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1
THE RIGHTS OF THIRD PARTIES IN HIMALAYA CLAUSE PARTICULARLY ON INTERNATIONAL MULTIMODAL TRANSPORT
CONTRACTS CARRIAGE OF GOODS By
Made Suksma Prijandhini Devi Salain I. INTRODUCTION
The increasing contract sales of goods are affects the development of contract carriage of goods. It is not only use one mode of transportation but it evolves use various modes of transportation, by sea, road, rail or air. The usage of various modes of transport is called multimodal transport. In International multimodal transport usually prefer to deal with one person only, called the Multimodal Transport Operator (MTO) rather than a series of carriers operating under separate contracts for each stage of a single transport.
Multimodal transport is considered as the most efficient way in carriage of goods.1 The Seller or Buyer in contract sale of goods are like to choose Multimodal transport because
is a “door-to-door” service. It means the MTO will take care of goods from origin to destination without interruption. The goods are delivered more secure because use a container. The MTO assumes the liability of carriers under the multimodal transport contracts even though if it does not actually carry the goods itself. The MTO could make contract with other carriers for various parts of the multimodal transport.
The process carriage of goods in multimodal transport must be involves third parties, such carriers, servants, agents, any other person or any independent contractor who act to performs the contract. In fact, a lot of delay, loss or damage of goods was caused by the third parties. The claimant or the consignor are usually try to bring suits against the third parties but they could extends limitation of liability on Himalaya Clause. Himalaya clause gives a beneficiary to the third parties to get protection in the contractor’s conditions.2 The existence of Himalaya clause is vague and still debatable. It has relationship whether the intermediaries act as an agent from the cargo owner or not. In addition, there is no an international convention of multimodal transport contract that already entry into force. Therefore, the interpretation of Himalaya clause is case by case, it depends on the law of court they brought the suits (lex fori).
1
http://www.gfptt.org/entities/TopicProfile.aspx?tid=d7f36aOa-a4cg-48fg-9767-b67fd6ad4768
2
2
This study will focus on whether the third parties could rely on Himalaya clause and how about right of third parties related to Himalaya Clause in existing international multimodal transport regime. Those legal questions will analyze with qualitative approach, through a primary and secondary legal sources.3 This study conducted through library research and electronic data based.
II. GENERAL OVERVIEW OF INTERNATIONAL MULTIMODAL TRANSPORT CONTRACT
1. What is the multimodal transport?
Pursuant to Article 1.1 United Convention on International Multimodal Transport of Goods 1980,4 “International Multimodal Transport means the carriage of goods by at least two different modes of transport on the basis of multimodal transport contract from a place in one country at which the goods are taken in charge by the multimodal transport operator to a place designated for delivery situated in a different country. The operations of pick-up and delivery of goods carried out in the performance of a unimodal transport contract, as defined in such contract, shall not be considered as international multimodal
transport”.
2. Multimodal Transport Contract
According to Article 1.3 UN Convention 1980, “Multimodal Transport Contract means a
contract whereby a multimodal transport operator undertakes, against payment of freight,
to perform or to procure the performance of international multimodal transport”. The differences multimodal transport contract with other transport contract, the MTO act as a principal not as agent with the shipper.5 In several cases law, they called multimodal
transport contract with “door-to-door”, “end-to-end” or “roll-on-roll-off”. For the last terminology, it governs by unimodal Convention on the Contract for the International Carriage of Goods by Road (CMR) 1956.
3. Containerization
The development of multimodal transport was begun with revolution of containerization. The usage of containerization was started in 1920s, the Germany trader used a small boxes to carriage the goods by rail.6 The advantages of using container in multimodal transport are improving cargo capacity to carry a lot of goods, helping the carrier to handling the goods, it is not need a lot of space in a warehouse and declining damaged of
3
As a primary legal sources are the UN Conventions 1980, Unimodal Conventions, FIATA FBL, the Draft Instrument on Carriage of Goods [wholly or partly] [by sea] and cases law. The secondary legal sources are textbooks and journals related to the multimodal transport. In legal research, statutes, conventions, treaties, constitutions, administrative regulations and cases law are the primary sources, and law opinion as
secondary sources. See Shapo, Helen S., Walter, Marilyn R., Fajans, Elizabeth, Writing and Analysis in the Law, Revised Fourth Edition, New York Foundation Press, 2003, p.4
4
For hence will be called UN Convention 1980
5
Schommer, Tim, International Multimodal Transport Some thoughts with regard to the “Scope of
application”, “Liability of carrier” and “Other conventions” in the UNICITRAL Draft Instrument on the Carriage of Goods [wholly or partly] [by sea], p. 14
6
3
goods.7 They usually use the Series 1 type of freight container8. In Roll-On-Roll-Off, the containers are loaded onto trailer and the trailer loaded onto the ships. Containerization is just a technically and economically concept in multimodal transport.
4. Parties Involved in Multimodal Transport
There are a lot of parties involved in multimodal transport because this carriage of goods end-to-end services and particularly using more than one mode of transport.
Seller and Buyer, who did the contract sale of goods
Shipper or Sender; It could be the Seller or Buyer, the person who enters into the contract with the carrier
Consignee, a person entitled to delivery of the goods
Consignor, a person sending a shipment
Carrier, the person who enters a contract carriage with shipper to carry the goods
Multimodal Transport Operator; Pursuant to Article 1.2 UN Conventions 1980,
“means any person who on his own behalf or through another person acting on his
behalf concludes a multimodal transport contract and who acts as a principal, not as an agent or on behalf of the consignor or of the carriers participating in the multimodal transport operations, and who assumes responsibility for the
performance of the contract”.
Freight Forwarder or Intermediary, which is act as an agent when he made link between the cargo owner and customer and act as a principal when he will perform the contract with employing sub-contractors.9
Third Parties, the persons who may have a right to claim protection in a contract, even though he has not been an originally party in that contract. It could be the stevedores, a person who do a loading and discharging goods; terminal operator; warehouse man or a crew member.
III. HIMALAYA CLAUSE AND THIRD PARTIES 1. History of Himalaya Clause
Himalaya is a name of the highest and the youngest mountain in the world. It located passes through five nations, India, Bhutan, China, Pakistan and Nepal.10 This name is
7
Ibid.,p.10
8
which is “8 feet x 8 feet 6 inch end section and generally 20 or 40 feet long” , see UNCTAD Bulletin, No. 14, May-June 1992 and that is “a 20-foot long container is referred to as a TEU, 20-foot equivalent unit and is used as a general indicator e.g. of capacity of ships” See De Wit, The Global container population is currently approaching some 16 million TEU (Cargo System Website), para. 1.9 in Glass, David A., op.cit., p. 5
9
The Maheno (1977), 1 Lloyds Rep. 1 at 81 in Downie, Darcy Beamer, Freight Forwarders Liability during International Multimodal Transportation, Thesis, Institute of Air and Space Law, McGill University, Montreal, December, 1999, p. 15
10
4
used by a ship, S.S. Himalaya and there was an event occurred in that ship, which is being a history of usage Himalaya Clause, it called case of Adler v. Dickson11.
2. Definition of Himalaya Clause
Himalaya clause is a clause that usually used in contract carriage of goods through multimodal or sea, which is issued a clean Bill of Lading. The clause is defined to extend limitation liability of the agents to the third parties, who are involved to perform the obligations in the contract, even though he is not an originally party in the contract.12 A typically of Himalaya Clause in a clean Bill of Lading as follows:
“No servant or agent or independent contractor from time to time employed by the carrier shall be liable to the owner of the goods for any loss, damage or delay resulting from any
act or negligence on his part while acting in the course of his employment”.13
In fact, a lot of Bill of lading containing the Himalaya Clause but it is not clear enough, who the persons can rely on that clause. It caused the broad interpretation of Himalaya Clause and depends on the national legal systems. The third party could rely on Himalaya Clause in one case of law but in other cases they could not.
3. Rights of Third Parties
As usual, if the parties agreed to conclude a contract of sale, they bound to the contract itself. It is a general principle in the law of contract, “pacta sunt servanda”. The conditions are different, when the third parties not in direct involved in the original contract. He has the right not only to receive obligations but to get a protection from the promisor.14 There are two elements that affect the existence contract to give benefit for the third parties, such as assignment15 and relationships. The relationships mean whether the promisor acts as an agent or principal.16
Almost of the European continent jurisdiction refer to that interpretation but not in English Law. English law in strictly use the doctrine in common law contract for benefiting the third parties, there must be a privity rights and considerations.17 Privity
11
It was an event when a gangway fell in the S.S. Himalaya and threw a passenger (the Claimant) onto quayside below. The claimant claim against the master of the ship and the boatswain and they want to rely on carrier exemption liability in the passenger tickets. The decision of English Court held that the Claimant can not rely on the passenger tickets because there was not a privity contract between the carrier and the master of ship and the boatswain. This decision is used by the Common Law Countries, see
http://www.businesspme.com/UK/artcles/law/70/Himalaya-Clause.html
12
Wilson, John F, Carriage of Goods by Sea, Fourth Edition, Longman Pearson Education Limited, England, 2001, p. 160
13
http://www.duhaime.org/LegalDictionary/H/Himalaya Clause.aspx
14
Beale, Hugh; Tallon, Dennis; Bernardeau, Ludovic & Williams, Robert, Contract Law, Hart Publishing, p. 879-880
15
Example, there is a landowner under a contract through the contractor’s bank promised to pay the
building contractor’s. If there is an assignment, the contractors could get payment from the Bank, in other sides, the Banks obtain the payment directly from the contract was made by landowner and the contractors if the contract beneficiary of third parties is used. It shows a matter legal construction, See Beale, Hugh, etc., ibid., p. 880
16
Beale, Hug, etc., ibid.
17
5
rights, when there is a dispute arises from the contract, it only can against the parties involved in originally contract. Considerations are like an offer and acceptance, why I should do something if I do not get anything. The Lord Reid in Scruttons Ltd. v. Midland Silicones Ltd. was used that doctrine in his judgment.18 On the other cases, New Zealand Shipping Co Ltd. v AM Satterthwaite & Co Ltd. give rights to the third parties to rely on Himalaya clause because there was commercial relations between the consignee, the carrier and stevedore. It shows that the Himalaya Clause not always success.
There are rights of third parties in Article 6:110 Principles of European Contract Law19 and Contracts (Rights of Third Parties) Act 1999 in United Kingdom. The Principles of European Contract Law recognize the right of third parties to extend the limitation liability of the promisor unless the third party canceling the rights or by notice from the promisor or promisee. The Contract (Rights of Third Parties) Act 1999, “which came into
effect on 11 May 2000”20
was made to reform the doctrine in common law “privity contract”.21 As a general the Contracts (Rights of Third Parties) Act 1999 consists of ten sections.22
18
When the Scruttons as a stevedore could not rely on the extend limitation liability of carrier even though there is Himalaya clause in the Bill of Lading. It caused there was not clearly considerations, which is stated that scruttons is involved in originally contract.
19
Article 6:110 : Stipulation in Favour of a Third Party
1) a third party may require performance of a contractual obligation when it is right to do so has been expressly agreed upon between the promisor and the promise, or when such agreement is to be inferred from the purpose of the contract or the circumstances of the case. The third party need not be identified at the time the agreement is concluded
2) if the third party renounces the right to performance the right is treated as never accrued to it 3) the promisee may be notice to the promisor deprive the third party of the right unless:
a) the third party has received notice from the promise that the right has been made irrevocable, or
b) the promisor or the promise has received notice from the third party that the latter accepts the right
20
Wilson, John F, op.cit., p. 159
21
http://www.brunswickis.co.uk/DataStore/The%20Contracts%20(Rights%20of%20Third%20Parties)%20 Act%201999.pdf
22“
The Act sets out the circumstances in which a third party is to have a right to enforce a term of the contract (section 1), the situations in which such term may be varied or rescinded (section 2) and the defences available to the promisor when the third party seeks to enforce the term (section 3). It makes it
clear that section 1 does not affect the promisee’s rights, or any rights that the third party may have which
are independent of the Act (sections 4 and 7(1)). The Act does not apply to certain contracts (whether
6
IV. EXISTENCE OF THE RIGHTS OF THIRD PARTIES IN INTERNATIONAL MULTIMODAL TRANSPORT CONTRACTS CARRIAGE OF GOODS
1. Norfolk Southern Railway Company v. James N. Kirby, Pty Ltd., dba Kirby Engineering, and Allianz Australia Insurance Limited23
The goods were damaged in railroad stages because the train derailed. Kirby and Allianz
asked responsibility from Norfolk, “the District Court granted Norfolk partial summary judgment, limiting Norfolk’s liability to $500 per container, and certified the decision for
interlocutory review”.24 There was the Eleventh Circuit, who reversed the case with two legal issues, first, Norfolk could not rely on the ICC Bill of Lading and second, Kirby was not bound to Hamburg Sud Bill of Lading because the ICC was not act as a Kirby’s agent. In contrast, the Supreme Court of United States was held that Norfolk could rely on both Bills of Lading.
The first reason, Norfolk could obtain protection from the ICC Bill of lading. The ICC Bill of Lading contained route Australia, Savannah and Hunstville. Huntsville is 366 miles inland from Savannah. It certainly involved all of modes of transport and carrier including Norfolk. The second is related with issue, whether the intermediaries act as a principal or an agent. Some scholars are using terminology intermediaries and others with freight forwarders.
In Common Law related to agency law, a person who has authority to another, called a Principal and a person who act on his behalf and other parties agreed, called an agent. It enables the principal to make a contract with the third parties according to the agent’s influence.25 While in civil law, the principal will bind to the third parties, when the agent acted on behalf of the principal made a contract with the third parties. The third parties will know for who he will act and under what circumstances.26
Professor Schmitthoff in Kirby Case explains about agency law refer to English law27, it shows when the intermediaries or freight forwarders act as a principal, the contracts will
not binding the customer’s to the others. The Court has authority to interpret the vague clause in Himalaya Clause against the parties who are relies on it. The third parties would
23The Kirby case was “end
-to-end” transport used two modes of transport, by sea and inland (rail). It involved a lot of parties, Kirby as a cargo owner (machinery), ICC as a intermediary or freight forwarder, Hamburg Sud as a sub-contractor of ICC and Norfolk as a railroad carrier The ICC and Hamburg Sud issued a Bill of Lading, which is contained same route, Himalaya Clause but different in limitation liability Himalaya Clause in the ICC Bill of Lading, which extends liability limitations to downstream parties, including here, any servant, agent or other person (including any independent contractor)” and the
Hamburg Sud Bill of Lading, “all agents...(including inland) carriers....and all independent contractors” ,
See Supreme Court of the United States No. 02-1028, Argued October 6, 2004 and Decided November,9, 2004 Westlaw International Journals, 543 U.S. 14, 125 S.Ct.385
24
Kirby Case, ibid.
25
Beale, Hugh, etc., op.cit., p. 913
26Ibid.
27when the forwarder acts as an agent for the customer’s he obliged to ensure other parties perform the
7
not get benefits from the vague clause. It means, Himalaya Clause must clearly express intentions of the party who made.28
According to the Kirby Case, the US Supreme Court used the Common Carriage Doctrine and Great Northern Case, when the intermediary contracted the carriers, a cargo owner is limited to ask recovery of damaged goods on the limitation liability based on intermediaries and carriers agreed. Therefore, in this case the ICC acts as a Kirby’s agent for the special purpose to limit liability with the downstream carriers.
2. The UN Convention 1980
The UN Convention 1980 using “the modified uniform liability system”,29 it is a combination between the network liability system and uniform liability system. The network liability of MTO in localized damage, it will determine by unimodal conventions.30 If the damage could not be localized, the liability of MTO is the uniform liability system under Article 16.1 the UN Convention 1980.31 Article 15 UN Convention 198032 governs about the basis liability of MTO for his servants, agents and other persons who act to perform the contract. The article shows that third pasties have rights to rely on extend limitation liability of MTO. Therefore the UN Convention 1980 recognizes the rights of third parties, but unfortunately the conventions did not come into force until now.
The convention did not come into force because, first, in Article 3833 contain a broad interpretation about the settlement of disputes arise from the damage, delay or loss of goods. It will be difficult to determine whether the UN Convention 1980 or Unimodal Conventions or national would apply.34 Another reason is the Hamburg Rules did not come into force. The UN Convention 1980 is use the same liability system with the
28
Downie, Darcy Beamer, op.cit., p.55-56, See Chitty of Contract, 25th ed., Butterworths, London 1999 and Hollier v Ramble Motors (A.M.C) Ltd [1972], 2 QB. 71
29
Schommer, Tim, op.cit., p.27
30Ibid.
See Article 19 the UN Convention 1980
31
Article 16.1 the UN Convention 1980:
“The multimodal transport operator shall be liable for loss resulting from loss of or damage to the goods, as well as from delay in delivery, if the occurrence which caused the loss, damage or delay in delivery took place while the goods were in his charge as defined in article 14, unless the multimodal transport operator proves that he, his servants or agents or any other person referred to in article 15 took all
measures that could reasonably be required to avoid the occurrence and its consequences”
32“Subject to Article 21, the multimodal transport operator shall be liable for the acts and omissions of his
servants and agents, when any such servant or agent is acting within the scope of his employment, or of any other person of whose services he makes use for the performance of the multimodal transport contract, when such person is acting in the performance of the contract, as if such acts and omissions
were his own”
33
Article 38 the UN Convention 1980 ;Rights and Obligations Under Existing Conventions:
“If, according to articles 26 or 27, judicial or arbitral proceedings are brought in a Contracting State in a case relating to international multimodal transport subject to this Convention which take place between two States of which only one is a Contracting State, and if both these States are at the time of eentry into force of this Convention equally bound by another international convention, the court or arbitral tribunal may, in accordance with the obligations under such convention, give effect to the provisions
thereof”
34
8
Hamburg Rules to govern relationship between the MTO and Cargo Owner, the MTO and the sub-contractor. The prevailing of both conventions will be make predictability but it could not to realize.35
3. UNCTAD/ICC Rules
The UNCTAD/ICC Rules was made by the United Nations Conference on Trade and Development incorporated with the International Chamber of Commerce in 1991 according to multimodal transport document. This Rules is not Convention thus called a soft law instrument. It not binds the parties to use this Rules, they could rely on it if they are incorporating the Rules to their multimodal contract of carriage. Once the parties use the Rules, they could not to derogate the substance of the Rules.
In general, the Rules are recognizing the rights of the third parties under Himalaya Clause as long as they are acting within the scope of the Multimodal Transport Operator (MTO) employment or the acts and omissions are his own.36 It means the third parties could extend their liability to the carrier liability/the MTO. However, the MTO is not responsible for the delay of the goods unless there is a consensus about the time delivery between the Consignor and the MTO.37
The weaknesses of this Rules is not mandatory because it is just a soft law. It is depended on the parties of multimodal transport contract whether they would like to use it or not. Thus, the Rules are not binding to the parties involved in the multimodal transport contract of carriage.
4. FIATA Multimodal Transport Bill of Lading and Unimodal Coventions
Clause 2, paragraph 2.2 FIATA governs the rights of parties same as like the Article 15 UN Convention 1980. The validity of FIATA in international multimodal transport contracts are depends on the party involved, whether they will use it or not.
In this study, I limited the unimodal conventions only on the Convention on the Contract for the International Carriage of Goods by Road (CMR) and the Hague Visby Rules (HVR). The rights of third parties in CMR is depend on the contract itself, whether a single contract with successive carriers under Articles 34 and 3538 or a sub-contracts
35Ibid.,
p. 40
36
The MTO shall be responsible for the acts and omissions of his servants or agents, when any such servant is acting within the scope of his employment, or of any other person of whose service he makes use for the performance of the contract, as if such acts and omissions were his own, See Article 4.2 of the
UNCTAD/ICC Rules
37
See Article 5.1 of the UNCTAD/ICC Rules
38Article 34 CMR : “If carriage governed by a single contract is performed by successive carriers, each of
them shall be responsible for the performance of the whole operation, the second carrier and each
succeeding carrier becoming a party to the contrat of carriage, under the terms of the consignment note, by
reason of his acceptance of the goods and the consignment note” and Article 35: “A carrier accepting the
goods from a previous carrier shal give the latter a dated and signed receipt. He shall enter his name and
9
under Article 3.39 The distinctive between those articles are whether there is a reservation of consignment note. If the carriage of goods by road made in sub-contracts, the third parties could rely on the carrier liability.
In HVR the liability of carrier fall under two articles, those are article III and IV. Refer to Maxine Footwear40, if the carrier already did the overriding obligations under Article III41 then he will get right of immunities under Article IV. Article IV is govern the loss, delay or damage of goods by unseaworthiness, like fire, perils, negligence of management of ship, act of God and act of war. Under Article IV, carrier shall be relieved from liability if the damage or loss is not caused by him self but still he has to prove it.
In addition, the claimant can claim against the carriers and third parties based on tort under Article IV bis paragraph 1 HVR. Article IV bis paragraph 2 stated that third parties (a servants or agents) could extends limitation liability to the carrier if they are dependent contractor of the carrier. This article shows that HVR recognize the rights of third parties.
5. ASEAN Framework Agreement on Multimodal Transport
In a regional scope, ASEAN have a framework agreement on multimodal transport which is signed on 17 November 2005 in Laos, Vientiane. This Agreement only applies between the parties from ASEAN countries. The same as other Rules before, the Agreement is recognizing the rights of the third parties under Himalaya Clause. However, there are some conditions that the third party shall be fulfilled in order to extend their liability to the carrier or the MTO, such as:42
- If the third parties are not involved in carriage by sea or inland waterways; - If damage, loss or delay to the goods are not neglect of the agent;
- If the damage, loss or delay to the goods are not caused by the nautical fault of the master, mariner, pilot or the carrier servants;
- If damage, loss or delay are not caused by fire or an actual fault;
39“For the purposes of this Covention the carrier shall be responsible for the acts of omissions of his agents
and servants and of any other persons of whose services he makes use for the performance of the carriage, when such agents, servants or other persons are acting within the scope of their employment, as if such acts
or omissions were his own”
40
Maxine Footwear Company, Ltd., and Morin v. Canadian Government Merchant Marine, Ltd., [1959] 2
Llyod’s Rep. 105
41Article III.1 HVR: “ Carrier shall be bound before and at the beginning of the voyage to exercise due
diligence to : make the ship seaworthy, properly man, equip and supply the ship, make the holds,
refrigerating and cool chambers...” and Article III.2 HVR : “...the carrier shall properly and carefully load, handle, stow, carry, keep, care for, and discharge the goods carried”
42
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6. United Nations Convention on Contract for the International Carriage of Goods [wholly or partly] [by sea] or Rotterdam Rules
This draft was issued by United Nation Commissions on International Trade Law (UNCITRAL) in 2002 and it continuously change until the last draft43 which adopted by the United Nations on 11 December 2008 in Rotterdam.44 There are 25 (twenty five) States signed the Rotterdam Rules, Togo, the Netherlands, Denmark, France, the United States, Greece, Switzerland, Spain and Congo. Unfortunatelly, only 3 (three) States, Togo, Spain and Congo are ratified the Rotterdam Rules. That is the reason why the Rotterdam Rules never come into force.
The Rotterdam Rules is the “maritime plus” convention which governs carriage by sea and other transports in according to the sea carriage.45 This draft distinguishes definition of performing party and maritime performing party. It caused by differences of obligation and liability between them. There are some criteria that the maritime performing party could be relied on the carrier liability under the Rotterdam Rules.46 The Article 447 (four) and 19 (nineteen) of the Rotterdam Rules are the Himalaya Clause for the carrier and the maritime performing party. It means that the Rotterdam Rules give protection to the rights of the third parties which are involved in the multimodal transport contract.
The significant alteration for the liability of the carriers, it is not just loss, delay or
damage but “breaches of its obligations” under this Rules. It means the Claimant can claim against the carrier based on tort. However, this Rules still lack of substance for the liability of carrier and third party when the damage of goods occurred in unknown place.48 The most problematic is the Rotterdam Rules never come into force because it has never been ratified by 20 (twenty) countries. Thus, the multimodal transport contracts of carriage do not have an international instrument in hard law.
43
United Nation Commissions on International Trade Law Working Group III (Transport Law), twenty first sessions, Vienna 14-25 January 2008
44
It causing the Convention called the Rotterdam Rules
45
Article I.1 of the Rotterdam Rules
46
(a) The Maritime performing party received the goods for carriage in a Contracting State, or delivered them in a Contracting State, or performed its activities with respect to the goods in a port in a Contracting States; and (b) The occurrence that caused the loss, damage or delay took place: (i) during the period between the arrival of the goods at the port of loading of the ship and their departure from the port of discharge from the ship; (ii) while the maritime performing party had custody of the goods; or (iii) at any other time to the extent that it was participating in the performance of any of the activities contemplated by the contract of carriage, See Article 19 of the Rotterdam Rules
47
(1) Any provision of this Convention that may provide a defence for, or limit the liability of, the carrier applies in any judicial or arbitral proceeding whether founded in contract, in tort, or otherwise, that is instituted in respect of loss of, by a contract of carriage or for the breach of any other obligation under this Convention against: (a) The carrier or a maritime performing party; (b) The Master, crew or any other person that performs services on board the ship; or (c) Employees of the carrier or a maritime performing party
48
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V. CONCLUSION
There is possibility for the third parties to rely on Himalaya Clause within the international multimodal transport contract carriage of goods. It is depended on the applicable law of the contract or case by case. There are some rules (UNCTAD/ICC Rules and FIATA Multimodal Transport Bill of Lading) that regulates about the rights of the third party but they are just a soft law. It is not mandatory to the parties which are involved in multimodal transport contract. The Rules will apply if they are agreed to incorporate them into their contract. There are also international conventions according to multimodal transport contract but they never come into force.
Based on those conditions, the multimodal transport contract is often use a unimodal convention in each stage. For example, they could be use the CMR for the land transportation or the HVR for the sea transportation. This method is causing difficulty for the parties. They have to use different legal instruments in their contract which have different basis and limit of carrier liability especially when the MTO hire the third party to perform the multimodal transport contract. It is going to be a problem when the damage, delay or loss to the goods caused by the third party. Could the third parties rely on Himalaya Clause? Whether the third parties could rely on Himalaya Clause based on the relationships of the carriers or intermediaries or freight forwarders or the MTO to their cargo owner. If the carriers or the MTO act as an agent of the cargo owner then the third parties could rely on Himalaya Clause.
Besides that, there are some solutions in order to give legal certainty of the rights of the third parties under Himalaya Clause, such as:
1. Based on the multimodal transport contract itself.
The parties are free to determine substance of the multimodal transport contract as long as it is based on consensus. It is not conflict with the law and public order. The multimodal contract parties could make the limitation of the carrier/the MTO and the third parties liability (when the carrier/the MTO shall be liable for the act of the third parties or not; when the third parties could extend their liability to the carrier/the MTO under Himalaya Clause). Their consensus about the rights of the third parties under Himalaya Clause is binding. It is related with pacta sunt servanda as the general principle of contract law.
2. International instrument in hard law
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LITERATURE I. BOOKS
Glass, David A., Freight Forwarding and Multimodal Transport Contracts, LLP, London Singapore, 2004
Beale, Hugh; Tallon, Dennis; Bernardeau, Ludovic & Williams, Robert, Contract Law, Hart Publishing
Wilson, John F, Carriage of Goods by Sea, Fourth Edition, Longman Pearson Education Limited, England, 2001
Shapo, Helen S., Walter, Marilyn R., Fajans, Elizabeth, Writing and Analysis in the Law, Revised Fourth Edition, New York Foundation Press, 2003
Downie, Darcy Beamer, Freight Forwarders Liability during International Multimodal Transportation, Thesis, Institute of Air and Space Law, McGill University, Montreal, December, 1999
II. JOURNAL
Westlaw International Journals, 543 U.S. 14, 125 S.Ct.385
III. INTERNET ARTICLES
http://www.gfptt.org/entities/TopicProfile.aspx?tid=d7f36aOa-a4cg-48fg-9767-b67fd6ad4768
http://www.businesspme.com/UK/artcles/law/70/Himalaya-Clause.html http://www.duhaime.org/LegalDictionary/H/Himalaya Clause.aspx
http://www.brunswickis.co.uk/DataStore/The%20Contracts%20(Rights%20of%20Third %20Parties)%20Act%201999.pdf
http://www.alway-associates.co.uk/legal-update/article.asp?id=18
http://www.himalaya2000.com/himalayan-facts/himalayan-facts.html
IV. INTERNATIONAL INSTRUMENT
The UN Convention 1980
13 FIATA Bill of Lading
The International Carriage of Goods by Road The Hague Visby Rules
ASEAN Framework Agreement on Multimodal Transport
United Nations Convention on Contract for the International Carriage of Goods [wholly or partly] [by sea]
