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Himalaya clause note

I’ve added a minor-league version of a so-called Himalaya clause to the TATE Compendium. It’s intended to protect only individuals, not corporate subcontractors or other entities like regular such clauses, as explained below.

x.x A Himalaya clause applies in favor of the protected individuals, defined as any and all employees, servants, agents, or other individuals of <each party> (the protected party) whose services are utilized in the protected party’s performance of its obligations or exercise of its rights under this Agreement.

(a) No protected individual will be liable to another party, nor to any individual or organization claiming under or through the other party, for any loss, damage or delay arising or resulting (directly or indirectly) from such services.

(b) Each protected individual is to benefit from every protective provision in this Agreement that favors the protected party, as though that provision were expressly for the protected individual’s benefit. To that extent (only), in entering into this Agreement the protected party is deemed acting as agent or trustee on behalf of, and for the benefit of, each protected individual.

(e) Protective provisions include, for example, provisions (if any) concerning limitation of liability; forum selection; choice of law; attorneys’ fees; and arbitration and other dispute-resolution procedures.

Actual Himalaya clauses are typically found in bills of lading that establish contract terms for the carriage of goods. They take their name from an English case about a vessel named The Himalaya. They’re intended to prevent not only a carrier’s employees, etc., but also its subcontractors, from being sued, possibly in some far-off jurisdiction, and to give them the benefits of forum-selection clauses and the like. See generally the U.S. Supreme Court opinion in Norfolk Southern Railway Co. v. James N Kirby Pty Ltd, 542 U.S. 935 (2004) (reversing appellate court decision: Himalaya-clause protections applied to railroad carrying goods on final leg of voyage as well as to ocean carrier); see also the Wikipedia article on Himalaya clauses.

In some jurisdictions, for non-maritime contracts, the enforceability of the clause above might be open to question (e.g., on privity-of-contract grounds). In many non-maritime contracts it might well be overkill.

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