감하능력(堪荷能力)주의의무에 관한 법적 쟁점
Legal Issues on the Cargoworthiness Obligation
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Article 14 of the Rotterdam Rules corresponds to a certain extent to Article 3(1) of the Hague and Hague-Visby Rules and establishes the duty of the carrier to exercise due diligence to provide a seaworthy vessel, that is to say a vessel which is in a condition to encounter whatever perils of the sea a ship of that kind, and laden in that way, may be fairly expected to encounter in the course of the contractual voyage. It embraces the three distinct aspects of seaworthiness recognized in maritime law, namely the physical condition of the ship, the efficiency of the crew and equipment, and the cargoworthiness of the vessel. In brief, the cargoworthiness obligation amounts to imposing on the continuous duty of due diligence throughout the course of a voyage. Under the Hague and Hague-Visby Rules the obligation of due diligence ‘expires’ upon sailing from the load port. Today, the obligation of due diligence in respect to cargoworthiness is continuing one. This solution is perfectly justified - communication with the ship is now always possible; time limits were a remnant of the time when communication with a ship at sea was difficult. The continuous duty is one of due diligence as opposed to an absolute duty. This raises the issue as to whether or not a defect which manifests itself after the commencement of a voyage but which is not capable of being repaired during the course of a voyage would lead to any less favourable finding for carriers than would have been the case under the Hague and Hague-Visby Rules.
Abstract
Article 14 of the Rotterdam Rules corresponds to a certain extent to Article 3(1) of the Hague and Hague-Visby Rules and establishes the duty of the carrier to exercise due diligence to provide a seaworthy vessel, that is to say a vessel which is in a condition to encounter whatever perils of the sea a ship of that kind, and laden in that way, may be fairly expected to encounter in the course of the contractual voyage. It embraces the three distinct aspects of seaworthiness recognized in maritime law, namely the physical condition of the ship, the efficiency of the crew and equipment, and the cargoworthiness of the vessel. In brief, the cargoworthiness obligation amounts to imposing on the continuous duty of due diligence throughout the course of a voyage. Under the Hague and Hague-Visby Rules the obligation of due diligence ‘expires’ upon sailing from the load port. Today, the obligation of due diligence in respect to cargoworthiness is continuing one. This solution is perfectly justified - communication with the ship is now always possible; time limits were a remnant of the time when communication with a ship at sea was difficult. The continuous duty is one of due diligence as opposed to an absolute duty. This raises the issue as to whether or not a defect which manifests itself after the commencement of a voyage but which is not capable of being repaired during the course of a voyage would lead to any less favourable finding for carriers than would have been the case under the Hague and Hague-Visby Rules.
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