CONDITIONS OF CARRIAGE
In these conditions:
1) “Company” shall mean and include AirRoad Pty Limited and its related bodies corporate (as defined under the Corporations Act 2001) including AirRoad Logistics Pty Limited;
2) “Consignor” means the party entering into the contract for carriage with the Company, and shall include the party identified as the consignor on any consignment note relating to that contract;
3) “Goods” means the cargo accepted from the Consignor together with any container, packaging, pallets or handling equipment supplied by or on behalf of the Consignor;
4) “Services” means the whole of the operations and services undertaken by the Company in connection with the Goods including but not limited to carriage and/or storage;
5) “Subcontractor” means any person who pursuant to a contract or arrangement (other than a contract of employment) with any other person (whether or not the Company) performs or agrees to perform the Services or any part thereof.
Words importing the singular include the plural, and words importing one or more genders include all genders.
2. Not a Common Carrier
THE COMPANY IS NOT A COMMON CARRIER AND ACCEPTS NO LIABILITY AS SUCH. The Company reserves the right to refuse the carriage of goods for any particular person and for carriage of any goods or classes of goods at its discretion.
3. Warranties by the Consignor
The Consignor warrants that:
1) the Consignor has complied with all applicable laws and regulations relating to the nature, condition, packaging, carriage or storage of the Goods and that the Goods are packed in a manner, having a regard to their nature, adequate to withstand the ordinary risks of carriage and/or storage;
2) the Goods have been fully and accurately described in writing in the space provided on the consignment note;
3) the Goods do not include any dangerous goods or goods which are or may be liable to damage other goods or property whatsoever other than as are specifically and fully described and disclosed as such on the Company’s consignment note and that the Consignor has complied, and will comply, with the Australian Dangerous Goods (ADG) Code for transport by road and rail; and
4) the Services are required by the Consignor for the purposes of a business, trade, profession or occupation carried on or engaged in by the Consignor.
4. Authority and Agency
1) Any person delivering the Goods or any part thereof to the Company for carriage is authorised to sign the Company’s consignment note for the consignor.
2) The Consignor warrants that in entering into this contract of carriage and agreeing to these conditions the Consignor is either the owner, or the authorised agent of the owner, of the Goods and agrees to indemnify the Company against any liability which the Company may incur to any person, other than the Consignor, who claims to have, who has or who may hereafter have any interest in the Goods or any part thereof.
5. Method of Carriage and Deviation
1) The method or methods of undertaking the Services shall be at the sole discretion of the Company and the Consignor hereby authorises the Company to adopt any method or methods. Even if the Consignor instructs the Company to carry out the Services by a particular method, the Company may still at its discretion adopt some other method.
2) The Consignor authorises the Company to use any route, even if such route involves a deviation from the usual route of carriage.
1) The Company is authorised to deliver the Goods at any address nominated by the Consignor to the Company for that purpose.
2) If any such nominated place of delivery is unattended when delivery is attempted, or if for any other reason the Company is unable to effect delivery of the Goods or is delayed in so doing, the Company shall be entitled to handle and store the Goods in such manner as it may in its discretion determine, and shall be entitled to make a reasonable charge in respect of such handling and/or storage and subsequent delivery of the Goods, and the Consignor shall meet such reasonable charge as the Company may make and indemnify the Company for any other costs or expenses incurred as a result thereof.
3) The Company shall be entitled to make a reasonable charge in respect of any delay in loading or unloading occurring otherwise than from fault on the part of the Company.
7. Loss or Damage
1) Unless otherwise expressly agreed in writing and subject to clauses 8 and 15, THE GOODS SHALL AT ALL TIMES BE AT THE RISK OF THE CONSIGNOR AND THE COMPANY SHALL NOT BE LIABLE in tort or contract or otherwise FOR ANY LOSS OF OR DAMAGE TO OR FAILURE TO DELIVER OR DELAY IN DELIVERY OR MISDELIVERY OF THE GOODS HOWSOEVER CAUSED, and irrespective of the circumstances in which such loss, damage, failure to deliver, delay in delivery or misdelivery may have occurred and notwithstanding that the same may have been due to or arisen as a result of any breach of contract or negligence or wilful act or omission or misconduct on the part of the Company or any of its servants or agents or any other person.
2) This exclusion of liability extends to include not only loss of or damage to the Goods themselves, but loss, damage or injury to any person, property or thing damaged during or in the course of the provision of the Services, and to any indirect or consequential loss arising from such loss, damage or injury or from failure to deliver, delay in delivery or misdelivery.
3) All the rights, immunities and limitations of liability in these conditions shall continue to have full force and effect notwithstanding any breach of this contract by the Company or any other person entitled to the benefit of such provisions.
8. Transit Warranty
1. Notwithstanding clause 7, the Company will indemnify the Consignor for:
(a) the replacement cost of the Goods, as calculated at the time they are collected or received by the Company; or
(b) $500 per consignment where Goods are lost or damaged in the course of carriage, or $500 per incident where Goods are lost or damaged while otherwise in the custody of the Company or its Subcontractor;
whichever is less and waive the requirement to pay the Company’s freight charges in respect of the consignment PROVIDED THAT:
c) The Goods are lost or stolen due to an act or omission of the Company or its Subcontractor (whether accidental, negligent, reckless or wilful) during the transportation of the Goods or while otherwise in the custody of the Company or its Subcontractor. The Goods will be deemed to be lost if the Company does not have the signed document presented at delivery (as proof of delivery) and the Goods remain undelivered for a period of 4 business days after the day on which the Goods were due to be delivered or such other delivery time agreed between the Company and the Consignor.
d) The Goods are damaged due to an act or omission of the Company or its Subcontractor (whether accidental, negligent, reckless or wilful) during the transportation of the Goods or while otherwise in the custody of the Company or its Subcontractor and the Goods are not fit for their intended use or for re-sale. Damaged Goods for which payment has been made by the Company under this Clause become the property of the Company unless, and except to the extent to which, the residual value of the Goods exceeds the payment made by the Company.
e) The Goods do not include:
(i) Gold, jewellery, negotiable instruments , bullion of any type, cigarettes, precious metals or stones, bank notes, antiques and works of art, stamp collections, pottery, crockery & glassware;
(ii) Glass, ceramic, porcelain or earthenware components of any Goods;
(iii) Goods not fully and accurately described to the Company to enable the Company to determine the resources required to perform the Services and to reasonably estimate the value of the Goods;
(iv) Goods which are used or second-hand;
(v) Damage to any Goods arising from or suffered as a consequence of damage to Goods excluded under (i) to (iv) above: or
(vi) Loss of or damage to Goods sustained at any time after the Company has attended at the delivery address if the Company has been unable to effect delivery (for example, inadequate or incorrect address provided, delivery refused by the Consignee or premises unattended).
2) The Company will not indemnify the Consignor for:
a) loss or damage caused by delays in delivery due to weather conditions, third party industrial disputes and events outside the reasonable control of the Company or its Subcontractor;
b) theft where the Goods were reasonably secured by the Company or its Subcontractor and there is reason to believe that such theft was caused by a third party;
c) loss or damage caused by loading or unloading of, or packing, protecting or labelling, the Goods which is performed by a person other than the Company or its Subcontractor;
d) loss or damage which could not, in the reasonable opinion of the Company, have been caused by the transportation of the Goods, where the Goods are determined by the Company to have been defective prior to transportation or where the Company or its Subcontractor did not continuously transport the Goods from the place of collection by the Company or its Subcontractor from the Consignor to the delivery address;
e) loss or damage to the Goods where the Consignor does or did not use the Company’s bar-coded freight tracking system, or the Goods are not fully described on the consignment note;
f) the cost of software installed on any Goods;
g) accidental loss or damage unless it is caused by or at the fault of the Company or its Subcontractor;
h) consequential or economic loss suffered by the Consignor or any other person arising from, or in any way connected with, the handling, storage or delivery of the Goods;
i) loss or damage to the Goods which is covered by an insurance policy the Consignor has in place;
j) loss or damage to the Goods where the outer package shows no sign of damage;
k) loss or damage to the Goods where the Goods were not packaged to best industry practice and standards.
3) The following procedures apply to claims made by the Consignor under this Clause 8:
a) All claims must be notified in writing to the AirRoad Claims Department at the address for service of notices (which may include an email address) last notified to the Consignor by the Company;
b) Notice in writing providing details of any claim under this Clause 8 must be given to the Company:
(i) In the case of a claim for damage to the Goods, within 2 working days; and
(ii) In the case of a claim for loss of the Goods, within 30 days;
after the date on which the Goods were required to be delivered to, or collected by, the Consignor, or another person in accordance with the Consignor’s directions.
c) The Consignor may only make one claim per consignment, where Goods are lost or damaged in the course of carriage, or per incident where Goods are lost or damaged while otherwise in the custody of the Company or its Subcontractor, and must provide the Company with documentary evidence of proof of the value of the Goods at the date of collection or receipt by the Company of the Goods;
d) If the Consignor has an account with the Company, the Company reserves the right to set off to the claim payment against any outstanding amounts owed to the Company by the Consignor.
The transit warranty in clause 8 will provide only limited protection for loss or damage to the Goods. The Consignor may in their absolute discretion insure the Goods by arranging their own insurance policy. The Company does not insure the Goods, nor can the Company arrange insurance for the Goods, on behalf the Consignor.
10 Subcontracts and Subcontractors
1) The Company is authorised (if it should think fit to do so) to subcontract the whole or any part of the Services and such authorisation extends to any Subcontractor.
2) Any clause herein excluding or limiting the liability of the Company or providing any right or exemption from liability to the Company shall also be available and shall extend to protect all Subcontractors and every servant or agent of the Company and of any Subcontractor.
3) Without limiting the effect of any other clause herein, the Consignor or any other person or persons owing or having any interest in the Goods or any part thereof shall not be entitled to make any claim against any person other than the Company by whom the Services are or any part thereof is undertaken, or any servant or agent of any such person or of the Company, in relation to the Goods or arising out of the Services. If any such claim is made, the Consignor shall indemnify the Company and any such person or servant or agent against the consequences of any such claim as may be made by any party other than the Consignor.
4) For the purposes of (2) and (3) above, the Company is, or shall be deemed to be, acting as agent or trustee on behalf of each of the persons to whom the benefits thereof are extended and each of such persons shall to this extent be or be deemed to be parties to this contract.
11. Charges, Payments and Liens
1) Where the Company’s freight or storage charge is based in whole or in part on weight or measurement of the Goods, the Company may at any time weigh or measure the Goods, and charge a proportional additional amount if any original or stated weight or measurement is thereby found to be incorrect.
2) If any charge is based on weight, Goods weighing less than 250 kgs per cubic metre or part thereof will be charged at the rate of 250 kgs per cubic metre.
3) The Company’s freight charges shall be deemed fully earned as soon as the Goods are loaded and despatched.
4) Every arrangement or instruction to the effect that charges shall be paid by any person other than the Consignor shall be deemed to include a stipulation that if such other person does not pay the charges within 7 days of the date set for payment or if no date is set for payment, within 7 days of the date of invoice, the Consignor shall pay the charges.
5) The Goods are accepted subject to a general lien for all charges now due or which may hereafter become due to the Company by the Consignor. If the lien is not satisfied, the Company may at its option and without any notice sell the Goods or part thereof upon such terms as it shall think fit and apply the proceeds in or towards discharge of the lien and costs of sale without being liable to any person for any loss or damage thereby caused.
12. Inspection of the Goods
The Company is entitled to open any document or any container (of whatever description) in which the Goods are placed or carried to determine the nature or condition of the Goods or their ownership or destination.
13. Amendments and Variations
The Company shall not be bound by any agreement or waiver purporting to vary these conditions unless such agreement or waiver is in writing and signed on behalf of the Company by an executive officer of the Company.
14. Provisions Severable
If any provision or part of any provision of these conditions is unenforceable, illegal or void then it is severed and the rest of these conditions remain in force.
15. Australian Consumer Law Applicable
Notwithstanding any condition herein limiting or excluding liability, or limiting the time in which action may be brought against the Company, if and to the extent to which, in breach of the warranty by the Consignor in clause 3(4), the contract involves the transportation or storage of Goods otherwise than for the purposes of a business, trade, profession or occupation in which the Consignor is engaged the Consignor may have rights under the Australian Consumer Law in Schedule 2 to the Competition and Consumer Act 2010. Those rights include consumer guarantees that the services will be carried out with due care and skill, will be fit for the purpose disclosed by the Consignor and will be provided within a reasonable time. These conditions of carriage do not exclude or limit any applicable consumer guarantees under the Australian Consumer Law.
16. Claims Against the Company
If, notwithstanding clause 7, the Company is liable, otherwise than under the transit warranty in clause 8, for loss or damage suffered by the Consignor or any other person as a result of loss or damage to the Goods, or delay in the delivery of the Goods, no claim in respect of any such loss or damage may be made unless written notice providing details of that claim is given to the AirRoad Claims Department at the address for service of notices (which may include an email address or fax number) last notified to the Consignor by the Company:
(a) In the case of a claim for damage to the Goods, within 2 working days; and
(b) In the case of a claim for loss of the Goods, within 30 days;
after the date on which the Goods were required to be delivered to, or collected by, the Consignor, or another person in accordance with the Consignor’s directions.
17. Governing Law and Jurisdiction
These conditions shall be governed and constructed in accordance with the laws of the State or Territory in which it was executed by the parties (or if executed in a different State or Territory by each party, the State or Territory in which it was executed by the Company), and any legal proceedings against the Company shall be brought in that State or Territory and not elsewhere within 12 months from the date on which the cause of action arose.