항해중의 감항능력유지의무에 관한 문제점 고찰 -UNCITRAL 초안 제13조를 중심으로-

Abstract

At common law a shipowner by contracting to carry goods a voyage in a ship, in the absence of express stipulation, impliedly undertakes that his ship is seaworthy. Where the Hague-Visby Rules applies, the common law absolute undertaking of seaworthiness ie replaced by an undertaking that the shipowner will before and at the beginning of the voyage exercise due diligence to make the seaworthy. However, Draft Article 13(1) is defined that “the carrier shall be bound, before, at the beginning of, [and during] the voyage by sea, to exercise due diligence to : (a) make [and keep] the ship seaworthy, (b) properly man, equip and supply the ship, (c) make [and keep] the holds and all other parts of the ship in which the goods are carried, including containers where supplied by the carrier, in or upon which the goods are carried fit and safe for their reception, carriage and preservation.” It was noted that three sets of square brackets remained in the text of this paragraph, and that removing the square brackets and retaining the text would make the carrier’s duty of due diligence for seaworthiness a continuing obligation. I think that the text in square brackets should be deleted so as to ensure that the carrier’s obligation to keep the ship seaworthy existed only prior to and at the beginning of the voyage. It was observed that this would continue the approach taken in article Ⅲ.1 of the Hague and Hague-Visby Rules, and it was suggested that this approach had worked well to date. It was suggested that making the obligation to provide a seaworthy vessel a continuing obligation would place too great a burden on the carrier, and that it would considerably alter the overall allocation of risk between the carrier and cargo interests in the draft instrument.