrier shall be entitled to subcontract on any carriage or part thereof
10.2 TERMS OF CONTRACT OF CARRIAGE APPLICABLE TO SUB-CONTRACTOR
Every exemption, limitation, condition and liberty herein contained and every right, exemption from liability, defence and immunity of whatsoever nature applicable to carrier or to which carrier is entitled hereunder shall also be available and shall extend to protect
(a) All subcontractors,
(b) Every servant or agent of carrier or of a subcontractor,
(c) Every other person (other than carrier) by whom the services or any part thereof are provided, and
(d) all persons who are or may be vicariously liable for the acts or omissions of any person falling within (a), (b) or (c) hereof, and for the purpose of this clause carrier is or shall be deemed to be acting as agent or trustee on behalf of and for the benefit of all such persons and each of them and all such persons and each of them shall to this extent be or be deemed to be parties to this contract.
10.3 SUCCESSIVE CARRIERS
Carriage to be performed under one contract of carriage by several successive carriers is regarded as a single operation.
10.4 CARRIER'S LIABILITY
10.4.1 LIMITATION OF LIABILITY
If clause 10.5 of these conditions is deemed invalid by any law then our liability for any, and the consequences of any loss of or damage is limited to a maximum limit of USD$100.00 per air waybill.
10.4.2 INHERENTLY DEFECTIVE CARGO
In any event, carrier is not liable if the destruction, loss or damage to cargo is proved to have resulted solely from the inherent defect, quality, nature or vice of that cargo.
10.4.3 CONTRIBUTORY NEGLIGENCE
If the damage was caused or contributed to by the negligence or other wrongful act or omission of the claimant, or the person from whom rights are derived, carrier shall be wholly or partly exonerated from liability to the claimant to the extent that such negligence or wrongful act or omission caused or contributed to the damage.
10.5 EXCLUSION OF LIABILITY
The carrier is not liable to the shipper, consignee, any third party, or any other person having an interest in the cargo in tort or contract or bailment or otherwise for any, and the consequences of any, delay in collection of cargo or loss of or damage to or deterioration of cargo or mis-delivery or failure to deliver or delay in delivery of cargo for any reason whatsoever including, without limiting the foregoing, the negligence or breach of contract, statutory duty or wilful act or default of the carrier whether or not the same occurs in the course of performance by or on behalf of carrier under this contract or in events which are in the contemplation of carrier and/or shipper or in events which are foreseeable by them or either of them or in events which may constitute a fundamental breach of contract or a breach of a fundamental term.
Carrier will not be liable for any loss, damage or expense arising from death due to natural causes or death or injury of any animal (as classified in IATA Live Animal Regulations) caused by the conduct or acts of the animal itself or of other animals, including but not limited to biting, kicking, goring or smothering.
10.7 APPLICABLE WEIGHT
In the case of loss, damage or delay of part of the shipment, or of any object contained therein, the weight to be taken into consideration in determining the amount to which carrier's liability is limited shall be only the weight of the affected part of that shipment where unpackaged, or otherwise the package or packages concerned. Nevertheless, when the loss, damage or delay of part of the shipment, or of an object contained therein, affects the value of other packages covered by the same air waybill, the total weight of such package or packages shall also be taken into consideration in determining the limit of liability.
10.8 DETERMINATION OF VALUE
In the absence of proof to the contrary, the value of any such part of the shipment lost, damaged or delayed as the case may be, shall be determined by reducing the total value of the shipment in the proportion that the weight of that part of the shipment lost, damaged or delayed has to the total weight of the shipment.
The shipper, owner and consignee whose property causes damage to or destruction of another shipment or of the property of carrier, shall indemnify carrier for all losses and expenses incurred by carrier as a result thereof.
10.10 LIABILITY OF OTHER CARRIER
Carrier issuing an air waybill for carriage over the lines of another carrier does so only as agent for such other carrier. Any reference in a shipment record to carriage to be performed by another carrier shall be deemed to refer to carriage to be provided as principal by such other carrier. Carrier shall not be liable for the loss, damage or delay of cargo not occurring on its own line except that the shipper shall have a right of action for such loss, damage or delay on the terms herein provided against the first carrier and the consignee or other person entitled to delivery shall have such right of action against the last carrier under the contract of carriage.
10.11 APPLICATION OF LIMITATION OF LIABILITY TO AGENTS
Whenever the liability of carrier is excluded or limited under these conditions, such exclusion or limitation shall apply to agents, servants or representatives of carrier and also to any carrier whose aircraft is used for carriage.
10.12 LIMITATIONS ON CLAIMS AND ACTIONS
Receipt by the person entitled to delivery of the cargo without complaint is prima facie evidence that the same has been delivered in good condition and in accordance with the contract of carriage.
10.13 TIME LIMITS ON COMPLAINTS
No action shall be maintained in the case of loss or damage to cargo unless a complaint is made to carrier in writing by the person entitled to delivery. Such complaint shall be made:
- In the case of damage to or partial loss of the cargo, immediately after its discovery and at the latest within 14 days from the date of receipt of the cargo;
- In the case of delay, within 21days from the date on which the cargo was placed at the disposal of the person entitled to delivery;
- In the case of non-delivery of the cargo, within 120 days of the date of issue of the air waybill or the date of the shipment record, whichever is applicable.
10.14 TIME LIMIT ON ACTION
Any right to damages against carrier shall be extinguished unless an action is brought within two years after the arrival or proposed time of arrival at the destination
10.15 OVERRIDING LAW
Insofar as any provision contained or referred to in the air waybill or shipment record or these conditions may be contrary to mandatory law, government regulations, orders or requirements, such provision shall remain applicable to the extent that it is not overridden thereby. The invalidity of any such provision shall not affect any other part.
10.16 MODIFICATION AND WAIVER
No agent, servant or representative of carrier has authority to alter, modify or waive any provision of the contract of carriage or of these conditions.
10.17 GOVERNING LAW
This Conditions of Carriage are to be interpreted in accordance with the Laws of the Federal Republic of Nigeria and the Montreal Convention. The Montreal Convention applies to international carriage/transportation, as defined in the Convention and same will only be applicable to the carriage if the Laws of Nigeria is silent on the particular issue to be redressed.
10.18 APPLICATION OF CONSUMER PROTECTION COUNCIL ACT
This contract is subject to the Consumer Protection Council Act, if and to the extent that the Act implies a condition, warranty or guarantee in this contract and prevents the exclusion, restriction or modification of any such condition, warranty or guarantee. Subject to the limitation of liability in these conditions, for carriage to which the Consumer Protection Council Act applies, to the extent permitted by that Act.