定期傭船者의 責任이 否認된 도쿄 세나토르호 사건(대법원 2001.7.10.선고99다58327사건)
김인현
초록
This article deals with a judgment which the Korean Supreme Court rendered in respect of a maritime case on the issue of liability of the time charterer. A shipper made a contract of carriage for dangerous cargo with a space charterer who carried the cargo on board a time chartered vessel. The cargo interests made claims to the time charterer for cargo damage. The cause of action were both in contract and tort. The Supreme Court rendered a judgment stating that the contract of carriage lies between the space charterer and the cargo interests. Therefore, the cargo interestscan not make a claim against the time charterer who has no privity of contract with the cargo interests. The Court also held that the time charterer holds a vicarious liability caused by the negligence of crew under the time charter-party and that the cargo interests as a claimant, who as a general rule has the burden of proof, should prove the negligence of crew. Finally, the Court rejected the cargo interest's claim against the time charterer, on the ground that crew do not have special duty of care for cargo handling when the shipper did not give notice to the carrier regarding the dangerous nature of the cargo and thus the requirements to invoke the time charterer's vicarious liability were not fulfilled. While the writer agrees with the conclusion of the Court, he expresses his opinion on the possibility of the time charterer's liability under article 806 of the Korean Commercial Code and on the legal ground of admitting the time charterer's vicarious liability, both of which were not dealt in detail by the Court.