화물선취보증서와 보증도의 법적 지위
On the Legal Nature of the Cargo Delivery by Banker's Letter of Guarantee at Discharge
1
조회
0
다운로드
5
인용
0
참고문헌
키워드
초록
Letter of Guarantee is presented at discharge by consignees who cannot provide the original bill of lading. It is designed to provide for a shipowner, where the master release cargo at the request of a party, in respect of claims which may be brought as a consequence of such release, and is a security or suretyship agreement. With the speed of international business, it is often the case that vessels will reach their intended designation before the bills of lading arrive. When the bills of lading are either way laid in the banking system or have yet to arrive, merchants and charterers will attempt to persuade the carrier to accept a letter of indemnity rather than the bill of lading, and such commercial pressure is often successful. The carrier may also wish to deliver without the bills of lading in order to avoid waiting in port until the bills of lading have arrived. Although the use of letters of guarantee has become common practice, it becomes problematic when the goods are never paid for. Another problem that arises is when the consignee named in the bill of lading is not entitled to delivery because the bill of lading has been pledged to the bank - should the carrier deliver to the consignee, the carrier then become liable to the bank. Traditionally, delivery to a receiver not entitled to the goods can place the carrier in a precarious position as this may involve the tort of conversion, therefore rending the carrier liable for the full value of the cargo without the benefit of contractual exemptions. In the past the law dictated that a carrier who delivered without receiving the bill of lading in return does so at his own peril. The trend was that the carrier was held liable to the holder of the bill of lading. However, more recently the courts have on occasion found otherwise. The purpose of this paper is to provide a multi-jurisdictional analysis of the law regarding letter of guarantee, permitting identification of current trends and of most in need of reform.
Abstract
Letter of Guarantee is presented at discharge by consignees who cannot provide the original bill of lading. It is designed to provide for a shipowner, where the master release cargo at the request of a party, in respect of claims which may be brought as a consequence of such release, and is a security or suretyship agreement. With the speed of international business, it is often the case that vessels will reach their intended designation before the bills of lading arrive. When the bills of lading are either way laid in the banking system or have yet to arrive, merchants and charterers will attempt to persuade the carrier to accept a letter of indemnity rather than the bill of lading, and such commercial pressure is often successful. The carrier may also wish to deliver without the bills of lading in order to avoid waiting in port until the bills of lading have arrived. Although the use of letters of guarantee has become common practice, it becomes problematic when the goods are never paid for. Another problem that arises is when the consignee named in the bill of lading is not entitled to delivery because the bill of lading has been pledged to the bank - should the carrier deliver to the consignee, the carrier then become liable to the bank. Traditionally, delivery to a receiver not entitled to the goods can place the carrier in a precarious position as this may involve the tort of conversion, therefore rending the carrier liable for the full value of the cargo without the benefit of contractual exemptions. In the past the law dictated that a carrier who delivered without receiving the bill of lading in return does so at his own peril. The trend was that the carrier was held liable to the holder of the bill of lading. However, more recently the courts have on occasion found otherwise. The purpose of this paper is to provide a multi-jurisdictional analysis of the law regarding letter of guarantee, permitting identification of current trends and of most in need of reform.
참고문헌 (35)
- 박용섭, "해상법론" (1994), 형설출판사
- 이균성, "해상법판례연구" (1989), 해운산업연구원
- 강위두, "보증도와 운송인의 책임(대법원 1989. 3. 14. 선고 97다카1791 판결) -판례평석", 법률신문, (1852) (1989)
- 김교창, "보증도의 관행과 운송인 등의 책임", 판례월보, (226) (1989)
- 김용재, "수입화물선취보증서 제도 개선에 관한 연구", 박사, pp.1996
- 김 현, "해상운송에서의 보증도", 변호사, 24 (1994), 서울변호사회
- 김현철, "이른바 보증도에 관하여 - 화물선취보증서에 의한 운송물인도시 발생하는 법적 문제", 석사, pp.1996
- 박호건, "우리나라 수입화물의 보증도와 화물선취보증서에 관한 연구②", 월간 해양한국, (255) (1994)
- 손상기, "수입화물선취보증서에 의한 화물인도에 있어서의 운송인의 지위에 관한 연구", 국제통상논총, 3(1) (2001)
- 서헌제, "보증도와 해상운송인의 책임", 인권과 정의, (12월) (1989)
- 유영일, "보증도와 해상운송인 등의 책임 in: 해상･보험법에 관한 제문제(상)", 재판자료, 52 (1991), 법원행정처
- 윤창술, "해상운송물인도의 상관행에 관한 연구-화물선취보증서와 화물인도지시서를 중심으로-", 석사, pp.1992
- 이문봉, "상법상의 보증도", 사법행정, 10(5) (1969)
- 이상훈, "수입화물선취보증서제도의 개선을 위한 e-L", G의 활용에 관한 연구, 2006, pp.19(3), 1133~1158[DOI]
- 이주흥, "해상물건운송인의 손해배상책임 in: 해상･보험법에 관한 제문제(상)", 재판자료, 52 (1991)
- 조영철, "電子式 輸入物品先取保證書의 活用에 관한 硏究", 한국해법학회지, 26(1), pp.143~180 (2004), 한국해법학회
- 최준선, "보증도의 법률관계", 한국해법학회지, 21(1) (1999)
- 한상호, "운송취급인의 보증도와 불법행위책임(대법원 1989. 3. 14. 선고 87다카1791 판결)", 법조, 38(7)통권 : 394 (1989)
- 石井照久, "海商法" (1964), 有斐閣
- 山口賢, "假渡･保證渡の適法性 in 商法の爭點Ⅱ" (1993), ジュリスト增刊
- 池恒定太郞, "保證渡の適法性", 別冊ジュリスト(海商判例百選 增補版), (42) (1973)
- R. Colinvaux, "Carver's Carriage by Sea, 13th ed" (1982), Stevens & Sons
- Gaskell, Nicholas, "Bills of Lading: Law and Practice" (2000), Lloyd's of London Press Ltd
- Hazelwood, Steven J., P, "I Clubs: Law and Practice, 3th ed" (2000), Lloyd's of London Press
- Herber,R, "New Carriage of Goods by Sea- The Nordic Approach”, in New Carriage of Goods by Sea" (1997), Institute of Maritime and Commercial Law
- Honka.H, "New Carriage of Goods by Sea- The Nordic Approach”, in New Carriage of Goods by Sea" (1997), Institute of Maritime and Commercial Law
- Rèmond-Gouilloud, M, "Droit Maritime, Editions A" (1993), Pedone
- Schmitthoff, Clive M, "Export Trade, 9th ed" (1990), Stevens & Sons
- Schmitthoff, Clive M, "Mercantile Law, 13th ed" (1976), Stevens & Sons
- Tetley, William, "International Maritime and Admiralty Law" (2002), Editions Yvon Blais
- Tetley, William, "Marine Cargo Claims, 3rd ed" (1988), International Shipping Publications
- Todd, Paul, "Contracts for the Carriage of Goods by Sea" (1988), BSP professional Books
- Todd, Paul, "Delivery against Forged Bills of Lading", LMCLQ 449, ~ (1999)
- Todd, Paul, "Modern Bills of Lading" (1990), Blackwell law
- Wilson,J.F, "Carriage of Goods by Sea, 6th ed", pp.2008, Pearson