히말라야 約款의 效力에 관한 比較法的 考察

The Himalaya clause typically appears in the ocean carrier's bill of lading. The Himalaya clause is any clause in a bill of lading that seeks to extend to a non-carrier, such as a stevedore, a terminal operator, a drydock company, any defense, immunity, limitation, or other protections the carrier receives under the Hague and Hague-Visby Rules or other domestic laws. This clause arose as the result of a decision of the English Court of Appeal in the case of Adler v. Dickson (The Himalaya), but the problem of the Himalaya clause is that a person may benefit from the terms of a contract into which he has not entered. At the English law, traditionally, it would not suffice simply to say that the third party was to be protected, or that he was to be deemed to be a party to the contract. But the Himalaya clause was considered in the Eurymedon and The New York Star, where it was held to be capable of protecting the third party. United States law on the topic of the Himalaya clause began when the 5th Circuit was confronted with A.M. Collins v. Panama Railway. Collins allowed a third-party, a railroad, to benefit from the limitation contained in the bill of lading. But the U.S. Supreme Court in Robert Herd v. Krawill Machinery overruled Collins, and put a stop to third parties benefiting from exculpatory clauses in bills of lading to which they were not a party. A more liberal understanding of Himalaya clause has been demonstrated by the U.S. Supreme Court in its decision of 2004, in James N. Kirby Pty. Ltd. v. Norfolk Southern Railway Co. Under the German law, the validity of the Himalaya clause was based on the contract for a third party. A Stevedore or a terminal operator can undoubtedly rely on a bill of lading clause extending the carrier's limitations of liability to third parties, because section 328 of the German Civil Code explicitly permits contracts for the benefit of a third party. Therefore, the obstacle that the English third-party beneficiary rule creates in Commonwealth countries simply does not exist. France has solved the problems related to the Himalaya clause by enacting exemplary legislation governing the liability of stevedores. The Law of June 18, 1966 of France, at art. 53 establishes the basis of the stevedore's liability, while proving five exceptions which may nevertheless be overcome if the plaintiff proves that the loss or damage was due to the fault of the stevedore or of his employees. In Korean civil law, like Germany, it is the contract for a third party, section 539 of Korean Civil Code, that is a useful legal ground of the acceptance of the Himalaya clause. Therefore, under the Korean law a Himalaya clause is valid as the contract for a third party. The contract for a third party may solve the problems related to the Himalaya clause cases. Recently, the Himalaya clause was upheld in the 2007 Da 4943 decision by the Korean Supreme Court. The Hague-Visby Rules do not deal with the Himalaya problem effectively because of its coverage of servants and agents of the carrier (such servant or agent not being an independent contractor). Although the Hamburg Rules do not include the exclusion of an independent contractor, it can't solve the Himalaya problem completely. But UNCITRAL's new convention draft instrument dealing with "door-to-door" contract of carriage perfectly solve the problem of the Himalaya clause. Nowadays, the validity of the Himalaya clause is recognized in most jurisdictions. So, it is clearly an important issue that requires an international solution. Therefore, we must keep an eye on the Himalaya clause and its acceptance.