로테르담 규칙상 경제적 손해에 관한 법적 검토－CISG와의 비교를 바탕으로－
Legal Review on Economic Loss under the Rotterdam Rules －Focused on Comparison with CISG －
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This paper is to examine the requirements that such economic loss would probably result for the carries not to be entitled to rely on the limitation of liability. In principle the delay liability covers of lost sub-contract or alternative goods, the loss of profit, the decrease of market value, and other pure economic loss sustained by the consignee, for example, where an industrial plant could not operate because components and parts of an essential machine were delivered late, etc. This can be termed ‘economic’ or ‘non-physical’ loss and is sometimes referred to as ‘consequential’ loss. Owing to the economic value of Article 21 under the Rotterdam Rules might prove to be quite high, Article 60 regulates the limitation of liability for loss caused by delay. If only economic loss occurred as a result of delay in delivery, the limitation of liability of carrier is limited to an amount equivalent to 2.5 times the freight payable on the goods delayed. On the other hand, the right to limitation of liability under 60 may be lost if the cargo claimants proves: (ⅰ) that the loss was caused by the personal act or omission of the carrier; (ⅱ) that the personal acts or omission were committed recklessly; and (ⅲ) that ‘at the time of those acts or omissions’, the carrier actually knew that such loss would probably result. The requirement that such loss would ‘probably’ result is so-called the foreseeability. The foreseeability rule has its greatest relevance in contemplating recovery for economic loss, including loss of profit. The foreseeability rule as provided in Article 61 under the Rotterdam Rules is different in several respects from CISG Article 74. Article 61, subparagraph 2 states that the right to limitation of liability under the 60 may be lost if the claimant proves that the loss resulting from delay in delivery was attributable to a personal act or omission of the person claiming a right to limit done with the intent to cause such loss or recklessly and with knowledge that such loss would probably result, while CISG Article 74 limits recovery to those damages which the party in breach knew or ought to have known as a possible consequence of the breach. This probably means that the breaching party may be liable for a lesser range of economic loss under the Rotterdam Rules than under the CISG regime.
Abstract
This paper is to examine the requirements that such economic loss would probably result for the carries not to be entitled to rely on the limitation of liability. In principle the delay liability covers of lost sub-contract or alternative goods, the loss of profit, the decrease of market value, and other pure economic loss sustained by the consignee, for example, where an industrial plant could not operate because components and parts of an essential machine were delivered late, etc. This can be termed ‘economic’ or ‘non-physical’ loss and is sometimes referred to as ‘consequential’ loss. Owing to the economic value of Article 21 under the Rotterdam Rules might prove to be quite high, Article 60 regulates the limitation of liability for loss caused by delay. If only economic loss occurred as a result of delay in delivery, the limitation of liability of carrier is limited to an amount equivalent to 2.5 times the freight payable on the goods delayed. On the other hand, the right to limitation of liability under 60 may be lost if the cargo claimants proves: (ⅰ) that the loss was caused by the personal act or omission of the carrier; (ⅱ) that the personal acts or omission were committed recklessly; and (ⅲ) that ‘at the time of those acts or omissions’, the carrier actually knew that such loss would probably result. The requirement that such loss would ‘probably’ result is so-called the foreseeability. The foreseeability rule has its greatest relevance in contemplating recovery for economic loss, including loss of profit. The foreseeability rule as provided in Article 61 under the Rotterdam Rules is different in several respects from CISG Article 74. Article 61, subparagraph 2 states that the right to limitation of liability under the 60 may be lost if the claimant proves that the loss resulting from delay in delivery was attributable to a personal act or omission of the person claiming a right to limit done with the intent to cause such loss or recklessly and with knowledge that such loss would probably result, while CISG Article 74 limits recovery to those damages which the party in breach knew or ought to have known as a possible consequence of the breach. This probably means that the breaching party may be liable for a lesser range of economic loss under the Rotterdam Rules than under the CISG regime.
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