American Club Circular No. 3 5/14 1 DECEMBER 2, 2014 CIRCULAR NO. 35/14 TO MEMBERS OF THE ASSOCIATION Dear Member: REVISED HIMALAYA CLAUSE FOR BILLS OF LADING AND OTHER CONTRACTS Your Managers refer to Club Circular 26/10 of September 29, 2010 which informed Members of the joint review of the Himalaya clause for use in bills of lading and other contracts undertaken by the International Group of P&I Clubs (IG) and BIMCO, and of the revised BIMCO/IG Himalaya clause wording recommended for adoption following that review. The current Circular should be read in conjunction with that mentioned above, which set out the key features, and intended effects, of the 2010 revision of the original Himalaya clause. Since publication of the revised wording in 2010, there have been cases in the United States where claimants have filed suit against ship managers in order to avoid the COGSA defenses/limitations which protect shipowners and which expressly extend to a “servant, agent, direct or indirect sub-contractor or any other party employed by or on behalf of the Carrier”. Because this Himalaya clause wording did not expressly include vessel managers, claimants have argued (and in some jurisdictions, successfully) that vessel managers fall outside the scope of the Himalaya clause’s protections. US legal advice has in the interim been sought to revise existing Himalaya clause wordings, with a view to amending the current clause so as expressly to include vessel managers. On the basis of the advice received, and with the joint agreement of BIMCO, a further revised Himalaya clause wording has been produced, seeking to make it clear that the protection afforded under the clause is extended to vessel managers. Members are recommended to amend their contracts of carriage to incorporate this new clause. The revised wording is set out in the appendix hereto. The clause may also be downloaded from the BIMCO website at www.bimco.org. It is also available as an additional clause to subscribers of BIMCO’s online charter party editing system, idea. It should be noted that most other jurisdictions would be likely to interpret the clause as currently drafted as extending to a vessel manager employed by the owner. Yours faithfully, Joseph E.M. Hughes, Chairman & CEO Shipowners Claims Bureau, Inc., Managers for THE AMERICAN CLUB Annex to American Club Circular No. 3 5/14 2 ANNEX TO CIRCULAR NO. 35/14 OF DECEMBER 2, 2014 International Group of P&I Clubs / BIMCO Revised Himalaya Clause (November 2014) (a) For the purposes of this contract, the term “Servant” shall include the owners, managers, and operators of vessels (other than the Carrier); underlying Carriers; stevedores and terminal operators; and any direct or indirect servant, agent, or subcontractor (including their own subcontractors), or any other party employed by or on behalf of the Carrier, or whose services or equipment have been used to perform this contract whether in direct contractual privity with the Carrier or not. (b) It is hereby expressly agreed that no Servant shall in any circumstances whatsoever be under any liability whatsoever to the shipper, consignee, receiver, holder, or other party to this contract (hereinafter termed “Merchant”) for any loss, damage or delay of whatsoever kind arising or resulting directly or indirectly from any act, neglect or default on the Servant’s part while acting in the course of or in connection with the performance of this contract. (c) Without prejudice to the