Document Type

Article

Disciplines

International Law

Abstract

In 2004, the Supreme Court decided Norfolk Southern Railway Company v. James N. Kirby (hereinafter Kirby II). 1 The case was, in the words of Sandra Day O'Connor, "a maritime case about a train wreck."' The major question involved was whether a train company, involved in the final land leg of a multi-modal carriage of goods involving both ocean and inland transport, could retain the benefit of limitation of liability clauses in two "through" bills of lading to which the train company was not a party. The bills of lading in question each contained a "Himalaya" clause which limited liability to all those employed in the completion of the carriage contract.

This question of attribution of liability in international contracts of carriage has proved problematic for courts in the United States for more than fifty years. The jurisprudence surrounding the question has looked to various areas of law and policy for its answers, and has swung back and forth between wider and narrower degrees of attribution causing inconsistency and disharmony in the expectations of the commercial sphere the jurisprudence seeks to regulate.

The gravity of the problem is, however, not limited to the United States. Attribution of liability in international shipping contracts has long been subject to ad hoc decisions from various courts in various countries. The Kirby Court, in deciding to allow the train company the benefit of the bill of lading in question, purported to bring some degree of surety to the area, and in a certain respect it did.

However, though the result of the court was for the most part satisfactory, the method the Court used was and remains jurisprudentially problematic. So as to accomplish its result, the Court relied upon a distorted use of agency in order to overcome a problem of privity. This use of agency was misplaced and unnecessary. The Court could have defeated the problem of privity through the use of other means less upsetting to the structure of pre-existing jurisprudence. Utilizing enterprise principles, the Court could have established the overall integrated nature of the actions of all of the parties under the bills of lading, in order to show that the terms of the bills should control the entire enterprise. This approach would have achieved the same result as the Court's, but it would not have required the confusing misplacement of an established principle of common law.

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