BRITISH INTERNATIONAL FREIGHT ASSOCIATION (BIFA)
STANDARD TRADING CONDITIONS
2021 EDITION (SCOTLAND) © BIFA 2021
THE CUSTOMER’S ATTENTION IS DRAWN TO SPECIFIC CLAUSES HEREOF WHICH EXCLUDE OR LIMIT THECOMPANY’S LIABILITY AND THOSE WHICH REQUIRE THE CUSTOMER TO INDEMNIFY THE COMPANY IN CERTAINCIRCUMSTANCES AND THOSE WHICH LIMIT TIME AND THOSE WHICH DEAL WITH CONDITIONS OF ISSUINGEFFECTIVE GOODS INSURANCE BEING CLAUSES 7, 8, 10, 11(A) and 11(B) 12-14 INCLUSIVE, 18-20INCLUSIVE, AND 24-27 INCLUSIVE. THE CUSTOMER’S ATTENTION IS ALSO DRAWN TO CLAUSE 28 WHICHPERMITS ARBITRATION IN CERTAIN CIRCUMSTANCES
DEFINITIONS AND APPLICATION
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1. In these conditions the following words shall have the following meanings:-
“Company” the BIFA member trading under these conditions “Consignee” the Person to whom the goods are consigned “Customer” any Person at whose request or on whose behalf the Company undertakes any business
or provides advice, information or services“Direct Customs Agent” the Company acting in the name of and on behalf of the Customer and/or Owner with
H.M. Revenue and Customs (“HMRC”) as defined by the Taxation (Cross Border Trade)
Act 2018, Clause 21.1(a), or as amended“Goods” the cargo to which any business under these conditions relates “Person” natural person(s) or any body or bodies corporate “LMAA” the London Maritime Arbitrators Association “SDR” are Special Drawing Rights as defined by the International Monetary Fund “Transport Unit” packing case, pallets, container, trailer, tanker, or any other device used
whatsoever for and in connection with the carriage of Goods by land, sea or air“Owner” the Owner of the Goods or Transport Unit and any other Person who is or may become
interested in them - 2.(A) Subject to sub-paragraph 2.(B) below, all and any activities of the Company in
the course of business, whether gratuitous or not, are undertaken subject to these conditions.
2.(B) If any legislation, to include regulations and directives, 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 be repugnant to such
legislation to any extent, such part shall as regards such business be overridden to that extent
and no further.- 3. The Customer warrants that he is either the Owner, or the authorised agent of the Owner
and, also, that he is accepting these conditions not only for himself, but also as agent for
and on behalf of the Owner.
THE COMPANY
- 4.(A) Subject to clauses 11 and 12 below, the Company shall be entitled to procure any or all
of the services as an agent, or, to provide those services as a principal. - 4.(B) The Company reserves to itself full liberty as to the means, route and procedure to
be followed in the performance of any service provided in the course of business undertaken
subject to these conditions.
5. When the Company contracts as a principal for any services, it shall have full liberty to
perform such services itself, or, to subcontract on any terms whatsoever, the whole or any
part of such services.
6.(A) When the Company acts as an agent on behalf of the Customer, the Company shall be
entitled, and the Customer hereby expressly authorises the Company, to enter into all and
any contracts on behalf of the Customer as may be necessary or desirable to fulfil the
Customer’s instructions, and whether such contracts are subject to the trading conditions of
the parties with whom such contracts are made, or otherwise.
6.(B) The Company shall, within 14 days’ notice given by the Customer, provide evidence of
any contract entered into as agent for the Customer. Insofar as the Company may be in
default of the obligation to provide such evidence, it shall be deemed to have contracted
with the Customer as a principal for the performance of the Customer’s instructions.
7. In all and any dealings with HMRC, for and on behalf of the UK established Customer
and/or Owner, the Company is deemed to be appointed and duly empowered to act as a Direct
Customs Agent only, to make Customs declarations in the name of
the Customer (Principal) as their “Direct Agent”.- 8.(A) Subject to sub-clause 8.(B) below,
the Company:
8.(A)(i) has a general lien on all Goods and documents relating to Goods in its possession, custody
or control for all sums due at any time to the Company from the Customer and/or Owner on any
account whatsoever, whether relating to Goods belonging to, or services provided by or on behalf
of the Company to the Customer or Owner. Storage charges shall continue to accrue on any Goods
detained under lien;
8.(A)(ii) shall be entitled, on at least 21 days’ notice in writing to the Customer, to sell
or dispose of or deal with such Goods or documents as agent for, and at the expense of, the
Customer and apply the proceeds in or towards the payment of such sums;
8.(A)(iii) shall, upon accounting to the Customer for any balance remaining after payment of
any sum due to the Company, and for the cost of sale and/or disposal and/or dealing, be
discharged of any liability whatsoever in respect of the Goods or documents.
8.(B) When the Goods are liable to perish or deteriorate, the Company’s right to sell or
dispose of or deal with the Goods shall arise immediately upon any sum becoming due to the
Company, subject only to the Company taking reasonable steps to bring to the Customer’s
attention its intention to sell or dispose of the Goods before doing so.
9. 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.
10.(A) Should the Customer, Consignee or Owner of the Goods fail to take delivery at the
appointed time and place when and where the company is entitled to deliver, the Company
shall be entitled to store the Goods, or any part thereof, at the sole risk of the Customer
or Consignee or Owner, whereupon the Company’s liability in respect of the Goods, or that
part thereof, stored as aforesaid, shall wholly cease. The Company’s liability, if any, in
relation to such storage, shall be governed by these conditions. All costs incurred by the
Company as a result of the failure to take delivery shall be deemed as freight earned, and
such costs shall, upon demand, be paid by the Customer.
10.(B) The Company shall be entitled at the expense of the Customer to dispose of or deal
with (by sale or otherwise as may be reasonable in all the circumstances):-
10.(B)(i) after at least 21 days’ notice in writing to the Customer, or (where the Customer
cannot be t raced and reasonable efforts have been made to contact any parties who may
reasonably be supposed by the Company to have any interest in the Goods) without notice, any
Goods which have been held by the Company for 60 days and which cannot be delivered as
instructed; and
10.(B)(ii) without prior notice, any Goods which have perished, deteriorated, or altered, or
are in immediate prospect of doing so in a manner which has caused or may reasonably be
expected to cause loss or damage to the Company, or third parties, or to contravene any
applicable laws or regulations.
11.(A) No insurance will be effected except pursuant to and in accordance with clearly
stated instructions given in writing by the Customer and accepted in writing by the Company,
and all insurances effected by the Company are subject to the usual exceptions and
conditions of the policies of the insurers or underwriters taking the risk. Unless otherwise
agreed in writing, the Company shall not be under any obligation to effect a separate
insurance on the Goods, but may declare it on any open or general policy held by the
Company.
11.(B) Insofar as the Company agrees to effect insurance, the Company acts solely as agent
for the Customer, and the limits of liability under clause 26(A) of these conditions shall
not apply to the Company’s obligations under clause 11.
12.(A) Except under special arrangements previously made in writing by an officer of the
Company so authorised, or made pursuant to or under the terms of a printed document signed
by the Company, any instructions relating to the delivery or release of the Goods in
specified circumstances (such as, but not limited to, against payment or against surrender
of a particular document) are accepted by the Company, where the Company has to engage third
parties to effect compliance with the instructions, only as agents for the Customer.
12.(B) Despite the acceptance by the Company of instructions from the Customer to collect
freight, duties, charges, dues, or other expenses from the Consignee, or any other Person,
on receipt of evidence of proper demand by the Company, and, in the absence of evidence of
payment (for whatever reason) by such Consignee, or other Person, the Customer shall remain
responsible for such freight, duties, charges, dues, or other expenses.
12.(C) The Company shall not be under any liability in respect of such arrangements as are
referred to under sub-clause (A) and (B) hereof save where such arrangements are made in
writing, and in any event, the Company’s liability in respect of the performance of, or
arranging the performance of, such instructions shall not exceed the limits set out in
clause 26(A) (ii) of these conditions.
13. Advice and information, in whatever form it may be given, is provided by the Company for
the Customer only. The Customer shall indemnify the Company against all loss and damage
suffered as a consequence of passing such advice or information on to any third party.
14. Without prior agreement in writing by an officer of the Company so authorised, the
Company will not accept or deal with Goods that require special handling regarding carriage,
handling, or security whether owing to their thief attractive nature or otherwise including,
but not limited to bullion, currency, securities, precious stones, jewellery, valuables,
antiques, pictures, human remains, living creatures, plants. Should any Customer
nevertheless deliver any such goods to the Company, or cause the
Company to handle or deal with any such goods, otherwise than under such prior agreement, the
Company shall have no liability whatsoever for or in connection with the goods, howsoever arising.
15. Except pursuant to instructions previously received in writing and accepted in writing
by the Company, the Company will not accept or deal with Goods of a dangerous or damaging
nature, nor with Goods likely to harbour or encourage vermin or other pests, nor with Goods
liable to taint or affect other Goods. If such Goods are accepted pursuant to a special
arrangement, but, thereafter, and in the opinion of the Company, constitute a risk to other
goods, property, life or health, the Company shall, where reasonably practicable, contact
the Customer in order to require him to remove or otherwise deal with the goods, but
reserves the right, in any event, to do so at the expense of the Customer.
16. Where there is a choice of rates according to the extent or degree of the liability
assumed by the Company and/or third parties, no declaration of value will be made and/or
treated as having been made except under special arrangements previously made in writing by
an officer of the Company so authorised as referred to in clause 26(D).
THE CUSTOMER
- 17. The Customer warrants:
17(A) (i) that the following (furnished by on or behalf of the Customer) are full and
accurate: the description and particulars of any Goods; any information furnished (including
but not limited to, the nature, gross weight, gross mass (including the verified actual
gross mass of any container packed with packages and cargo items), and measurements of any
Goods); and the description and particulars of any services required by or on behalf of the
Customer are full and accurate, and(A) (ii) that any Transport Unit and/or equipment supplied by the Customer in relation to the
performance of any requested service is fit for purpose;
17(B) that all Goods have been properly and sufficiently prepared, packed, stowed, labelled
and/or marked, and that the preparation, packing, stowage, labelling and marking are
appropriate to any operations or transactions affecting the Goods and the characteristics of
the Goods.
17(C) that where the Company receives the Goods from the Customer already stowed in or on a
Transport Unit, the Transport Unit is in good condition, and is suitable for the carriage to
the intended destination of the Goods loaded therein, or thereon;
17(D) that where the Company provides the Transport Unit, on loading by the Customer, the
Transport Unit is in good condition, and is suitable for the carriage to the intended
destination of the Goods loaded therein, or thereon.- 18. Without prejudice to any rights under clause 15, where the Customer delivers to the
Company, or causes the Company to deal with or handle Goods of a dangerous or damaging nature,
or Goods likely to harbour or encourage vermin or other pests, or Goods liable to taint or
affect other goods, whether declared to the Company or not, he shall be liable for all loss or
damage arising in connection with such Goods, and shall indemnify the Company against all
penalties, claims, damages, costs and expenses whatsoever arising in connection therewith, and
the Goods may be dealt with in such manner as the Company, or any other person in whose
custody they may be at any relevant time, shall think fit. - 19. The Customer undertakes that no claim shall be made against any director, servant, or
employee of the Company which imposes, or attempts to impose, upon them any liability in
connection with any services which are the subject of these conditions, and, if any such claim
should nevertheless be made, to indemnify the Company against all consequences thereof. - 20. The Customer shall save harmless and keep the Company indemnified from and against
20.(A) all liability, loss, damage, costs and expenses whatsoever (including, without
prejudice to the generality of the foregoing, all duties, taxes, imposts, levies, deposits
and outlays of whatsoever nature levied by any authority in relation to the Goods) arising
out of the Company acting in accordance with the Customer’s instructions, or arising from
any breach by the Customer of any warranty contained in these conditions, or from the
negligence of the Customer;- 20.(B) without derogation from sub-clause (A) above, any liability assumed, or incurred by the
Company when, by reason of carrying out the Customer’s instructions, the Company has become liable
to any other party; - 20.(C) all claims, costs and demands whatsoever and by whomsoever made or preferred, in excess
of the liability of the Company under the terms of these conditions, regardless of whether such
claims, costs, and/or demands arise from, or in connection with, the breach of contract, negligence
or breach of duty of the Company, its servants, sub-contractors or agents; - 20.(D) any claims of a general average nature which may be made on the Company.
- 21(A) The punctual receipt in full of sums falling due from the Customer to the Company is
critical to the operation of the Company’s business and its performance of its obligations to
the Customer. Accordingly the Customer shall pay to the Company in cash, or as otherwise
agreed, all sums when due, immediately and without reduction or deferment on account of any
claim, counterclaim or set- off. Time is of the essence of payment of all and any sums payable
by the Customer to the Company.
21.(B) In the event of any failure by the Customer to make full and punctual payment of any
sum payable to the Company (in accordance with clause 21(A) above):21.(B)(i) Any and all other sums properly earned by and/or otherwise due to the Company (but
which, but for this clause 21(B), would otherwise not yet be payable by the Customer, whether
by virtue of an agreed credit period or otherwise) shall become immediately payable in full;
and21.(B)(ii) Any sum thereby becoming immediately payable shall be paid to the Company in cash,
or as otherwise agreed, and without reduction or deferment on account of any claim, counterclaim
or set- off.
21.(C) No omission to seek compensation for breach of 21(A) and (B) above by the Company
shall constitute a waiver or release to the Customer from any liability under 21(A) and (B)
above during the application of these terms unless agreed in writing by authorised officers
of the Company and Customer.
21.(D) The Late Payment of Commercial Debts (Interest) Act 1998, as amended, shall apply to
all sums due from the Customer.- 22. Where liability arises in respect of claims of a general average nature in connection with
the Goods, the Customer shall promptly provide security to the Company, or to any other party
designated by the Company, in a form acceptable to the Company.
LIABILITY AND LIMITATION
- 23. The Company shall perform its duties with a reasonable degree of care, diligence, skill
and judgment.
- 24. The Company shall be relieved of liability for any loss or damage if, and to the extent
that, such loss or damage is caused by:-
24.(A) strike, lock-out, stoppage or restraint of labour, the consequences of which the
Company is unable to avoid by the exercise of reasonable diligence; or
24.(B) any cause or event which the Company is unable to avoid, and the consequences of
which the company is unable to prevent by the exercise of reasonable diligence.- 25. Except under special arrangements previously made in writing by an officer of the Company
so authorised, the Company accepts no responsibility with regard to any failure to adhere to
agreed departure or arrival dates of Goods. - 26.(A) Subject to clause 2.(B) and 11.(B) above and sub-clause (D) below, the Company’s
liability howsoever arising and, notwithstanding that the cause of loss or damage be
unexplained, shall not exceed:
26.(A)(i) in the case of claims for loss or damage to Goods:
26.(A)(i)(a) the value of any loss or damage; or
26.(A)(i)(b) a sum at the rate of 2 SDR per kilo of the gross weight of any Goods lost or damaged
whichever shall be the lesser.(ii) subject to (iii) below, in the case of all other claims:26.(A)(ii)(a) the value of the subject Goods of the relevant transaction between the Company
and its Customer; or- 26.(A)(ii)(b) where the weight can be defined, a sum calculated at the rate of 2 SDR per kilo
of the gross weight of the subject Goods of the said transaction;
26.(A)(ii)(c) 75,000 SDR in respect of any one transaction, whichever shall be the lesser.26.(A)(iii) in the case of an error and/or omission, or a series of errors and/or omissions which
are repetitions of or represent the continuation of an original error and/or omission:26.(A)(iii)(a) the loss incurred; or
26.(A)(iii)(b) 75,000 SDR in the aggregate of any one trading year commencing from the time of
the making of the original error and/or omission, whichever shall be the lesser.For the purposes of clause 26(A), the value of the Goods shall be their value when they were,
or should have been, shipped. The value of SDR shall be calculated as at the date when the claim
is received by the Company in writing.
26.(B) Subject to clause 2(B) above and sub-clause (D) below, the Company’s liability for
loss or damage as a result of failure to deliver, or arrange delivery of goods, in a
reasonable time, or (where there is a special arrangement under Clause 25) to adhere to
agreed departure or arrival dates, shall not in any circumstances whatever exceed a sum
equal to twice the amount of the Company’s charges in respect of the relevant contract.
26.(C) Save in respect of such loss or damage as is referred to at sub-clause (B), and
subject to clause 2(B) above and sub-clause (D) below, the Company shall not in any
circumstances whatsoever be liable for indirect or consequential loss such as (but not
limited to) loss of profit, loss of market, or the consequences of delay or deviation,
however caused.
26.(D) On clearly stated instructions in writing declaring the commodity and its value,
received from the Customer and accepted by the Company, the Company may accept liability in
excess of the limits set out in sub-clauses (A) to (C) above upon the Customer agreeing to
pay the Company’s additional charges for accepting such increased liability. Details of the
Company’s additional charg es will be provided upon request.- 27.(A) Any claim by the Customer against the Company arising in respect of any service
provided for the Customer, or which the Company has undertaken to provide, shall be made in
writing and notified to the Company within 14 days of the date upon which the Customer became,
or ought reasonably to have become, aware of any event or occurrence alleged to give rise to
such claim, and any claim not made and notified as aforesaid shall be deemed to be waived and
absolutely barred, except where the Customer can show that it was impossible for him to comply
with this time limit, and that he has made the claim as soon as it was reasonably possible for
him to do so.
27.(B) Notwithstanding the provisions of sub-paragraph (A) above, the Company shall in any
event be discharged of all liability whatsoever and howsoever arising in respect of any
service provided for the Customer, or which the Company has undertaken to provide, unless
suit be brought and written notice thereof given to the Company within nine months from the
date of the event or occurrence alleged to give rise to a cause of action against the
Company.
JURISDICTION AND LAW
- 28.(A) These conditions and any act or contract to which they apply shall be governed by
Scottish law.
28.(B) Any dispute arising out of any act or contract to which these Conditions apply shall,
save as provided in 28.(C) below, be subject to the exclusive jurisdiction of the Scottish
courts.
28.(C) Notwithstanding 28.(B) above, the Company is entitled to require any dispute to be
determined by arbitration.
28.(D) The Company may exercise its rights under 28.(C) above either by itself commencing
arbitration in respect of a dispute or by giving written notice to the Customer requiring a
dispute to be determined by arbitration.
28.(E) In the event that the Company exercises its rights under 28.(C) above, the
corresponding arbitration shall be conducted as follows:
28.(E)(i) Where the amount claimed by the claimant is less than £400,000, excluding
interest, (or such other sum as the Company and Customer may agree, and subject to (iii)
below), the reference shall be to a tribunal of three arbitrators and the arbitration shall
be conducted in accordance with the LMAA Intermediate Claims Procedure applicable at the
date of the commencement of the arbitration proceedings;
28.(E)(ii) Where the amount claimed by the claimant is less than £100,000, excluding
interest, (or such other sum as the Company and Customer may agree, and subject to
28.(E)(iii) below), the reference shall be to a sole arbitrator and the arbitration shall be
conducted in accordance with the LMAA Small Claims Procedure applicable at the date of the
commencement of the arbitration proceedings;- 28.(E)(iii) In any case where neither of the LMAA Procedures referred to in 28.(E)(i) and/or
28.(E)(ii) above applies, the reference shall be to three arbitrators in accordance with the
LMAA Terms applicable at the date of the commencement of the arbitration proceedings.
