Lloyd's Maritime and Commercial Law Quarterly
THE HIMALAYA CLAUSE IN SOUTH AFRICA
The Sanko Vega
The Himalaya clause has been the subject of litigation and commentary around the world. But Santam Insurance Co. Ltd. v. S. A. Stevedores Ltd. (The Sanko Vega)
1 is the first reported decision in South Africa where the effectiveness of the clause under Roman-Dutch law has been tested. While the court upheld the Himalaya clause, it departed somewhat from the position under English law. However, that departure was not, in my view, justified. Consider first the facts of the case.
The facts
A consignment of engines belonging to Toyota S. A. Manufacturing Ltd. was discharged from the Sanko Vega in Durban on 7 May 1986. The discharge of the cargo was carried out by servants of the defendant by means of a crane. According to the plaintiff, a case toppled off a sling due to the negligence of the defendant’s servants, in consequence of which the engines were damaged. On 5 May 1986, Toyota ceded its claim against the defendant to the plaintiff and this cession was accepted on 16 May 1986.
When the matter came to trial, the issue was whether the defendant, acting as servant or agent of, or independent contractor to, the owner or charterer of the vessel (the carrier) for the purpose of the carrier’s obligation to discharge the cargo was vested with the defences in the bill of lading. In terms of cl. 4, the defences from, or limitations of, liability incorporated in the bill of lading were applicable to the carrier. The defence relied upon cl. 27, which provided that suit must be brought within one year after delivery of the cargo, and also upon cl. 27, which limited liability to £100 or its equivalent per package or freight unit or shipping unit. The issue was, therefore, whether the one-year provision and the limitation per package provision introduced by the Hague Rules had been extended to the stevedores by the Himalaya clause.
The Himalaya clause in other jurisdictions
When the matter came before Wilson, J., he widely canvassed the law in other jurisdictions. Passages were quoted by his Lordship from well-known English
317