1. Terminal’s liability
a) Terminal’s liability shall, in any case, be exclusively limited to the following items:
Damage to vessel: the Terminal shall be liable for any damage and or loss to the vessel whilst berthed and moored at the terminal provided that the Customer proves that the damage and or loss was caused exclusively by gross negligence of the Terminal, his servants, agents or subcontractor. For the avoidance of doubt this includes damages caused to the vessel, its gear, cargo and containers during loading and unloading.
Damage to cargo: the Terminal shall be liable for damage and/or loss to cargo contained in dry tank or reefer, or in any other container/non-standard container, and uncontainerised cargo, as well as to containers under its custody provided that the Customer proves either that the loss and /or damage was caused exclusively by gross negligence of the terminal itself, his servants, agents or subcontractors. The Customer shall be in any case liable for loss and/or damage caused directly by fault of the Customer itself, its employees, servants, agents and/or contractors (other than the terminal operators).
Damage to containers (all type) and /or any other equipment: the Terminal shall be liable exclusively to the extent of its gross negligence for any damage or loss to the containers while under its custody.
Body injuries and death: the Terminal shall be liable exclusively to the extent of its gross negligence for any body injury and death.
b) Notification of damages: in case of losses or damages to cargo/containers/containership/all type of vessel, the Terminal shall be free of any liability, unless the said losses or damages have been notified in writing as soon as possible but, in any event no later than:
– in respect of losses or damages to cargo/containers in export, before the things are removed from the Terminal’s custody;
– in respect of losses or damages to cargo/containers in import, as soon as the Customer has notice of the damages, but, in any case, within 3 months since the things are removed from the Terminal’s custody;
– in respect of damages to vessels, before the vessel has left the Terminal.
c) Notification of the claim: in any case the Terminal will be free of any liability, unless the claim is notified in writing within 12 months of the load removal from the Terminal, for loss and damages to cargo/containers, and within 12 months of the departure of the vessel from the Terminal, for loss or damages to vessel.
d) Liability limits: in any case the Terminal liability shall be limited to the direct and physical damages and, for damages to cargo/containers, will not exceed the amount of Euro 1.000.000,00 (Onemilion/00) per occurrence and, that one for damages to the vessel, shall be limited to the amount of Euro 3.000.000,00 (Threemilions/00). For body injuries and death, the Terminal liability shall be limited, irrespective of the number of persons involved, in Euro 5.000.000,00 (Fivemilions) per occurrance. The Terminal shall not, in any case, be liable either for commercial and/or consequential damages and/or loss of profit, loss of hire, demurrage, detention. Should the Terminal be liable according to the provisions of the above mentioned items, any claim for damages or losses shall be paid, except for a deductible equal, per occurrence, to 20% (in any case not less than Euro 500,00) of the quantified amount of the damages or losses.
e) Claims in tort: The aforesaid provisions shall also apply to liabilities in tort, if any, but subject to the provision that for such liabilities the onus of proof for causation and fault or negligence rests with the claimant.
f) Himalaya Clause: the Customer states and confirms that the Himalaya Clause or other clause having the same meaning and effect, is incorporated in the bills of lading.
g) Third parties claims guarantee: should any third parties lodge a claim against the Terminal, also in tort, in connection with the aforesaid items and damages, the Customer undertake to hold the Terminal harmless in excess of the aforesaid limitation of liability items and amounts.
h) In connection with loading and unloading operations concerning yachts, the parties confirm that (I) Ship’s cranes shall be always working and ready to operate, (II) Terminal’s shore cranes shall be used only if the Ship’s cranes are not consistent with the operation, (III) unloading directly to sea shall be always performed except special cases to be required and justified by the Customer, (IV) Terminal always operates as Line servant (including but not limited to transhipment, handling, storage, shifting by quay and any movement and terminal operation).
2. Conditions of payment
a) Terminal shall issue invoices, according to the rates in force, respectively addressed to the Customer
b) The Customer shall pay to the Terminal within the terms agreed,and if not agreed, within the invoice date of issuance, whereby disputed amounts of an invoice, if any, maybe deducted from the total invoice amount only after the deduction has been agreed by the Terminal
c) Should the Customer delay payments, the Terminal is entitled to suspend the service or to request cash payment in advance for each and every subsequent service and/or operation.
d) Should the Customer claim some counter credit, the same, if not expressly acknowledged by the Terminal, shall not be used to compensate any amount due to the Terminal.
3. Applicable Law and Jurisdiction
All disputes arising in connection with the present contract shall be referred to the exclusive jurisdiction of the Court of Genoa. This contract is to be construed and governed according to Italian law.