운송 관련 상법 개정안의 주요 내용과 과제

Abstract

Combined transport refers to the movement of goods using two or more modes of transport in a single contract, the clause on combined transport should come after the clauses on overland transport, sea transport and air transport. There is also a need to set a standard on the reasonable amount of package limitation of liability for each transport sections as combined transport operator’s liability differs in different transport sections. Whether or not to recognize liability limitation for land transport operator is an important issue. Recognition of land transport operator’s liability limitation could overly alleviate carrier’s liability. It does not guarantee lower freight charge, either. The issue of who is responsible for inspection and examination of the cargo should also be decided in consideration of the burden of proof regarding the cause of the damage and the section where the damage took place. In addressing the issue, holding carriers responsible for examining cargo at the end or the beginning of each transport section and notifying the results, and making them take due responsibility for negligence could be considered. Also the clause on burden of proof in case of damage must be written more clearly. Further discussions on how to define the liability of combined transport operators in case of concealed damage should be made as well. It is theoretically feasible to put the burden of proof of damage on the carrier and hold the carrier liable for the maximum liability section in case of concealed damage. However, this could lead to a rise in freight charges, which calls for practical review on cost adjustment among interested parties. In case the section where the damage occurred cannot be verified and the carrier did not fulfill the duty of examination and notification, the carrier must be held liable for the section with the maximum liability. If the carrier did fulfill the duty of examination and notification, liability can be set according to the transport distance. Compulsory provisions on the liability of combined transport operators can sometimes hinder formation of reasonable contracts that can be signed under specific transport terms and conditions. Therefore, there needs to be further discussions on the objects of such provisions. Careful review is also needed on setting escape clauses on the ban on liability mitigation in combined transport contracts among parties of equal economic power.