It is hereby expressly agreed that no servant, agent, direct or indirect subcontractor or any other party employed by or on behalf of the Carrier or whose services or equipment have been used for the performance of this Agreement (the persons who are so employed or whose services or equipment have been used, hereinafter referred to as “Personnel”), can in no way be held liable to the sender in any way whatsoever. Recipient, consignee or other party to this Agreement (hereinafter referred to as the “Licensee”) for any loss, damage or delay of any kind arising directly or indirectly from any act, omission or omission of the Contractor`s vicarious agent during the performance of or in connection with the performance of this Agreement. It is intentionally acknowledged herein that no agent, employee or subcontractor of the Carrier, in any situation, shall be liable to the Owner of the Product, the Shipper or any other person applicable to this Bill of Lading for any delay, destruction or loss incurred in the performance of any work obligation. All provisions, limitations, exceptions, rights and conditions granted to the Carrier are also granted to all employees and representatives of the Carrier. The Carrier shall be deemed to be the acting representative of all persons who are considered to be its employees, agents or subcontractors, and all such persons shall be deemed to be covered by the contract discussed in this bill of lading. The clause is primarily intended for use in bills of lading, although it can be carefully adapted for use in charter parties and other maritime contracts. Parties using the clause must ensure that it achieves its purpose when it is included in different types of contracts. For example, if used in bills of lading or other documents containing or supporting contracts of carriage, the terms “carrier” and “merchant” must be defined, and the definitions must reflect the intentions of the parties, which may vary from contract to contract. If necessary, IG/BIMCO recommends that any changes to the clause be made subject to appropriate legal advice. Members are of course free to contact their clubs for help. Judge Flaux concluded that, since it turns out that none of the third parties carried out the sea transport or was in fact the carrier within the meaning of the Hague Rules, unlike the owners in the “Starsin”, the conclusion that the performance of the obligation not to bring proceedings does not violate Article III, Rule 8, is clearly correct.
The claimant attempted to argue that the “Himalayan contract” was the “virtual” contract of carriage to which subcontractors, etc., became parties when they fulfilled an obligation of carriage. Flaux J. rejected this argument because the Himalaya clause in this case did not contain the provision of Roskill`s “classic” Himalayan clause. Whitesea was referring to an injunction seeking an injunction against lawsuits aimed at preventing cargo plaintiffs in Brazil from making a tort claim (or more precisely, under Brazilian consumer laws) against the owners, ship managers, charterers, and the owners` P&I club (!). The owners had issued bills of lading, specifying English law, subject to the Hague Rules and containing a Himalayan clause of the most modern variety, i.e. with an obligation not to continue in its first paragraph clause 3b. The clause states: A Himalayan clause is usually included in a contract of carriage or bill of lading to assist the carrier by limiting liability.3 min read Ironically, based on the facts in court, it was found that the passenger ticket did not expressly or implicitly benefit staff or agents and that, therefore, the defendants could not use the exception clause. However, after the decision, specially designed “Himalayan clauses” that benefited Stauer and others were included in the bills of lading. The UK Contracts (Rights of Third Parties) Act 1999 validates properly written Himalayan shipping clauses, but quite restrictively. A third party may benefit from the provisions of a contract relating to the carriage of goods by sea only to avail himself of an exclusion or limitation clause, but not further.
It should be noted that the law appears to block all positive benefits for third parties in the contract of carriage by sea that might otherwise have been appreciated by shippers. International transport conventions do not explicitly address the Himalayas and circular compensation clauses. However, the Himalayan clauses developed mainly to overcome the situation under the Hague and Hague Visby rules, in which the carrier is not liable beyond the “attack tackle”, but still instructs Stauer to carry out the physical loading and unloading anyway. Claims have therefore been and are often filed against land-based staus in order to achieve full recovery that is not limited by the Hague or Hague Visby rules. Himalayan clauses often effectively block such claims from the sender. The passenger ticket contained an immunity clause that exempted the carrier from any liability to the guests and, as a result, the plaintiff sued the ship`s master and the boatman. The plaintiff argued that under the usual privacy rules, the defendants could not rely on the terms of a contract to which they were not a party. However, the Court of Appeal held that the law allowed a carrier in the carriage of passengers, as well as in the carriage of goods, to agree not only for itself but also for those with whom it performed the contract.
It was also assumed that the provision could be explicit or implied. Hmalaya clauses are quite complex in nature and it is impossible to create a clause that works successfully on every occasion and in any jurisdiction. The goal of BIMCO and IG was to create a clause that would be recognized and implemented in most major jurisdictions, including the United States and the United Kingdom. To this end, leading British and American consultants were advised during the design process. This clause is generally accepted, with the exception of the Common Law Authority. However, it was suggested that if an air carrier attempted to include a Himalayan clause and/or a circular indemnification clause with a clause on the sinking or the identity of the carrier, it would indeed attempt not to deny the shipper any recourse against anyone under any circumstances, which could conflict with international transport conventions. It was suggested that such a combination of clauses could be treated as a disclaimer under the Hague and Hague-Visby Rules and would therefore be unenforceable. The case was used to confirm the validity of a Himalayan clause in carrier contracts in Canada (Marubeni). .