Himalaya Clause

The Hague-Visby Rules have introduced a completely new Article and the intention of this was to add to the rules, provisions in order that any servants or agents of the carrier would be entitled to benefit from the definitions and limits of liability presently available to the carriers. Such servants or agents of the carrier would not, however, be able to avail themselves of these provisions if it were to be proved that any loss or damage resulted from an act or omission of the servant, or agent, done with intent to cause damage or with knowledge that damage would probably result. The clause gets its name “Himalaya” as this was the ship involved in the case of Adler v Dickson (1955) when a passenger injured herself on a badly secured ladder but found that the conditions on the passenger ticket prevented her from taking action against the shipowner under their contractual agreement so instead she successfully sued the captain under tort. The “Himalaya” clause expressly prevents this by stipulating that servants of the owner have the same limitation of liability protection as the shipowner under the B/L. Prior to the Hague-Visby Rules, this clause had to be specifically written in to the contract of carriage. There are considerable rights available to a shipowner with exemptions or immunities from liability. A number of these including unseaworthiness, deviation and limitation of liability provisions have already been examined in some detail. However, there are many other exemptions: “Act, neglect or default of the Master, Mariner, Pilot of servant to the Carrier in the navigation or in the management of the ship”. This exemption from liability must be considered very carefully and a comparison made between faults or errors in the navigation of the vessel as opposed to faults or errors in the management of the vessel. Obviously, related to navigation, such errors would refer to navigational errors possibly resulting in collision or in grounding and may result in the shipowner being able to avoid liability by pleading the referred exception. With regard to the exception related to act, neglect or default of the Master, etc. in the management of the ship, then this is somewhat complicated in that it must be decided what situation would result in an error in the management of the ship as opposed to act, neglect or default of the Master, Mariner, etc. in the management of the cargo itself. A distinction must be made, therefore, between “want of due care of the cargo” and “want of due care of the vessel by itself indirectly affecting cargo”.