Carlo Corcione’s article ‘The evolution of third parties protection in carriage of goods by sea: from the Himalaya clause to the Himalaya protection’, published in the European Transport Law (2014), has been referenced in the UNCITRAL source materials site.
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Transport is a complex world but also very simple, or at least it was, in its main and oldest rule of managing and allocating risks between two parties in a contract. A third party (either from carrier or shipper) was considered outside the risk. Evolution of transport has made third parties an essential component of the risk and therefore worthy of protection.
This paper tests whether in carriage of goods by sea the protection can still be delimitating “water wise”.
The author assumptions are that carriage of goods by sea is shifting from a bilateral sector (i.e. carrier and shipper) to a multilateral one and that the categories of third parties have broadened from ship-related (i.e. master, servants, crew) to much wider categories of contractors which are outside the contract of carriage of goods by sea.
The new convention on the topic (The Rotterdam Rules) is the solution offered by the international community to tackle the problem. It is the author opinion that the Rotterdam Rules are “too salty” in the sense that they ground third parties protection from a geographic/maritime perspective while authorities worldwide have taken a more commercial approach, keeping the old and controversial method of limitation clauses in the contracts the only practical remedy.