불감항 과실에 관한 비교법적 연구 -로테르담 규칙과 헤이그 비스비 규칙과의 비교를 중심으로-
A Study on the Responsibility of the Carrier for the Unseaworthiness caused by the Negligence of his Own or Agents - Comparison in the Rotterdam Rules with in the Hague-Visby Rules -
0
조회
0
다운로드
3
인용
0
참고문헌
키워드
초록
The carrier will be expected exercise only resonable skill and care to ensure that the vessel is seaworthy. In some cases the vessel starts its voyage in an unseaworthy condition, either because the crew were not aware of the cause of the unseaworthiness or because it is the practice of a particular trade to sail in such a condition, which would be remedied at a later stage, with the knowledge of the carrier. In these cases, would the carrier be in breach of his obligation to provide a seaworthy vessel? 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, this article 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. The addition of the words ‘and during the voyage by sea’ in article 14 of the Rotterdam Rules is an improvement of the position for cargo interests. 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. Based on the text of article 27.1 under the Rotterdam Rules, the conclusion does seem to be that the shipper’s duty to deliver the modified in the contract of carriage. This interpretation is supported by the fact that subparagraph 3, which concerns the stowage of goods inside a container or trailer. and thus also concerns the safety aspect, does not contain an ‘unless otherwise agreed’ qualification. This would mean that agreements between the shipper and the carrier are only valid if they concern aspects of the readiness for carriage, other than the safe transportability of the goods. The Rotterdam Rules introduces the concept ‘performing party’ for the purpose of extending the possibilities of recovery for the shipper and consignee from their contractual party(carrier) to all other parties that have undertaken to perform all or part of the carrier’s obligation during the maritime phase of the shipment (maritime performing party); it makes clear, of course, that the carrier shall be (and remain) responsible for the acts and omissions of such persons.
Abstract
The carrier will be expected exercise only resonable skill and care to ensure that the vessel is seaworthy. In some cases the vessel starts its voyage in an unseaworthy condition, either because the crew were not aware of the cause of the unseaworthiness or because it is the practice of a particular trade to sail in such a condition, which would be remedied at a later stage, with the knowledge of the carrier. In these cases, would the carrier be in breach of his obligation to provide a seaworthy vessel? 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, this article 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. The addition of the words ‘and during the voyage by sea’ in article 14 of the Rotterdam Rules is an improvement of the position for cargo interests. 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. Based on the text of article 27.1 under the Rotterdam Rules, the conclusion does seem to be that the shipper’s duty to deliver the modified in the contract of carriage. This interpretation is supported by the fact that subparagraph 3, which concerns the stowage of goods inside a container or trailer. and thus also concerns the safety aspect, does not contain an ‘unless otherwise agreed’ qualification. This would mean that agreements between the shipper and the carrier are only valid if they concern aspects of the readiness for carriage, other than the safe transportability of the goods. The Rotterdam Rules introduces the concept ‘performing party’ for the purpose of extending the possibilities of recovery for the shipper and consignee from their contractual party(carrier) to all other parties that have undertaken to perform all or part of the carrier’s obligation during the maritime phase of the shipment (maritime performing party); it makes clear, of course, that the carrier shall be (and remain) responsible for the acts and omissions of such persons.
참고문헌 (47)
- 김인현, "해상법" (2011), 법문사
- 박용섭, "해상법론" (1998), 형설출판사
- 손주찬, "상법(하)" (2005), 박영사
- 이균성, "신해상법대계" (2010), 한국해양수산개발원
- 이기수, "보험⋅해상법" (2008), 박영사
- 이주흥, "해상운송법" (1992), 박영사
- 정찬형, "상법강의(하)(제15판)" (2013), 박영사
- 정희철, "상법학(하)" (1990), 박영사
- 최종현, "해상법상론" (2009), 박영사
- 강영문, "항해과실에 관한 연구", 해운물류연구, 50, pp.115~132 (2006), 한국해운물류학회
- 권기훈, "운송인의 불감항책임에 관한 연구", 박사, 법학, pp.1989
- 권기훈, "이행보조자의 과실에 대한 운송인의 불감항책임", 해사법연구, 20(1), pp.87~110 (2008), 한국해사법학회
- 김선옥, "항해과실과 상업과실에 대한 해상운송인의 법적 책임", 한국해운학회지, (27) (1998)
- 김영주, "國際海上運送과 航海過失免責", 한국해법학회지, 33(1), pp.101~145 (2011), 한국해법학회
- 김인현, "국제해상물건운송계약에 관한 2008년 UNCITRAL 조약(로테르담규칙)의 適用範圍와 契約自由의 原則", 법학연구, 49(2), pp.35~70 (2009), 법학연구소
- 김인현, "UN UNCITRAL 運送法會議에서 運送人의 責任制度", 한국해법학회지, 27(2), pp.357~404 (2005), 한국해법학회
- 양정호, "로테르담 규칙상 이행당사자와 히말라야 조항", 해운물류연구, 26(3), pp.407~431 (2010), 한국해운물류학회
- 임동철, "재운송계약과 선박소유자의 책임-운송책임의 주체와 관련하여-", 한국해법회지, 15(1) (1993), 한국해법학회
- 전영우, "영국해상보험법상 감항능력 워란티에 관한 고찰", 해법⋅통상법, 8(1) (1996), 한국해사법학회
- 정영석, "항만하역사업자의 책임", 상사판례연구, 15 (2003), 한국상사판례학회
- 정영석, "해상운송인의 상사과실", 한국해법학회지, 16(1) (1994)
- 지상규, "로테르담규칙상 운송인의 감항성있는 컨테이너의 제공의무 및 감항능력주의의무 기간 연장에 관한 연구", 해사법연구, 25(1), pp.209~232 (2013), 한국해사법학회
- 최세련, "상법 제798조 제2항의 해석 및 적용에 대한 검토", 해상⋅보험법연구, 5(1) (2009)
- 최준선, "UNCITRAL 국제운송법 제12차 회의 참가보고서", 한국해법학회지, 26(2) (2004), 한국해법학회
- 한낙현, "항해중의 감항능력유지의무에 관한 문제점 고찰 -UNCITRAL 초안 제13조를 중심으로-", 한국해법학회지, 26(2), pp.89~124 (2004), 한국해법학회
- 原茂太一, "堪航能力擔保義務論" (1983), 千倉書房
- 今村有, "海上保險契約法論 中卷" (1979), 損害保險事業硏究所
- Baatz, Yvonne, "The Rotterdam Rule: A Practical Annotation" (2009), Informa
- Boyd, S. C., "Scrutton Charterparties and Bills of Lading" (1996), Sweet & Maxwell Ltd
- Colinvaux, Raoul, "Carver’s Carriage by Sea-Vol.Ⅰ" (1971), Stevens & Sons
- Gilmore, Grant, "The Law of Admiralty, Mineola" (1957), The Foundation Press
- Ivamy, E. R., "Hardy, Marine Insurance" (1985), Butterworths
- Richardson, J., "A Guide to the Hague and Hague Visby Rules" (1984), Lloyd’s of London Press Ltd
- S. C. Boyd, "Scrutton Charterparties and Bills of Lading" (1996), Sweet & Maxwell Ltd
- Schoenbaum, Thomas J, "Admiralty and Maritime Law" (2001), West Group
- Soyer, B., "Warranties in Marine Insurance" (2001), Cavendish Publishing Ltd
- Sturley, Michael F, "The Rotterdam Rules-The UN Convention on Contracts for the International Carriage of Goods Wholly or Partly by Sea" (2010), Sweet & Maxwell
- Tetley, William, "Marine Cargo Claims" (1988), Blais
- Treitel, G. H., "Caver on Bills of Lading" (2005), Sweet & Maxwell
- Von Ziegler, Alexander, "The Rotterdam Rules 2008-Commentary to the United Nations Convention on Contracts for the International Carriage of Goods Wholly or Partly by Sea" (2010), Kluwer Law International
- Wilson, John F, "Carriage of Goods by Sea", pp.2008, Pearson
- Diamond, QC Anthony, "The Rotterdam Rules", LMCLQ, 4 (2009)
- Nicholas, Andrew, "The duties of carriers under the conventions: care and seaworthiness, In The Carriage of Goods by Sea under the Rotterdam Rules" (2010), Lloyd’s List
- Nikaki, Theodora, "he obligation of carriers to provide seaworthy ships and exercise care, In A New Convention for the Carriage of Goods by Sea-The Rotterdam Rules" (2009), Lawtext Publishing Limited
- Sturley, Michael F., "Modernizing and Reforming U.S. Maritime Law: The Rotterdam Rules in the United States", Texas International Law Journal, (Spring) (2009)
- Sturley, Michael F, "An Overview of the Consideration Involved in Handling the Cargo Case", Tulane Maritime Law Journal, 21 (1997)
- Thomas, Rhidian, "An analysis of the liability regime of carriers and maritime performing parties, In A New Convention for the Carriage of Goods by Sea-Rotterdam Rules" (2009), Lawtext