Kirby v. Norfolk South'n
DMC Category Rating: Developed
Case Note contributed by Thomas H. Belknap Jr. and LeRoy Lambert, attorneys with the law firm Healy & Baillie LLP, New York, Contributors to the Website for the United States
1. A Himalaya clause is a clause in a contract of carriage which sets out to extend to persons other than the carrier, the defences and limitations available to the carrier.
The Himalaya clause in ICC’s FBL extended the benefit of the carrier’s defences and limitations to "any servant, agent or other person, including any independent contractors whose services have been used to perform the contract."
The Himalaya clause in the Hamburg Sud bill of lading extended the benefit to "all agents, servants, employees, representatives, all participating (including inland) carriers and all stevedores, terminal operators, warehousemen…and all independent contractors whatsoever."
As to the ICC bill, the Court held that the wording of the Himalaya Clause in the FBL form was not specific enough to extend to an inland carrier, such as the railroad, under the Court’s "clarity of language" test. A Himalaya Clause purporting to protect "a well-defined class of identifiable persons" will be enforced, but the FBL’s description of "any servant, agent, or other person including any independent contractor whose services have been used in order to perform the contract" could not extend to include the rail carrier because it was, in fact, a sub-contractor of Hamburg Sud, the performing carrier, and had not been engaged by ICC. The court was reluctant to extend the application of the Himalaya clause in the FBL too widely. It accepted that the clause could protect operators "at the fringes of the sea regime", such as terminals and stevedores, but it felt that - in the absence of very specific wording in the contract - extending the protection to an inland transport company was taking things too far. The court also felt that to extend the Himalaya clause to inland transportation was incompatible with the "network" system of liabilities that the FBL adopted for carriage pre- and post-shipment.
The court did, however, accept that a carrier may extend the protections of COGSA to an inland carrier, provided it does so by the use of very clear language.
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