“Maritime … Or Not?”
Here is a multiple choice question: which of the following contracts is considered to be a “maritime contract” under U.S. law? You will be forgiven if you simply tried to apply logic in answering this question and guessed that all four are maritime contracts. If you know your maritime law, however, then you should have answered that “c” and “d” are maritime contracts whereas “a” and “b” are not. Or, at least, that is the current state of the law. Why might this matter? In the first place…
Kirby Case Expanded Analysis
On November 9, 2004, The Supreme Court of the United States decided Norfolk Southern Railway Co. v. James N. Kirby, Pty Ltd., docket No. 02¬1028 (Nov. 9, 2004). The Court reversed the Eleventh Circuit and held that Himalaya Clauses in both an NVOCC's bill of lading, and in a VOCC's bill of lading extended the bill of lading COGSA package limitation or other protection to the participating land carrier, the Norfolk Southern Railway Co., which was hired by an affiliate of the VOCC. The opinion also upholds the limitations in the VOCC's bill of lading even though there was no strict privy of contract between Kirby, the cargo interest, and the VOCC. The case involved a shipment of cargo from Australia to Athens, Alabama by way of Huntsville, Alabama.
U.S. Supreme Court upholds Himalaya Clause
In a unanimous decision, the U.S. Supreme Court upheld the validity of the Himalaya Clause for in inland carrier. In the instant case, an Australian manufacturer shipped cargo from Australia to Huntsville, Alabama, via Savannah, Georgia. The shipper contracted with a freight forwarder for the shipment and the bill of lading issued by the NVOCC included a Himalaya Clause extending the COGSA liability limitations to downstream parties. The freight forwarder contracted with a vessel operator for actual carriage of the cargo. The bill of lading issued by the vessel operator likewise included a Himalaya Clause. The vessel operator contracted with a railroad company for carriage of the cargo from Savannah to Huntsville. En route, the train derailed and the cargo was damaged.
Kirby Case: An Expanded Analysis
Following is a more expanded analysis of the recent U.S. Supreme Court decision than the short summary provided yesterday. This analysis was prepared by Chester Hooper or Holland & Knight. On November 9, 2004, The Supreme Court of the United States decided Norfolk Southern Railway Co. v. James N. Kirby, Pty Ltd., docket No. 021028 (Nov. 9, 2004). The Court reversed the Eleventh Circuit and held that Himalaya Clauses in both an NVOCC's bill of lading, and in a VOCC's bill of lading extended the bill of lading COGSA package limitation or other protection to the participating land carrier, the Norfolk Southern Railway Co., which was hired by an affiliate of the VOCC.
