3.1 Unless expressly agreed, the Company does not insure the Goods and the Customer shall make arrangements to cover the Goods against all insurable risks to their full insurable value (including all duties and taxes. The insurance referred to in Condition 3.5 is insurance against the Company’s potential liability for breach of its obligations and not to cover the Goods themselves against loss, damage, etc.
3.2 Subject to Condition 3.3, the Company shall have no liability for Loss however arising.
3.3 If and to the extent that Loss is directly caused by negligence or wilful act or default of, or breach of duty owed to the Customer by, the Company, its employees (acting in furtherance of their duties as employees) or sub-contractors or agents (acting in furtherance of their duties as sub-contractors or agents) and subject to Conditions 3.4, 3.7 and 3.8, the Company will accept liability for Loss assessed on normal legal principles but not exceeding the Limit fixed pursuant to Condition 3.5. Any quantification of amount or value includes duties and taxes.
3.4 In no case shall the Company be liable for any lost profit, income or savings, business interruption, wasted expenditure, liquidated damages, or indirect or consequential loss; whoever may suffer or incur it.
3.5 In no case shall any liability of the Company (including inter alia any liability in respect of duties and taxes) exceed the Limit, fixed as follows:-
3.5.1 Where potential Loss relates to Goods, the Customer may nominate the Limit as an amount (in Sterling, US Dollars or Euros) per tonne weight of the Goods by notice in writing stating the Limit it seeks and the nature and maximum value of the Goods, including duty and taxes. The Limit so nominated by the Customer shall apply in respect of any cause of action arising after the Date and thereafter for the period in which the nomination, and insurance to cover the Limit nominated, remains in effect. Unless (and until the day after) the Date is reached, 3.5.4 shall apply. The nomination shall cease to have effect in relation to Goods where the Company’s lien is enforced over them or notice has been given by the Company to remove them under Condition 7 but has not been complied with, or the Customer gives notice in writing to that effect. Where the Company chooses to carry the further risk itself pursuant to 3.5.2, it may give 14 days notice in writing that the nominated Limit will cease to be in effect.
3.5.2. The Company will make reasonable efforts to obtain insurance on reasonable terms to cover its liability up to the Limit nominated by the Customer, unless it chooses to bear the risk without further insurance cover. It is a condition of the contract that the Customer pays within 7 days of receiving it or them the Company’s invoice(s) for its costs in insuring against its potential liability up to the Limit, and/or to the extent that the Company elects to carry the risk itself, its extra charge to reflect its evaluation of the risk thus incurred.
3.5.3 If the Company obtains or extends insurance under 3.5.1 / 3.5.2 but the insurer does not pay the whole of a claim for a reason not arising directly and substantially from an act or default of the Company, then subject to 3.5.4 and 3.8, the Company’s liability will be the greater of the gross amount actually paid by the insurer in respect of the claim or a Limit of £100 sterling per tonne,
3.5.4 Unless and until a higher Limit has been fixed under Condition 3.5.1 / 3.5.2 and continues in effect, or in any circumstances relating to Goods held under lien or which have not been removed in breach of Condition 7, the Limit shall be £100 sterling per tonne.
3.5.5 Where Loss does not relate directly to Goods (for example alleged negligent advice or data protection irregularities) the Limit applicable shall be £1000 per incident or series of connected incidents; but the Company does not limit or exclude direct liability for death or personal injury caused by its own act or default or that of its employees or agents.
3.6 Without prejudice to the Company’s rights under Condition 6 to be paid free from deduction or set-off, any limitation of liability on the part of the Company shall be applied to any claim by the Customer before any set off or counterclaim is asserted against money payable to the Company.
3.7.1 The Company shall be discharged from all liability for any claim unless:
it has received written notice of it within 10 days of the event giving rise to the claim coming to the knowledge of the Customer or consignee; and
it has received, within 21 days of the event giving rise to the claim coming to the knowledge of the Customer or consignee, sufficient detail in writing to enable investigation. In the case of failure to deliver, time shall run from the second working day after the expected date of delivery.
3.7.2 Without prejudice to 3.7.1, the Company shall be discharged from all liability for any claim unless any legal proceedings (including any counterclaim) against the Company relating to the claim are issued and served within 9 months of the event giving rise to the claim.
3.8 The Company shall not be liable for any Loss to the extent that it is caused or contributed to by a breach of any of the Customer’s obligations, or by a person for whom the Company is not responsible, or by any of the circumstances by virtue of which the Company is relieved of its obligations under Condition 8.
3.9 Any degree of performance by the Company of its obligations shall negate any allegation that it is refusing to perform them.
3.10 No Interested Party will make a claim or issue proceedings in respect of Loss against any Additional Party.
3.11 Without prejudice to Condition 3.10, if an Additional Party pays or is liable to make a payment to an Interested Party in connection with a claim for Loss, that Interested Party will fully indemnify the Company against any claim made by the Additional Party (including inter alia all costs and expenses) against the Company for reimbursement of, contribution to or indemnity against that payment to the extent that the claim added to any direct liability of the Company, and payments made by it, to all Interested Parties exceeds the Limit applicable to the Loss giving rise to the claim.