해상운송에 있어 송하인의 위험물 선적에 따른 책임 - The Aconcagua 사건을 중심으로 -

Abstract

The Aconcagua Case is well appreciated in that the English court(‘Court’), from the various perspectives, reviewed the shipper’s liability under the article Ⅳ, rule 6 of the Hague Rules in respect of the shipment of the dangerous cargo. In the first instance the Court confirmed that the shipper’s liability was strict in accordance with the tradition of common law and furthermore, introduced the criteria of ‘the prudent carrier’ in determining the shipper’s strict liability. The prudent carrier means the ordinarily experienced and skilful carrier shipping the same kind of dangerous goods and the carrier as the prudent carrier is not required to have the knowledge of the unknown nature of the dangerous cargo. Therefore, the shipper, whether in fault or not in respect of the disclosure, is strictly liable for the loss that occurred due to the shipment of the dangerous cargo. The Court also analysed the relation between the shipper’s strict liability and the carrier’s duty to exercise due diligence to make a ship seaworthy. That is to say, the Court, in the premise that the latter was the overriding duty on the part of the carrier, viewed that the carrier would not be entitled to the indemnity against the shipper in any events, if the shipper proved that the violation of the latter existed. However, as the duty to exercise due diligence to make a ship seaworhty is only required before and at the beginning of the voyage, the Court in the Aconcagua case, judged that the carrier’s stowage of the dangerous cargo into the vicinity of the bunker storage tank and the subsequent heating of it during the voyage did not constitute the violation. Nevertheless, the Court admitted that the heating of the bunker storage tank might fall into the category of the violation of the duty to care for the cargo. But the Court regarded it as the excepted negligence under the article Ⅳ, rule 2(a) of the Hague Rules with the result that the carrier was entitled to indemnity against the shipper under the article Ⅳ, rule 6 of the Hague Rules. Meanwhile, differently from the English law, the shipper is liable only with fault for the loss arising out of the shipment of the dangerous cargo under the Korean law. In other words, although the carrier proved the existence of the unknown nature of the dangerous cargo, the shipper would not be liable where he proves that he was not negligent in respect of the existence of the unknown nature of the dangerous cargo. Therefore, the carrier is in the disadvantageous position under the Korean law in comparison with the English law. Considering the English interpretation on the article Ⅳ, rule 6 of the Hague Rules, the purpose of this article is ultimately dedicated to provide the proposal on the reasonable alteration of the shipper’s liability, by adjusting the interests of both shipper and carrier.