鐵道運送人의 히말라야 約款상 責任制限規定 원용가능성- 美國 聯邦大法院 2004.11.9. 커비 사건을 중심으로-

Abstract

The U.S. Supreme Court' Kirby case(Nov. 9, 2004) in relation to the availability of limitation of liability based on Himalaya clause Under the combined transport contract, Mr. Kirby as the shipper made claims against Norfolk Southern Railway Co. as the inland independent contractor of the ocean carrier, Hamburg Sud. The ICC, the freight forwarder as the contracting carrier issued a house bill of lading to Mr. Kirby and then Hamburg Sud as the ocean carrier issued a master bill of lading to the ICC as the shipper. Both bills of lading contain the so-called Himalaya clause. Norfolk invoked the package limitation against Mr. Kirby. The U.S. Supreme Court applied the prevailing third party beneficiary theory to the case, which is different from that of the U.K. common law but very similar to that of the Korean law. The Court regarded Norfolk as the member of the independent contractor under the Himalaya clause even though it did not have a clearly stated wordings and allowed Norfolk to enjoy the benefit of the limitation under the Himalaya clause in the house bill of lading. This kind of judgment will be likely to be supported under Korean law. The Court also regarded the freight forwarder partly as the agent of the shipper for the limited purpose of the limitation of liability while it totally agreed with the allegation of the plaintiff that it acted as the principal rather than the agent when it made the contract with the ICC. Therefore, Mr. Kirby as the shipper was in the status of one of the parties of the contract in relation to the master bill of lading and thus Norfolk was able to invoke the benefit of the limitation of liability against Mr. Kirby. This kind of limited agency theory will not be supported by the Korean court.