해상운송물의 고유한 하자 및 숨은 하자에 따른 입증책임
The Burden of Proof on the Damage from Inherent Vice and Latent Defect of the Goods Carried by Sea
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A carrier is not liable at common law for loss or damage which results exclusively from some inherent quality or latent defect of the cargo carried. Every marine cargo case for lost or damaged goods starts with the so-called ‘prima facie case.’ Even though a clean bill of lading had been issued, the carrier would not be estopped from pleading the exception providing that the loss had resulted from the inherent unfitness of the cargo to withstand the ordinary incidents of the voyage and had in no way been aggravated by the conduct of the carrier. No peril is an ‘act of God’, ‘restraint of princes’, or ‘danger of the sea’ if its occurrence could have been avoided by the exercise of reasonable care. However, in ‘Inherent Vice and Latent Defect’, the degree of care expected of the carrier will, of course, vary depending on the extent of his knowledge of the characteristics of the particular cargo. Hague-Visby Rules imposes some specific obligations about how the carrier must perform its contract, for example, and detail some of the legal consequences of the carrier's failure to perform, but it does not explicitly declare the carrier's most basic obligation simply to perform the core contract. There then followed the relationship between inherent vice exemption liability and carrier's implied undertakings not to do undutifully and not to make a ship unseaworthy. Onus of proof between the carrier and the cargo owner is finally considered. However, the Rotterdam Rules' treatment of carrier's obligations begins by making explicit what the Hague-Visby Rules leaves implicit. Pursuant to article 17(5) of the Rotterdam Rules the shipper can prove that the damage, loss or delay was probably caused or contributed by the unseaworthiness of the ship. It employs what has often been described as a ‘reversed burden of proof’, meaning that carrier (typically the defendant) must disprove its fault in order to escape liability (once the claimant has established a prima facie case). This differs from the allocation commonly employed in many jurisdictions to determine fault-based liability under which the plaintiff must prove the defendant's fault as part of its affirmative case in order to recover.
Abstract
A carrier is not liable at common law for loss or damage which results exclusively from some inherent quality or latent defect of the cargo carried. Every marine cargo case for lost or damaged goods starts with the so-called ‘prima facie case.’ Even though a clean bill of lading had been issued, the carrier would not be estopped from pleading the exception providing that the loss had resulted from the inherent unfitness of the cargo to withstand the ordinary incidents of the voyage and had in no way been aggravated by the conduct of the carrier. No peril is an ‘act of God’, ‘restraint of princes’, or ‘danger of the sea’ if its occurrence could have been avoided by the exercise of reasonable care. However, in ‘Inherent Vice and Latent Defect’, the degree of care expected of the carrier will, of course, vary depending on the extent of his knowledge of the characteristics of the particular cargo. Hague-Visby Rules imposes some specific obligations about how the carrier must perform its contract, for example, and detail some of the legal consequences of the carrier's failure to perform, but it does not explicitly declare the carrier's most basic obligation simply to perform the core contract. There then followed the relationship between inherent vice exemption liability and carrier's implied undertakings not to do undutifully and not to make a ship unseaworthy. Onus of proof between the carrier and the cargo owner is finally considered. However, the Rotterdam Rules' treatment of carrier's obligations begins by making explicit what the Hague-Visby Rules leaves implicit. Pursuant to article 17(5) of the Rotterdam Rules the shipper can prove that the damage, loss or delay was probably caused or contributed by the unseaworthiness of the ship. It employs what has often been described as a ‘reversed burden of proof’, meaning that carrier (typically the defendant) must disprove its fault in order to escape liability (once the claimant has established a prima facie case). This differs from the allocation commonly employed in many jurisdictions to determine fault-based liability under which the plaintiff must prove the defendant's fault as part of its affirmative case in order to recover.
참고문헌 (45)
- 김인현, "해상법" (2011), 법문사
- 김정호, (2005), 법문사
- 박용섭, "해상법론" (1994), 형설출판사
- 손주찬, (2001), 한국사법행정학회
- 이균성, "신해상법대계" (2010), 한국해양수산개발원
- 이기수, "보험･해상법" (2008), 박영사
- 이재복, "적하보험약관론" (1995), 보험연수원
- 이주흥, "해상운송법" (1992), 박영사
- 정찬형, "상법강의(하)(제14판)" (2012), 박영사
- 채이식, "상법 Ⅳ-보험법･해상법-" (2001), 박영사
- 최준선, "보험법･해상법" (2005), 법문사
- 경익수, "운송물 고유의 하자", 한국해법학회지, 14(1) (1992), 한국해법학회
- 권기훈, "해상운송물 손해에 관한 감항능력 입증책임", 법과정책연구, 7(2), pp.461~484 (2007), 한국법정책학회
- 김권수, "해상보험법에서의 숨은 결함에 관한 연구", 무역학회지, 20(2) (1995), 한국무역학회
- 김영주, "해상운송인의 면책제도에 관한 연구", 석사, pp.2007
- 송옥렬, "UNCITRAL 해상운송협약상 送荷人의 責任", 국제거래법연구, 16(2), pp.291~312 (2007), 국제거래법학회
- 이균성, "해상운송인의 감항능력주의의무", 한국해법회지, 2(1) (1980), 한국해법회
- 이상주, "상법 제788조 제2항 본문 후단의 ‘화재’의 발화원인 내지 발화장소의 범위와 같은 조 제2항 단서의 ‘운송인’의 범위", 대법원판례해설, (42) (2002), 법원도서관
- 이창길, "해상보험에 있어서 담보(Warranty)의 이론적 체계와 실무적용에 관한 연구", 박사, pp.2002
- 정상조, "영국해상보험법에서의 감항능력담보의무", 한국해법회지, 9 (1987)
- 정성훈, "해상운송물품의 고유하자와 관련된 손해와 그 책임에 관한 연구", 박사, pp.2000
- 정영석, "헤이그 비스비규칙상의 운송인 면책사유 ④", 월간 해양한국, (272) (1996)
- 조종주, "로테르담 규칙하에서의 거증책임", 해양비지니스, (15) (2010)
- 조현숙, "로테르담 규칙에서 해상운송인의 책임에 대한 비교연구", 무역학회지, 35(1), pp.335~360 (2010), 한국무역학회
- 최종현, "해상고유의 위험으로 인한 운송인의 면책 (대상판례:서울지방법원 2002가합13497 판결)", 한국해법학회지, 26(2), pp.229~244 (2004), 한국해법학회[DOI]
- 田中誠二, "海商法詳論" (1985), 千倉書房
- Baughen, Simon, "Shipping Law" (2002), Cavendish Publishing Limited
- Bianca, C. M, "Commenntary on the International Sales Law : The 1980 Vienna Sales Convention" (1987), Giuffre
- Colivaux, Raul, "Carver's Carriage by Sea - Vol. Ⅰ, 12th ed." (1971), Stevens & Sons
- Folsom, Ralph H, "International Business Transactions, Trade & Economic Relations, 8th ed." (2009), West Group
- Guest, A.G, "Benjamin's Sale of Goods, 4th ed." (1992), Sweet & Maxwell
- Honnold, John O, "Uniform Law for International Sales under the 1980 United Nations Convention, 4th ed" (2009), Wolters Kluwer Law & Business
- Ivamy, E. R., "Payne & Ivamy's Carriage of Goods by Sea" (1994), Blackstone Press
- Ivamy, E R Hardy, "Marine Insurance, 4th ed." (1985), Butterworths
- Lambeth, R. J., "Templeman on Marine Insurance, 6th ed" (1986), Pitman
- Maraist Frank L, "Cases and Materials on Maritime Law" (2003), West Group
- Mocatta, A. A, "Scrutton on Charterparties and Bills of Lading" (1984), Sweet & Maxwell
- Richardson, John, "The Hague and Hague-Visby Rules" (1998), LLP
- Robert H. Brown, "Analysis of Marine Insurance Clauses" (1982), Witherby & Co., Ltd.
- Staudinger, "Kommentar zum Bürgerlichen Gesetzbuch mit Einführungsgesetz und Nebengesetzen Wiener UN-Kaufrecht (CISG)" (2005), Sellier - de Gruyter
- Tetley, William, "Marine Cargo Claims, 3rd ed." (1988), International Shipping Publications
- Wilson, John F., "Carriage of Goods by Sea, 6th ed.", pp.2008, Pearson
- Berlingieri, Francesco, "Carrier's Obligation and Liability" (2007), CMI
- Sturley, M. F., "Modernizing and Reforming U.S. Maritime Law: The Rotterdam Rules in the United States", Texas International Law Journal, (Spring) (2009)
- Tomotaka Fujita, "Shipper's Obligations and Liabilities under the Rotterdam Rules", Soft Law, 2010(3) (2010), The University of Tokyo