독립계약자에 대한 히말라야 약관의 확대 적용

A Study on Expansion of the Himalaya Clause to the Independent Contractors: Based on the Cases in the United States

Purpose - The purpose of this paper is to review the doctrine of privity of contracts under common law and to analyze some issues of Himalaya Clause cases under carriage of goods by sea in United States. Design/Methodology/Approach - This paper studies scopes, application, and requirements of the Himalaya Clause by analyzing cases in the United States, such as Robert C. Herd & Co., Inc., v. Krawill Machinery Corp., 359 U.S. 297 (1959), and Norfolk Southern Railway Co. v. James N. Kirby, Pty. Ltd., 125 S.Ct. 385 (2004). Findings - This paper confirms that contracts for the carriage of goods by sea must be construed like any other contracts: by their terms and consistent with the intent of the parties. Also, the paper finds that an independent contractor such as a stevedore, a terminal operator, an inland carrier, and a railroad, could be the beneficiary of a valid Himalaya Clause by analyzing U.S. courts cases. Research Implications - This paper sheds light on some legal issues surrounding the Himalaya Clause by comparative review. Also, it offers practical implications and suggestions that revise some articles of the Korean Commercial Code for the extended application of the Himalaya Clause.