Himalaya clause

The Himalaya clause (해상운송인의 대리인이 운송인의 책임제한을 원용할 수 있도록 한 히말라야 조항) is a contractual provision in which a third party who is not a party to the marine transportation contract could be benefited by asserting the rights of the contracting party. The name was derived from the trial concerning the responsibilities of the crews not the owner of the U.K. ship Himalaya.

The Himalaya clause is acknowledged by case by case in each country. Independent contractor like a terminal operator is excluded from the Himalaya clause unless it is explicitly set forth in the bill of lading in question. In Korea, this clause is recognized by the Commercial Act and other relevant laws as explained below.

Key words
Himalaya clause, marine transportation, carrier, carriage

Interpretation of the Himalaya clause
The so-called Himalaya clause has different contents about the scope of the parties concerning shipping who shall claim the plea that could be argued by the carrier, or the limit of the restriction on responsibilities, but, as it is internationally used, generally recorded on the back of a bill of lading in relation to the danger or uniqueness of sea freight. And it is indirectly related to the fee that is to be borne by the client.

So it shall not be deemed to fall under the "clause that has lost fairness by going against the principle of good faith" stipulated in Article 6 Section 1 of the Regulation of Standardized Contacts Act or any of the clauses that fall under Article 6 Section of the same Act.

Supreme Court cases
The first question which is usually raised in the trials is whether an independent contractor such as the terminal operator may invoke the Himalaya clause. Under the international customs in general, this clause includes anyone participating in the performance of the carriage other than the carrier on the back of the bill of lading.

Second, with the same purport as explained above, the court below decided that the defendant terminal operator that was storing the received freight at a bonded lot pursuant to a service contract with a shipping company shall claim the plea about the limitation of responsibilities of a carrier in accordance with the Himalaya clause on the back of the bill of lading about the freight.

In this case, which is justifiable, and the decision by the court below shall be deemed to include this purport. And the argument made by the plaintiff that the Himalaya clause is invalid as it violates Article 6 of the Regulation of Standardized Contacts Act is groundless. So it shall not be deemed to have violated the law by misunderstanding legal reasoning concerning the validity and the scope of the application of the Himalaya clause or by lacking a judgment that affected the decision, as argued in the Reasons for Appeal.