GENERAL TERMS AND CONDITIONS OF THE CROATIAN MARITIME AGENTS
(Members of The Association of Shipbrokers and Agents of Croatia)
I – INTRODUCTION
The General Terms and Conditions regulate the contractual relations arising when a national or foreign Principal engages ship or freight agency services from a Croatian Maritime Agent. Unless the contrary is expressly agreed upon between the parties it is presumed that the Principal accepts the General Terms and Conditions as an integral part of the contract for ship and freight agency services.
II – DEFINITION OF THE MARITIME AGENT
The Maritime Agent is a national legal person, registered for performing ship and freight agency services, who performs ship and freight agent’s functions for and behalf of the Principal or in his own name.
III – AUTHORITY OF THE MARITIME AGENT
The Maritime Agent in executing an order shall assist the Principal, represent him in accordance with a general or special authority and mediate between the Principal and his co-contractors.
A special agency agreement for executing a single order from case to case, relating to the services mentioned in the preceding paragraph may be explicit in writing, oral or implied while a general agency agreement of standing engagement for performing ship and freight agency services in a designated area must be evidenced in writing.
At the request of the agents the concluded agreements shall be confirmed in writing.
Under a special agency agreement the Maritime Agent is authorised to perform for the Principal a designated service and under a general agency agreement the Maritime Agent is authorised to perform for the Principal all services, or designated types of services in a designated area for a definite or indefinite period of time.
In case of doubt whether an agreement is a general or a special agency agreement it shall be presumed that a special agency agreement has been concluded.
Unless otherwise agreed upon between the parties it is presumed that the Maritime Agent is authorised to perform particularly the following functions:1. Assist the Principal; 2. Assist the representative of the carrier, the beneficiaries of the carriage, the crew in the clearance of the means of transport and of the goods; 3. Assist the passengers in embarking and disembarking; 4. Mediate in the negotiations for the conclusion of contracts and conclude contracts for: a) The exploitation of the means of transport; b) The carriage of passengers; c) The sale and purchase, repair and maintenance of the means of transport; d) The economical exploitation of containers; e) Insurance; f) The discharging, loading, transhipment and warehousing of cargoes; g) Providing the means of transport with fuel and stores; h) The supervision of the means of transport and of the cargo; i) The conclusion of other contracts relating to the ship and freight agent’s work; 5. Marketing and canvassing; 6. The sale of passenger tickets; 7. Assist in engaging crew for the means of transport; 8. Assist in the general average proceedings; 9. Issue transport and other documents for the clearance of the means of transport; 10. Assist in the settlement of disputes relating to the activities in which the Principal is involved; 11. Provide supervision service during loading and discharging; 12. Determine the condition of the cargo as to quantity and quality; 13. Perform forwarder’s services, particularly services in transhipment, in carriages performed by several carriers, in carriage in containers and in multimodal carriage in general; 14. Management of the means of transport of the carrier; 15. Perform secondary services such as: travel agency, money exchange, motor boat transport, transport by land by own vehicles, mediation passports, visas and circulation permits in the border zone, engagement of watchmen on board the ship and other similar services.
The Maritime Agent is authorised and bound to perform also all other work while carrying out the order in connections therewith.
When the Maritime Agent is acting for and on behalf of the Principal, he is bound to emphasise his capacity of an agent by using the words “for and on behalf of”, “as agent only” adding thereafter the name of the Principal.
If the agent fails to put the reserve according to the provisions of the preceding paragraph it is presumed that he acts in his own name.
Should the Principal limit the ship agent’s authorisation in respect to the functions enumerated in Article 5, such limitation shall have no legal effect against third persons to whom such limitation was unknown nor ought to have, according to the circumstances of the case, been known, even if the agent did put the reserve according to the provisions of Art. 6.
The offers made by the Maritime Agent shall be binding for the Principal if made within the limits of their authorisation.
The Maritime Agent is not authorised to represent the Principal in court, arbitration nor in administrative proceedings.
IV – DUTIES OF THE MARITIME AGENT
The Maritime Agent shall act with the due diligence of a prudent agent and in accordance with the customs of the profession, of the national and international trade, and shall exercise such diligence in choosing persons whose services he engages.
The agent-broker shall keep a mediation journal and shall issue a mediation memorandum for business in which he mediates.
The Maritime Agent is bound to safe keep for three years the copies of the documents issued and received in connection with the execution of an order. Such documents shall be considered business secrets and cannot be alienated without the consent of the Principal unless otherwise prescribed.
The Maritime Agent shall keep the Principal informed of the execution of the order and on the situation of the market.
The Maritime Agent is bound to request from the Principal advance-money for covering the expenses and the ship and freight agency fee.
The Maritime Agent is bound, within the prescribed period of time, to settle with the Principal the fees and the expenses incurred for his services and also render to the Principal an account on the state of his funds.
The Maritime Agent is bound to keep business books containing separate debt-and-credit items of the Principal.
The special agent shall perform the agency services either personally or through his employees. The general agent may appoint a sub-agent of which he shall be bound to inform the Principal. The agent cannot transfer to the sub-agent a wider authority than the one, which has been given to him.
V – DUTIES OF THE PRINCIPAL
The Principal is bound to give to the agent clear orders, information and documents for the performance of his functions before the rendering of the agency services has started.
The Principal is bound according to Maritime Code to reimburse to the Maritime Agent the expenses incurred and pay him the agency fee.
The Principal is bound according to Maritime Code to give to the Maritime Agent advance-money for the expected expenses and fees.
VI – RIGHTS OF THE MARITIME AGENT
The agency fee is paid as remuneration or as a commission.
The agency fee is fixed by contract or by tariff.
If in mediation for the conclusion of contracts for the employment of the means of transport the amount of the commission has not been agreed upon, the agent shall be entitled to a commission of not less than 2% on the total gross amount earned by the Principal’s business.
The agent is entitled to a commission for mediation in the conclusion of the contract, irrespective whether it has been executed or not. In all other cases the agent shall be entitled to a fee after the service has been rendered.
The Maritime Agent is entitled according to Maritime Code to the advance-money to cover his expenses, expenses incurred for Principal’s account and remuneration.
All expenses incurred for the transfer of funds shall be borne by the Principal.
The Maritime Agent according to Maritime Code have a contractual right of retention of the property of the Principal while in the agent’s possession for covering his fees, expenses and other claims arising from whatever reason and at whatever time.
The Maritime Agent is entitled to collect from the Principal at any time the matured credits by compensation.
The Maritime Agent is entitled to charge for the outstanding claims an interest of 12%.
The Maritime Agent is entitled to collect the claims expressed in a foreign currency in that same currency, or in another currency of his choice, at the daily rate of exchange of such currency against the one in which the credit was expressed on the day when the bill matured, or on the day of payment, in the option of the Maritime Agent.
VII – LIABILITY OF THE MARITIME AGENT
The Maritime Agent is liable to the Principal for any damages, which may be attributed to his of his employees’ fault.
The agent is liable for damages caused by the fault of the persons whose services he engaged for his activity, or who render services to the Principal, only in case of gross negligence in the choice of such persons, provided that the damages are in connection with the acts or omissions of such persons.
If the damages may be attributed to the gross negligence of the agent, of his employees, of the sub-agent appointed by him, or of the persons chosen to perform services for the Principal, the Maritime Agent is liable particularly for: non-compliance with the orders received, exceeding the authorisation given to him in the agency agreement, failure to use due diligence, omissions in informing or inaccurate informing or the Principal and for non-rendering of account.
The Maritime Agent is in any case entitled to limit his liability for damages mentioned in the preceding paragraph up to the amount of the fee due to him for his services.
When the Principal may limit his liability against third persons, the Maritime Agent is also entitled to avail himself of the benefits of such limitation.
VIII – SETTLEMENT OF DISPUTES
Any dispute arising out of the application of the General Terms and Conditions in respect to the ship and freight agency agreement shall be referred to the Croatian Court materially competent in the main place of business of the Maritime Agent.
The Croatia law shall always apply to the activity of the Maritime Agent wherever it may be exercised..
IX – FINAL PROVISIONS
The General Terms and Conditions as well as any alterations of and additions to the same are brought by consensus of the members at the Assembly of the Association of Shipbroker and Agents of Croatia.
The General Terms and Conditions shall come into force after acceptance by the Association of Shipbrokers and Agents of Croatia and shall apply as from March1, 2009.
Rijeka, 16 February 2009