부적절한 예인방법으로 인한 감항능력 담보의무(Warranty) 위반 및 보험자 면책에 관한 고찰 - 대법원 2020. 6. 4. 선고 2020다204049 판결의 평석을 중심으로

Abstract

When the Institute Time Clauses-Hulls which provides that “this insurance contract is subject to English law and practice” is incorporated in the marine insurance contract (time policy) which insures the tow owned by the insured that carries 3 barges, this insurance contract is governed by English law unless unavoidable circumstances exist. If a peril insured against has taken place during the voyage, the insured may claim the payment of the amount of insurance coverage for the loss caused by a result of the peril insured against under the insurance. However, the insurer may contend that he/she is not liable for the loss of the insured because the ship was sent to sea in an unseaworthy state. Whether the insurer is liable therefor shall be decided by the English Marine Insurance Act 1906 Section 39(5) and the authorities of the English Court. Section 39(5) of the Marine Insurance Act 1906 provides that “In a time policy there is no implied warranty that the ship shall be seaworthy at any stage of the adventure, but where, with the privity of the assured, the ship is sent to sea in an unseaworthy state, the insurer is not liable for any loss attributable to unseaworthiness.” If the insured chose the improper way of towage that endangers the ship, thereby rendering the ship (tow) unseaworthy, the improper way of towage can be a breach of the warranty to exercise due diligence to make the ship seaworthy as the improper stowage can be. When the prudent owner test (so called “Mcfadden Test”) well-established in the English authorities is applied, a prudent shipowner (the insured) would have required the improper way of towage to be made good before sending his/her ship to sea had he/she known of it, and thus this corresponds to a breach of the implied warranty of seaworthiness. According to the opinion of “Alize 1954 v. Allianz Elementar Versicherungs AG”, even if the choice of the improper way of towage is considered as a navigational fault or error in management, which is unrelated to an attribute of the ship, it can be a breach of the warranty to exercise due diligence to make the ship seaworthy when the improper way of towage threatens the safety of the ship before and at the beginning of the voyage. Therefore, the insurer is not liable as the ship was unseaworthy when it commenced the voyage in breach of the implied warranty by the insured contained in the Marine Insurance Act 1906 section 39(5).