1. In these conditions and the contract of which they form part references to:
a) “cargo” mean the cargo identified in an Airway Bill and Tax Invoice (“AWB”) made between PNG Air and the shipper, forming part of a contract;
b) “contract” means a contract of carriage of cargo formed between PNG Air and the shipper on completion of an AWB in respect of that cargo and payment of freight charges as agreed in the AWB, with the terms of such contract comprising such AWB and these conditions (with these conditions prevailing if there is any inconsistency between them and the AWB);
c) “PNG Air” mean all of PNG Air Limited, any other person with whom PNG Air enters an arrangement under condition 9, and their respective servants, agents and employees;
d) “shipper” mean each person consigning cargo to PNG Air for carriage, owning such cargo, on whose behalf such cargo is consigned or to whom the cargo is consigned;
e) “loss, delay or damage” mean any damage, injury, delay, deterioration, cost or loss of any nature suffered by the cargo or by the shipper arising out of or in any manner incidental to the carriage of the cargo or the provision of any other services provided pursuant to the agreement for carriage of the cargo between PNG Air and the shipper, as it may be varied from time to time, including without limitation from any deviation in delivery of the cargo, failure to deliver, misdelivery or delivery to an unauthorized person and including such damage, injury, delay or loss arising from misconduct or any negligent act of omission on the part of PNG Air;
f) A person includes a firm or corporation and vice versa, and to the singular includes the plural and vice versa.
2. PNG Air is not a common carrier, and accepts no liability as such. PNG Air reserves the right to refuse to accept any cargo for carriage without being obliged to give any reason for that refusal.
3. The shipper warrants that the cargo consigned under the contract does not contain any explosive, volatile spirits or other items that are hazardous, dangerous, or of an inflammable nature, as prescribed in ICAO Annex 18.
4. Subject to any provision included in writing in the contract expressly agreeing a higher level of liability and specifically acknowledging that the limits on liability for loss, delay or damage stated in these conditions do not apply to that contract, and notwithstanding the freight rate charged or the designation given to the cargo:
a) PNG Air has no liability for any loss, delay or damage in respect of cargo consisting of perishable goods, livestock, second hand furniture, household effects and/or artefacts; and
b) For all other categories of cargo, the liability of PNG Air for loss, delay or damage is limited to the sum calculated at K20.00 per kilogram of the weight of the cargo as shown on the Airway Bill and Tax Invoice for the cargo, rounded up to the nearest whole kilogram, or the actual value of such cargo, whichever is less, and PNG Air has no liability for loss, delay or damage to the extent it results from the cargo being improperly or insufficiently marked or packaged.
5. Notwithstanding condition 4, no claim by a shipper in respect of loss, delay or damage will be valid or allowed unless lodged in writing at the office of PNG Air at or nearest to either the place from or that to which the cargo was consigned within 3 days after the cargo is delivered in respect of damage or within 30 days after the date of the consignment note in respect of loss.
6. The shipper (and if the shipper is more than one person or company each such person or company severally and all of them jointly) will be liable to pay all charges (including any charges or expenses for the care and maintenance of livestock) in relation to the contract and the carriage of the cargo under it. Freight charges will be payable whether or not the cargo is delivered to the consignee and irrespective of damage that may have occurred to it or its condition when delivered. Freight charges are not refundable under any circumstances. If any freight charges or other amounts payable to PNG Air in connection with a contract are not paid on demand, or if the consignee fails to collect the cargo within 7 days of the cargo being made available to the consignee by PNG Air at the agreed point for its collection, PNG Air may retain the cargo referred to in that contract and any other goods of the shipper (and if the shipper is more than one person or company, of any such persons or companies) which are in its possession and sell or otherwise dispose of such cargo or other goods, and retain out of monies arising from a sale all amounts owing to it, including without limitation all changes and expenses of the detention and sale before accounting to the shipper for any surplus. Any such sale does not affect the right of PNG Air to recover amounts owing to it by the shipper in any other manner. PNG Air will have no liability to the shipper in respect of any such sale or disposal.
7. The shipper acknowledges that the person who delivers the cargo to PNG Air for carriage is:
a) authorised to sign a consignment note on behalf of the shipper;
b) either the owner of the cargo or the agent authorised by the owner to enter into the contract of carriage for the cargo with PNG Air on behalf of the owner;
c) the agent for the consignee and authorised to by the consignee to enter into this contract of carriage for the cargo with PNG Air on behalf of the consignee; and
d) authorised by the owner and consignee to agree that these conditions including condition 4 will apply to any variation of this contract or in any subsequent contract between PNG Air and the shipper concerning the cargo.
8. This contract will apply to the carriage of the cargo and the provision of any other service under this contract until the cargo is delivered to the consignee or the consignee’s agent at the port referred to in the contract. The obligations of PNG Air under this contract will end upon tender or transfer of the cargo to the consignee or the consignee’s agent, or to another operator for on carriage as directed by the shipper, whichever occurs first.
9. PNG Air may arrange with any other person, firm or company to undertake the provision of any services required from PNG Air under this contract or otherwise affecting the cargo. PNG Air enters this contract for and on behalf of itself and such other person and their respective servants, agents and employees. All such persons will have the benefit of all of the provisions of this contract including without limitation condition 4.
10. No provision of this contract may be varied or waived other than by writing signed by PNG Air and the shipper. The contract will be governed by the law of Papua New Guinea.