로테르담 규칙상 대량정기화물운송계약(volume contract)에 관한 법적 고찰

Abstract

There are also recognised in the Rotterdam Rules contracts to which the Rules apply but where the parties also enjoy a degree of freedom of contract. In other words, these are categories of contract where the parties are free to vary and even derogate from the mandatory nature of the Rules. Such categories are not a novel phenomenon in the tradition of international maritime transport conventions but a few and controversial addition has been introduced by the Rules, characterised as ‘volume contract’. Volume contract appears to be most familiar to those with experience of shipping practice in the US, where the category has received legislative recognition, and in the Scandinavian region. Its roots appear to be found in the acceptance of the validity of Ocean Liner Service Agreement (OLSA) in the reform of the ocean liner industry made by the US Shipping Act 1984as amended by the Ocean Shipping Reform Act 1998, as a consequence of which OLSA developed quickly to occupy a significant position in many areas of US international trade, both outward and inward. These reforms allowed for competitively negotiated liner service contracts, with parties,except for NVOCCs, permitted to enter into specialized and customized OLSA agreements. The category is addressed in article 80 of the Rules, which in its essence provides that in respect to a contract which is characterised as a volume contract, the parties may, subject to the conditions set out in the articles 14(a) and (b), 29, 32 and 61. The burden of proving that any or all of these conditions have been satisfied is borne by the party claiming the benefit of the licence to derogate, which may be either the carrier or shipper, but more likely it will be the carrier. In other words, subject to the designated conditions and limitations,freedom of contract prevails as between carriers and shippers, who may contract on terms that provide for greater or lesser rights, obligations and liabilities than those imposed by the Rules. Only when a carrier apply, and such derogation, again subject to protective conditions, may be binding on third parties. In the absence of any such special agreement, the provisions of the Rules continue to apply to volume contract. The purpose of this article aims to analyse the implications of volume contract clause under the Rotterdam Rules.