The conferment of rights in the beneficiary includes the right to invoke a clause in the contract which excludes or limits the liability of the beneficiary. 

 

COMMENT

Contractual provisions limiting or excluding liability of those who are not parties to the contract are very common, particularly in contracts of carriage, where they often form part of a settled pattern of insurance. Perhaps the best known example is the so-called Himalaya clause, which in some form is frequently to be found in bills of lading. In general the autonomy of the parties should be respected in this area too.

 

Illustration

 

A, the owner of goods, makes a contract with a sea carrier to carry them from country X to country Y. The bill of lading is subject to the Hague-Visby Rules and purports to exclude the liability of (a) the master and crew; (b) stevedores employed in loading and unloading the cargo; and (c) the owners of ships onto which the goods may be transhipped. These exclusions will be effective.

 

Another situation which would be covered by this Article arises where the promisor and promisee agree that the beneficiary shall be released from an obligation which it owed the promisor.

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