Published: Wed, 07 Mar 2018
Port Jackson Stevedoring Pty Ltd v Salmond & Spraggon (Australia) Pty Ltd  1 WLR 138
Whether independent sub-contractors could rely upon a ‘Himalaya clause’ excluding liability for negligence.
Goods were unloaded from a ship at a wharf and stored in a near shed which was under the control of the wharf’s stevedore. Thieves dishonestly claimed that they were the intended recipients of the goods to an agent of the stevedore. Typically in such circumstances the party claiming ownership would be expected to produce a bill of ladings as proof of title, however the thieves did not do so and the agent delivered the goods to the thieves despite this. The rightful intended recipient of the goods brought an action against the stevedore for professional negligence. The stevedore contended that he was protected against such an action by a ‘Himalaya clause’ in the bill of ladings between the recipient and the ship charterer which provided that the various immunities granted to the charterer could be extended to independent agents contracted by the charterer.
Could the stevedore reasonably rely upon the exclusion of liability clause in the bill of ladings.
The Court found for the stevedore, viewing that, generally speaking, stevedores were entitled to rely upon the same protections granted to their principle agents, as per the principle established by the Privy Court in New Zealand Shipping v Satterthwaite  AC 154. Lord Wilberforce, providing the leading judgment, asserted that whilst the Court would give due regard to all the circumstances, there ought not be excessive emphasis on minor technical distinctions regarding contract type in considering whether the Satterthwaite principle ought apply.
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