"Agent" means any person who has authority, express or implied, to act for or on behalf of a Carrier in relation to the Carriage of Cargo, except the person acting as Shipper of the applicable Cargo.
“Aviation Transport Security Laws” means the Aviation Transport Security Act 2004 and any regulations made under that Act and any legislation which implements the Convention on International Civil Aviation signed at Chicago on 7 December 1944.
"AWB" (or air consignment note) means the document so titled that is made out by or on behalf of the Shipper, which evidences the contract between the Shipper and Carrier for Carriage of Cargo over routes of the Carrier.
"Cargo" means anything carried or to be carried in an aircraft except mail, or baggage carried under a passenger ticket and baggage check, but includes baggage moving under an AWB or Shipment Record, and includes Special Cargo unless the context requires otherwise.
"Carriage" means carriage of Cargo by air or by another means of transport, whether gratuitously or for reward.
"Carrier" includes the air carrier issuing the AWB or preserving the Shipment Record, which in most cases under these Conditions will mean a member of the Virgin Australia Group, but where the context requires, will include each of the carriers that carry or undertake to carry the Cargo or to perform any other services related to such Carriage.
"Code share" means any arrangement which allows for a flight operated by one Carrier to also be marketed by another Carrier as part of Code share or similar arrangements amongst Carriers.
"Conditions" means these terms and conditions of Carriage for Cargo.
"Consignee" means the person whose name appears on the AWB or Shipment Record, as the party to whom the Shipment is to be delivered by the Carrier.
"Dangerous Goods" means any goods of a dangerous, volatile, explosive or hazardous nature whether the Shipper is aware of the dangerous or hazardous nature of the goods or not, and includes, without limitation, goods forbidden, limited or restricted from time to time by Dangerous Goods Legislation.
"Dangerous Goods Legislation" means the:
a) requirements applicable to Dangerous Goods of:
(i) the International Air Transport Association;
(ii) the International Civil Aviation Organisation;
(iii) the Civil Aviation Safety Authority;
b) the Australian Dangerous Goods Code; or
c) any applicable law, regulation, guideline or requirement of a regulatory body or government department of a country from which, through which or into which the Cargo is carried relating to Dangerous Goods.
"Days" means full calendar days, including Sundays and legal holidays; provided that for purposes of notification the balance of the day upon which notice is despatched shall not be counted.
"Fragile Goods" means glassware, porcelain, enamel or fibreglass goods, furniture of any kind, household or personal effects or any goods that are fragile or marked fragile.
“GST” means any goods and services tax, value added tax or sales tax imposed on the sale or supply of goods, services and rights including but not limited to a tax imposed by the GST Act and the related imposition Acts of the Commonwealth.
“GST Act” means A New Tax System (Goods and Services Tax Act) 1999 (Cth).
“International Convention” means whichever of the following instruments applies to the Carriage:
- The Convention for the Unification of Certain Rules relating to International Carriage by Air, signed at Warsaw, 12 October 1929 (“Warsaw Convention”);
- The Warsaw Convention as amended at The Hague on 28 September 1955;
- The Warsaw Convention as amended by Additional Protocol No.1 of Montreal 1975
- The Warsaw Convention as amended at The Hague and by Additional Protocol No.2 of Montreal 1975;
- The Warsaw Convention as amended at The Hague 1955 and by Protocol No. 4 of Montreal 1975; or
- The Montreal Convention 1999.
“Related Body Corporate” has the same meaning as the Corporations Act 2001 (Cth). "Shipment" means the piece or pieces of Cargo covered by one AWB or Shipment Record, for Carriage to one Consignee at one destination address.
"Shipment Record" means any record of the contract of Carriage preserved by Carrier, evidenced by means other than an AWB.
"Shipper" means the person whose name appears on the AWB or Shipment record, as the party contracting with Carrier for Carriage.
“Special Cargo" means dangerous goods, live animals, perishables, Fragile Goods, animal or human remains or products, and other goods and items of a similar nature or as designated as such by the Carrier in its sole discretion.
“VAC” means Virgin Australia Cargo Pty Ltd.
“Virgin Australia Group” means Virgin Australia Cargo Pty Ltd, Virgin Australia Airlines Pty Ltd and its Related Bodies Corporate (from time to time), Virgin Australia Airlines (SE Asia) Pty Ltd, Virgin Australia Airlines (NZ) Ltd, Virgin Australia International Holdings Pty Ltd and its Subsidiaries and Related Bodies Corporate (from time to time) and Virgin Samoa Ltd.
“Volumetric Weight” means the weight determined by the Carrier by multiplying the length, breadth and height in centimetres of the Cargo divided by 6000.
In these Conditions, unless the contrary intention appears: (i) words importing a particular gender include other genders; (ii) singular includes the plural and vice versa; and (iii) the words 'such as', 'including', 'particularly' and similar expressions are not words of limitation.
These Conditions shall apply to all Carriage, and all other services incidental thereto, performed by or on behalf of Carrier, to the extent that these Conditions are not inconsistent with the provisions of applicable laws or International Conventions. The Carrier and Shipper acknowledge and agree that Virgin Australia Cargo Pty Ltd may exercise and enforce the specific rights under these Conditions on behalf of any member of the Virgin Australia Group, notwithstanding they are not a party.
1.2 Code share arrangements
The Carriage and any services, each to be performed under a contract of Carriage with a Carrier, may be undertaken wholly or partially by another Carrier as part of Code share or similar arrangements amongst the Carriers.
1.3 Applicable laws and Carrier’s conditions
All Carriage and other services performed by or on behalf of Carrier are subject to:
(a) applicable laws (including the Australian Consumer Law, national laws implementing International Conventions or extending the rules of the International Conventions to Carriage which is not “International Carriage” as defined in the International Conventions), government regulations, orders and requirements; and
(b) these Conditions and other applicable conditions, rules, regulations and time-tables (but not the times of departure and arrival therein specified) of Carrier which are available on Carrier’s website.
1.4 Application of the Australian Consumer Law
(a) Nothing in these Conditions excludes, restricts or modifies any right or remedy, or any guarantee, warranty or other condition implied or imposed under any legislation (including the Competition and Consumer Act 2010 (Cth) (as amended from time to time) (the “CCA”) or the Australian Consumer Law, which is Schedule 2 to the CCA) which cannot lawfully be excluded or limited.
(b) If any guarantee, warranty, term or condition is implied or imposed in relation to the Conditions under the ACL and cannot be excluded (a Non-Excludable Provision), and the Carrier is able to limit its liability for breach of the Non-Excludable Provision, the liability of the Carrier for breach of the Non-Excludable Provision is limited to the remedies available under section 64A of the Australian Consumer Law.
1.5 Gratuitous Carriage
To the extent permitted by law including the Australian Consumer Law, the Carrier reserves the right to exclude the application of all or any part of these Conditions with respect to gratuitous Carriage.
(a) With respect to Carriage performed pursuant to a charter agreement with Carrier, such Carriage shall be subject to the terms and conditions of the charter contract entered into by Carrier, and these Conditions shall not apply except to the extent provided in said charter conditions.
(b) In case of divergence between the applicable provisions of these Conditions and the conditions contained or referred to in the charter agreement, the latter shall prevail and the Shipper, by accepting carriage pursuant to a charter agreement, whether or not concluded with the Shipper, agrees to be bound by the applicable terms thereof.
(c) Where there is no separate charter contract applicable to such charter agreement, these Conditions shall apply to such charter agreement except that Carrier reserves the right to exclude the application of all or any part of these Conditions.
1.7 Change without notice
These Conditions and the published rates and charges are subject to change without notice. However, no such change shall apply to a contract of Carriage after the date of issuance of the AWB by Carrier or after the date that the rate or charge for the Carriage has been entered in the Shipment Record.
1.8 Effective rules
All Carriage governed by these Conditions shall be subject to Carrier's rules, regulations and tariffs in effect on the date of issuance of the AWB by Carrier or on the date of the Shipment Record, whichever is applicable, provided that in the event of any inconsistency between these Conditions and Carrier's rules, regulations and tariffs, these Conditions shall prevail.
1.9 Effect of waiver
It is agreed that no employee, servant or agent of Carrier nor any other person has the authority to waive or vary any of these Conditions, unless such variation or waiver is in writing and signed on behalf of an authorised executive officer of VAC.
1.10 Exemptions from liability to subsist
To the extent permitted by law, including the Australian Consumer Law, all the rights, immunities and exemptions from liability in these Conditions shall continue to have their full force and effect in all circumstances and notwithstanding any breach of this contract or of any of its provisions by Carrier or any other person entitled to benefit from such provisions and irrespective of whether such may constitute a fundamental breach of contract or a breach of a fundamental term.
It is agreed that if any provision or part of any provision of these Conditions is unenforceable such unenforceability shall not affect any other part of such provision or any other provision contained in these Conditions.
The Shipper and Consignee acknowledge that all the information in the AWB and the Carrier’s contract with the Shipper or the Consignee and the Carrier’s rates and charges are confidential and the Shipper or the Consignee must not disclose them to any third party without the prior written consent of VAC.
2. Cargo acceptable for carriage
2.1 Acceptable Cargo
Carrier undertakes to transport, subject to the availability of suitable equipment and space, all Cargo, unless otherwise excluded by Carrier's policies and provided that:
(a) carriage, exportation or importation thereof is not prohibited by the laws or regulations of any country to be flown from, to or over;
(b) they are packed in a manner suitable for Carriage as required by the Carrier;
(c) they are accompanied by the requisite shipping documents;
(d) they are not likely to endanger aircraft, persons or property, or cause annoyance to passengers; and
(e) the gross weight, measurement or declared value does not differ from what has been booked and/or agreed upon.
Such acceptance by the Carrier to transport Shipments does not absolve the Shipper of its liability for the Cargo as set out in these Conditions, and in particular does not mean that the Carrier has inspected and/or approved the state of the packing of the Cargo to be suitable for transportation.
2.2 Refusal of Carriage
To the extent permitted by law, Carrier reserves the right to refuse Carriage of any Cargo in its absolute discretion, without assuming any liability.
2.3 Packing and marking of Cargo
(a) Shipper is responsible for ensuring that Cargo is packed in an appropriate way for air Carriage so as to ensure that it can be carried safely with ordinary care in handling and so as not to injure or damage any persons, animals, goods, other Cargo or property.
(b) Each package shall be legibly and durably marked with the name and full address of the Shipper and Consignee or one or more pieces in a Shipment shall be so marked with all other pieces in the Shipment being appropriately referenced accordingly.
(c) Shipper is responsible for packing Cargo so as to protect it from all weather conditions to which it may be exposed, including but not limited to rain, wind, heat and cold.
(d) Packages containing valuables must be sealed if so requested by Carrier by a method approved by Carrier.
2.4 Valuation of Cargo
(a) Carrier may refuse Carriage of Cargo having a declared value for Carriage in excess of A$5,000,000.
(b) The limit of value of a Shipment or group of Shipments to be carried in any one aircraft shall be A$5,000,000. If a single Shipment exceeds such limits, it may not be carried in the same aircraft but may be divided amongst two or more aircraft at the sole discretion of Carrier. Carrier reserves the right to refuse to transport in any one aircraft Shipments having declared valuations in the aggregate which exceed the limit set out in this provision.
2.5 Cash on delivery
Carrier will not accept Shipments in a cash-on-delivery basis.
2.6 Additional conditions may apply to the Carriage of Special Cargo
If we accept the carriage of your Special Cargo, we may, in our absolute discretion, prescribe additional conditions that apply to the carriage of that Special Cargo; or accept the Special Cargo as prescribed in Schedule 1; or as otherwise advised by us from time to time. These conditions for Special Cargo are incorporated and form part of these Conditions.
2.7 Temperature control of Cargo
Temperature control of Cargo for the entire duration of the Carriage is the responsibility of the Shipper and the following terms apply to all Cargo which is perishable or otherwise sensitive to temperature:
(a) it is the sole responsibility of the Shipper to arrange for:
(i) containers and packaging suitable for the temperature characteristics of the particular Cargo; and
(ii) any appropriate methods of temperature control that may be needed for that Cargo;
(b) in the case of Cargo which the Shipper believes requires temperature control, its packaging shall be deemed defective if it does not provide the required temperature control or insulation or protection;
(c) subject to available coolroom space and other operational requirements, the Carrier may, at its discretion, place Special Cargo which complies with the requirements of Schedule 1 of these Conditions in a coolroom prior to transporting the cargo to the aircraft. Under no circumstances will coolroom space or coolroom temperatures be guaranteed.
(d) cool-storage and/or other temperature control will not be available for the entire Carriage after the Cargo has been taken out of the Carrier's cargo terminal cool-room at the airport where Carriage begins. Ambient temperatures during the Carriage is not controlled and may fluctuate during Carriage;
(e) the Carrier does not accept any instructions that relate to temperature control of Cargo. Any such instructions are deemed void (including where such instructions are contained in an AWB, Shipment Record or provided by some other means). ;
(f) If Cargo deteriorates for any reason during Carriage, the Carrier in its sole discretion may take such steps as it deems appropriate to deal with the deteriorated Cargo, including its disposal, destruction or return to Shipper; and
(g) temperature sensitivity, and vulnerability to damage from temperature fluctuations are an inherent quality or vice of Cargo within the meaning of Article 18(2)(a) Montreal Convention and, to the extent permitted by law, the Carrier shall not be liable for any destruction, loss or damage to any Cargo which is caused by temperature or temperature-related conditions.
2.8 Responsibility for non-observance of conditions relating to Cargo
Responsibility for the non-observance of the Conditions relating to the Carriage of Cargo rests upon the Shipper of the Cargo, and the Shipper shall indemnify Carrier for any loss, damage, delay, liability or penalty which Carrier may incur because of any non-observance by the Shipper of any condition relating to Carriage of any Cargo.
2.9 Dangerous goods
(a) The Shipper shall:
(i) not tender for Carriage any Dangerous Goods or any Cargo which is or may become dangerous, inflammable or offensive or which is or may be liable to injure persons or damage any property whatsoever, without presenting a full description of the Cargo disclosing the nature of such Cargo, and in any event the Shipper shall be liable for all loss and damage caused by such Cargo; and
(ii) at all times ensure that Cargo tendered for Carriage complies with the Dangerous Goods Legislation.
(b) If, in the sole opinion of the Carrier, the Cargo becomes dangerous, inflammable, explosive, volatile, offensive or damaging in nature, the Carrier may, to the extent permitted by law, retain, destroy, dispose of, abandon or render harmless such Cargo at the cost of the Shipper, without compensation to the Shipper and without prejudice to the Carrier’s rights to any charges, except where required.
2.10 Compliance with laws and regulations
The Shipper warrants that it has complied with all the laws and regulations relating to the acceptance, nature, packaging, labelling, storage or Carriage of Cargo (including but not limited to all obligations under the Aviation Transport Security Laws) and that the Cargo is packed in a manner adequate to withstand the ordinary risks of Carriage by air having regard to its nature. The Shipper hereby indemnifies Carrier for any liability whatsoever and all costs and expenses as a result of or arising out of the Shipper's failure to comply with each of these warranties, including but not limited to compliance with all the applicable dangerous goods regulations.
2.11 Carrier's right of inspection
Carrier reserves the right to inspect the packaging and contents of all Shipments and to enquire into the correctness or sufficiency of information or documents tendered in respect of any Shipment, but Carrier shall be under no obligation to do so, and assumes no liability with regard to such inspection or enquiry or its decision not to conduct such inspection or enquiry.
2.12 Unit load devices
When the Shipper undertakes to load a unit load device (ULD) it must comply with Carrier's loading instructions and will be liable for and shall indemnify Carrier against all consequences of any non-compliance with such instructions. In particular, but in no way limiting such instructions, the Shipper must ensure that the unit load device is packed in such a way as to protect the Cargo therein from any weather conditions that it may be exposed to.
The Shipper shall make out, or have made out on his behalf, an AWB in the form, manner and number of copies prescribed by Carrier, and shall deliver such AWB to Carrier simultaneously with the acceptance of the Cargo by Carrier for Carriage. However, charges for Carriage and other charges, insofar as they have been ascertained, shall be inserted in the AWB by Carrier. Carrier may require the Shipper to make out, or have made out on his behalf, separate AWBs when there is more than one package or when all of the Shipment cannot, without breach of government requirements or regulations of Carrier, be carried on one AWB.
3.2 Shipment Record
The Carrier, with the express or implied consent of the Shipper, may substitute for the delivery of an AWB, a Shipment Record, to preserve a record of the Carriage to be performed. If such Shipment Record is used, Carrier shall, if so requested by the Shipper, deliver to the Shipper in accordance with the Carrier’s regulations a goods receipt for the Cargo permitting identification of the Shipment and access, in accordance with Carrier’s regulations, to the information contained in the Shipment Record.
3.3 Apparent order and condition of Cargo
If the apparent order and condition of the Cargo and/or packing is in any way defective the Shipper shall, if an AWB is delivered, insert in the AWB a statement of such apparent order and condition. If no AWB is delivered, the Shipper shall advise Carrier of the apparent order and condition of the Cargo, to enable Carrier to insert an appropriate reference thereto in the Shipment Record. However, if the Shipper fails to insert such statement in the AWB or to advise Carrier of the apparent order and condition of the Cargo, or if such statement or advice is incorrect or inaccurate, Carrier may insert in the AWB or the Shipment Record a statement of the apparent order and condition of the Cargo, or note a correction thereto, but Carrier is under no obligation to do so.
3.4 Preparation, completion or correction by Carrier
Carrier may at the request of the Shipper, expressed or implied, make out the AWB, in which event, subject to proof to the contrary, Carrier shall be deemed to have done so on behalf of the Shipper. If the AWB handed over with the Cargo or if the particulars and statements relating to the Cargo furnished by or on behalf of the Shipper to Carrier for insertion in the Shipment Record do not contain all the required particulars, or if the AWB or such particulars or statements contain any error, Carrier is authorised to complete or correct the AWB or particulars or statements to the best of Carrier’s ability without being under any obligation to do so.
3.5 Responsibility for particulars
(a) The Shipper is responsible to Carrier and all other persons for the correctness and completeness of the particulars and statements inserted by him or on his behalf in the AWB, or furnished by him or on his behalf to Carrier for insertion in the Shipment Record. Where such information is provided by means of electronic data interchange (“EDI”), it is the responsibility of Shipper or the Shipper’s agent to verify contents, accuracy and completeness of the EDI messages and subsequent messages according to the agreed standards and specifications. The Shipper shall be liable for, and shall indemnify Carrier against, all damages suffered by Carrier or by any other person to whom Carrier may be liable, by reason of the irregularity, incorrectness or incompleteness of said particulars or statements, whether the AWB or the particulars and statements relating to the Cargo furnished for insertion in the Shipment record were made out by or on behalf of the Shipper or by Carrier (or completed by Carrier) on behalf of the Shipper pursuant to these Conditions.
(b) The Shipper's particulars as to value, unless no value be declared, shall be conclusive evidence, as against the Shipper and Consignee, of the value of the Shipment. Where no value is declared, the Shipper warrants that the Shipment requires no special security or handling.
AWBs, the writing on which has been altered or erased, need not be accepted by Carrier in its sole discretion.
4. Rates and charges
4.1 Applicable rates and charges
Rates and charges for Carriage governed by these Conditions are those published by VAC or the Carrier and in effect on the date of issuance of the AWB by Carrier, or on the date the rate or charge for the Carriage has been entered in the Shipment Record.
(a) Unless specified to the contrary by the Carrier, all rates and charges for Carriage and other supplies made under the contract for Carriage and/or these Conditions are exclusive of GST to the extent that they are taxable supplies within the meaning of the GST Act.
(b) In this clause 4.2, a word or expression defined in the GST Act has the meaning given to it in that Act.
(c) If a party (Supplier) makes a supply under or in connection with the contract for Carriage and/or these Conditions in respect of which GST is payable, the recipient of the supply (Recipient) must pay to the Supplier, an additional amount equal to the GST payable on the supply (GST Amount).
(d) Each party will use its reasonable efforts to do everything required by the relevant GST legislation to enable or assist the other party to claim or verify any tax credit, set off, rebate or refund in respect of GST paid or payable in connection with supplies under the contract for Carriage and/or these Conditions.
4.3 Basis of rates and charges
For the avoidance of doubt, rates and charges will be determined by the higher of the weight declared on the AWB and the Volumetric Weight.
4.4 Services not included in published rates and charges
Except as otherwise provided in Carrier's regulations, rates and charges for Carriage apply only from airport to airport and do not include any ancillary service given by Carrier in connection with Carriage, including but not limited to storage, insurance, pick up service, delivery service, or any expense incurred by Carrier in repairing faulty packing, expense incurred in clearing Cargo through customs, charges, fines, penalties or taxes imposed or collected by government authorities, surcharges, etc. The Carrier does not offer insurance in relation to such ancillary service and therefore recommends that Shipper obtains such insurance through third party insurers.
4.5 Payment of charges
(a) Rates and charges are published in the currency shown in the applicable rate tariffs, and shall be paid in a currency acceptable to Carrier. When payment is made in a currency other than in the currency in which the rate or charge is published, such payment will be made at the rate of exchange established for such purpose by Carrier. The current statement of rates of exchange is available for inspection at Carrier's office where payment is made.
(b) To the extent permitted by law including the Australian Consumer Law, full applicable charges, and all fees, duties, taxes, charges, advances and payments, made or incurred or to be incurred by Carrier and any other sums payable to Carrier in respect of the Cargo and/or its Carriage, will be deemed fully earned, whether or not Cargo is lost or damaged, destroyed, disposed of, misdelivered or fails to arrive at the destination specified in the AWB or Shipment Record. All such charges, sums and advances will be due and payable upon receipt of the Cargo by Carrier, except that they may be collected by Carrier at any stage of performance of the contract of Carriage.
(c) The Shipper guarantees payment of all unpaid charges, advances and disbursements of Carrier. The Shipper also guarantees payment of all costs, expenditures, fines, penalties, loss of time, damage and other sums which Carrier may incur or suffer by reason of the inclusion in the Shipment of articles the Carriage of which is prohibited by law, or the illegal, incorrect or insufficient marking, numbering, addressing or packing of packages or descriptions of Cargo, or the absence, delay or incorrectness of any export or import licence or any required certificate or document, or any improper customs valuation, or incorrect statement of weight or volume.
(d) If the gross weight, measurement, quantity or declared value of Cargo exceeds the gross weight, measurement, quantity or declared value on which charges for Carriage have been previously computed, Carrier shall be entitled to require payment of the charge on such excess.
(e) All charges applicable to a Shipment are payable in immediately available funds at the time of acceptance thereof by Carrier.
(f) Where requested by Carrier, the charges, advances and disbursements payable to the Carrier under these Conditions shall be paid into the bank account nominated by VAC.
4.6 Cancellation of Carriage for non-payment
Carrier may cancel the Carriage of any Shipment upon refusal by the Shipper, after demand by Carrier, to pay the charges or portion thereof so demanded, without any liability for such cancellation.
4.7 Carrier's general lien
Carrier shall have a lien on the Cargo and any documents relating to its Carriage and on any other Cargo of the Shipper in the possession of Carrier or any documents relating to all amounts unpaid in respect of its Carriage, and, in the event of non-payment, shall have the right to sell the Cargo by public auction or private sale provided that prior to such sale Carrier shall have given notice thereof by facsimile or mail to the Shipper or to the Consignee at the address stated in the AWB or Shipment Record, and to pay itself out of the proceeds of such sale. No such auction or sale shall discharge any liability to pay any deficiencies, for which the Shipper shall remain liable. By taking delivery or exercising any other right arising from the contract of Carriage, the Consignee agrees to pay such amounts.
5.1 Compliance with Government requirements
(a) The Shipper shall comply with all applicable laws, customs and other government regulations including those relating to the packing, Carriage or delivery of the Cargo, and shall furnish such information and deliver such documents as may be necessary to comply with such laws and regulations. Carrier shall not be obliged to inquire into the correctness or sufficiency of such information or documents. Carrier shall not be liable to the Shipper or any other person for loss or expense due to Shipper’s failure to comply with this provision. The Shipper shall be liable to Carrier for any damage occasioned by the failure of Shipper to comply with this provision.
(b) Carrier shall not be liable for refusing to carry any Shipment if Carrier reasonably determines in good faith that such refusal is required by any applicable law, government regulation, demand, order or requirement.
5.2 Disbursements and Custom Formalities
Carrier is authorised (but shall be under no obligation) to advance any duties, taxes or charges and to make any disbursement with respect to the Cargo, and the Shipper shall be liable for the reimbursement thereof. No Carrier shall be under an obligation to incur any expense or make any advance in connection with the forwarding or reforwarding of the Cargo except against prepayment by the Shipper.
5.3 Schedule, routings, cancellations and storage
(a) Times shown in Carrier’s timetables or elsewhere are approximate and not guaranteed and form no part of the contract of Carriage. No time is fixed for commencement or completion of Carriage or delivery of Cargo. Unless specifically agreed otherwise and so indicated in the AWB or Shipment Record, Carrier undertakes to carry the Cargo with reasonable dispatch but assumes no obligation to carry the Cargo by any specified aircraft or over any particular route or routes, or to make connections at any point according to any particular schedule. Carrier is hereby authorised to select or deviate from the route or routes of the Shipment, notwithstanding that the same may be stated on the face of the AWB or in the Shipment Record. Carrier is not responsible for errors or omissions either in timetables or other representations of schedules. No employee, Agent or representative of Carrier is authorised to bind Carrier by any statements or representations of the dates or times of departure or arrival, or of the operation of any flight.
(b) Carrier may without notice substitute alternate carriers or other means of Carriage.
(c) Carrier reserves the right without notice, to cancel, terminate, divert, postpone, delay, or advance any flight, or the further Carriage of any Cargo, or to proceed with any flight without all or any part of the Cargo, in its sole discretion.
(d) Carrier may without notice cancel, terminate, divert, postpone or delay or advance any flight or the further Carriage of any Cargo, upon refusal by the Shipper, after demand by Carrier, to pay the charges or the portion thereof so demanded, without Carrier being subject to any liability therefore.
(e) To the extent permitted by law including the Australian Consumer Law, in the event any flight is so cancelled, diverted, postponed, delayed, advanced or is terminated at a place other than the place of destination or in the event the Carriage of any Shipment is so cancelled, diverted, postponed, delayed, advanced or terminated, Carrier shall not be under any liability with respect thereto. (f) In the event the Carriage of the Shipment or any part thereof is so terminated, delivery thereof by Carrier to any transfer Agent for transfer or delivery or the placing of such Shipment in storage shall be deemed complete delivery under the AWB or Shipment Record, and Carrier shall be without any further liability with respect thereto, except to give notice of alteration of delivery instructions of the Shipment to the Shipper or to the Consignee, at the address stated in the AWB or Shipment Record. Carrier may, but shall not be obligated to, forward the Shipment for Carriage by any other route or forward the Shipment as agent for the Shipper or the Consignee, for onward Carriage by any transportation service on behalf of the Shipper or the Consignee. The cost of doing so attaches to the Cargo.
(g) Subject to applicable laws, including the Australian Consumer Law, regulations and orders, Carrier is authorised to determine the priority of Carriage as between Shipments, and as between Cargo and mail or passengers. Carrier may likewise decide to remove any articles from a Shipment, at any time or place whatsoever, and to proceed with the flight without them. If, as a result of determining such priority, Cargo is not carried or Carriage is postponed or delayed or if articles are removed from a Shipment, Carrier will not be liable to Shipper or Consignee or to any other party for any consequences.
(h) If in the opinion of the Carrier it is necessary to hold the Shipment at any place for any reasonable purpose, either before, during or after Carriage, Carrier may, upon giving notice thereof to the Shipper at the address stated in the AWB or Shipment Record, store the Shipment for the account and at the risk and expense of the Shipper, in any warehouse or other available place, or Carrier may deliver the Shipment to another transportation service for onward Carriage to the Consignee. The Shipper shall indemnify Carrier against any expense or risk so incurred.
6. Shipper’s right to alter delivery instructions
6.1 Right to alter delivery instructions
Every exercise of this right must be made by the Shipper or the Shipper’s designated agent, if any, and must be applicable to the whole Shipment under a single AWB or under a single Shipment Record. The right of alteration over the Cargo may only be exercised if the Shipper or such agent produces the part of the AWB which was delivered to him, or communicates such other form of authority as may be prescribed by Carrier’s regulations. Instructions as to alteration of delivery must be given in writing in the form prescribed by Carrier. In the event that the exercise of the right results in a change of Consignee, such new Consignee shall be deemed to be the Consignee appearing on the AWB or in the Shipment Record.
6.2 Shipper’s option
Subject to the Shipper’s liability to carry out all its obligations under the contract of Carriage and provided that this right of alteration of delivery is not exercised in such a way as to prejudice Carrier or other Shippers, the Shipper may at its own expense dispose of Cargo either:
(a) by withdrawing it at the airport of departure or of destination; or
(b) by stopping it in the course of the journey on any landing; or
(c) by calling for it to be delivered at the place of destination or in the course of the journey to a person other than the Consignee named in the AWB or Shipment Record; or
(d) by requiring it to be returned to the airport of departure.
Provided that if, in the sole opinion of Carrier, it is not reasonably practicable to carry out the order of the Shipper, Carrier shall so inform him promptly and Carrier shall thereafter be under no obligation to carry out any such order.
6.3 Payment of expenses
The Shipper shall be liable for and shall indemnify Carrier for all loss or damage suffered or incurred by Carrier as a result of the exercise of its right to alter delivery instructions. The Shipper shall reimburse Carrier for any expenses occasioned by the exercise of this right.
6.4 Extent of shipper’s right
The Shipper’s right to alter delivery instructions shall cease at the moment when, after arrival of Cargo at the destination, the Consignee takes possession or requests delivery of Cargo or AWB, or otherwise shows his acceptance of the Cargo. Nevertheless, if the Consignee declines to accept the AWB or the Cargo, or if the Consignee cannot be communicated with, such right of alteration shall continue to vest in the Shipper.
7.1 Notice of arrival
Notice of arrival of the Shipment will, in the absence of other instructions, be sent to the Consignee and any other person whom Carrier has agreed to notify as evidenced in the AWB or Shipment Record, and such notice will be sent by ordinary methods. The written notification can also be given by fax or by electronic mail. Carrier is not liable for non-receipt or delay in receipt of such notice.
7.2 Delivery Of Shipment
(a) Except as otherwise specifically provided in the AWB or Shipment Record, delivery of the Shipment will be made only to the Consignee named therein, or his agent. Such notice will be sent by ordinary methods. Carrier is not liable for non-receipt or delay in receipt of such notice. Delivery to the Consignee shall be deemed to have been effected when:
(i) Carrier has delivered to the Consignee or his agent any authorisation from Carrier required to enable the Consignee to obtain release of the Shipment;
(ii) if applicable law or regulation does not require delivery to government authorities, when Consignee, its agent or person presenting Consignee’s authority takes delivery of Cargo from Carrier; or
(iii) the Shipment has been delivered to customs or other government authorities as required by applicable law or customs regulation.
(b) By accepting delivery of the AWB and/or the Shipment, the Consignee shall become liable for payment of all costs and charges in connection with the Carriage. Unless otherwise agreed, the Shipper shall not be released from his own liability for these costs and charges and will remain liable for them. Carrier may make delivery of the Shipment or the AWB conditional upon payment of these costs and charges
(c) Receipt of Cargo by the Consignee without complaint is prima facie evidence that the same has been delivered in good condition and in accordance with the contract of Carriage. For the avoidance of doubt, the operation of the clause in no way affects any rights the Consignee may have under the Australian Consumer Law.
7.3 Place Of delivery
The Consignee must take delivery and collect the Shipment at the airport of destination or the respective facility as designated by the Carrier.
7.4 Failure of Consignee to take delivery
(a) Subject to the provisions of clause 7.2, if the Consignee refuses or fails to take delivery of the Shipment after its arrival at the airport destination, Carrier will endeavour to comply with any reasonable instructions of the Shipper set forth on the face of the AWB or Shipment Record. If such instructions are not so set forth or cannot reasonably be complied with, Carrier shall notify the Shipper of the Consignee’s failure to take delivery and request his instructions. If no such instructions are received within thirty (30) Days, in respect of non-perishables, and immediately, in respect of perishables, Carrier may sell the Shipment in one or more lots at public or private sale in accordance with applicable law, destroy or abandon such Shipment, at its sole discretion.
(b) The Shipper is liable for all charges and expenses resulting from or in connection with the failure to take delivery of the Shipment, including, but not limited to storage and Carriage charges incurred in returning the Shipment if so required by the Shipper’s instructions. If the Shipment is returned to the airport of departure and the Shipper refuses or neglects to make such payments within fifteen (15) Days after such return, Carrier may in accordance with applicable law dispose of the Shipment or any part thereof at public or private sale after giving the Shipper ten (10) Days’ notice of its intention to do so.
(c) In the event of the sale of the Shipment as provided for above, Carrier is authorised to pay to itself and other transportation services out of the proceeds of such sale all charges, advances, and expenses of Carrier and other transportation services plus costs of sale, holding any surplus subject to the order of the Shipper. A sale of any Shipment shall, however, not discharge the Shipper of any liability hereunder to pay any deficiencies.
7.5 Disposal of perishables
(a) When a Shipment containing perishables, dangerous goods or live animals is delayed in the possession of Carrier, or is unclaimed or refused at place of delivery, or for other reasons is threatened with deterioration, or may pose a threat to the environment, Carrier may, at the sole cost and expense of the Shipper, immediately take such steps as it sees fit for the protection of itself and other parties in interest, including but not limited to:
(i) the disposal of the Shipment or any part thereof at public auction or private sale without notice; or
(ii) the storage of the Shipment or any part thereof; or
(iii) the destruction or abandonment of all or any part of the Shipment.
(b) In the event of the sale of the Shipment as provided above, Carrier is authorised to pay itself and any other third parties such as transport services out of the proceeds of such sale, all charges advances and expenses of Carrier and to account to the Shipper and third parties, as applicable, in respect of any balance of such proceeds. Any such sale of Shipment shall not however discharge the Shipper and/or owner and/or Consignee of any liability hereunder to pay any deficiencies.
8. Authority and indemnity of shipper
8.1 Authority to tender Cargo for Carriage
It is agreed that any person who tenders Cargo to Carrier for Carriage for or on behalf of the Shipper is authorised to do so upon and subject to these Conditions.
8.2 Shipper's authority
The Shipper warrants that in agreeing to these Conditions it has the authority of the person or persons owning or having any interest in the Cargo or any part thereof.
8.3 Shipper's indemnity
Without prejudice to the generality of the foregoing, Shipper undertakes to indemnify Carrier in respect of any liability whatsoever and howsoever arising (including without limitation, negligence or breach of contract or wilful act or default of Carrier or others) in connection with the Cargo, to any person (other than Shipper) who claims to have, who has or who may hereafter have any interest in the Cargo or any part thereof. It is agreed that this indemnity operates irrespective of whether Carrier's liability arises from events which may constitute a fundamental breach of contract or a breach of a fundamental term.
9. Carrier’s right to sub-contract
9.1 Carrier's Right
The Carrier and any sub-contractor shall be entitled to sub-contract all or any part of the Carriage of the Cargo.
9.2 Terms of contract of Carriage applicable to sub-contractor
Every exemption, limitation, condition herein contained and every right, indemnity, exemption from liability, defence and immunity of whatsoever nature applicable to Carrier or to which Carrier is entitled hereunder shall also be available and shall extend to protect
(a) all members of the Virgin Australia Group;
(b) all sub-contractors,
(c) every employee or agent of Carrier, or of a member of the Virgin Australia Group or of a sub-contractor,
(d) every other person (other than Carrier) by whom the services or any part thereof are provided, and
(e) all persons who are or may be vicariously liable for the acts or omissions of any person falling within (a), (b), (c) or (d) hereof, and for the purpose of this clause Carrier is or shall be deemed to be acting as agent or trustee on behalf of and for the benefit of all such persons and each of them and all such persons and each of them shall to this extent be or be deemed to be parties to this contract.
10. Successive carriers
Carriage to be performed under one contract of Carriage by several successive carriers is regarded as a single operation.
11. Carrier’s liability
11.1 Limitation of Liability
In the event that clause 11.4 of these Conditions is deemed invalid by any law and the International Conventions do not apply to the Carriage, then to the extent permitted by law including the Australian Consumer Law, the liability of the Carrier for any, and the consequence of any, loss of or damage is limited to a sum not exceeding $100 per AWB or Shipment Record. All claims shall be subject to proof of value.
11.2 Inherently defective Cargo
In any event, Carrier is not liable to the Consignee, Shipper or any other person if destruction, deterioration, loss, or damage to, or change in the condition of, Cargo is proved to have resulted from inherent defect, quality, nature or vice of that Cargo.
11.3 Contributory Negligence
If the damage, destruction, loss or delay was caused or contributed to by the negligence or other wrongful act or omission of the person claiming compensation, or the person from whom rights are derived, Carrier shall be wholly or partly exonerated from liability to the claimant to the extent that such negligence or wrongful act or omission caused or contributed to the damage, destruction, loss or delay.
11.4 Exclusion of Liability
(a) Except as may be otherwise provided in these Conditions or applicable laws including the Australian Consumer Law, Carrier is not liable to the Shipper, Consignee or any other person having an interest in the Cargo in tort or contract or bailment or otherwise for any delay in collection of Cargo or loss of or damage to or deterioration of Cargo or mis-delivery or failure to deliver or delay in delivery of Cargo for any reason whatsoever including, but not limited to, the negligence or breach of contract or wilful act or default of the Carrier whether or not the same occurs in the course of performance by or on behalf of Carrier under this contract, or as a result of events which are in the contemplation of Carrier and/or Shipper, or as a result of events which are foreseeable by them or either of them, or as a result of events that may constitute a fundamental breach of contract or a breach of a fundamental term.
(b) To the extent permitted by law including the Australian Consumer Law, Carrier is not liable to the Shipper, Consignee or any other person for any damage, delay or loss of whatsoever nature directly or indirectly arising out of compliance with laws, government regulations, orders or requirement, or from any cause beyond Carrier’s control.
(c) No warranty concerning any aircraft engaged in the Carriage or concerning its fitness for the Carriage of Cargo to which the contract of Carriage relates is implied in the contract of Carriage.
(d) To the extent permitted by law including the Australian Consumer Law, Carrier shall not be liable for any consequential loss or special damages arising from Carriage subject to these Conditions, whether or not Carrier had knowledge that such loss or damage might be incurred.
(a) Carrier will not be liable for any loss, damage or expense arising from death due to natural causes or death or injury of any animal (as classified in the IATA Live Animal Regulations) caused by the conduct or acts of the animal itself or of other animals, including but not limited to biting, kicking, goring or smothering, nor for that caused or contributed to by the condition, nature or propensities of the animal, or by defective packing of the animal, or by the inability of the animal to withstand unavoidable changes in its physical environment, inherent in the Carriage.
(b) To the extent permitted by law including the Australian Consumer Law, the Carrier is not liable for death or injury to an animal attendant caused or contributed to by condition, conduct or acts of the animals.
11.6 Applicable Weight
In the case of loss, damage or delay of part of the Shipment, or of any object contained therein, the weight to be taken into consideration in determining the amount to which Carrier's liability is limited shall be only the weight of the affected part of that Shipment, where unpackaged, or otherwise the package or packages concerned. Nevertheless, when the loss, damage or delay of part of the Shipment, or of an object contained therein, affects the value of other packages covered by the same AWB, the total weight of such package or packages shall also be taken into consideration in determining the limit of liability.
11.7 Determination of value
In the absence of proof to the contrary, the value of any such part of the Shipment lost, damaged or delayed as the case may be, shall be determined by reducing the total value of the Shipment in the proportion that the weight of that part of the Shipment lost, damaged or delayed has to the total weight of the Shipment.
The Shipper whose Shipment causes damage to or destruction of another Shipment or of the property of Carrier, shall indemnify Carrier for all losses and expenses incurred by Carrier as a result thereof.
11.9 Liability of other Carrier
Any Carrier issuing an AWB for Carriage over the lines of another Carrier does so only as agent for such other Carrier. Any reference in a Shipment Record to Carriage to be performed by another Carrier shall be deemed to refer to Carriage to be provided as principal by such other Carrier. Carrier shall not be liable for the loss, or delay of or damage to Cargo not occurring on its own line except that the Shipper shall have a right of action for such loss, damage or delay on the terms herein provided against the first Carrier and the Consignee or other person entitled to delivery shall have such right of action against the last Carrier under the contract of Carriage.
11.10 Applicability of Limitation of Liability to Agents
Whenever the liability of Carrier is excluded or limited under these Conditions, such exclusion or limitation shall apply to agents, employees, or representatives of Carrier and also to any Carrier whose aircraft is used for carriage.
12. Limitations on claims and actions
12.1 Time limits on complaints
To the extent permitted by law including the Australian Consumer Law, no action shall be maintained in the case of loss or damage to Cargo unless a complaint is made to Carrier in writing by the person entitled to delivery. Such complaint should be made:
(a) in the case of damage to the Cargo, immediately after its discovery and at the latest within 14 Days from the date of receipt of the Cargo;
(b) in the case of delay, within 21 Days from the date on which the Cargo was placed at the disposal of the person entitled to delivery; and
(c) in the case of loss of the Cargo, within 120 Days of the date of issue of the AWB or the date of the Shipment Record, whichever is applicable.
12.2 Time Limit on Action
Subject to clause 1.4 and unless otherwise required by law, and unless your right to claim damages has expired earlier or been extinguished by these Conditions, an International Convention or other applicable Laws, any right to damages against Carrier shall be extinguished unless an action is brought within two years after the occurrence of the event or events giving rise to the claim.
13.1 Overriding law
Insofar as any provision contained or referred to in the AWB or Shipment Record or these Conditions may be contrary to mandatory law, government regulations, orders or requirements, such provision shall remain applicable to the extent that it is not over-ridden thereby. The invalidity of any such provision shall not affect any other part.
13.2 Modification and waiver
No agent, employee or representative of Carrier has authority to alter, modify or waive any provision of the contract of Carriage or of these Conditions.
13.3 Governing law
These Conditions are to be interpreted in accordance with the laws of Queensland, Australia and the parties submit to the non-exclusive jurisdiction of the courts of Queensland and the Commonwealth of Australia.
We are required to collect your personal information in order to process your Cargo booking and to communicate with you about your booking. If we cannot collect from you the minimum amount of personal information required to complete your Cargo booking, we will not be able to process your booking, and a contract of carriage is not formed with us.
13.5 Marketing and Promotional Material
You consent to receive electronic messages and marketing communications from us containing marketing and promotional material from Virgin Australia Cargo and its partners, and subject to any applicable law, agree that we do not need to include an “unsubscribe” facility in any electronic message we send you fro the purposes of the Spam Act 2003 (Cth).
We may contact you or your nominated contact by text message, email, phone or post to obtain your feedback on our services, let you know about our specials and promotions, any new or existing products or services, any those of our related companies and partners, that may be of interest to you before and after Carriage.
Handling procedures for special cargo
1. Documentation and labelling
(a) Shipper’s handling instructions must be shown on the AWB if special conditions apply.
(b) The AWB must show the full name, address and telephone number of both Shipper and Consignee, and appropriate health certificates and permits must be attached.
(c) Special Cargo must be labelled with the IATA Perishable label and must be marked with the full name and telephone number of the Consignee.
(d) Subject to clause 2.7 of the Conditions, special handling requirements (e.g. “Keep cool wherever possible”) may also be shown on the AWB, but there must not include specific temperature conditions. Any instructions on an AWB that require Carrier to carry Cargo at any specific temperature will not be accepted for carriage, or if accepted, will not be treated as a waiver or amendment of these Conditions.
2. Packaging and handling
(a) Packaging must be of a standard that will ensure adequate protection of the contents, including any temperature protection required for the contents, and prevent spillage or leakage or contamination of other Cargo for the entire Carriage.
(b) Packaging will be deemed defective if it does not adequately protect the Cargo against perishing or other deterioration in condition or value as a result of temperature conditions or other normal incidents of carriage.
(c) Highly perishable commodities may require special care. In this respect:
Fresh vegetables, fruit and flowers should be packed in well-ventilated containers, which must be strong enough to prevent crushing and bruising of the contents.
(ii) Vegetables/Fruit/Flowers (highly perishable) in an Uninsulated ULD or Bulk Hold Stowed
The Shipper must ensure that no dry ice is used, and must ensure that the product is adequately ventilated.
(a) Highly perishable vegetables/fruit/flowers are those normally requiring constant refrigeration at approximately 2’C to 7’C, such as asparagus and strawberries.
(b) No controlled refrigeration is available once the Shipment has left the cargo terminal coolroom. Actual temperatures encountered will vary from airport ground temperatures during transportation to the aircraft, and during loading, to a relatively low (approximately 5’C to 10’c) temperature during the time the aircraft is at cruise altitude.
(c) Where the Shipper loads the ULD off airport, Shipper should ensure that the product is fully chilled in the Shipper’s coolrooms prior to loading into the ULD.
(d) Where the product is loaded in a Virgin Australia Cargo terminal, the product should be delivered in a refrigerated truck.
(iii) Seafood Shipments:
As there is the possibility of severe damage to the aircraft or contamination of other Cargo unless seafood consignments are packed correctly, all seafood consignments must be packed in accordance with the Carrier’s Seafood Packing Regulations, details of which can be obtained from the Carrier.
It is the responsibility of the Shipper to notify the Consignee of the expected delivery time of a Shipment of Special Cargo and to procure the Consignee to collect such Special Cargo with reasonable dispatch given the nature of the Cargo concerned.