a) Containers, pallets or similar articles of transport supplied by or on behalf of the Multimodal Transport Operator (MTO) shall be returned to the MTO in the same order and condition as handed over to the Merchant, normal wear and tear excepted, with interiors clean and within the time prescribed in the MTO's tariff or elsewhere.
b) i) The Consignor shall be liable for any loss of, damage to, or delay, including demurrage, of such articles, incurred during the period between handing over to the Consignor and return to the MTO for carriage.
ii) The Consignor and the Consignee shall be jointly and severally liable for any loss of, damage to, or delay, including demurrage, of such articles, incurred during the period between handing over to the Consignee and return to the MTO.
NOTE: If not already defined in the relevant Transport Document for the purpose of which this Clause may apply, the Consignee shall mean the person entitled to receive the goods from the MTO, and the Consignor shall mean the person who concludes the Transport Contract with the MTO. For documents applying to port-to-port shipments it is advised to replace the word "MTO" by the word "Carrier".
A common problem in the container trade, be it for combined transport shipments or port to port shipments, is that containers, pallets or similar articles of transport received by the consignor or consignee for packing and unpacking are not always returned to the multimodal transport operator (MTO) or the carrier in the same good order and condition as when handed over or, they are not redelivered to the MTO or carrier at all. In particular, the non-return f containers can be a serious problem in some parts of the world.
In order to deal with this problem, the Documentary Committee decided at its last meeting in May, 1995 to adopt a Standard "Return of Containers" Clause which purports to hold the consignor and the consignee liable for the redelivery of containers, pallets or similar articles of transport which are not in the same good order and condition as when handed over, normal wear and tear excepted or, for non-return of the same.
Although it is realised that the problem mentioned above is most likely to occur at the consignee's, i.e. the discharging end of the transport, the scope of the Clause has been extended to cover also the loading side when the consignor picks up the containers at the MTO's or carrier's yard in order to stuff them at his own premises before delivering such containers back to the place designated by the MTO or carrier for carriage.
Accordingly, the Standard "Return of Containers" Clause operates as follows:
Sub-clause (a) sets out the basic responsibilities of the consignor and the consignee to redeliver within the time prescribed in the MTO's tariff, containers, pallets or similar articles of transport to the MTO in a clean state and in the same good order and condition as when received, normal wear and tear excepted.
Sub-clause (b)(i) deals with the loading side of the transport i.e. the consignor's liabilities as a result of his non-compliance with the basic responsibilities under (a). As will be seen, the Clause seeks to extend the coverage of the contract of carriage as regards the consignor's responsibilities for containers, pallets or similar articles of transport during the period between handling over to the consignor and the return to the MTO of such articles, which would otherwise not be covered by the contract of carriage.
Sub-clause (b)(ii) deals with the discharging end of the transport i.e. the consignee's liabilities as a result of his non-compliance with the responsibilities under (a). It should be noted, however, that there may be no legal basis to extend the coverage of the contract of carriage to a third party such as the consignee who has no contractual link with the MTO or the carrier. Since therefore, it may prove to be difficult, at least in some jurisdictions to hold the consignee responsible not being a party to the contract of carriage, sub-clause (b)(ii) holds the consignor and the consignee jointly and severally liable for non-compliance withe the provisions of (a)
In most cases the relevant transport document for combined transport shipments or port to port shipments will define the "consignor" and the "consignee", however, if this should not be the case, it is important that the note attached to the Standard "Return of Containers" Clause forms part of the Clause whenever incorporated in the particular contract of carriage.
Originally published in BIMCO Special Circular No. 2, 12 July 1995 - Standard "Return of Containers" Clause
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