The Himalaya Clause Crosses Privity's Far Frontier - Norfolk Southern Railway Co. v. James N. Kirby, Pty Ltd.
![handle is hein.journals/jmlc36 and id is 225 raw text is: Journal of Maritime Law & Commerce, Vol. 36, No. 2, April, 2005
The Himalaya Clause Crosses Privity's Far
Frontier. Norfolk Southern Railway Co. v.
James N. Kirby, Pty Ltd., 125 S. Ct. 385, 2004
AMC 2705 (2004)
Attilio M. Costabel*
This is a maritime case about a train wreck
-Justice Sandra Day O'Connor
I
INTRODUCTION
Norfolk Southern Railway Co. v. James N. Kirby, Pty Ltd.I is one decision
by the Supreme Court of the United States that is not going to pass unno-
ticed. It will probably become famous as the maritime case about a train
wreck,2 as Justice O'Connor aptly described it with her wonderful humor
that sounds like a rebuke in disguise: a rebuke for decades of tormenting a
pure maritime issue with the strict orthodoxy of land-based common law.
Kirby discusses the Himalaya clause,3 found routinely in contracts of
carriage by sea that extends certain carrier's exonerations to parties not part
of the contract of carriage.4 This article describes the tension between the
commercial need for extending protective clauses to certain third parties (the
third-party beneficiary) and the legal constraints arising from the
entrenched common-law doctrine of privity. The article then describes the
*Member, Rumrell, Costabel, Warrington & Brock, L.L.P. (Miami). B.A., Genoa University; J.D.,
University of Miami. Adjunct Professor of Law, St. Thomas University School of Law.
1125 S. Ct. 385, 2004 AMC 2705 (2004).
'Id. at 390. 2004 AMC at 2707.
'See id. at 391, 2004 AMC at 2708. The clause is called Himalaya from the name of the ship in the
seminal case, Adler v. Dickson, [1955] 1 Q.B. 158, [1954] 2 Lloyd's Rep. 267 (C.A.). See text at notes
23-39 infra.
'125 S. Ct. at 391, 2004 AMC at 2708. Rivers of ink have flown about the Himalaya clause and its
origins. See, e.g., William Tetley, The Himalaya Clause-Revisited, 9 J. Int'l Mar. L. 40 (2003) (concise
and clear recount of its origins), available at http://tetley.law.mcgill.ca/maritime/himalaya.pdf.
217](ViewImageLocal?handle=hein.journals/jmlc36&div=15&collection=&method=preview&ext=.png&size=3)
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The Himalaya Clause Crosses Privity's Far Frontier - Norfolk Southern Railway Co. v. James N. Kirby, Pty Ltd.
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