Horizon Standard Indirect Air Carrier Terms
HORIZON LOGISTICS, LLC
TARIFF TERMS AND CONDITIONS OF SERVICE
Effective Date: 06-04-2009
Table of Contents
1. Definitions
2. Agreement to Terms
3. Arbitration
4. Claims
5. Collect on Delivery Service
6. Credit Terms
7. Customs Clearance
8. Delivery and Undeliverable Shipments
9. Export Controls
10. Force Majeure
11. Hazardous Materials
12. Liability Limit (Domestic)
13. Liability Limit (International/Warsaw)
14. Liability Limit (International/Non-Warsaw)
15. Liability Limit (General)
16. Declared Value
17. Payment
18. Right to Inspect and Reject
19. Routing and Re-routing
20. Severability
21. Shipper’s Warranties and Indemnification
22. Transportation and Other Charges
23. Cargo Security Requirements
The Terms and Conditions of this tariff supersede all previous terms and conditions, amendments, supplements, and other prior statements concerning the conditions of Carrier’s indirect air transportation services. Carrier reserves the right to modify, amend, change, or supplement this tariff including, but not limited to, the services, features of service, and these terms and conditions without notice, and Shipper agrees to be bound by any such modification, amendment, change, or supplement. For U.S. domestic shipments (non-international), to the extent a conflict exists between the preprinted terms and conditions on a house air waybill, manifest, stamp, shipping label, or other transit documentation, this tariff shall control.
1. Definitions.
(a) Carrier means Horizon Logistics, LLC d/b/a HRZ Logistics, LLC, an Indirect Air Carrier, and all carriers that carry or undertake to carry the cargo or perform any other services related to such carriage, including without limitation a motor carrier providing pick-up or delivery service, or providing substitute ground transportation service.
(b) Special Drawing Right (SDR) is a Special Drawing Right as defined by the International Monetary Fund.
(c) Warsaw Convention means whichever of the following instruments is applicable to the contract of carriage:
(i) the Convention for the Unification of Certain Rules Relating to International Carriage by Air, signed at Warsaw, 12 October 1929;
(ii) that Convention as amended at The Hague on 28 September 1955;
(iii) that Convention as amended at The Hague 1955 and by Montreal Protocol No. 1, 2, or 4 (1975) as the case may be.
(d) Montreal Convention means the Convention for the Unification of Certain Rules for International Carriage by Air, done at Montreal on 28 May 1999.
(e) Shipper means the Shipper-party named on the front-side of the house air waybill and any consignor, consignee for the shipment, or third-party with a beneficial interest in the shipment.
(f) House air waybill means the standard house air waybill, including the Conditions of Contract of Carriage on the reverse-side thereof (or made available online), issued by Carrier and completed by, or on behalf of the Shipper for purposes of transportation of freight. The house air waybill may be issued in electronic or hardcopy format and shall incorporate the terms and conditions of this tariff. All house air waybills are non-negotiable.
(g) Chargeable Weight means the greater of the actual weight or the dimensional weight of the shipment. For all rating purposes, “length” is the longest side of any package or object.
(h) Shipment means one or more pieces, either packages or freight, moving on a single house air waybill.
(i) Transportation charges mean amounts assessed for movement of a shipment. The term does not include any other fees or charges that may be assessed under this tariff or otherwise, such as (but not limited to) declared-value charges, special handling fees, customs duties and taxes, C.O.D. charges, and surcharges.
2. Agreement to Terms. By tendering the shipment described on the face of a house air waybill for transportation, Shipper agrees, on its behalf and on behalf of anyone else with an interest in the shipment, that the terms and conditions contained in this tariff shall apply from the time that Carrier accepts tender of the shipment. Shipper understands that Carrier may from time to time unilaterally revise its tariff, and agrees to be bound by any subsequent revision(s) thereof. For U.S. domestic shipments (non-international), if a conflict arises between Carrier’s tariff and the Conditions of Contract of Carriage or any other document issued by Shipper, then this tariff (and any revision(s) thereof) shall govern. This tariff is available for inspection at Carrier’s offices and on the internet at http://www.horizon-logistics.com/indirect-air/tariff/.
3. Arbitration. Should Carrier substantially prevail in any legal action or arbitration brought by Shipper or any other person with an interest in the shipment, Shipper shall reimburse Carrier for its reasonable attorneys’ fees, costs, and expenses in defending such legal action. Shipper agrees that any claim not greater than US$15,000.00, arising in connection with the shipment and/or Carrier transportation services shall be settled through binding arbitration submitted to the American Arbitration Association.
4. Claims. At the time of delivery, the consignee must note on the house air waybill or delivery receipt any visible evidence of loss or damage, and the absence of such notation shall be prima facie evidence that the shipment was delivered in good condition and in accordance with the Conditions of Carriage. Any claim for loss, damage (including without limitation concealed damage), or delay that is not presented in writing to Carrier within the time period allowed in this section shall be waived; moreover, presentation of a timely written claim shall be a condition precedent to bringing a civil action or demand for arbitration against Carrier. Shipper’s written claim must include complete consignor and consignee information, the house air waybill reference number, the date of the shipment, the number of pieces, and the shipment weight.
4.1. Carrier is not obligated to act on any claim until all transportation charges have been paid. The claim amount may not be deducted from such charges or any outstanding balance owed to Carrier, unless approved in writing by Carrier.
4.2. Notations such as “subject to inspection” or “subject to recount” do not constitute notation of visible evidence of damage or loss.
4.3. In the case of loss of, damage to, or delay to a shipment, the weight to be used for purposes of determining the measure of Carrier’s liability (if any) shall be the weight used to determine the charge for transportation of such shipment (if the transportation charge is determined by weight). In the case of loss of, damage to, or delay to a part of a shipment, the weight of the part of the shipment shall be determined by the average weight of the pieces comprising the shipment and multiplying that average by the pieces comprising the claim. Carrier is not liable for loss and/or damage to external shipping containers.
4.4 All exclusions or liability limitations applicable to Carrier shall apply to Carrier’s agents, employees, subcontractors, and representatives and to any person whose aircraft or equipment is used for transportation and such person’s agents, employees, subcontractors, and representatives.
4.5. Shipper or any person asserting an interest in the shipment must present a written claim to Carrier in the case: (a) of damage to the shipment, including without limitation concealed damage, immediately after discovery of the damage, and, in any event no later than fourteen (14) days from the date of receipt of the shipment; (b) of delay, within twenty-one (21) days from the date the delayed delivery; and (c) of non-delivery of the goods, within one hundred twenty (120) days from the date of the issue of the house air waybill, or if a house air waybill has not been issued, within 120 days from the date of receipt of the cargo for transportation by Carrier.
4.6. Claims are limited to one claim per shipment, settlement of which will be full and final settlement for all loss or damage in connection therewith. Claims and notices shall be submitted to Carrier at Horizon Logistics, LLC, Attention: Cargo Claims, 600 E. Las Colinas Blvd., Ste 550, Irving, Texas 75039. All original shipping cartons, packing and contents must be made available for Carrier’s inspection at the place of delivery and retained until the claim is concluded. In the alternative, Shipper may take and retain digital photographs of the damaged shipment, including the cartons, packing, and contents.
4.7 Any civil action or demand for arbitration against Carrier must be commenced within two years from the date of arrival of the shipment at the destination, or from the date on which the shipment reasonably ought to have arrived.
5. Collect on Delivery Service. Carrier, in its sole discretion, may provide C.O.D. service under the following conditions: (a) Shipper must identify the shipment as a C.O.D. shipment by entering the amount to be collected in the “Shipper’s C.O.D. Box” on the front of the house air waybill; (b) Shipper must specify the type of payment to be received (e.g., check, money order, or cashier’s check) in the “Special Services Box” on the front of the house air waybill; and (c) Shipper agrees that Carrier does not guarantee nor verify that a check, money order, cashier’s check, or other such financial instrument is valid or negotiable. Shipper agrees that C.O.D. payments are collected at Shipper’s risk, and that Shipper shall remain liable to Carrier for any unpaid charges as provided under Section 17, hereof.
6. Credit Terms. Except when Carrier has extended credit to the consignee without the written consent of Shipper, Shipper guarantees payment of all charges for the transportation due in accordance with Carrier’s tariff, conditions of carriage and related regulations, applicable laws (including national laws implementing the Warsaw Convention and the Montreal Convention), government regulations, orders and requirements.
7. Customs Clearance. Shipper agrees that Carrier may perform any of the following activities on Shipper’s behalf: (a) complete and transmit (manually or electronically) any documents, amend product or service codes, and pay any duties or taxes required under applicable laws and regulations; (b) act as Shipper’s forwarding agent for customs purposes and as consignee solely for the purpose of designating a customs broker to perform customs clearance and entry; and, (c) redirect the shipment to consignee’s import broker or other address upon request by any person who Carrier believes in its reasonable opinion to be authorized. Shipper appoints Carrier to act as its agent solely for the performance of customs clearance and certifies Carrier as the nominal consignee for the purpose of designating a customs broker to perform customs clearance. In some instances, local authorities may require additional documentation confirming this appointment. Shipper must provide proper documentation and confirmation when required. Carrier is not liable to Shipper for loss, delay, or expense due to Shipper's failure to comply with this provision or with provisions relating to regulatory compliance. At its sole cost and expense, Shipper must provide proper documentation and confirmation when required.
8. Delivery and Undeliverable Shipments. Carrier shall endeavor to give prompt notice of arrival of the shipment to the consignee or other person named on the face of the house air waybill as the person to be notified. On arrival of the shipment at the place of destination, delivery will be made in accordance with the instructions contained on the house air waybill. If the consignee refuses to accept the shipment or cannot be contacted, then Carrier shall notify Shipper in writing, by email, or by phone and request disposition instructions. If the Shipper fails to provide disposition instructions, then Carrier may, in its sole discretion place the shipment in storage at a commercial warehouse, at the expense of Shipper, and Shipper shall bear all risk of loss arising from such storage. If Shipper has not provided disposition instructions after thirty (30) days, then Carrier may return the shipment to Shipper at Shipper’s expense. If Shipper refuses to accept return, then Carrier may dispose of the shipment through public or private sale without incurring any liability to Shipper or any other party claiming an interest in the shipment. Carrier shall apply the proceeds against freight charges, storage charges, and related administrative costs incurred by Carrier. Carrier will return any remaining balance of proceeds from a sale to Shipper.
9. Export Controls. Shipper authorizes Carrier to act as its forwarding agent for export control and customs purposes. Shipper certifies that all statements and information contained in the house air waybill and any accompanying documents relating to exportation are true and correct. Shipper shall bear any and all costs associated with, or arising from export control.
10. Force Majeure. Carrier shall be relieved of any liability arising from any force majeure, which shall include without limitation acts of God, flood, earthquake, hurricane, tornado, acts of public enemy, acts of terror, war, insurrection, sabotage, strike, lockout or other industrial disturbance, act or restraint of governmental authority, fires, explosions, breakdown of, or damage to equipment or facilities, or similar events beyond the reasonable control of Carrier. In the event of force majeure, Carrier shall use reasonable diligence to provide written notice to Shipper within five (5) days of the onset of such event and again within five (5) days of the termination of such event. The initial notice shall describe the force majeure, including its cause and likely duration.
11. Hazardous Materials/Prohibited Items. Shipper shall provide advance written notice to Carrier if a shipment is comprised in whole or in part of hazardous materials or dangerous goods. At least two (2) hours before shipment pick-up at Shipper’s facility or drop-off at Carrier’s terminal, as the case may be, Shipper shall confirm with Carrier the mode of transportation for the shipment (air or substituted ground transportation) and Shipper shall ensure that the shipment is prepared and offered for transportation in compliance with the dangerous goods or hazardous materials regulations applicable to that mode. If Shipper has not confirmed the mode of transportation, it shall not allow pick-up or drop-off of the shipment. Shipper agrees to indemnify, defend, and hold Carrier harmless against any and all claims, damages, losses, fines, penalties, injuries, harm, lawsuits, costs, expenses, and liabilities of any kind, including without limitation injury or death of persons and harm to property, arising from or in connection with any shipment of dangerous goods or hazardous materials, whether or not tendered with Carrier’s consent. For purposes of any shipment of hazardous materials or dangerous goods, Shipper agrees that it shall be the “offeror” or “shipper” and that, as between Carrier and Shipper, Shipper shall be responsible for complying with all laws, regulations, and rules applicable to offering hazardous materials or dangerous goods for transportation.
When a shipment containing dangerous goods or hazardous materials is to be transported by air, Shipper shall ensure that the tendered quantity is allowed for air transportation under the U.S. Department of Transportation (“USDOT”) hazardous materials transportation regulations (49 C.F.R. §§ 171 – 173, 175) and the current edition of the International Air Transport Association (“IATA”) Dangerous Goods Regulations (collectively for purposes of this section “Regulations”). Shipper shall not under any circumstances tender for transportation a shipment containing hazardous materials or dangerous goods which is prohibited for air transportation under the Regulations. Shipper must ensure that each shipment requiring a Shipper’s Declaration of Dangerous Goods under the IATA regulations is accompanied by properly executed declaration documents in conformity with the requirements of the IATA regulations.
11.1. Shipper shall not tender any shipment prohibited by law including without limitation contraband, stolen goods, and illegal narcotics/drugs. In addition, unless otherwise agreed in writing by Carrier, Shipper shall not tender any shipment that contains the following: animals, articles of extraordinary value, original works of art, antiques, bonds, coins, collectibles, bullion, currency, furs, jewelry, pearls, negotiable securities or bearer form negotiable instruments, one-of-a-kind articles or models, prototypes, valuable rugs, prints, lithographs, time-sensitive written material, precious metals and stones, firearms (or parts thereof), ammunition, and human remains.
11.2. Should any article listed in section 11.1 above be inadvertently accepted for shipment, Carrier’s liability for loss, damage, or delay thereto shall be limited to, and shall not exceed US$50.00.
12. Liability Limit (US Domestic only). Unless Shipper declares a higher value for its shipment and pays an additional charge as required by Carrier, then Shipper agrees that Carrier’s liability for loss, damage, or delay to the shipment (or any portion thereof) transported in U.S. Domestic Transportation is limited to the greater of: (i) US$50.00 per shipment, or (ii) US$.50 per pound not to exceed the invoice value of the goods. U.S. Domestic transportation shall refer to transportation of a shipment from a point in the United States to another point in the United States, regardless of any travel, or intermediate stop outside of the United States and regardless of transportation mode. The weight to be used in determining the extent of Carrier’s liability shall be the weight used to determine the transportation charge for the shipment or part thereof which is lost or damaged.
13. Liability Limit (International/Warsaw). Transportation is subject to the rules relating to liability established by the Warsaw Convention or the Montreal Convention unless such transportation is not “international carriage” as defined by the applicable Conventions. If the unamended Warsaw Convention applies, then Carrier’s liability is limited to 17 SDRs per kilogram (approximately US$11 per pound or US$24 per kilogram) or 250 French gold francs per kilogram, converted into national currency under applicable law. Carrier shall treat 250 French gold francs to be the conversion equivalent of 17 Special Drawing Rights. If the Warsaw Convention as amended by Montreal Protocol No. 4 or the Montreal Convention applies to the transportation, then Carrier’s liability is limited to 17 SDRs per kilogram. As of March 2009, the value of 17 SDRs per kilogram was approximately US$11 per pound (US$24 per kilogram). If a shipment combines transportation by air, road or other mode of transport, it shall be presumed that any loss or damage occurred during the air period of such transportation unless proven otherwise. It is agreed and understood that the Montreal Convention or the Warsaw Convention, as the case may be, applies of its own force, and cannot be modified by contract. The weight to be used in determining the extent of Carrier’s liability shall be the weight used to determine the transportation charge for the shipment or part thereof which is lost or damaged.
14. Liability Limit (International/Non-Warsaw). For international transportation to which neither the Warsaw Convention nor the Montreal Convention apply, Carrier’s liability for loss, damage, or delay shall be limited to the greater of: (i) US$50.00 per shipment, or (ii) US$.50 per pound not to exceed the invoice value of the goods. Notwithstanding the above sentence, Carrier’s liability limit for transportation to or from the United States shall be 17 SDRs per kilogram. The weight to be used in determining the extent of Carrier’s liability shall be the weight used to determine the transportation charge for the shipment or part thereof which is lost or damaged.
15. Liability Limit (General). Notwithstanding Sections 12, 13, 14, and 16 of this tariff, Carrier’s aggregate liability for loss or damage to a shipment at any one time or at any one place, or for delay to a shipment shall never exceed US$50,000. Shipper Agrees that CARRIER shall have no liability under any circumstances for special, incidental, punitive or consequential damages, including but not limited to lost profits, LOST income, interest, LOSS oF GOOD WILL, or loss of future business, whether or not Carrier knew or had reason to know that such damages might be incurred. Due to the nature of the transportation business, Carrier does not guarantee pick up, transportation, or delivery by a stipulated date or a stipulated time, nor shall Carrier be liable for the consequences of failure to do so.
16. Declared Value. If Shipper wishes to declare a higher value for the shipment, then it must do so in writing at the time of tender and pay an additional charge required by Carrier. In such case, Carrier’s liability shall be limited to the lesser of the declared value or the amount of any damages actually sustained by Shipper as a result of the claimed loss, damage, or delay. If the weight of the shipment is used to determine the transportation charge, then that weight shall be used on a pro-rated basis in the case of partial loss for purposes of determining the measure of Carrier’s liability. In the event that Shipper fails to make a written declaration of the shipment’s higher value, or to pay the required additional charge, then the limitations of liability set forth in this tariff shall continue to apply. Shipper must provide advance written notice to Carrier of any shipment valued in excess of US$50,000. Shipper’s declaration of a higher value for the shipment does not impose any obligation upon Carrier to procure insurance against cargo loss or damage.
17. Payment. Shipper guarantees payment of all charges due for transportation in accordance with the house air waybill and this tariff, including without limitation any fuel surcharge, accessorial charge, or cost incurred in either returning the package or warehousing pending disposition. Shipper is also responsible for all duties, customs assessments, governmental penalties and fines, taxes, legal fees, and legal costs related to the shipment. All invoices not paid within thirty (30) days of invoice date will be subject to an interest charge of 1½% per month.
17.1. Payment of transportation charges and any other sums due Carrier shall be made by cashier’s check, certified check, money order, credit card, or wire transfer. All charges, fees, and payments shall be made in U.S. dollars, unless otherwise agreed in writing.
17.2. Carrier shall have a lien on any goods shipped for failure to pay charges payable on account of the shipment pursuant to this contract. Carrier may refuse to surrender possession of the goods until such charges are paid.
18. Right to Inspect and Reject. Shipper agrees that Carrier may open and inspect packages at or after tender, at its option or at the request of government authorities. Carrier may reject any shipment that, in its reasonable judgment, would be likely to cause delay or damage to other shipments, equipment, and/or personnel, or which has been improperly packed or wrapped. In addition and without limitation, Carrier shall have the right to reject any shipment prohibited by law, or that violates the terms of the house air waybill or Carrier’s tariff. Carrier’s right of inspection under this Section does not in any manner excuse Shipper from its obligation to prepare and package the shipment for safe and secure transportation and in accordance with applicable laws, regulations, and rules, and does not in any manner give rise to any obligation on the part of Carrier with regard to preparation and packaging of any shipment. Shipper understands and agrees that cargo items tendered for air transportation are subject to aviation security controls by air carriers and where applicable, government regulations. Shipper agrees that Carrier may furnish information about any shipment to government personal, and authorize government personnel to open the shipment, or inspect copies of all relevant shipping documents. Shipper agrees that Carrier may retain information about the shipment for at least one year from the date of the house air waybill, or longer, as necessary to comply with laws or regulations.
19. Routing and Re-routing. Shipper authorizes Carrier to select the routing and all intermediate stopping places that Carrier deems appropriate, or to change or deviate from the routing shown on the face of the house air waybill. There are no agreed stopping places. Shipper understands and agrees that Carrier may use alternative carriers, aircraft, or modes of transportation, and/or substitute service by motor carrier without notice to Shipper; provided that Carrier shall seek to ensure transportation with reasonable dispatch. Transportation to be performed hereunder by several successive carriers is regarded as a single operation subject to the governing house air waybill and the terms and conditions set forth in this tariff. In the event that Carrier, in its sole discretion, decides to have the shipment transported by motor carrier, then such transportation shall be provided under Carrier’s freight forwarder registration (FF-7830) issued by the Federal Motor Carrier Safety Administration (“FMCSA”) and shall remain subject to, and governed by this tariff, including without limitation Carrier’s limitations of liability for loss, damage, and delay to the shipment, and Carrier’s house air waybill. Shipper agrees that substituted motor carrier transportation shall be contract carriage under 49 U.S.C. § 14101(b) and Shipper expressly waives any and all rights and remedies allowed to be waived under 49 U.S.C. Subtitle IV, Part B.
20. Severability. The invalidity or unenforceability of any provision of this tariff shall not affect any other part of this tariff. Any failure to enforce or apply a term, condition or provision of this tariff does not constitute a waiver of that term, condition or provision and does not otherwise impair Carrier’s right to enforce such term, condition or provision. Any waiver of any term, condition, or provision shall be reduced to a written instrument, executed by Shipper and Carrier.
21. Shipper’s Warranties and Indemnity. Shipper agrees that it is responsible for the accurate completion of all sections of the house air waybill and for providing and entering of accurate and complete shipment information. If Shipper fails to provide accurate information or to enter correctly any information on the house air waybill, then Shipper shall be billed for, and agrees to pay charges based on the information, as corrected, or based upon Carrier’s reasonable estimate of the number of packages transported and either the dimensional weight at the time of billing or a standard default weight-per-package estimate. By tendering a shipment, Shipper agrees that Carrier has accepted the shipment on the date of the house air waybill in apparent good order for transportation (except as noted). By tendering a shipment, Shipper makes the following warranties and representations:
(a) each article in the shipment is properly described on the house air waybill and that the information provided on the face of the house air waybill and on any export documents is complete and accurate;
(b) Shipper has furnished such information and attached such documents to the house air waybill as may be necessary to comply with applicable laws and regulations, including customs clearance and export control;
(c) Shipper has protected the shipment against unauthorized interference or tampering during preparation, storage, and transportation to Carrier;
(d) the shipment is properly marked and addressed and packed to ensure safe transportation with ordinary care in handling;
(e) all applicable laws and government regulations of any country to, from, through, or over which the shipment may be carried, including those relating to the packing, transportation, or delivery of the shipment have been complied with;
(f) the house air waybill has been signed by shipper’s authorized representative and the Terms and Conditions of this tariff constitute binding and enforceable obligations of Shipper; and
(g) the materials constituting the shipment are properly classified, described, packaged, marked and labeled and are in proper condition for transportation according to the applicable regulations of the USDOT, the U.S. Transportation Security Administration (“TSA”), and IATA.
21.1. Shipper shall indemnify, defend, and hold Carrier harmless from and against any claims, damages, losses, fines, penalties, injuries, harm, lawsuits, costs, expenses, and liabilities of any kind, including without limitation injury or death of any person whomsoever and harm to any property whatsoever, arising from or in connection with (a) any violation of any of the foregoing warranties; (b) any breach by Shipper, its agents, employees, or contractors of its obligations under the house air waybill, Conditions of Contract, or this tariff; or (c) any negligent act or omission of Shipper, its agents, employees, or contractors.
22. Transportation and other Charges. Shipper understands and agrees that Carrier’s freight charges are calculated according to the higher of the customer-designated weight, actual or volumetric weight, or a default weight where appropriate. Shipper agrees that Carrier may reweigh or remeasure any shipment to confirm this calculation. If Shipper does not record a weight on the house air waybill at the time of shipment tender and the shipment is not re-weighed or remeasured, then a default weight will be applied to the shipment, and Shipper agrees to pay all charges arising from the default weight. Shipper shall pay or reimburse Carrier for all freight charges, storage charges, and taxes owed for services provided by Carrier or incurred by Carrier on Shipper’s or consignee’s or any third party’s behalf, and all claims, damages, fines and expenses incurred if the shipment is deemed unacceptable for transport as described above.
22.1. Claims for overcharges, credits, and invoice charges must be made in writing to Carrier (supported with relevant shipping documents) within nine (9) months after the date on which Carrier accepts the shipment. The amount of the overcharge and/or credit claim may not be deducted from transportation charges.
23. Cargo Security Requirements. Shipper acknowledges that Carrier, like all Indirect Air Carriers, is required by the U.S. Transportation Security Administration (“TSA”) to maintain an air cargo security program. If Shipper is acting as an agent, authorized representative, broker, carrier, or other freight intermediary for any other person or entity, Shipper shall disclose that fact to Carrier and shall assist Carrier in complying with the TSA requirements by enabling Carrier to obtain any necessary documents from, or otherwise qualify, such other person or entity. As required by TSA regulations (49 C.F.R. § 1548.9(b)), Shipper hereby consents to an inspection of the shipment.
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