지상약관의 해석 - “선적국에서 입법화된 헤이그 규칙”의 의미 - (The Superior Pescadores 판결에 관한 검토)

Abstract

A bill of lading contains a paramount clause to ensure the minimum standards of carrier’s obligations and liabilities required by the Hague Rules or the Hague Visby Rules. As the Hague Rules and the Hague Visby Rules stipulate the different liability regimes, it is crucial to determine which one of these Rules applies or whether these Rules apply as a matter of law or of a contractual provision when it comes to the interpretation and the application of the paramount clause in the contract. However, considering the fact that the Hague Visby Rules are not a completely separate convention from the Hague Rules but rather an amended version of the latter, the word of ‘the Hague Rules’ used in the paramount clause may in fact refer to ‘the Hague Visby Rules’ under certain circumstances and an example of which can be found in ‘The Superior Pescadores.’ In this case, the Court of Appeal held that the phrase “the Hague Rules…as enacted in the country of shipment” contained in the bill of lading issued referred to “the Hague Visby Rules…as enacted in the country of shipment”, which are the Belgium laws. However, it should be noted that such interpretation is only allowed in the circumstances where the following two requirements are satisfied; firstly, the country of shipment has enacted a domestic law incorporating the Hague Visby Rules and secondly, the bill of lading does not contains the Hague Visby Rules separate from the Hague Rules. On a separate note, in the event that a contract of carriage is governed by the Korean Commercial Code (which adopted the Hague Visby Rules’ limitation amount), and at the same time incorporating the Hague Rules as contractual terms by way of a paramount clause, the interpretation of the limitation amount under the two different regimes will depend on the weight of the cargo. If a number of separate cargoes are carried under one contract of carriage, it would be reasonable to apply one limitation regime to all the cargoes rather than applying a different regime to each cargo.