선주책임제한법은 임의법규인가? - 대법원 2015.11.17.선고 2013다61343 판결의 평석을 중심으로 -

Abstract

In the subject case, the defendant chartered cargo storage part of a car ferry for a period and, while transporting a newly built car of a third party, it was burnt down by fire on the ship. The plaintiff argued that there had been an agreement between the defendant and the plaintiff to exclude the carrier’s exemptions and limitation of liabilities from the contract of carriage. The defendant denied the alleged exclusion of exemptions and limitation of liability and secondarily raised defense of limitation of shipowners’ liability. The first instance court agreed with the defendant and acknowledged limitation of shipowners’ liability defense. But the appeal court and the Supreme Court did not acknowledge the defendant’s argument. The conclusion of the appeal court and the Supreme Court denying shipowners’ limitation of liability defense of the defendant seems right but their reasoning that the law of the limitation of shipowners’ liability is a non-mandatory provision and thus the agreement of the parties to exclude the exemptions or limitation of liability can be applied to the limitation of shipowners’ liability cannot be agreed. In the writer’s opinion, the subject claims for limitation of shipowners’ liability should be related to the vessel operation and thus parties who can apply for limitation of shipowners’ liability are the ones who operates the vessel. Then the time charterer, who is not the operator of the vessel, cannot apply for limitation of shipowners’ liability. Though whether shipowners’ limitation of liability law is dispositive was not the main issue of the subject decision, the court based its decision, denying the limitation of shipowners’ liability, on the non-mandaroty provision of the law and it will give great effects on interpretation of shipowners’ limitation of liability system. In the interpretation of the Korean Commercial Law of 1962, the Korean Supreme Court constantly limited the application of the limitation of shipowners’ liability to the claims related to the breach of the contract and did not acknowledge limitation of the liability in case of tort claims, which had been criticized by the scholars. To resolve this problem, the Korean Supreme Court inserted a phrase of “regardless of the cause of the claims” to the revised Korean Commercial Code of 1991 and thus made a clear basis to apply the ship owners limitation of liability to tort claims. Thereafter, the Supreme Court has acknowledged limitation of shipowners’ liabilities in case of collision cases. Due to the paragraph 1, the Article 798 of the Korean Commercial Law which says that limitation of carriers’ liability can be applied to tort claims, the two systems seem similar. But the tort claims mentioned in the Article 798 of the Korean Commercial Code was for the situation that the claimant tries to nullify carriers’ limitation of liability by technically raising tort claims using concurrence of the claims theory. The tort claims mentioned in the Article 769 of the Korean Commercial Law which is for shipowners’ liability limitation are intrinsically different. For example, it is not possible to predict the relevant parties of a collision and they agree with exclusion of shipowners’ liability limitation in advance. According to the logic of the decision of the Supreme Court in the subject case, the agreement to exclude shipowners’ liability limitation should be allowed for contract claims but, for the other kinds of claims, the shipowners’ liability limitation should be allowed, which interpretation cannot be possible, considering the aspects of the system of limitation of the total claims. Then it is not possible for the parties to exclude shipowners’ liability limitation in advance and the reasoning of the subject decision, which saw the subject law as a dispositive one, lacks persuasive power. If the reasoning of the decision is kept, in the contrary to the purpose of the decision to protect the claimants, the ship owners can extend the exemptions or lower the limitation amount in a bill of lading or a contract of carriage, despite the law of shipowners’ liability limitation, and thus can lower or avoid their liabilities to the tort claimants.