BUiD Comparative Study Illuminates Himalaya Clauses in UAE Maritime Law for Multimodal Carriage

Understanding Himalaya Clauses: From English Origins to Global Application

Himalaya clauses originated from Adler v Dickson, where stevedores sought protection under the carrier's bill of lading despite not being direct parties—a privity of contract hurdle. English courts, through cases like Midland Silicones v Scruttons and The Eurymedon, validated these clauses for agents and servants. The Contracts (Rights of Third Parties) Act 1999 further solidified their enforceability, extending benefits even to sub-subcontractors as seen in The Global Santosh.

In practice, standard forms from BIMCO (Congenbill 2016) and the International Group of P&I Clubs define beneficiaries broadly: "servants, agents, and subcontractors." This evolution ensures third parties can invoke carrier defenses like the one-year time bar or package limitation under Hague-Visby Rules (2 SDR/kg), preventing shippers from cherry-picking vulnerable links in the chain.

For UAE stakeholders, familiarizing with these nuances is essential, as Dubai's ports process diverse cargo flows—from perishables via refrigerated containers to high-value electronics in intermodal units.

Multimodal Carriage: The Backbone of UAE Logistics

Multimodal carriage involves a single contract covering multiple transport modes, with the contracting carrier responsible door-to-door. In the UAE, this is booming: multimodal traffic at Jebel Ali grew 8-9% year-on-year in 2025, per DP World reports, fueled by free zones and GCC integration. However, liability fragmentation arises if damage occurs mid-chain—sea leg under maritime law, road under CMR Convention.

• Sea stage: Governed by Hague-Visby or local rules.
• Road/rail: Higher limits (e.g., CMR 8.33 SDR/kg).
• Network liability: Contracting carrier liable for actual carrier's faults.

The UAE law defines multimodal as sea-inclusive contracts (Art. 1), mandating written documents and security (Arts. 188-190), but challenges persist in harmonizing protections.

UAE Maritime Law 2023: Key Provisions and Gaps

Federal Decree-Law No. 43/2023 replaces the 1981 code, introducing vessel ownership flexibility, electronic documents, and clearer liens. For carriage, Arts. 175-186 outline carrier liability—presumption of fault, 1-year suit time, 2 SDR/kg limit.

Art. 186(2) is pivotal: Contracting and actual carriers jointly liable, both invoking limits. However, Art. 197(2) states non-sea damage follows "type-specific rules," potentially exposing parties to uncapped liability under road conventions.

The study critiques this: Unlike English law's broad Himalaya scope, UAE omits servants/agents/stevedores, limiting to "actual carrier." No explicit third-party extension, risking privity issues and higher insurance costs for UAE operators.

English Law: A Benchmark for Robust Protection

English courts interpret Himalaya clauses purposively, requiring three elements: clear intention, third-party identification, and nexus to carrier duties. Cases affirm coverage for terminal operators (The Mahkutai) and road hauliers if "agents."

This flexibility suits multimodal realities, contrasting UAE's narrower Art. 186, which may leave port workers unprotected, deterring investment in Dubai's logistics ecosystem.

International Conventions: Varied Approaches

Hague-Visby (Art. IVbis): Servants/agents only, sea carriage focus.
Hamburg Rules: Multimodal provisions (Art. 1(6)), protects servants/agents (Art. 7(2)), actual carrier indemnity (Art. 10).
Rotterdam Rules: Modern door-to-door (Art. 12), extends to maritime performing parties (Art. 4), but Art. 26 defers non-sea to other rules—echoing UAE Art. 197's pitfall.

Al-Daboubi notes Rotterdam's superiority but critiques its non-maritime exclusion, mirroring UAE gaps.

Core Findings: Inconsistencies and Risks

The comparative reveals:

• UAE lags in third-party scope vs. English breadth.
• Art. 197(2) disrupts uniformity, favoring shippers over carriers.
• No stevedore/agent protection, unlike conventions' intent.

Implications: Higher litigation, premiums; UAE risks uncompetitive multimodal market amid 6.55% logistics CAGR to 2031.

BUiD's Contribution to UAE Legal Scholarship

BUiD's Faculty of Business and Law emphasizes applied research, with Dr. Al-Daboubi's PhD from Royal Holloway (Univ of London) fueling expertise. The study presented at the 15th Maritime Law Conference underscores BUiD's role in bridging academia-industry, training lawyers for UAE's ports handling 90M+ tons cargo yearly.

Programs like Bachelor of Law include Maritime Law modules, preparing graduates for DP World, AD Ports roles.

Industry Implications and Stakeholder Perspectives

Shipping execs praise clarity needs; lawyers note drafting must specify beneficiaries. Insurers face exposure gaps. Al-Daboubi urges explicit clauses, insurance reviews.

For UAE Vision 2031, reforms could cut disputes 20-30%, per sector estimates.

Photo by Roman Kraft on Unsplash

Recommendations and Future Outlook

Amend Art. 186 to mirror Rotterdam Art. 4: Cover all performing parties. Harmonize multimodal via uniform limits. BUiD calls for judicial guidance, training.

As UAE multimodal grows, this study positions BUiD as thought leader, fostering resilient laws for trade hub ambitions.