Index Part I Part II Part III Part IV Part V Part VI Part VII Appendices

 

PART V
LIMITATION OF LIABILITY


29.0 LIMITATION OF LIABILITY
29.1 JPB as a bailee to the User shall not be liable for:

(a) any loss;

(b) any damage; and

(c) costs, expenses, injury or death,
of whatsoever nature or kind and howsoever sustained or occasioned and whether to property or persons, other than herein expressly stipulated.

29.2 Notwithstanding anything to the contrary, JPB shall only compensate the User for such physical and/or direct loss or damage as hereinafter specified on satisfactory PROOF THAT such direct physical loss/damage was caused by the fault or privity of JPB or its employees or agents. PROVIDED ALWAYS such compensation/liability, if so made, shall in no case exceed the financial limits set out hereunder:-

(a) Physical Loss or Damage To Container
JPB shall pay the depreciated value of the container or the reasonable cost of repair, whichever is the lesser, not exceeding:

(i) RM4,000.00 for a 6.1 metres (twenty-foot equivalent) dry container either fully enclosed, open-top, open-sided or flat-racks;

(ii) RM7,500.00 for any other dry container either fully enclosed, open-top, open-sided or flat-racks, exceeding 6.1 metres;

(iii) RM60,000.00 for an insulated, refrigerated or any tank container.

(b) Physical Loss or Damage to Cargo in Containers
JPB's liability under this paragraph shall not exceed 25 percent of the value of cargo per container load or per tonne as declared in the commercial invoice per container or per tonne, whichever is the lesser.

(c) Physical Loss or Damage to Cargo Shipped in Bulk or Breakbulk
JPB's liability shall not exceed 25 percent of the value of cargo as declared in the commercial invoice, per package or per tonne, whichever is the lesser.

(d) Physical Loss or Damage to Vessel and Its Equipment
JPB shall pay the depreciated value of such vessel or the reasonable cost of repair, whichever is the lesser, PROVIDED ALWAYS that the liability of JPB under this paragraph:

(i) shall not exceed RM250,000; and

(ii) that the sum of RM250,000 shall be inclusive of any liability of JPB pursuant to the preceding paragraphs.

(e) Physical Loss or Damage To Property not otherwise referred to in the preceding paragraphs
JPB shall pay the depreciated value of such property or the reasonable cost of repair, whichever is the lesser, PROVIDED ALWAYS that the liability of JPB shall not exceed the aggregate of RM25,000.

(f) Death or Injury
JPB shall pay an aggregate sum which shall not exceed RM250,000 or any sum as may be required in tort.

29.3 The limitation of liability under this Part shall relate to the whole of any losses or damages which may arise upon any one distinct occasion, although such losses or damages may be sustained by more than one person, and shall apply whether the liability arises at common law or under any written law and notwithstanding anything contained in such written law.

29.4 Where more than one person have sustained loss or damage upon any one occasion for which JPB is liable and the aggregate amount of such loss or damage exceeds the amount to which JPB is liable by virtue of the limitation contained liability of JPB to each such person shall abate proportionally.

29.5 Notwithstanding anything to the contrary as contained in the paragraphs 29.1 to 29.4 above and in relation to the Applications, JPB shall not be liable to any physical and/or direct loss or damage suffered by the User unless such physical and/or direct loss or damage is proven conclusively to be caused by the gross negligence or wilful neglect on the part of JPB in the maintenance of the Applications.

30.0 LIABILITY ON RECEIPT AND DELIVERY OF CARGO OR CONTAINERS
30.1 Receipts either by endorsement on, or issuance by JPB, of document the transfer of cargo or container from the User to JPB, shall relate only to the outward appearance of the packages/containers, and shall not be construed as relating to the contents or state of the contents/containers.

30.2 JPB shall not be responsible for failing to note any damage to any container or its contents or to any other cargo upon discharge, receipt or handling of such.

30.3 The Port shall not be liable to the inherent loss and damage of the contents of the cargo or containers, subsequent loss, damage and deterioration of the contents or cargo while in the custody of JPB.

31.0 WHEN LIABILITY ATTACHES TO MORE THAN ONE PARTY
31.1 Where liability attaches to more than one party which can be defined as the `User', such liability shall be joint and several and may be enforced against any one or more parties.

32.0 THE PORT'S EMPLOYEES AND AGENTS SHALL HAVE BENEFIT OF PROVISIONS
32.1 Without prejudice to the foregoing, every such employee or agent of JPB shall have the benefit of all provisions herein, as if such provisions were expressly for their benefit. In entering into this contract, JPB, to the extent of those provisions, does so not only on its behalf, but as agent and trustee for employees and agents.

33.0 NOTIFICATION OF LOSS AND DAMAGE AND INTENTION TO CLAIM
33.1 The User shall notify and obtain acknowledgement of JPB of any disputes and discrepancies on the conditions, markings and quantities of cargo or containers, at the points of delivery as described in paragraph 37.0 to the User either by land or by sea.

33.2 Claims of loss and damage to cargo or containers shall be considered null and void in absence of the notifications mentioned in this paragraph.

33.3 All notifications of claims in respect of any loss, damage, costs, expenses, death or injury must be made to JPB by the User within forty eight (48) hours from the time of occurrence causing such loss, damage, costs, expenses, death or injury.

34.0 INDEMNITY
34.1 The User undertakes that no claim shall be made against any employee or agent of JPB which imposes or attempts to impose upon any of them any liability whatsoever in connection with the cargo, containers or vehicles and if any such claim should nevertheless be made, to indemnify JPB against all consequences thereof.

34.2 The User shall defend, indemnify and hold harmless, costs and demands whatsoever and by whomsoever made or preferred in excess of the liability of JPB under the Terms and Conditions of Business herein, and without prejudice to the generality of this paragraph, this indemnity shall cover all claims, costs and demands arising from or in connection with the negligence of JPB, its employees and agents.

34.3 The User shall indemnify JPB against all liability (as stipulated in paragraphs 29.2 to 29.4) made to be incurred by JPB, to the extent that such liability exceeds the financial limits therein prescribed.

35.0 DEFENCES AND LIMITS
35.1 The defences and limits of liability provided for in this Terms and Conditions of Business shall apply in any action against JPB for any loss, damage, costs, expenses, death and injury whether the action be founded in contract or in tort.

36.0 COST FOR SUIT OR ACTION
36.1 If any damages have been ascertained by agreement between the party claiming them and JPB, any other person interested, may require by notice at any time within the period referred to in paragraph 33.0 that such damages shall be ascertained by suit or action, and shall in such suit or action be joined as a party thereto and shall be solely liable for any costs which, but for this provision, might have been awarded against JPB.

37.0 LIABILITY IN POSSESSION OF CARGO/CONTAINERS
37.1 JPB shall have no liability whatsoever for any loss or damage to the cargo or containers at the following points of event, however caused:

(a) After the cargo or containers have passed over the vessel's railing or bulwark, or if applicable on the vessel's ramp, during loading;
(b) Before the cargo, containers have been landed on the Wharf, or any transport during discharging;

(c) After the cargo or containers have been delivered to the User or its agent. Delivery means the cargo or containers have been mounted on the User's or it's agent transport vehicles in the Port premises;

(d) Before the cargo or containers have been received by JPB. 'Received' means the cargo or containers have been off-loaded from the User's or it's agent transport vehicles in the Port Premises;

(e) In respect of liquid bulk and dry bulk, delivery means arrival of the cargo at the User's facilities, be it conveyors or pipelines. 'Received' means off-loading of the cargo from the User's facilities;

(f) In respect of cargo stuffed into container(s) by JPB at its Container Freight Station, when the cargo has been stuffed into the container(s), and a "clean" container packing lists are issued by the User;

(g) In respect of cargo unstuffed from container(s) by JPB at its Container Freight Station, before the container(s) is unstuffed and received into the Container Freight Station;

(h) In case of refrigerated containers packed by or on behalf of the User, the User undertakes that the cargo have been properly stowed in the container and that the thermostatic controls have been adequately set by the User before receipt of the container by JPB. The User's attention is drawn to the fact that refrigerated containers are not designed to freeze down cargo which has not been presented for stuffing or below its designated carrying temperature, and JPB shall not be responsible for the consequences of cargo presented at a higher temperature than that required for the storage in JPB and transported through JPB. If the above requirements are not complied with, JPB shall not be liable for any loss of or damage or deterioration to the cargo, howsoever arising.