운송인의 감항능력주의의무에 관한 Fjord Wind 호 판결 분석

Abstract

The duty under Hague or Hague-Visby Rules being only one of due diligence, the common law absolute warranty of seaworthiness is by the enacting legislation specially abolished where the Rules apply.Where the contract of affreightment is governed by the Rules, the absolute obligation at common law is replaced by a duty to exercise due diligence to make the vessel seaworthy. Accordingly, while the carrier will no longer be strictly liable in the absence of any fault, he will be liable not only for his own negligence but also for the negligence of any party, even including an independent contractor, to whom he has delegated responsibility for making the vessel seaworthy. This reduction in liability is, however, accompanied by a provision invalidating any attempt by the carrier further to reduce or exclude his responsibility under the Rules to provide a seaworthy vessel.To establish due diligence it may be necessary to give an indication of the cause of the loss or damage. Where a latent defect in the vessel causing the loss or damage can be proved, it may be fairly easy to establish due diligence, though it might in such a case be easier to proceed directly to the Rules.Many modern standard charter forms have now adopted the Rules formula with regard to the requirement of seaworthiness. Thus the NYPE charter, by the use of a ‘Paramount Clause’, expressly incorporates into the charterparty the provisions of the USCOGSA 1936.Therefore, the main purpose of this paper is to study the problems related to the carrier’s obligation to exercise due diligence in making vessel seaworthy via the case of the Fjord Wind and to analyse implications of this case.