Can an actual carrier rely on a circular indemnity clause in a multimodal bill of lading?

 

Yes, they can, in the US.

In Royal Smit Transformers BV v Onego Shipping & Chartering, and others Case 17-30543, the US Court of Appeals for the Fifth Circuit  on 2nd August 2018 held that actual carriers could rely on a circular indemnity provision in a ‘Himalaya’ clause in a through bill of lading as a complete defence to a claim brought against them by the shipper under that bill. Royal Smit contracted with Central Oceans USA to ship its transformers from the Netherland to Louisiana. The arrangement was established by a multimodal through bill of lading between the parties. Central Oceans made separate contracts with actual carriers for the three legs of the journey; the sea voyage to New Orleans; rail carriage to St Gabriel; truck carriage to the final destination. The actual carriers were not involved in the multimodal bill of lading and Royal Smit were not involved in the contracts made by Central Oceans with the actual carriers.

The bill of lading contained a ‘Himalaya’ clause which provided:

  1. Defenses and limits for [Central Oceans], Servants, etc.

. . . .

(b) [Royal] undertakes that no claim shall be made against any servant, agent, or other persons whose services [Central Oceans] has used in order to perform the Multimodal Transport Contract and if any claim should nevertheless be made, to indemnify [Central Oceans] against all consequences thereof.

(c) However, the provisions of this Contract apply whenever claims relating to the performance of the Multimodal Transport Contract are made against any servant, agent or other person whose services [Central Oceans] has used in order to perform the Multimodal Transport Contract, whether such claims are founded in contract or in tort. In entering into this Contract, [Central Oceans] . . . does so not only on his own behalf but also as agent or trustee for such persons.

The transformers were delivered to the final destination in January 2016, where an inspection revealed that the transformers had been damaged by “excessive vibration” somewhere along the journey. When Royal Smit sued the three actual carriers they relied on cl.15(b), the ‘circular indemnity’ provision, by way of complete defence. The District Court agreed. . Relying on two Supreme Court opinions, Norfolk Southern Railway Co. v. Kirby, 543 U.S. 14 (2004) and Kawasaki Kisen Kaisha, Ltd. v. Regal-Beloit Corp., 561 U.S. 89 (2010), the court concluded that “actual carriers who fall within the scope of Himalaya Clauses can rely on those clauses to limit their liability.” This was the case with the particular Himalaya provision relied on by the actual carriers in the present case. The position was not affected by the separate contracts negotiated by the actual carriers with Central Oceans, such as the non-negotiable bill of lading issued by the sea carrier, Onego.

The Fifth Circuit has now upheld this decision. The clause did not fall foul of s.3(8) of  COGSA 46 U.S.C. § 30701.  A Himalaya Clause that protects downstream carriers from suit by a cargo owner did not, in and of itself, limit the cargo owner’s ability to receive the recovery to which it is entitled. Royal had agreed with Central Oceans to a COGSA-authorized damages limitation and the mere fact that it must recover its remedy only from Central Oceans did not prevent it from receiving the full measure of that bargain. Nothing in the Himalaya Clause precluded Central Oceans from suing the defendants to recoup its losses from Royal.

The Court also rejected Royal’s arguments that it had never agreed to be bound by the Himalaya clause in the bill of lading. Royal had based its claim on the bill of lading and had therefore accepted the terms of the bill of lading including unnegotiated clauses (Mitsui & Co. (USA), Inc. v. Mira M/V, 111 F.3d 33, 36 (5th Cir. 1997)). Furthermore,  basic principles of maritime law governing the interpretation of contracts foreclosed Royal’s argument that the court should look to extrinsic evidence to discern an intent contrary to the plain text of the bill of lading. Only if the written language of the document was ambiguous, which was not the case here, could the court look beyond the written language to determine the parties’ intent.

The decision is good news for sub-contractors under multi-modal bills of lading involving carriage to the US. The position regarding such clauses under English law is somewhat different. First, the circular indemnity provision does not provide a defence to the actual carrier but provides a right to the carrier under the bill of lading to step in and prevent suit against its sub-carrier by the shipper/holder of the bill. Second, where an actual sea carrier is involved, art III(8) of the Hague Rules has been held to render null and void a ‘Himalaya’ clause giving the sub-contractor a complete exemption from liability (The Starsin  [2004] 1 AC 715 ) and the same is probably the case with a circular indemnity clause.

 

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