Terms & Conditions

LBH MOZAMBIQUE LDA

STANDARD TRADING TERMS AND CONDITIONS

1. DEFINITIONS

1.1 “Agency Services” shall mean the services described in 4.
1.2 “Affiliated Companies” means any entity associated with or subsidiary of the Company including but not limited to TALL SHIPS (PTY) LTD trading as LBH SOUTH AFRICA and / or LBH XPRESS (Pty) Ltd, Reg. No.2012/204833/07;
1.3 “Cargo” means any cargo or goods owned by the Customer, or in which the Customer may have an interest as seller, buyer, consignee or shipper, including all cargo documents relating thereto;
1.4 “the Company” means LBH MOZAMBIQUE LDA, or any of its holding or subsidiary, companies, its successors in title and assigns;
1.5 “the Customer” means any person, firm, company, close corporation, partnership or any other legal entity, their successors in title and assigns, at whose request or on whose behalf the Company undertakes any business or provides any advice, information and/or services and includes the signatory of these STC’s;
1.6 “MPDC” shall mean Maputo Port Development Corporation or any successor thereto;
1.7 “SAAFF” means the South African Freight Forwarders Association;
1.8 “STC’s” means these Standard Trading Terms and Conditions.
1.9 “Supplier” means any person with whom the Company transacts any business on behalf of a Customer and shall include ships chandlers, vendors of all types of goods, repairers, suppliers of services of whatever nature, MPDC, other ships agents or brokers, importers and exporters, and port and other authorities in Mozambique.
1.10 “Vessel” means a ship which is owned, operated, managed or chartered by a Customer.

2. ENTIRE AGREEMENT

2.1 Subject to the other provisions of this clause, these STC’s, as read with any credit application which may have been completed by the Customer and any order which may have been placed, including any emailed or telefaxed instructions and/or acknowledgement thereof, but excluding the Customer’s own Standard Trading Conditions or equivalent thereof, represent the entire agreement (“the agreement”) between the Company and the Customer, and shall exclusively govern all future contractual relationships between the Company and the Customer and shall be applicable to all debts which the Customer may owe to the Company prior to the Customer’s signature hereto (irrespective of whether or not credit facilities are granted).
2.2 The Company has adopted the SAAFF Trading Terms and Conditions, which are reproduced and incorporated herein and form an integral part of these STC’s, if applicable to the Agency Services being provided by the Company.
2.3 In the event of any inconsistency between the SAAFF Trading Terms and Conditions and these STC’s, the latter shall prevail.
2.4 No amendments of these terms and conditions, whether consensual, unilateral or bilateral, shall be of any force and effect unless reduced to writing and signed by a director of the Company.

3. SCOPE OF AGENT’S AUTHORITY AND APPOINTMENT OF SUPPLIER / AFFLIATED COMPANY

3.1 The Company shall provide such Agency Services as are required by a Customer and, in the absence of any specific instructions from a Customer, the Company shall provide such Agency Services as the Company in its discretion deems necessary and expedient in the interests of the Customer. The Agency Services provided at the Company’s discretion as aforesaid and the terms and conditions upon which they are provided shall be deemed to have been specifically authorised and approved by the Customer.
3.2 The Company may in its sole discretion engage the services of a Supplier or its Affiliated Companies to perform all or any of the Agency Services and any such Supplier shall be deemed to be an independent contractor employed by the Customer and not a servant of the Company.
3.3 The Customer agrees to be bound by the Standard Terms and Conditions of any of the appointed Affiliated Companies and acknowledges that the relevant Standard Terms and Conditions of such Affiliated Companies are available on request or on the website of LBH Africa (http://lbhsouthafrica.com/terms-conditions/).

4. AGENCY SERVICES

4.1 The Company shall provide such Agency Services as may from time to time be required by a Customer in respect of a Vessel owned, operated, managed or chartered by a Customer, and / or in respect of Cargo and, in particular, but without limiting the generality of such services, to –
4.1.1 Arrange berths for a Vessel;
4.1.2 Provide for the entry and clearance of a Vessel;
4.1.3 Arrange on-hire, initial, intermediate and final draft surveys
4.1.4 Provide for the payment of port charges and any dues payable in respect of a Vessel;
4.1.5 Arrange for the supply of fuel, water, provisions and deck and engine-room stores;
4.1.6 Arrange for any repairs required to be done to a Vessel;
4.1.7 Take charge of and arrange solicitation of and booking of Cargo for a Vessel;
4.1.8 Issue bills of lading and other similar documents to shippers in the form prescribed by the Customer;
4.1.9 Arrange for stevedoring and other Cargo handling operations;
4.1.10 Cargo monitoring and reporting;
4.1.11 Arrange for surveyors to inspect cargo
4.1.12 Arrange for the delivery of Cargo in accordance with the bills of lading issued by or on behalf of a Customer;
4.1.13 Arrange for clearing, forwarding and/or transportation of Cargo;
4.1.14 Arrange the embarkation and disembarkation of passengers and their baggage
4.1.15 Issue passenger tickets;
4.1.16 Attend to all matters appertaining to the crew of a Vessel, including in particular, engaging, the signing on, signing off and repatriation of crew;
4.1.17 Disburse such amounts on behalf of the Customer as may be reasonable in connection with the rendering of any Agency Services;
4.1.18 Hold and manage Customer funds in order to give effect to 4.1.17 or any other Agency Service in respect of which Customer funds may be required;
4.1.19 Perform such other activities and duties in connection with the aforegoing functions as may be requisite thereto.
4.2 If a Customer requests any services whatsoever falling outside the above described Agency Services and the Company renders or arranges such services same shall be deemed to be Agency Services and shall be subject to these STC’s.
4.3 The Agency Services may be provided in one or more of the following agency formats:
4.3.1 Owners Protecting Agency;
4.3.2 Charterers Agency;
4.3.3 Cargo Agency, including clearing and forwarding agent;
4.3.4 Port Agency.

5. GUARANTEES BY THE COMPANY

5.1 A Customer shall under no circumstances require the Company to furnish a guarantee or to provide security for the performance of any obligations by the Customer or the Company on behalf of the Customer.
5.2 In the event of the Company, by reason of legislation or the requirement of a competent authority, being obliged to guarantee the obligations of a Customer or secure the fulfillment of the Company’s obligations on behalf of the Customer, the Customer shall, prior to the furnishing of such guarantee or security by the Company, indemnify the Company as is provided for in Clause 7 and in addition pay to the Company the applicable commission or fee payable by the Company to the issuer of such guarantee (if a person or entity other than the Company) and any commission payable calculated on the maximum amount of any loss the Company may sustain were any such guarantee or security to be acted upon.

6. LIABILITY OF THE COMPANY TO CUSTOMER AND SUPPLIERS

6.1 The Company shall only be liable for damage or loss arising or resulting from any default by it in providing the Agency Services where such damage or loss has been caused by the willful default or gross negligence of the Company or its servants.
6.2 In the event of the Company electing not to refer any claim by a Customer, which the Company disputes, to arbitration for determination and the Customer fails to prosecute the claim as stated in clause 15, such claim shall be deemed to have been extinguished by effluxion of time.
6.3 Notwithstanding anything to the contrary contained in these STC’s, the liability of the Company to a Customer shall be limited to payment of the lesser of US$3,000-00 (or the equivalent thereof in any other currency) or the monetary liability set out in the SAAFF Trading Terms and Conditions. The Company shall under no circumstances be liable for damage to or loss of Cargo or other goods delivered to it for forwarding or clearing or for safe keeping.
6.4 The Company shall not be liable for the default or negligent act howsoever arising, whether willful or otherwise, on the part of any Supplier providing goods or services to a Customer at the Company’s instance and request, such Supplier being deemed to be an independent contractor employed by the Customer.
6.5 The Company shall not be responsible for any money paid or remitted by it on behalf of a Customer to any person pursuant to any request or instruction given to the Company by a Customer.
6.6 The Company conducts the business of providing Agency Services only. Accordingly the Company shall only become liable to pay any amounts due by a Customer to a Supplier from such time as the Company has been placed in funds by the Customer. The Company itself shall not, in the absence of its having been placed in funds as aforesaid, be liable to a Supplier for the cost of any goods supplied or services rendered on behalf of a Customer, notwithstanding the fact that the Company has failed to advise the Supplier that the relevant instructions and orders were placed on behalf of a Customer or that the Company has omitted to disclose the particulars of a Customer to a Supplier.
6.7 The Company shall not be liable for any loss or damage of whatsoever nature sustained by a Customer or Supplier directly or indirectly attributable to war, danger of war, riots, labour strikes, slowdown strikes, lock outs, boycotts, sabotage, overburdening of any port and the like, which may affect or interrupt the regular and normal conduct of trade. In the event of the Company being precluded from providing Agency Services due to any such circumstances beyond its control or to any other circumstances constituting vis maior or force majeure the Company shall nevertheless be entitled to be reimbursed by the Customer for costs and expenses incurred by it in taking all such steps as may be necessary to protect the interests of the Customer, in particular but not limited to shed hire and/or storage charges paid by the Company at the applicable tariff rates.

7. INDEMNITIES BY CUSTOMER

7.1 The Customer indemnifies and holds the Company harmless against any loss or damage whatsoever the Company may sustain by reason of –
7.1.1 claims by Suppliers for the cost and expenses of goods or services provided to the Customer at the Company’s special instance and request;
7.1.2 payment of any taxation which may be levied on passenger earnings or freight earned on cargo loaded in the absence of reciprocal Intergovernmental taxation agreements;
7.1.3 any claim arising out of guarantees furnished by the Company pursuant to the provisions of Clause 5.
7.1.4 any other amount payable by or claim against the Company arising out of the bona fide rendering of Agency or other Services to or on behalf of the Customer.
7.2 The Customer undertakes to place the Company in sufficient funds or to furnish the Company with security to the satisfaction of the Company to ensure the due fulfillment by the Customer of its obligations under the aforesaid indemnity, either prior to the commencement of, during or after the performance of the aforesaid Agency Services, as may be required by the Company.

8. LIEN

8.1 All goods, currency, freights or other assets received by the Company from or on behalf of a Customer shall be held by the Company, subject to a general lien and right of retention, for money due to the Company by the Customer for any reason whatsoever and should the general lien be not satisfied within a reasonable time from the day when the goods or currency are first received or should the contract of agency between the Customer and the Company be terminated without the Company having been paid all amounts owing to it by the Customer –
8.1.1 the goods may be sold by auction or otherwise and the proceeds of the sale applied to the satisfaction of the lien and expenses incurred by and about the sale; and
8.1.2 the Company shall be entitled to set off and to deduct from the amount of the currency held by it as aforesaid any amount owing to it by the Customer.

9. TERMINATION OF AGENCY

9.1 Without prejudice to any other remedies a Customer or the Company may have against each other, either party shall have the right at any time by giving notice in writing or by means of a telex message or telegram to the other to terminate the contract of agency between the Customer and the Company forthwith in any of the following events –
9.1.1 if either party commits a breach of any of the terms of these conditions or of the appointment by a Customer of the Company;
9.1.2 if for any material reason the Company is precluded from performing the Agency Services;
9.1.3 should a Customer or the Company enter into liquidation whether compulsory or voluntary (otherwise than for the purpose of amalgamation or reconstruction) or compound with its creditors or take or suffer any similar action in consequence of debt.
9.2 Notwithstanding the provisions of 9.1, the termination of agency envisaged thereby shall not extinguish any obligation which lawfully arose between the parties prior to such termination.

10. REMUNERATION OF THE COMPANY

10.1 A Customer shall be liable for and shall pay to the Company all costs and expenses incurred by the Company, including the charges referred to in 3.2, in providing Agency Services at the request or on the instructions of the Customer itself, the master of the Vessel, the office of the Customer or its nominees, representatives or agents, howsoever communicated to the Company and notwithstanding the fact that any such persons may have exceeded their authority in requesting or instructing the provision of the particular Agency Services.
10.2 A Customer shall pay to the Company for the Agency Services rendered by the Company the charges published by the Company from time to time and which are available on request. In the event of a particular service not being provided for in the scale of charges, the Customer shall pay the Company a reasonable charge for such service.
10.3 The Customer shall reimburse the Company for all costs and expenses incurred by the Company arising out of the receipt of currency from the Customer or the remittance of currency to or on behalf of the Customer.
10.4 The Company shall not be obliged to make any disbursement whatsoever on behalf of a Customer until such time as the Company shall have been paid all amounts due by the Customer to the Company for Agency Services provided by the Company and have received sufficient funds for the purpose of making the particular disbursement. The Company may either before, during or after providing the relevant Agency Services require a Customer to furnish security for the payment of such amounts as are or will become due to the Company by the Customer for providing the Agency Services and for the due reimbursement of disbursements made or to be made by the Company.
10.5 Information furnished to a Customer by the Company as to the costs and expenses of providing Agency Services, or any other services whatsoever in Mozambique and / or South Africa, or any matter relating thereto, whether in the form of an estimate, offer, quotation or tender, shall be deemed to be information furnished for the guidance of the Customer only and shall not be binding on the Company unless the contrary has been expressly stated in such estimate, offer, quotation or tender.
10.6 All quotations by the Company shall, subject to 10.7, be valid and binding on the Company for a period of 30 days after issue. Should any business based upon a quotation be confirmed by the Customer more than 30 days after issue of the quotation, the Company reserves the right to adjust the quotation.
10.7 Without in any way limiting the generality of 10.5, if the Company provides or makes an estimate, offer, quotation or tender to a Customer, whether or not same is stated or implied to be a binding and fixed offer to the Customer, the final invoice(s) from the Company may be increased or decreased, as the case may be, should there be any fluctuation of more than 5% (five per centum) in the underlying costs of Suppliers arising from matters beyond the control of the Company and/or Suppliers, such as costs which were not reasonably foreseeable, fluctuations in fuel and transport costs, currency fluctuations, Customs, taxes and other duties, levies of MPDC, governmental agencies and the like.
10.8 In the event of the Company providing Agency Services at the request of both an owner and the charterers of a Vessel, the owner and charterer shall respectively be obliged to remunerate the Company in accordance with the aforesaid scale of minimum agency charges for the respective Agency Services provided by the Company.
10.9 In the case of any charterparty providing that the Company appointed by the charterer shall be the Vessel’s agent, the charterer and owner of the Vessel shall be jointly and severally liable to the Company for the payment of the Company’s charges and any costs and expenses incurred by the Company on their behalf, as if each of them were a Customer under these conditions.

11. PAYMENT, INTEREST AND COSTS

11.1 The Customer acknowledges that, unless otherwise agreed in writing, any sum which becomes due by it to the Company shall be due and payable immediately on presentation of invoice, the actual date of the invoice being deemed to be the presentation date unless the Customer can prove a different presentation date.
11.2 Should any amount not be paid by the Customer on due date referred to in 11.1 then the whole amount in respect of all services rendered by the Company to the Customer and monies disbursed by the Company on behalf of the Customer (whether or not related to the transaction in relation to which the Customer has defaulted), shall become immediately due, owing and payable and the Customer shall be liable to pay interest, calculated daily and compounded monthly, in respect of all such amounts at a rate of 5 percentage points above the prime overdraft lending rate from time to time quoted by the Company’s Bankers from due date until date of payment.
11.3 In the event of the Customer breaching any of its obligations and/or failing to timeously make payment of any amount to the Company, the Customer agrees to pay, and shall be liable to pay, all legal costs whatsoever on an attorney/own client basis, including collection charges and tracing agent’s fee incurred by the Company in recovering any such amount from the Customer.
11.4 The Customer shall not be entitled to claim set-off or deduction in respect of any amounts whatsoever that become due by the Customer to the Company.
11.5 The Company may in its sole discretion appropriate any payments made by the Customer to any principal debt owed by the Customer to the Company, irrespective of when it arose, or to interest only, or to legal or other costs, or to any such combination of principal, interest and costs as it may in its sole discretion determine, irrespective of any purported allocation or appropriation being made by the Customer at the time of payment or at any other time.
11.6 A certificate signed by any Auditor of the Company stating the indebtedness of the Customer to the Company or certifying that specific services were rendered and/or monies disbursed and/or goods delivered, shall be prima facie evidence of the Customer’s indebtedness to the Company or of the rendering of such services, disbursement of such monies or delivery of such goods.
11.7 The Company reserves the right to withdraw any credit facilities accorded to the Customer, at any time without prior notice and the nature and extent of such facilities shall at all times be at the Company’s sole discretion.

12. AUTHORITY TO CONTRACT / PERFORMANCE

12.1 The Customer and/or any person representing or purporting to represent the Customer in contracting with the Company warrant that they have full authority to engage the services of the Company and to contract on these terms and conditions and both the Customer and the said representative personally hereby jointly and severally indemnify the Company against any claim by the true owner of any goods or any party with an interest therein in respect of which the Company is so contracted to deal.
12.2 If the Customer is a close corporation, limited liability company or partnership, then its directors and/or members and/or partners personally guarantee, jointly and severally, the due performance of all obligations of the Customer to the Company and the representative of the Customer warrants that he is duly authorised to bind such members and/or directors and acts as the Customer’s and their agent in all its dealings with the Company.

13. ACCURACY OF / ACCESS TO INFORMATION

13.1 The Customer and its representatives personally acknowledge that the information given in its credit application is to be used by the Company for the purposes of assessing the Customer’s creditworthiness. The Customer confirms that the information furnished in the credit application is accurate and complete. The Customer further agrees to update, from time to time, the information supplied in order to ensure its accuracy at all times and indemnifies the Company for all and any consequences of the Company relying or acting on inaccurate or outdated information.
13.2 The Company has the Customer’s authority and consent at all times to seek and obtain information from any persons, credit bureaus or businesses, including those mentioned in the credit application form in which these terms and conditions are contained, and to obtain any information relevant to the Customer’s credit assessment including but not limited to, information regarding the value of purchases from suppliers from month to month, length of time the Customer has dealt with the person concerned, the type of goods or services purchased and the manner and time of payment.
13.3 The Customer agrees and understands that information given in confidence to the Company by a third party regarding the Customer may not be disclosed to the Customer.
13.4 The Customer hereby consents to the furnishing of and authorises the Company at all times without prior reference to the Customer to furnish personal and credit information concerning the Customer’s dealings with the Company to any credit bureau or to any third party seeking a trade reference regarding the Customer and the Customer hereby indemnifies and holds the Company harmless from any consequences of it so doing.

14. TARIFF HEADINGS AND STATUTORY INCREASES

14.1 Where any tariff headings or other statutory increases are amended on demand by the Autoridade Tributária de Moçambique (Tax Authority of Mozambique), MPDC or any other governmental authority or agency, the Customer shall be deemed to have expressly consented to and agreed the tariff headings as amended and shall not dispute liability towards the Company for payment under such tariff headings.

15. TIME BAR

15.1 The Company shall be discharged from all liability whatsoever in respect of any claim of whatsoever nature (whether in contract, delict or otherwise) and whether for damages or otherwise, unless summons or other proper process originating action is served on the Company by not later than 30 (thirty) days after the first anniversary of the date on which the incident giving rise to such cause of action occurred, provided further that the Company may, on written request, extend such period in writing.
15.2 The onus shall be on the Customer to prove compliance with the provisions of this clause.

16. ADDRESS AND NOTICES

16.1 The Customer’s physical address as set out in the credit application form or, failing which, on the Company’s most recently reviewed letterhead, which incorporates these terms and conditions shall constitute the Customer’s chosen address for all purposes in connection with any agreement entered into by the Customer and the Company, unless the Customer provides an alternative chosen address by written notice to the Company.
16.2 Notices given to the above chosen address or by facsimile or electronic mail to the Customer’s current fax number or electronic mail address shall be deemed to have been duly given:
16.2.1 14 days after posting, if sent by registered post;
16.2.2 on the date of delivery, if delivered by hand;
16.2.3 on the date of dispatch, if sent by facsimile or electronic mail.

17. LAW AND JURISDICTION

17.1 Regardless of the place of execution hereof or performance pursuant hereto or domicile of the Customer, this agreement and all modifications and amendments hereof, shall be governed by and construed in accordance with the laws of the Republic of South Africa, which are in force at the time when any dispute arising out of or in any way related to this agreement arises.
17.2 Subject to clause 18 hereof, the Company shall, notwithstanding that the amount of its claim or the nature of the relief sought by it exceeds the jurisdiction of the “Tribunal Supremo”, be entitled in its sole discretion to institute action or other proceedings out of the “Tribunal Supremo”, and the Customer hereby irrevocably submits to the jurisdiction of the court out of which proceedings are thus instituted.
17.3 The Customer shall only bring any dispute against the Company in terms of clause 18. hereof and, should the Customer bring proceedings against the Company in any court of law in any country whatsoever without the Company’s prior agreement in writing, the Customer agrees not to oppose any application by the Company to stay such proceedings in favour of arbitration pursuant to clause 18.

18. ARBITRATION

18.1 The Company may in its sole discretion refer any dispute arising from or in connection with this agreement to arbitration, whether instituted by the Company or the Customer, which arbitration shall bind both the Company and the Customer.
18.2 For the purpose of arbitration, the parties shall jointly nominate and agree upon an arbitrator who shall be an advocate of the Mozambique “Tribunal Supremo”, or the South African High Court, or an admitted attorney of South Africa, each of whom shall be of no less than ten years standing. Should the parties fail to agree on the arbitrator to be appointed, he shall be nominated by the President for the time being of the Mozambique arbitral organisation, CENTRO DE MEDIACAO, CONSILIACAO E ARBITRAGEM (Arbitration Centre, Mediation and Conciliation of Mozambique) (“CACM”), whose decision in this regard shall be final and binding on the parties.
18.3 Notwithstanding clause 18.2, if the matter is purely of a commercial or shipping nature, the parties may agree on an appropriate arbitrator who is not legally qualified, but failing such agreement the provisions of clause 18.2 shall apply.
18.4 The arbitration shall be subject to and conducted in accordance with the Law nº 11/99 of 12 July (Arbitration Law), and the arbitration process on the basis of and subject to the rules for the conduct of arbitrations (“the Rules”) as published from time to time by CACM and then in force.
18.5 Subject to any rights of appeal contained in the Rules or any other Mozambique statutory instrument or law, all arbitration awards shall be final and binding upon the parties and capable of being made an order of any competent court of law.

19. HEADINGS

19.1 The above headings are for the ease of reference only and have no bearing on the interpretation or meaning of the clauses themselves.

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