NEW ORLEANS (Louisiana Record) — A Houma-based tools company contractually relinquished any rights to damages from two of three companies being sued in a maritime case when it approved a bill of lading that contained a "Himalaya clause", a federal judge ruled earlier this month.
When Global Oil Tools approved the bill of lading with the clause, it gave up rights to damages from Hapag-Lloyd America and Ports America Louisiana, said U.S. District Court Judge Sarah S. Vance, on the bench on Louisiana's Eastern District, in her 16-page order and reasons handed down April 2.
"The Himalaya clause in the relevant bill of lading forecloses the liability of Hapag-Lloyd and Ports America to [Global Oil Tools," Vance said. "Ports America is further entitled summary judgment on two crossclaims against it because it was not negligent."
Vance granted motions for summary judgment filed by Hapag-Lloyd and Ports America, which invoked the Himalaya clause, and dismissed Global Oil Tools' claims against them with prejudice. Vance also dismissed with prejudice crossclaims against Ports America by Expeditors International of Washington and Andrea Merzario.
The Himalaya clause reportedly is so named for an English legal case that involved a ship called the "Himalaya".
Global Oil Tools, which sells oil and gas exploration tools, contracted with Expeditors International of Washington to get to two containers shipped from New Orleans to the Black Sea port of Constanta in Romania aboard a shipped operated by Hapag-Lloyd in March 2016, according to the background portion of Vance's order. Ports America loaded the containers onto the ship.
The containers held "a large number of tools, allegedly worth $2.4 million, as well as intellectual property", the sale of which Global Oil Tools had negotiated with "an overseas buyer," the order said.
Global Oil Tools twice told Expeditors International to delay the shipment, an instruction which Expeditors International passed onto Hapag-Lloyd, but the ship set sail March 28 with the containers aboard and arrived in Constanta almost a month later. In late May, Global Oil Tools approved Expeditors International's bill of lading dated March 28 the day the ship sailed.
The bill of lading included a Himalaya clause, which stated Global Oil Tools wouldn't make a claim or allegation "against any person or vessel whatsoever" other than Expeditors International, including Expeditors International's "servants or agents, any independent contractors [at any time] and their servants or agents."
Meanwhile, sale of the cargo in the shipping containers fell through. "The sale of [Global Oil]'s tools and intellectual property was never consummated, and the containers remain in Constanta," the order said."Some tools were purportedly damaged during transit."
Global Oil Tools sued Expeditors International, Hapag-Lloyd and Ports America for damages. In their motions for summary judgment, Hapag-Lloyd and Ports America invoked the bill of lading's Himalaya clause. Global Oil Tools argued that the Himalaya clause did not apply because the bill of lading was not issued until after the ship set sail, was never signed and "that is unenforceable because it violates public policy".
In her order, Vance said a bill of lading need not be signed to be approved and that courts routinely enforce bills of lading, of which her order gave examples. "Ports America clearly performed part of the carriage as contemplated by the bill of lading, which the Court has already deemed enforceable," Vance said. "Accordingly, the Himalaya clause bars plaintiff’s claims against Hapag-Lloyd and Ports America."