선하증권상의 Himalaya 조항에 관한 실무적 고찰

A Practical Study on the Himalaya Clause under B/L

The purpose of this study aims to analyse the practical study on the Himalaya clause under Bills of Lading. The clause takes its name from a decision of the English Court of Appeal in the case of Adler v. Dickson (The Himalaya) [1954] 2 Lloyd's Rep 267, [1955] 1 QB 158 [1]. A clause in a transportation contract purporting to extend liability limitations which benefit the carrier, to others who act as agents for the carrier such as stevedores or longshoremen. Usually, a Himalaya clause will be placed within the bill of lading or such other transportation contract. By such a device, the carrier or shipper attempts to cover and shield companies or persons it employs to assist in the transportation or loading or unloading of goods, with whatever liability exemptions, limitations, defences it may have with the owner of the goods. Although the decision in The Himalaya is clear and unambiguous, the reasoning underpinning the case is still the subject of some debate. The courts at various times have suggested that the exception to the common law rules of privity of contract may be founded upon "public policy" reasoning, the law of agency, trust arrangements or (with respect to goods) by the law of bailment rather than the law of contracts.