독립계약자에 대한 히말라야 약관의 적용과 문제점

Abstract

With the development of international trade, the international transportation has also developed to support it. It is too wide and complex for a single contracting carrier to handle the international transportation by oneself. Therefore, in order to ship the cargo smoothly, a contracting carrier needs any third-party who fulfill their jobs. Most of the third-parties who help the contracting carrier are independent contractors, such as stevedore, warehouse man, and container terminal operators. These independent contractors are actual carriers who are responsible for transporting on behalf of the carrier. However, under the principle of direct contract, it is difficult to protect the independent contractor when an accident occurs during transportation because the transportation contract is made by the contracting carrier and shipper. For that reason, the Himalaya clause is established to protect the third party, independent contractor. The Himalaya clause allows to apply the negligence clause and right of liability for carriers to independent contractors. It can protect independent contractors who are the economically weak and increase efficiency of price or the work process. In addition, if they are given more authority under the Himalaya clause, they would be more responsible for their work in the view of faith, However, the legal status of the term 'independent contractor' has been a problem because they have been excluded from the commercial law. This paper defines the Himalaya clause and the independent contractor, And then, it examines the regulations in the international rules and domestic cases. Finally, this paper proposes practical ways to protect independent contractors.