Impact of the Rotterdam Rules on the Himalaya Clause - The Port Terminal Operator's Case

Abstract

The chapter considers the implications of the Rotterdam Rules for port or marine terminal operators who have hitherto relied on the protection conferred on them by Himalaya clauses but whose role is evolving in modern shipping. Some terminal operators may be privatised agencies whilst others are government owned and run. Then there are the so-called global terminal operators backed by sovereign funding or ownership which operate across the world and control a huge market share. More and more port terminal operators are not pure port terminal operators. Indeed, many have shareholding or a controlling stake in shipping lines. Also, there is much technology sharing between port terminal operators and the carrier, cargo interests, and other third parties. This renders the share of control inevitable. The law, however for the purposes of liability, continues to maintain a distinction between carrier and terminal operator though the reality is that genuine dividing lines have become blurred. The nature of the terminal operators’ corporate control may mean that other imperatives should apply where it comes to considering the extension of a Himalaya clause to them. Thus, an ancillary question is whether and to what extent the fact of regulatory intervention should influence the port terminal operator’s ability to rely on the Himalaya clause or the Rotterdam Rules. All this will have an impact on the risk profile of port terminal operators which in turn will affect how terminal insurers price the indemnity or insurance cover they extend to port terminal operators.