ABSTRACT
This chapter shows that American law has a different and more pragmatic approach to third party protection starting with the differences with bailment up to the case of Norfolk Southern Ry. v. James N. Kirby, Pty Ltd. United States law in fact has generally been more willing to allow protection to third parties outside the contract. Cases against it, however, have been useful for future construction of clauses and relationship, showing that the industry, regardless of what the law says, will always attempt to find a way to circumvent it. Furthermore, the industry uses court decisions and suggestions to improve their protection clause, as happened in the United States until Kirby moved the concept of protection to a new era (i.e., the conceptual era).
The decision in Kirby – although referring to a train company and not a terminal operator – has given credence to the idea that the line between the ocean carrier and other parties is now blurred.
