최근의 선주책임제한의 적용 및 절차상 쟁점에 관한 고찰

Abstract

Korean Commercial Code (“KCC”) while revised in 1991 adopted the limitation of liability regime modelled on the Convention on Limitation of Liability for Maritime Claims, 1976, which permits shipowners to limit their liability according to limitation figures based on the ship’s tonnage, so-called tonnage system. In the same year, Korea enacted the Law of Procedure for Limitation of Liability of Shipowners etc.(“Limitation Procedure Law”). It can be acknowledged that since the amendment of KCC in 1991, shipowners have resorted to the limitation procedure to limit their liability for compensations of damages arising from major marine casualties thereby resolving disputes between multiple claimants and the liable party efficiently and in batches at the limitation court. The Korean Supreme Court has ruled on numerous issues presented before the Court regarding construction and applications of the limitation regime so far. It has held that liability insurer is entitled to rely on the insured’s right to limitation；a carrier’s liability for misdelivery of the cargo without presentation of the original bill of lading is not subject to limitation since such loss does not occur in direct connection with the operation of the ship；and a recourse claim from a person liable in respect of the removal of a ship which is sunk or wrecked is not a claim excepted from limitation under Article 773 of KCC. The Court has made important judgments on the construction of conduct barring limitation under the proviso of Article 769 of KCC, validity of voluntary agreement between contractual parties to exclude limitation, and the tug and tow ‘flotilla’ issues etc. The courts have enunciated their positions on several procedural matters, for example, holding that limitation proceedings for both a tug and tow can be commenced in one procedure as an exception to the rule that one limitation fund shall be constituted for the specific ship involved a casualty, and that application for limitation procedure can be filed even before the shipowners receive a written claims exceeding the limitation amount. The courts have rendered other judgments that provide guiding principles to deal with pre-judgment attachments already excecuted before commencement of limtiation proceedings, separate suits pending outside the limitation court for the same claims subject to limitation and duplicate limitation proceedings in multiple jurisdictions. This study is aimed to provide updated review on the construction and application of the limitation regime and its procedural matters based on the recent precedents and practices.