Lloyd's Maritime and Commercial Law Quarterly
THE HIMALAYA CLAUSE
D. G. Powles
Barrister, Lecturer in Law, U.W.I.S.T.
For nearly a quarter of a century a series of attempts have been made in the courts of the United Kingdom, the United States, and of various Commonwealth countries to extend the protections and limitations given to a carrier under the Carriage of Goods by Sea Act and under permitted terms of the bill of lading to stevedores and others connected with the loading, discharge or further carriage of the goods. The basic means used has been a clause, usually referred to as a “Himalaya” clause, which is now common to most bills of lading. The basic features of a typical modern Himalaya clause extend the benefit of every right, limitation and exemption under the bill of lading to servants, agents and independent contractors of the carrier, express that the carrier acts, for the purpose of the above, as the agent or trustee of such servants, agents or independent contractors and expressly makes such servants, agents or independent contractors parties to the contract of carriage.1 By way of variation other Himalaya clauses extend protection by extending the definition of “Carrier” to include servants, agents and independent contractors.2
English and Commonwealth cases on the clause to date have dealt with stevedores. There is no reason, however, why other parties satisfying the definition of servant, agent or independent contractor should not take advantage of the clause insofar as case law, which is discussed later, permits. Courts in the U.S. have, as a matter of construction of the clause, considered claims by dry dock owners and by inland carriers.3 Servants, agents or independent contractors of stevedores appear not to be covered, however, as there is no privity of contract between them and the carrier, and the same fate, for the same reason, awaits servants, agents and independent contractors of the consignee.4 In this article the term “stevedore” will be used to refer to all persons who satisfy the definition of servant, agent or independent contractor, except where the context indicates otherwise.
The clause is aimed basically at the shipper, until such time as the carriage contract is transferred to the consignee, and the consignee or someone claiming through him after the transfer has taken place. There would seem to be relatively few other parties connected with the carriage contract who would have an interest in suing the stevedore for damages but there does remain a possibility that the shipper may wish to sue the
1 For example, the clause litigated in The Eurymedon read:
“It is hereby expressly agreed that no servant or agent of the Carrier (including every independent contractor from time to time employed by the Carrier) shall in any circumstances whatsoever be under any liability whatsoever to the Shipper, Consignee or Owner of the goods or to any holder of this Bill of Lading for any loss damage or delay of whatsoever kind arising or resulting directly or indirectly from any act neglect or default on his part while acting in the course of or in connection with his employment and, without prejudice to the generality of the foregoing provisions of this Clause, every exemption, limitation, condition and liberty herein contained and every right, exemption from liability, defence and immunity of whatsoever nature applicable to the Carrier or to which the Carrier is entitled hereunder shall also be available and shall extend to protect every such servant or agent of the Carrier acting as aforesaid and for the purpose of all the foregoing provisions of this Clause the Carrier is or shall be deemed to be acting as agent or trustee on behalf of and for the benefit of all persons who are or might be his servants or agents from time to time (including independent contractors as aforesaid) and all such persons shall to this extent be or be deemed to be parties to the contract in or evidenced in this Bill of Lading”.
This set out at [1974] 1 All E.R., at p. 1018.
2 See, for example, The Mormacstar
[1973] 2 Lloyd’s Rep. 485.
3 Grace Line Inc. v. Todd Shipyards Corp. [1975] 1 Lloyd’s Rep. 276, (dry dock), De Laval Turbine v. West India Industries [1974] A.M.C. 1156.
4 Amtraco Corp. v. S.S. Snowstorm [1978] A.M.C. 1007.
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