ESL Cargo Protect

1.1. Cargo Protect Guarantee provides the “Client” with certain compensation limits for loss of, damage to or expenses incurred in connection with the “Protected Goods” during transit subject to these general terms and conditions (the “Terms”) by providing:

• deviations to certain provisions of the “Contract of Carriage” issued by a “ESL”, all other terms not contrary thereto remaining fully applicable;
• monetary compensation up to one of the limits selected by the Client (see below);
• settlement within 30 days for straightforward payment requests following the submission of all required documents.

1.2. For the avoidance of doubt, any Client claiming that the Protect Guarantee applies to its cargo admits that the Contract Carriage is also applicable between the Client and ESL.

2.1 Unless where the context requires otherwise, capitalized terms in these Terms shall have the same meaning as in the Bill of Lading Terms and Conditions of ESL (which terms and conditions are available on the links listed in Clause 13 below).

• “Client” means the individual or company who purchased the Guarantee described hereunder or any other person requesting payment under the Guarantee provided always that the claimant under the Cargo Protect Guarantee has an interest in the Protected Goods and title to sue ESL under the Transport Document.
• “ESL” means Emirates Shipping Line FZE, being the Carrier on whose behalf the Transport Document is issued.
• “Contract of Carriage” means any contract of carriage evidenced by a Transport Document for the Carriage of Goods entered into between the Carrier and the Merchant irrespective of whether a Transport Document has been physically issued provided always that Goods have been accepted for Carriage and the Merchant is entitled to demand a Transport Document.
• “Guarantee” means the Cargo Protect guarantee subject to these Terms which is purchased by the Client in conjunction with and at the time of entering into a Contract of Carriage.
• “Maximum Compensation Limit” has the meaning defined in Clause 6 of these Terms.
• “Protected Goods” means such Goods transported under and subject to a Transport Document issued by ESL in respect of which the Guarantee proposed by ESL has been purchased by the Client.
• “Shipment” means any such Protected Goods, cargo or container/s booked and carried under one (1) and the same Transport Document.
• “Transit Period” has the meaning defined in clause 4.1 of these Terms.
• “Transport Document” means a Bill of Lading or seaway bill issued by ESL.

3.1 Upon final acceptance of Goods for Carriage by the Carrier and provided always that Client has applied for the Guarantee, and obtained the Guarantee prior to such acceptance, the Guarantee will apply to the Goods, always subject to the Carrier (or the Carrier’s agent on behalf of the Carrier) having received payment for the Guarantee as per clause 4.3 hereinafter.

3.2 The Guarantee and these Terms shall co-exist with, and in respect of the relevant provisions of the Contract of Carriage only, amend, vary and supplement the relevant parts of the terms of the Contract of Carriage, which shall in all other respects remain in full force and effect. In case of any discrepancy between these terms and the terms of the Contract of Carriage, the former will prevail.

3.3 For any portion of a payment request in excess of the Maximum Compensation Limit, ESL shall be entitled to rely on the terms and conditions of the Contract of Carriage in full and these Terms shall not apply thereto provided always that ESL shall be entitled to deduct from any payment request relating to Goods the full amount of any compensation paid to any Client under the Cargo Protect Guarantee.

4.1 The Guarantee only applies while the Goods which are subject to a Contract of Carriage are in transit which shall mean the period commencing from the beginning of loading operations alongside the first carrying vessel until completion of discharging operations from the last carrying vessel in respect of which a Transport Document has been issued by ESL (the “Transit Period”).

4.2 The Guarantee applies solely to physical loss or damage and expenses directly related thereto (always excluding any indirect loss and damage, loss of profits and consequential losses) caused to the Protected Goods during the Transit Period up to the Maximum Compensation Limit caused by any one of the below limitative events:

• Breakage, fire or wet damage to the Protected Goods
• Loss, theft, shortage of the Protected Goods
• General average and/or salvage contribution, adjusted or determined according to the Contract of Carriage and/or the governing law and practice, and up to the limitation of guarantee purchased by the client (see infra).

4.3 The Guarantee will be invoiced together with Freight (one single invoice).

5.1 The Guarantee is not applicable to any and all losses, cost, expenses, damage, shortage which are not expressly covered as per Clause 4.2 above and including but not limited to:

• Any Indirect Loss and Damage, Loss of Profits and Consequential Losses
• Specific commodities: Live animals and fresh fruits and/or foodstuffs.
• Shipment in respect of refrigerated containers and/or cargo, including but not limited to any commodity which requires specific temperature and/or humidity settings whatsoever.
• Shipment from and/or to and/or through US, Canada, any Latin American country, Central African Republic, Congo (DRC), North Korea, Somalia, Sudan (North), South or North Sudan, Syria, Yemen, Cuba, Venezuela, Iran, Russia, Ukraine and Belarus, and/or any countries/territories subject to sanctions or embargoes by the UN, EU, UAE and US. The Guarantee offered herein, and any payment of compensation shall be strictly subject to compliance with all UN, EU, UAE and US sanction applicable regimes.

5.2 The Guarantee shall not apply if the loss and damage to the Protected Goods is due to:

• Omission, negligence or wilful misconduct of the Client or the Merchant;
• Shrinkage, evaporation, loss of weight, leakage, rusting, exposure to light, or change in color, texture or flavor;
• Insufficiency or unsuitability of lashing and/or packing or preparation of the Protected Goods to withstand the ordinary incidents of the transit;
• Wear, tear, decay or normal decomposition in time, or any deterioration of the cargo due to its nature, packing, or any other condition or circumstance whereby the cargo is not fit for carriage by sea, normal settling, shrinking or expansion in buildings, structures or foundations; any other gradually occurring loss or damage caused by moths, termites or other insects, or by vermin, smog or fog;
• Inherent vice, latent defect or nature of the Protected Goods;
• Delay;
• Fines, penalties, customs dues and/or any similar charges or cost;
• War, riots, civil war, revolution, rebellion, insurrection, and/or any hostile act by or against any state, country or public authority;
• Capture, seizure, arrest, restraint or detainment and the consequences thereof or any attempt thereat;
• Mines, torpedoes, bombs, explosives of any kind or other derelict weapons of war;
• Strikes, lockouts, labour disturbances. Riots, civil commotions and/or any act of terrorism being an act of any person acting on behalf of, or in connection with, any organization and/or any government whether or not legally constituted which carries out violent activities in any way or form.
• Cyber-attacks and/or the use or operation, as a means for inflicting harm, of any computer, computer system, computer software program, malicious code, computer virus or process or any other electronic system;
• Scratches and scuffs, mechanical or electrical breakdown on vehicles, machinery and/or electric items;
• Damage or loss resulting from the oldness of the objects or occurring to objects having undergone deterioration or previous repairs;
• Any loss or damage being, wholly or partly, the consequence or result of:

1. 1. ionizing radiation or contamination by radioactivity from any nuclear fuel or any nuclear waste from the combustion of nuclear fuel;
   2. the radioactive, toxic, explosive or other hazardous properties of any explosive nuclear component thereof;
   3. any act of terrorism, regardless of any other cause contributing concurrently or in any other sequence to the loss, damage or expense; For purposes of this exclusion, terrorism means an act or threat of violence or an act harmful to human life, tangible or intangible property or infrastructure;
   4. war, invasion, acts of foreign enemies, hostilities or warlike operations (whether war be declared or not), civil war, mutiny, civil commotion assuming the proportions of or amounting to popular rising, military rising, insurrection, rebellion, revolution, military or usurped power, martial law, confiscation or nationalization or requisition or destruction of property by or under the order of any Government or public or local authority;
   5. Nuclear energy risks in accordance with the Nuclear Energy Risks Exclusion Clause NMA 1975b and any other liability, loss, cost or expense of whatsoever nature directly or indirectly caused by, resulting from, arising out of or in connection with nuclear reaction, nuclear radiation or radioactive contamination regardless of any other cause contributing concurrently or in any other sequence to the loss;
   6. Any actual or alleged liability whatsoever for any claim or payment requests in respect of loss or losses directly or indirectly arising out of, resulting from or in consequence of, asbestos, in whatever form or quantity;
   7. Willful, dishonest and fraudulent acts or omission by the Client or any of their directors, sub-contractors, employees or agents;
   8. Time element of any type whatsoever that is related in any way to or caused directly or indirectly by any actual, suspected or potential Communicable Disease regardless of whether any other cause contributes concurrently or in any sequence to the loss, damage, cost, expense or time element; and/or
   9. electrical, electronic or mechanical breakdown or derangement.

In any action, suit or other proceedings where ESL alleges that a loss, damage, cost or expense is not covered by this Guarantee, the burden of proving that such loss, damage, cost or expense is covered shall be upon the Client.

6.1 The maximum compensation payable under the Guarantee shall be limited to the lower of (i) the proven physical losses, damages or expenses or the general average and/or salvage contribution incurred, suffered or paid by the Client and (ii) one of the following limits selected and paid for by the Client at the time of purchase (the “Maximum Compensation Limit”):

• up to USD 15,000 per Shipment; or
• up to USD 25,000 per Shipment; or
• up to USD 50,000 per Shipment; or
• up to USD 75’000 per Shipment;

always subject to such limit per Shipment to be requested by the Client and accepted by ESL in writing.

6.2 Solely for the purpose of payment requests brought under the Cargo Protect Guarantee, ESL shall not rely on the Carrier’s statutory limitations or exclusions of liability for payment requests properly made under the Guarantee, always subject to the Maximum Compensation Limit and these Terms.

6.3 In case the amount of the payment request lodged by the Client exceeds the maximum compensation described hereabove, the excess not covered under the Guarantee shall be subject to the provisions of ESL Bill of Lading Terms and Conditions, including all the relevant liability limitations and exclusions.

7.1 Immediately upon the Client being aware of any loss of or damage to the Goods, the Client shall contact the usual ESL agent and provide such documents and evidence as may be requested from time to time by ESL, including at least, the following documents:

• Copy of the Transport Document (both sides);
• Freight invoice;
• Copy of the cargo commercial invoice and proof of payment;
• Letter of protest sent to ESL;
• Detailed statement of loss;
• Surveyor report showing the damage and the cause thereof.

7.2 ESL may, in its unfettered discretion, require that the cause and the extent of loss be assessed by an independent surveyor appointed by ESL. In case of any discrepancy between the report of the surveyor appointed by the Client, the Merchant or any party other than ESL, and such report of the surveyor appointed by ESL, the latter will prevail.

7.3 Payment of the compensation shall be made against a release and receipt signed by the Client.

The Client shall always remain responsible for issuing adequate bond and securities as required by the Adjuster and/or salvors so as to obtain the release of the cargo from general average and salvage liens. The Client shall only be entitled to financial compensation under the Guarantee (and within the limit of guarantee purchased) upon production of the evidence of payment of the general average / salvage contribution as ascertained by a final adjustment prepared by the Adjuster.

9.1 It is the duty of the Client and its employees and agents to:

• take such measures as may be reasonable for the purpose of avoiding or minimizing all losses, damages or expenses to or in relation to the Protected Goods;
• and to ensure that all rights against third parties are properly maintained or protected.

9.2 Any measures taken by ESL aimed at saving, protecting or recovering the Protected Goods shall not be considered as a waiver or acceptance of abandonment or otherwise prejudice the rights of either party.

The law and jurisdiction applicable to these Terms shall be the law and jurisdiction stated to apply in the Transport Document of ESL.

11.1 All dispute and actions arising between ESL and any Client in connection with or arising out of the Cargo Protect Guarantee shall be brought before the court or tribunal having jurisdiction pursuant to the Transport Document issued by ESL and no other court or tribunal shall have jurisdiction with regards to any such dispute or action.

11.2 Notwithstanding the above, ESL is also entitled to bring the dispute or action before the court or tribunal of the place where the Client has its registered office.

ESL reserves the right to modify the above terms and conditions from time to time, respecting the notice imposed by the competent authorities.

The Bill of Lading Terms and Conditions of ESL are available on the following links:

https://www.emiratesline.com/bl-terms/

It a condition precedent to ESL’s obligations hereunder that a detailed and valued inventory, object by object must be provided to ESL by the Client prior to the stuffing/loading.

In the event of any payment request, ESL shall reimburse the cost of repairing or replacing damaged or missing items up to the declared value for each item and in proportion to the actual value of a similar item, at the place of destination, always subject to the Maximum Compensation Limit and these Terms.