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However, when the bill of lading is negotiated to a bona fide third party then the bill of lading becomes conclusive evidence where no contradictory evidence can be introduced. It is because the third party cannot examine the actual shipment and can only pay attention to the document itself, not survey or examination of the shipment itself. [20]
A Himalaya clause is a contractual provision expressed to be for the benefit of a third party who is not a party to the contract. Although theoretically applicable to any form of contract, most of the jurisprudence relating to Himalaya clauses relate to maritime matters, and exclusion clauses in bills of lading for the benefit of employees, crew, and agents, stevedores in particular.
Grant v Norway (1851) [1] is a case on the Law of Carriage of Goods by Sea; but since 1992 it has no longer been good law.. This was an action upon the case by the indorsees of a bill of lading, against the owners of a vessel, to recover the amount of advances made by the former upon the bills of lading, the goods never having in fact been shipped.
Although the contract of carriage (as evidenced by the bill of lading) was bilateral, the bill of lading operated as a unilateral contract [5] between the shippers and the stevedores; and this unilateral contract was activated by performance (unloading of the drill), and the stevedore was then entitled to rely upon the protections within the ...
The bill of lading must clearly intend to benefit the third party. It is clear that when the carrier contracts with the consignor , it also contracts as an agent of the stevedore. That is, either the carrier must have had authority by the stevedore to act on its behalf, or the stevedore must later ratify (endorse) the actions of the carrier.
Scruttons Ltd v Midland Silicones Ltd [1961] UKHL 4, [1962] AC 446 [1] is a leading House of Lords case on privity of contract.It was a test case in which it was sought to establish a basis upon which stevedores could claim the protection of exceptions and limitations contained in a bill of lading contract to which they were not party. [2]
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