Boston Creek Transport Ltd.
Standard Terms and Conditions
The Customer’s attention is drawn to the Clauses hereof which exclude or limit Boston Creek Transports’ liability and those, which require the Customer to indemnify Boston Creek Transport Ltd. in certain circumstances.
In these Conditions:
“Boston Creek” means Boston Creek Transport Ltd., its subsidiaries, related companies, shareholders, employees, agents and representatives.
“B/L” means a Bill of Lading or Waybill covering the carriage of goods. Boston Creek utilizes the Standard Bill of Lading in its undertakings.
“Conditions” means the entire undertakings, terms, conditions and clauses embodied herein.
“Customer” means any person at whose request or on whose behalf Boston Creek undertakes any business, or provides advice, information, rates or services.
“Dangerous Goods” means goods as statutorily defined and regulated in the appropriate Government of Canada Legislation or the Provincial Legislation of the Province of Ontario.
“Goods” means the objects of the services provided hereunder and shall include any containers or equipment.
“Instructions” means a statement of the Customer’s specific requirements.
“Person” includes persons or any body or bodies corporate.
“Shipment” means goods of any nature undertaken for carriage, parameters of such shall remain consistent and within legal limits, quantities, size and weight allowable at law and for the transport unit assigned.
“Special Arrangements” means arrangements made in accordance with express instructions in writing, previously received and accepted by Boston Creek
“SL&C” means shippers load and count.
“The Owner” means the owner of the goods (including any containers or equipment) to which any business concluded under these conditions relates and any other person who is or may become interested in them.
“Transport Units” means containers, trailers, vans, flats, tanks and/or any other unit or load device specifically constructed for the carriage of goods by land.
Headings of Clauses or groups of Clauses are for indicative purposes only.
TERRITORIAL SCOPE OF OPERATIONS
Boston Creek Transport Ltd. undertakes to provide services intra-provincially, inter-provincially and internationally. It is expressly provided for that Boston Creek does not guarantee any specific type, volume or lanes of service. These Terms and Conditions shall not be construed as to compel Boston Creek to offer any specific type, volume, lanes of service and without obligation with respect to any destination, mileage or rate.
(A) Subject to Sub-clauses (B) and (C) below all and any activities of Boston Creek in the course of business whether: intra-provincial, inter-provincial, interstate, international, gratuitous or not are undertaken subject to these Conditions.
(B) If any legislation is compulsorily applicable to any business undertaken, these Conditions shall, in regards to such business, be read as subject to such legislation and nothing in these Conditions shall be construed as a surrender by Boston Creek of any of its rights or immunities or as an increase of any of its responsibilities or liabilities under such legislation and if any part of these Conditions be repugnant to such legislation to any extent, such part shall in regards to such business be severable and overridden to threat extent and no further.
(C) Subject to Sub-clause (B) above, Boston Creek Transport Ltd and the Customer agree that; in respect of all or any part or parts of any contract for the movement of goods, whether Boston Creek Transport Ltd, the consignor or consignee issue a “B/L”, the terms and conditions contained herein shall be paramount in governing the relationship and the undertaking, specifically and insofar as the terms and conditions presented by the consignor or consignee are inconsistent with or repugnant to these Conditions.
(D) Boston Creek drivers may sign non-conforming Bills of Lading as presented by the shipper, but they do so sign such; as and for receipt purposes only. Terms and Conditions found and contained herein shall take precedence and supercede any and all other representations.
(E) All and any shipments undertaken by Boston Creek, whether traveling under a Bill of Lading issued by Boston Creek, the Shipper or Consignee understand and agree that any contract of carriage undertaken, regardless of jurisdiction of the port of lading, shall travel pursuant to the Highway Traffic Act R.S.O. 1990, c. H.8 and O. Reg. 643/05 thereunder, also the Bills of Lading Act R.S.C., c. B-6 and the Mercantile Law Amendment Act R.S.O. 1990, c. M. 10.
BOSTON CREEK TRANSPORT LTD. GENERAL RESPONSIBILITIES
(A) Boston Creek Transport Ltd shall perform its duties with a reasonable degree of care, diligence, skill and judgment.
(B) Subject to Clause 20 hereof, Boston Creek Transport Ltd shall carry out its services within a reasonable time.
(C) Subject to these Conditions and in particular to the discretion reserved by Boston Creek below, Boston Creek shall take all reasonable steps to perform the Customer’s instructions accepted by Boston Creek.
(D) If at any stage in any transaction Boston Creek should reasonably consider that there is good reason, in the Customer’s best interest or in the interest of safety, to depart from any of the Customer’s instructions, Boston Creek shall be permitted to do so and shall not incur any additional liability in consequence of so doing.
(E) When using its discretion as permitted herein, Boston Creek shall prudently do so with due regard to the interests of the Customer.
(A) If after a contract has been agreed, events or circumstances come to the attention of Boston Creek, which, in the opinion of Boston Creek makes it wholly or in part impossible for Boston Creek to fulfill its duties, it shall take reasonable steps to inform the Customer of such events or circumstances and seek further instructions.
(B) Quotations are given on the basis of immediate acceptance and are subject to withdrawal or revision. Notwithstanding, whether they are contracted rates with a defined term, written or verbal rate quotations Boston Creek shall be at liberty to revise any rates or charges with or without notice in the event that any substantial or unforeseen changes outside of Boston Creek’s control occur in; currency exchange rates, labour costs, fuel costs, insurance premiums or any other unforeseen cost change incidental and adverse to the business operations of Boston Creek.
(C) Calculation of quotations may be based on either price per hundred weight, mileage, or flat rate, the format of which shall be upon agreement between Boston Creek and the Customer.
(D) Mileage software is utilized in the calculation and formulation of rates. Boston Creek utilizes ALK PC Miler 2000 software specified to calculate the most practical routings.
(A) A charge for equipment ordered and not used, shall be assessed if a power unit has been dispatched, or if less than 8 hours cancellation notice is provided prior to the scheduled pick up time, at a rate of $200.00 plus any off line miles incurred.
(B) Off line miles or additional miles due to improper Customer instructions, re-consignment or diversion shall be calculated at the revenue per mile of the original load tendered or at $2.50 per mile; whichever is the greater.
(C) Additional deliveries or pick up’s shall be assessed an additional charge based on distance from the initial destination. If the extra delivery is within the city limits of the initial destination it will be assessed an additional charge of $50.00 per stop off. Destinations beyond the city limits of the original destination shall be assessed out of line miles in addition to the stop off charge or a separate delivery rate as agreed by the parties
(D) Demurrage time in excess of two (2) hours at pick up and for two (2) hours at offload, beginning from arrival or appointment time shall be charged for loading, unloading or waiting in respect of the forgoing, shall be billed at a rate of $75.00 per hour in Canadian funds for every hour or prorated for each part thereof.
(E) Lumper (unloading) service costs when required shall be passed directly on to the Customer. It shall be the responsibility of Boston Creek to put the Customer on notice prior to the unloading in order to allow the Customer to mitigate these costs. Should the Customer be unavailable for approval, Boston Creek or its representatives shall make reasonable efforts to mitigate these costs, but not to its detriment. These charges shall remain the responsibility of the Customer.
(F) Driver assist loads shall be assessed additional hourly charges beginning from the time of arrival until the time of completion at a rate of $75.00 per hour in Canadian funds for each hour or part thereof, with a minimum charge of two (2) hours.
(G)Pallet exchange: Boston Creek does not maintain or purport to maintain a pallet exchange program. In the event that charges are incurred for pallets, this cost shall be expressly borne by the party responsible for the payment of freight charges.
(H) Requested layover by the Customer shall be assessed an additional charge of $250.00 per unit for the first twelve (12) hours at a minimum. Further time shall be assessed pursuant to the forgoing rate for each twelve (12) hour increment or proportionately for each part thereof.
(I) Trailer Demurrage shall be assessed an additional charge on an individual situation basis.
(J) International Border Crossing and Security surcharge for all loads transported across international borders between Canada and the United States, or for furtherance overseas, will not be assessed any additional charges at this time.
(K) Unites States or Canadian Customs required inspection of cargo may result in additional charges based on the hourly rate of $75.00 per hour for delays incurred, in addition; any direct costs incurred as a result shall be passed on to the Customer and shall be subject to a 10% administration charge.
(L) Fuel Surcharge rate is determined semi-monthly and unless otherwise negotiated shall be applied based on service rates and not on accessorial charges. Updated rates may be supplied upon request.
(M) Proof of Deliveries shall be provided upon request. Additional copies of P.O.D.’s will be supplied at a rate of $7.00 per.
THE CUSTOMER’S UNDERTAKINGS
(A) The Customer shall be deemed to be competent and to have reasonable knowledge of matters affecting the conduct of their business, including terms of sale and purchase and all other matters relating thereto.
(B) The Customer shall give sufficient and executable instructions in writing, and Boston Creek shall, within the limits of its duty of care and diligence, inform the Customer if it considers that the Customer’s instructions are insufficient or in-executable.
The Customer warrants that it is either the Owner or the authorized agent of the Owner of the goods being transported and also that it is accepting these Conditions not only for itself but also as agent for and on behalf of the Owner, pursuant to the rules of agency and as fiduciary, if applicable.
The shipper and/or customer warrants that the description and particulars of any goods or cargo furnished by or on behalf of the shipper and/or customer are complete and accurate. Further, that any inherent sensitivities or susceptibilities to damage of such goods or cargo are fully disclosed prior to lading and that all prudent precautions have been fulfilled to mitigate the risk of damage during transit by the shipper and / or customer.
(A) When Boston Creek undertakes, upon the Customer’s instructions, to collect freight charges, demurrage, or other expenses from the Consignee, Agent or any other person, the Customer shall remain responsible for same if demands are not satisfied by such Consignee or other person immediately when due.
(B) Boston Creek shall have the right to enforce any liability of the Customer under these Conditions or to recover any sums to be paid by the Customer under these Conditions not only against or from the Customer but also if it deems fit against or from the Shipper and/or Consignee and/or Owner. Boston Creek, regardless of jurisdiction of lading or destination, relies upon all relevant remedies under law including but not limited to such contained in section 4 (E) contained herein.
No Claim shall be made on any grounds whatsoever against any; officer, director, employee or agent or servant of Boston Creek, personally.
The Customer shall indemnify Boston Creek against all duties, taxes, payments, fines, expenses, losses, direct or consequential damages (including physical damage), and any and all liabilities, or future liabilities, whatsoever and wheresoever as a result of its performance under any contract, including any liability to indemnify any other person against claims made against such other person by the Customer or by the Owner of the goods pursuant to the terms and conditions as set out and contained herein.
(A) The Customer shall warn Boston Creek if any goods which are the subject of any transaction to which these Conditions apply are liable to taint or affect other goods and the Customer shall indemnify Boston Creek against any liability, loss, damage, costs or expenses incurred by Boston Creek as a consequence of the Customer’s failure to do so or for failure to do so in good time.
(B) Customer expressly warrants that all goods have been properly and sufficiently prepared, packed, stowed, labeled and/or marked pursuant to any legislation, regulation or applicable jurisdiction which may govern and prescribe such and furthermore, that the preparation, packing, stowage, labeling and marking are appropriate to any operations affecting the goods or the characteristics of the goods
(C) Where the goods are carried in or on any transport unit then, save where Boston Creek has accepted instructions as principal to load the transport unit, the Customer warrants:
that the transport unit has been properly and competently loaded;
that the goods are suitable for carriage in or on the transport unit; and
that the goods are a legitimate and lawful commodity; and
that the transport unit is in a suitable condition to carry the goods loaded therein (save to such extent as Boston Creek has approved the suitability of the transport unit).
The Customer shall indemnify and save harmless, Boston Creek in respect of any claims which may be made on it and shall provide such security as may be required by Boston Creek in respect of section 14 herein.
Any claim, or potential claim, by the Customer or Owner against Boston Creek, shall be made in writing and notified to Boston Creek as soon as events which may give rise to a claim are known to the Customer or owner of the goods and subsequently, substantiated claims shall be dealt with as follows;
in case of loss and / or damage to goods within 45 days of end of transit,
in case of delay in delivery or non-delivery within 45 days of the date when goods should have been delivered.
Any claim not made and notified within the times provided for by Sub-Clauses (i)-(ii) herein shall be deemed to be waived and absolutely barred except where the Customer or Owner can show that it was impossible for them to comply with these time limitations in which case any claim shall be barred if not made without delay.
BOSTON CREEK TRANSPORT LTD.’S ROLE
(A) Where Boston Creek has held itself out to be the operator of a regular line or service over the route, or part of the route, on which the goods are to be carried, and has accepted instructions for the carriage of the goods by that line of service, and has issued a “B/L”, Boston Creek shall (except where Boston Creek procures a bill of lading or other document evincing a contract of carriage between the carrier and the Customer or Owner) be deemed to provide such carriage, or such part thereof, as principal contractor, without prejudice to the question whether any of the other services are arranged by Boston Creek as agent or provided as principal contractor.
(B) The charging or agreement to charge a fixed price for any service shall not of itself
determine whether Boston Creek arranges such service as agent or provides the same as
(C) Boston Creek may, as a licensed carrier, engage another carrier to perform part or all of a contract. It is expressly provided for herein that such relationship with such carrier shall be construed as one of sub-contract.
BOSTON CREEK TRANSPORT LTD.’S GENERAL CONDITIONS
Notwithstanding any of the provisions herein Boston Creek shall in any event be discharged of all liability whatsoever arising in respect of any service provided for the Customer or where Boston Creek has undertaken to provide, unless suit be brought for these Conditions within nine months from the later of;
the date of the event or occurrence alleged to give rise to Boston Creek liability, or
after the delivery of any goods covered by the service,
or the date when such goods should have been delivered.
Except under special arrangements Boston Creek accepts no responsibility for departure or arrival dates or times of the transportation of goods.
As a general rule and in the absence of a special agreement; all shipments tendered and accepted, loaded and unloaded shall be premised on “shippers load and count”.
(A) If delivery of the goods or any part thereof is not taken by the Customer, Consignee, or Owner, at the time and place when and where Boston Creek is entitled to call upon such person to take delivery thereof, Boston Creek shall be entitled to store the goods or any part thereof at the sole risk of the Customer, whereupon the liability of Boston Creek in respect of the goods or that part thereof stored as aforesaid shall wholly cease and the cost of such storage if paid for or payable by Boston Creek or any agent or sub-contractor of Boston Creek shall forthwith upon demand be paid by the Customer to Boston Creek
(B) (i) Boston Creek shall be entitled at the expense of the Customer to dispose of (by sale or otherwise as may be reasonable in all the circumstances):
(a) on 21 days notice in writing to the Customer, or where the Customer cannot be traced and reasonable efforts have been made to contact any parties who may reasonably be supposed by Boston Creek to have any interest in the goods, any goods which have been held by Boston Creek for 90 days and which cannot be delivered as instructed or,
(b) without prior notice, goods which have perished, deteriorated or altered or are in immediate prospect of doing so in a manner which has caused or may reasonably be expected to cause loss or damage to third parties or to contravene any applicable laws or regulations.
(ii) Boston Creek shall give appropriate credit to the Customer for any balance arising out of the proceeds of sale of the goods after deduction of Boston Creek costs of sale.
Except insofar as may be required to comply with the Customer’s instructions as regards to documentation, or except under special arrangements Boston Creek shall not be obliged to arrange for the goods to be carried stored or handled separately from other goods.
No insurance will be affected except upon special arrangements with the Customer whereby all insurances affected by Boston Creek are subject to the usual exceptions and conditions of the policies of the Insurance Company or Underwriters taking the risk. Boston Creek shall not be under any obligation to affect a separate insurance on each consignment, but may declare it on any open or general policy. Boston Creek shall in no circumstances incur liability as insurer and if for any reason the insurers dispute liability the Customer shall have recourse against the insurers only; however this provision shall not detract from the rights of the Customer against Boston Creek in respect of any negligence on the part of Boston Creek in affecting insurance.
Except in accordance with special arrangements Boston Creek shall not be obliged to make any declaration for the purpose of any statute, convention or contract as to the nature or value of any goods or as to any special interest in delivery.
Except under special written arrangements, signed by Boston Creek, any instructions relating to the delivery or release of goods, such as, but not limited to (but without prejudice to the generality of this clause) payment or against surrender, are accepted by Boston Creek only as agents for the Customer where third parties are engaged to effect compliance with the instructions.
Advice and information, in whatever form it may be given, is provided by Boston Creek for the Customer only and the Customer shall indemnify and hold harmless Boston Creek against any liability, claim, loss, damage, costs or expenses arising out of any other person relying upon such advice or information. Further, advice or information which is not related to instructions accepted by Boston Creek is provided gratuitously and without liability.
The defenses and limits of liability provided for in these conditions shall apply in any action against Boston Creek whatsoever, howsoever arising, whether the action be founded in contract, tort, or otherwise.
BOSTON CREEK TRANSPORT LTD SPECIAL CONDITIONS RELATING TO PARTICULAR GOODS, SHIPMENTS OR UNDERTAKINGS.
The Customer undertakes, when tendering any goods which require temperature controlled service for transportation, to ensure to give notice of the nature of the goods and the temperature required to be maintained, has been given to Boston Creek
(A)When shipping goods identified as “Dangerous or Hazardous Goods” the Customer undertakes to ensure that prescribed markings are applied to the goods and the outside of any packages or container in which they may be placed, as required by any laws or regulations which may be applicable during the carriage. In the case of goods where the place of receipt (lading) is a point within Canada, the Customer further warrants that the goods, the packaging and marking thereof comply in all respects with the provisions of the Transportation of Dangerous Goods Act of the Parliament of Canada and the Regulations passed thereunder.
Furthermore, in the case of goods where the place of receipt (lading) is a point within the United States of America, the Customer further warrants that the goods, the packaging and marking thereof will also comply in all respects with the provisions of 49 USC and 49 CFR and any further Regulations or amendments passed thereunder.
(B) If the requirements of sub-clause (A) of section 30 are not complied with, the Customer shall indemnify Boston Creek against all loss, damage or expense arising out of the goods being tendered for transportation or handled or carried by Boston Creek.
LIMITATIONS OF LIABILITY
(A) Boston Creek shall be liable for loss of or damage to the goods, within the limitations contained herein, when such damage occurs between the time when Boston Creek takes the goods into its charge and the time of delivery, however, Boston Creek shall, be relieved of liability and Customer agrees to indemnify and save harmless Boston Creek for any loss or damage if such loss or damage was caused by:
an act of God;
an act of a public enemy;
an act of a public authority;
the existence of violence or disturbances that create apprehension of danger to person or property;
an act or omission of the Customer, owner or person acting on their behalf, other than Boston Creek;
insufficiency or defective condition of the packaging or marks and/or numbers, save where Boston Creek has undertaken to carry out the packing, application of marks or labeling or numbering of the goods;
handling, loading, stowage or unloading of the goods by the Customer, owner or any person acting on their behalf;
inherent vice of the goods;
strike, lockout, stoppage or restraint of labour, the consequences of which Boston Creek could not avoid by the exercise of reasonable diligence;
any cause or event which Boston Creek could not avoid the consequences where of they could not prevent by the exercise of reasonable diligence;
(B) the burden of proving that the loss or damage was due to one or more of the above causes or events shall rest upon Boston Creek
(C) In any case where, in accordance with these conditions, Boston Creek is liable to pay compensation in respect of loss or damage to goods, and it is known where such loss or damage occurred, the extent and the amount of the liability in respect of such loss or damage shall be determined by the provisions contained section 32 herein.
(A) When Boston Creek is liable to pay compensation in respect of loss of or damage to the goods, such compensation shall be calculated by reference to the wholesale value of such goods at the place and time they are delivered to the Consignee in accordance with the contract or should have been so delivered.
(B) The value of the goods shall be fixed according to the current commodity exchange price, or if there be no such price, according to the current market price, or, if there be no commodity exchange price or current market price, by reference to the normal value of goods of the same kind and quality.
(C) Compensation shall not, however, exceed $2.00 per pound or $4.41 per kilogram in Canadian funds for the goods lost or damaged.
(D) (i) in no circumstances whatsoever shall Boston Creek be liable to the Customer or Owner for consequential loss or loss of market however caused.
(ii) without prejudice to any other conditions herein or other defenses which may be open to Boston Creek, in no circumstances whatsoever shall Boston Creek be liable to the Customer or Owner for damages, delay or deviation however caused in a sum in excess of twice Boston Creek’s own charges in respect to the relevant transaction.
The Customer shall pay to Boston Creek in cash, or as otherwise agreed, all sums immediately when due, without reduction or deferment on account of any claim, counterclaim or set off.
Despite the acceptance by Boston Creek of instructions to collect freight, duties, charges or other expenses on a collect basis, from the Consignee or any other person the Shipper shall remain responsible for such freight duties, charges or expenses upon receipt of evidence of proper demand and in the absence of evidence of payment (for whatever reason) by such Consignee or other person when due.
Boston Creek standard credit terms require satisfaction, or payment of invoices 30 days from the date of delivery. Interest shall be charged on overdue accounts at a rate of 18% per annum on any balances over 30 days.
In the event that Boston Creek consults, engages or retains an attorney or collection agency to collect any delinquent credit balance, as defined by Boston Creek, Party liable agrees to pay all fees so expended, to the extent they are reasonable, together with all costs and expenses of collection and litigation.
Intermediaries, third party logistics companies, load brokers and freight forwarders or any entity who bills or collects freight charges due in whole or in part to Boston Creek shall receive payment in trust to the extent charges are due and owing to Boston Creek pursuant to the Highway Traffic Act R.S.O. 1990, c. H.8, Bills of Lading Act R.S. 1985, c. B-5 and the Mercantile Law Amendment Act R.S.O. 1990, c. M. 10 thereunder. Such parties further understand, agree and expressly provide that a fiduciary duty is owed to Boston Creek to ensure satisfaction of any respective debt obligation.
If so billed, third party logistics companies, intermediaries, load brokers and freight forwarders are billed for the shipper’s convenience. However, Boston Creek maintains privities of contract afforded it by the bill of lading contract between itself and the Consignor or Shipper pursuant to the Bills of Lading Act R.S. 1985, c. B-5 and the Mercantile Law Amendment Act R.S.O. 1990, c. M. 10.
All goods (and documents relating to goods) shall be subject to a particular and general lien and right of detention for monies due either in respect of such goods or for any particular or general balance or other monies due from the Customer, Consignor, Shipper, Consignee or Owner to Boston Creek. If any monies due Boston Creek are not paid within one calendar month after notice has been given to the person from whom the monies are due that such goods are being detained, they may be sold by auction or otherwise at the sole discretion of Boston Creek and at expense of such person, and the net proceeds applied in or towards satisfaction of such indebtedness and Boston Creek will not be liable for any deficiencies or reduction in value received on the sale of the goods, nor will the Customer be relieved from the liability merely because the goods have been sold.
Boston Creek shall be entitled to retain and be paid all brokerages, commissions, allowances and other renumerations as is customary in the industry.
JURISDICTION AND LAW
These Conditions shall be governed by the law of the Province of Ontario, Canada in which Boston Creek has its principal place of business. By accepting the services provided under these Conditions, the Customer irrevocably attorns to the Courts of the Province of Ontario.