선박충돌손해배상에 관한 수협 어선보험약관과 1983 협회선박기간약관의 관련 조항의 비교 분석 - 수협중앙회의 어선보험약관의 개정 방향 제시를 위하여 -

Abstract

Historically, the ship owner’s legal liability to the other ship’s or other cargo’s owner had not been included in the perils of the sea in the hull insurance contract. However the continuing argument, which this liability has to be included in hull insurance contract, made an agreement in order to put the running down clauses into the hull insurance policy. According to this, the hull insurer is liable to indemnify 3/4 of total sum of the ship owner’s legal liability to the victims. This amount is also limited to 3/4 of agreed insurable value. Recently, 4/4th collision liability clauses has been also using in practice which covers the full amount of ship owner’s liability. The purpose of fishery insurance policy which has been made by National Federation of Fisheries Cooperative in Korea is to protect the small size business of fishermen. The following issues may be considered in the process of revision of fishery insurance policy. While the fishery insurance policy does not restrict the coverage of liability of ship collision compensation, the range of coverage is limited to the cargo which is loaded on the other ship. Therefore, it is not clear to say that fishery insurance policy covers marine risks more widely than the 1983 Institute Time Clauses Hulls. Some risks which are included in the coverage of 1983 Institute Time Clauses Hulls are designated as exclusions in the fishery insurance policy. Even though a certain risk is one of exclusions in the both fishery insurance policy and 1983 Institute Time Clauses Hulls, the Institute Clause makes an exceptions to this exclusion. Therefore, unlike the fishery insurance policy, the hull insurer has to compensate to the victims according to the 1983 Institute Time Clauses Hulls. The fishery insurance policy is based on the 1983 Institute Time Clauses Hulls which regulates the English law as a governing law. However, the governing law and jurisdiction of fishery insurance policy is Korean law and courts. This difference may give rise to conflict in interpretation of the 'principle of pay to be paid' and 'direct claim of claimant'. The inquiry counsels are sometimes involved in the estimation process of fault ratio in the accident of collision of ships during the process of decision by Korea maritime safety tribunal. However, it is not clear whether or not the projected cost during this process is one of litigation cost. If the cost is not the litigation cost, this cannot be covered by the fishery insurance policy. In practice, the Korean Courts have cited the decisions of Korea maritime safety tribunal in making decision. Under this situation, it is reasonable to say that this projected cost is one of litigation cost. Therefore, this should be included in the coverage of fishery insurance policy. In addition, considering the purpose of enactment of fishery insurance policy, P&I Club may be additionally introduced to protect the petty fishermen.