The Gazette 1991

GAZETTE

JANUARY/FEBRUARY 1991

Implied contractual relations between the purchaser of a cargo and the servants, agents and independent contractors of the carrier. Carriers have always the option of including an exemption clause in the contract that will limit their liability to the cargo owner in the event of damage being caused to the goods by their servants, agents and independent contractors. Such clauses will have effect provided they meet the ordinary require- ments of contract law and do not infringe the Hague Rules. 29 The cargo owner has the option of suing the servants, agents and independent contractors person- ally. Since the defendant (usually a stevedore) was not party to the original contract this action will be in Tort. The question therefore arises from the defendant's point of view as to whether he can claim the benefit of the limitations contained in the contract between the carrier and the cargo owner. Efforts to avoid the rigours of the doctrine of privity and to bring such

parties within the limitations of the contract have taken a number of forms. Vicarious immunity This approach to the question was stated by Scrutton LJ in Mersey Shipping and Transport Co. Ltd. -v- Rea Ltd. as follows: "where there is a contract which contains an exemption clause, the servants or agents who act under that contract have the benefit of that exemption clause. 30 While this concept has found academic support in recent times, 31 its reasoning is incon- sistent with the doctrine of privity in the sense that it would enable an agent to rely by way of defence on the terms of a contract to which he was not a party. For this reason, the concept of vicarious immunity has been rejected by the House of Lords in the case of Scuttons Ltd. -v- Midland Silicones Ltd. 32 However, if priority were given to commercial reality over the exigencies of the doctrine of privity the concept

would be accepted. Carrier as agent of the defendant It has been standard practice for a number of years for bills of lading to include a clause known as the "Himalaya Clause" 33 excluding any liability on the part of the servants or agents or independent contractors of the carrier. In the two initial cases of Adier -v- Dickson 34 and Scuttons Ltd. -v- Midland Silicones Ltd. 35 such defendants failed to get the protection of the limitations contain- ed in the contract between the carrier and the cargo owner. The reason for the decision that was adopted by the majority in both cases was that the defendants were not party to the original contract and therefore they could not claim the protection of the clause no matter what it said. However, in both cases Lord Denning restricted the grounds for his rejection of the defendants to the construction of the clause and did not make the difficulty of privity an absolute bar. With time the clauses came to be re-drafted with explicit reference

Annual Review of Irish Law 1989 RAYMOND BYRNE & WILLIAM BINCHY

This is the third volume in an annual review series which provides practitioners, academics and students with an analytical, perceptive account of work by the courts, the Oireachtas, scholars and practitioners during the year. Every decision of importance by the High Court, Court of Criminal Appeal and Supreme Court is discussed. Significant Circuit Court decisions are also included. Whether the decision is unreported or reported, the Annual Review covers it, providing assessment of over 200 judgments per volume. Every Act of the Oireachtas for the relevant year is outlined. Where relevant, detailed discussion is provided to explain the background to and purpose of an Act. Proposals for change in the law from the Law Reform Commission are discussed. Statutory instruments are also listed under the relevant subject headings.

It 'provides an authoritative picture of each and every legal nook and cranny. It is this that ensures that the book will endure' The Cambridge Law Journal.

ISBN 0 947686-61-4; ISSN 0791-1084 Price C55 00 (all 3 volumes 1987, 1988 and 1989 C135 00)

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