예선계약상 감항능력주의의무에 관한 고찰
A Study on the Seaworthiness of the Tug & Tow- worthiness of the Tow in the Towage Contracts
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The shipowners are always confronted with various marine risks in marine adventures. The tugowner will exercise due diligence to tender the tug at the place of departure in a seaworthy condition and in all respects ready to perform the towage, but the tugowner gives no other warranties, express or implied. The tugowner shall at all times have right to substitute any tug or tugs for any other tug or tugs of adequate power at any time whether before or after the commencement of the towage or other services and shall be at liberty to employ a tug or tugs belonging to other tugowners for the whole or part of the towage or other service contemplated under the Towcon or Towhire agreement. On the other hand, the towowner shall exercise due diligence to ensure that the tow shall, at the commencement of the towage, be in all respects fit to be towed from the place of departure to the place of destination. The towowner undertakes that the tow will be suitably trimmed and prepared and ready to be towed at the time when the tug arrives at the place of departure and fitted and equipped with such shapes, signals, navigational and other lights of a type required for the towage. The towowner shall supply to the tugowner or the tugmaster, on the arrival of the tug at the place of departure a certificate of tow- worthiness for the tow issued by a recognised firm of Marine Surveyors or Survey Organisation, provided always that the tugowner shall not be under any obligation to perform the towage until in his discretion he is satisfied that the tow is in all respects trimmed, prepared, fit and ready for towage but the tugowner shall not unreasonably withhold his approval. Difficulty arises when the division of financial liability under the Knock-for-Knock agreement is considered together with the respective obligation of the tug and the tow to provide, respectively, a seaworthy and tow-worthy ship. The question of which clause prevails would then arise. If the duty of seaworthiness or tow-worthiness is considered as the primary obligation that needs to be fulfilled, this would then mean that when this obligation is breached the Knock-for-Knock agreement applies in spite of the breach of the seaworthiness or tow-worthiness obligation.
Abstract
The shipowners are always confronted with various marine risks in marine adventures. The tugowner will exercise due diligence to tender the tug at the place of departure in a seaworthy condition and in all respects ready to perform the towage, but the tugowner gives no other warranties, express or implied. The tugowner shall at all times have right to substitute any tug or tugs for any other tug or tugs of adequate power at any time whether before or after the commencement of the towage or other services and shall be at liberty to employ a tug or tugs belonging to other tugowners for the whole or part of the towage or other service contemplated under the Towcon or Towhire agreement. On the other hand, the towowner shall exercise due diligence to ensure that the tow shall, at the commencement of the towage, be in all respects fit to be towed from the place of departure to the place of destination. The towowner undertakes that the tow will be suitably trimmed and prepared and ready to be towed at the time when the tug arrives at the place of departure and fitted and equipped with such shapes, signals, navigational and other lights of a type required for the towage. The towowner shall supply to the tugowner or the tugmaster, on the arrival of the tug at the place of departure a certificate of tow- worthiness for the tow issued by a recognised firm of Marine Surveyors or Survey Organisation, provided always that the tugowner shall not be under any obligation to perform the towage until in his discretion he is satisfied that the tow is in all respects trimmed, prepared, fit and ready for towage but the tugowner shall not unreasonably withhold his approval. Difficulty arises when the division of financial liability under the Knock-for-Knock agreement is considered together with the respective obligation of the tug and the tow to provide, respectively, a seaworthy and tow-worthy ship. The question of which clause prevails would then arise. If the duty of seaworthiness or tow-worthiness is considered as the primary obligation that needs to be fulfilled, this would then mean that when this obligation is breached the Knock-for-Knock agreement applies in spite of the breach of the seaworthiness or tow-worthiness obligation.
참고문헌 (42)
- 김인현, "해상법" (2011), 법문사
- 김인현, "선박충돌과 항법연구" (2006), 다솜출판사
- 이균성, "신해상법대계" (2010), 한국해양수산개발원
- 이기수, "보험･해상법" (2008), 박영사
- 이윤철, "해상교통법론" (2004), 다솜출판사
- 박용섭, "해상법론" (1998), 형설출판사
- 정동윤, "주석상법Ⅷ" (2001), 한국사법행정학회
- 정찬형, (2014), 박영사
- 채이식, "상법 Ⅳ" (2001), 박영사
- 최종현, "해상법상론" (2009), 박영사
- 권기훈, "이행보조자의 과실에 대한 운송인의 불감항책임", 해사법연구, 20(1), pp.87~110 (2008), 한국해사법학회
- 김종훈, "해상운송계약상 Knock for Knock 조항의 법적 유효성에 관한 사례연구", 무역학회지, 39(3), pp.41~67 (2014), 한국무역학회
- 박세민, "영국과 미국 해상보험법상 감항능력담보 해석에 관한 비교분석", 경영법률, 16(1), pp.393~427 (2005), 한국경영법률학회
- 朴容燮, "海上曳船契約法", 박사, pp.1984
- 박용섭, "해상예선계약과 제3자에 대한 책임", 한국해법학회지, 2(1) (1980)
- 박용섭, "해상예선계약의 법적 성질에 관한 고찰(상),(하)", 월간 해양한국, (88) (1981), 한국해사문제연구소
- 우보연, "예선업자의 책임에 관한 고찰", 외법논집, 34(4), pp.243~254 (2010), 법학연구소
- 윤승국, "예인계약 사고사례분석을 통한 TOWCON 제18조와 TOWCON(2008) 제25조 비교- Hold Harmless Clause를 중심으로-", 무역학회지, 38(5), pp.211~232 (2013), 한국무역학회
- 이정원, "선박충돌과 민사상 ‘과실’개념에 대한 고찰", 한국해법학회지, 35(1), pp.245~270 (2013), 한국해법학회
- 이정원, "예선계약상 피예인선의 제3자에 대한 책임 (대법원 2010. 1. 28. 선고 2008다65686, 65693 판결)", 법학논총, 28(4), pp.259~282 (2011), 법학연구소
- 이춘원, "예부선 상황에서의 충돌에 관한 몇 가지 문제점", 한국해법학회지, 29(1), pp.35~54 (2007), 한국해법학회
- 전영우, "영국 해상보험법상 감항성 주의의무 워런티에 관한 고찰", 해법･통상법, 8(1) (1996), 한국해사법학회
- 정준우, "쌍방과실로 인한 선박충돌과 그 책임의 분배", 한양법학, 10 (1999), 한양법학회
- 지상규, "로테르담규칙상 운송인의 감항성있는 컨테이너의 제공의무 및 감항능력주의의무 기간 연장에 관한 연구", 해사법연구, 25(1), pp.209~232 (2013), 한국해사법학회
- 지상규, "감항능력 주의의무의 구성요소에 관한 고찰 －영국판례를 중심으로－", 중앙법학, 12(2), pp.199~237 (2010), 중앙법학회
- 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
- 原茂太一, "曳船契約法論" (1970), 千倉書房
- Bennett, Howard N, "The Law of Marine Insurance" (1996), Clarendon Press
- Bundock, Michael, "Shipping Law Handbook" (2011), Informa
- Grant, Gilmore, "The Law of Admiralty" (1975), The Fondation Press Inc
- Ivamy, E R Hardy, "Marine Insurance" (1985), Butterworths
- Mocatta, Alan Abraham, "Scrutton on Charterparties and Bill of Lading" (1996), Sweet & Maxwell
- Rainy, Simon, "The Law of Tug and Tow and Offshore Contracts" (2011), Informa
- 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
- 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
- Yvonne, Baatz, "Maritime Law" (2014), Informa Law from Routledge
- Wilson, John F, "Carriage of Goods by Sea", pp.2008, Pearson
- Hewitt T., "Who is to Blame? Allocating Liability in Upstream Project Contracts", J. Energy Nat. Resources L, 26, pp.177~ (2008)
- Nikaki, Theodora, "A New Convention for the Carriage of Goods by Sea - The Rotterdam Rules edited by Thomas D Rhidian" (2009), Lawtext Publishing Limited