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Conditions Governing Liabilities of ATI

Conditions Governing Liabilities of Asian Terminals, Inc. or ATI Batangas, Inc. and Customers at South Harbor and at Batangas Baseport (hereinafter, the “Liability Conditions”)

LIABILITY OF OPERATOR (the "Operator”)

    1. Liability
      The Operator shall indemnify and keep indemnified the Customer (and its employees, officers and agents) in respect of any death, personal injury, loss or damage suffered or incurred as a consequence of any act or omission of the Operator (or any of its employees, officers or agents) constituting negligence or wilful misconduct except to the extent that such loss or damage is caused by an act or omission constituting negligence or wilful misconduct by the Customer (or any of its employees, officers or agents).

    2. Liability Cap
      Subject to the provisions of clause 3.3, the liability of the Operator arising out of any single incident or series of incidents arising from a common cause shall not exceed the following Liability Ceiling Amount.
      1. Liability Ceiling Amount - that amount permitted under any applicable international convention or national statute, up to US$10,000,000
      1. The liability of the Operator shall not exceed the financial limits set out below for the specified category of loss or damage provided that the maximum liability of the Operator arising out of any single incident or series of related incidents or series of incidents shall not in any case exceed the Liability Ceiling Amount.
        1. In the case of damage to a Vessel a maximum of US$10,000,000 arising out of any single incident or series of related incidents.
        1. In the case of physical loss or damage to a Container, or a Container and its ancillary equipment the depreciated value or the reasonable cost of repairs whichever is less. subject to limits of:

          2. 20' Dry Container

          US$1,000 per Container

          40'/45' Dry Container

          US$2,500 per Container

          20' Insulated Container

          US$7,500 per Container

          20' Integral Container

          US$10,000 per Container

          40'/45' Integral Container

          US$15,000 per Container

          20' meter Tank Container

          US$12,500 per Container

          Clip on Unit

          US$5,000 per Container
        1. In the case of physical loss or damage to Cargo: the Customer’s liability to its client under its Bill of Lading or other contract of carriage to a maximum of:
          1. in the case of containerised Cargo: US$ 50,000 per Container
          2. in the case of break bulk or non-containerised Cargo: US$ 37,500 per shipment per consignee arising out of any single incident
        1. In the case of any other equipment owned or operated by the Customer not previously referred to in the above the reasonable cost of repair or the depreciated value thereof whichever is less, subject to a limit of US$ 25,000.
    1. No Liability
      Notwithstanding the generality of clause 1.1, the Operator shall not be liable for any loss or damage to a Container or Cargo, death or personal injury to the extent that such loss, damage, death or injury is caused by or contributed to by defective protection or packing, latent or natural wastage or contamination of Cargo, failure or malfunction of refrigerated container equipment or refrigerants or defective or malfunctioning twistlocks of the Customer.

LIABILITY OF CUSTOMER

    1. Liability
      The Customer shall indemnify and keep indemnified the Operator (and its employees, officers and agents) in respect of any death, personal injury, loss or damage suffered or incurred as a consequence of any act or omission of the Customer (or any of its employees, officers or agents) constituting negligence or wilful misconduct except to the extent that such loss or damage is caused by an act or omission constituting negligence or wilful misconduct by the Operator (or any of its employees, officers or agents).

    2. Himalaya Clause
      The Customer must include in all its contracts of carriage for Containers or Cargo, provisions whereby every sub-contractor of the Customer (including the Operator and its employees and agents):
      • shall have the benefit of any provision in such contract which limits the Customer’s liability relating to such carriage (including, without limitation, any liability caps or limitation periods), and the Customer is hereby deemed appointed as the Operator’s agent only for the purpose of making this inclusion in its contracts; and
      • shall not be liable to any party other than the Customer in relation to such carriage or Cargo and, without prejudice to the liability of the Operator to the Customer under this Agreement, the Customer hereby indemnifies the Operator and each of the Operator’s sub-contractors and shall hold them harmless against any claim by a party relating to such carriage or Cargo.

    3. Transporting Dangerous Goods
      The Customer shall ensure that all documents and necessary certificates concerning dangerous goods for transport are secured and issued in accordance with the IMDG Code and existing government regulations.

      The Customer must comply with PPA Administrative Orders, Memorandum Circulars, and other government rules and regulations requiring all dangerous goods to be properly identified, packed, marked and labeled or placarded as prescribed by the IMDG Code. The Customer shall declare the dangerous cargoes using the technical name or shipping name to apprise the Operator of the goods’ need for appropriate handling.

      The corresponding reportorial requirements to the proper government agencies, imposition of penalties and fees for any violation of the foregoing shall be strictly enforced.

GENERAL LIABILITY PROVISIONS

    1. No Other Liability
      In addition to any applicable legislation and subject to clause 3.3, this Liability Conditions states:

      2. a. the entire liability of the Parties to each other; and
      b. the extent of each Party's liability for any Claim.

      For the avoidance of doubt, the limitations of liability stated in this document shall not prejudice the rights of any Party to pursue any remedy available at law.

    1. Claim notification periods
      No Claim may be pursued by either the Operator or the Customer (claimant for the purpose of this clause) against the other (recipient for purposes of this clause) unless the recipient has been notified in accordance with the procedure set out in the relevant documents also posted on this website.

    2. Non-executable Condition
      The Parties do not exclude or limit the application of any provision of any statute governing implied condition or warranty to the extent that such exclusion would contravene that statute.

    3. Exclusions from Liability
      Subject to clause 3.3, the Operator and Customer exclude all liability to each other for any loss or damage which is either:
      1. caused by a Force Majeure Event; Force Majeure Event affecting a Party means anything outside that Party’s reasonable control, including without limitation, fire, flood, drought, storm (or other adverse weather conditions), lightning, act of God, peril of sea or air, explosion, radioactive or chemical contamination, sabotage, accident, embargo or trade restriction, blockade, labour dispute, strike or shortage, civil commotion, curfew, act of war, actual or threatened act of terrorism, pressure waves caused by aircraft or other devices, meteorites, epidemic, plague, quarantine or expropriation, confiscation or nationalisation of terminal assets by government authority, or
      2. consequential or indirect loss or damage whether arising in contract, tort, statute or otherwise even if:
        • the Parties knew they were possible; or
        • they were otherwise foreseeable, including, without limitation, loss of profits, market, interest or hire, fiscal loss or loss on currency exchange and damage suffered as a result of claims by any third person (other than claims by such third person for direct loss or damage to Cargo, death or personal injury caused by the Operator or Customer).