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Company or causes the Company to deal with or handle Goods of a dangerous or damaging nature, or Goods likely to harbour or encourage vermin or other pests, or Goods liable to taint or affect other goods, whether declared to the Company or not, he shall be liable for all loss or damage arising in connection with such Goods and shall indemnify the Company against all penalties, claims, damages, costs and expenses whatsoever arising in connection therewith, and the Goods may be dealt with in such manner as the Company or any other person in whose custody they may be at any relevant time, shall think fit. Comment on Clause 18 This clause reflects the wording of Clause 15 with which it is connected. Clause 15 confers the BIFA Member’s right to refuse to deal with such goods and to remove or deal with them at the Customer’s expense. Clause 18 requires the Customer to indemnify the BIFA Member against liability for penalties, etc, incurred for such goods and extends the liberty to dispose of them. Clause 19 The Customer undertakes that no claim shall be made against any director, servant or employee of the Company which imposes or attempts to impose upon them any liability in connection with any services that are the subject of these Conditions, and, if any such claim should nevertheless be made, to indemnify the Company against all consequences thereof. Comment on Clause 19 The purpose of this clause is to prevent a Customer from circumventing legal action against the BIFA Member (who would have the protection of the BIFA STC) by suing a director, servant or employee of the BIFA Member. As explained at the beginning of this article, it is a kind of Himalaya Clause, so-called after the case in which an injured person sued the ship’s master instead of the shipping company. It is intentional that this clause has no reference to the BIFA Member’s sub-contractors.
have written the exclusion clause on its tickets so that neither it nor any of its employees would have been liable, it had not done so. Consequently the court upheld Mrs Adler’s claim against Captain Dickson and awarded her damages. Himalaya clauses are therefore designed to ensure that claims can Know your BIFA Standard Trading Conditions 2021 Two small clauses are explained in this edition of BIFAlink . You will see from the text that clause 19 has been described as a ‘Himalaya Clause’ and such clauses can be found on shipping line bills of lading “ Himalaya only be pursued against the principal carrier and only in accordance with the other conditions of the contract.
T he ‘Himalaya Clause’ takes its name from the 28,000 grt (gross registered tonnage) P&O liner Himalaya, built in 1949, to provide a comfortable, if slow, means of transport from UK to India and Australia in the days before mass air travel, and the case of Adler v Dickson. In the early 1950s, Mrs Adler, a passenger on the ship, was disembarking when the gangway collapsed, throwing her some 5 m to the ground and causing her serious injuries. The ticket conditions contained an exclusion clause which meant that P&O’s liability for the accident was extremely limited, so Mrs Adler instead sued the master, Captain Dickson, and the bosun for compensation. In its decision in 1955, the English court of appeal stated that it was permissible for an exclusion clause to extend to protect the principal’s employees and agents, but such extensions had to be explicit. Although P&O could therefore
clauses are designed to ensure that claims can only be pursued against the principal carrier and only in accordance with the other conditions of the contract
Himalaya made its last journey, to the breaker’s yard in Taiwan in 1974, but its name lives on in law books and bills of lading. Thanks to Ian Boyle there is a history and photographs of the Himalaya at this URL: http://www.simplonpc.co.uk/PO_Hi malaya_1949.html Clause 18 Without prejudice to any rights under Clause 15, where the Customer delivers to the
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