해상운송계약에서 준거법 결정에 관한 고찰

Abstract

Needless to say about such maritime transport contract like a bill of lading contract or a charter party, in case a combined transport contract is concluded, into which foreign factors are intervened, it should be firstly resolved to decide the venue of lawsuit and the governing law in every and all lawsuit disputes regarding a damage on transported goods. In such a transport contract, each contracting party is from a different country, and there are many cases in which the execution place and the conclusion place of a contract is different with each other. Since the effect or execution method of a contract can be different according to which law is applied, we think that it is very important to decide on which law should be applied to the contract concerned. This is usually decided by the decision on the governing law, but, in case of maritime commodity transport contracts, there are many incidents in which the paramount clauses are established at the same time other than the governing law clauses, and there could be some cases in which these two kinds of clauses conflict with each other. In case that the paramount clauses conflict with the other clauses in Hague Rules, Hague-Visby Rules or Carriage of Good by Sea Act, 1936, USA, it is stipulated that these rules or regulations are given a priority. However, actually, it is inevitable that there could be an interpretation conflict between the paramount clauses and the governing clauses. From the viewpoint of a carrier, in order to enjoy the advantages of the liability-limit and exemption clauses in the international rules, the carrier indicates the paramount clauses with an aim to apply the international rules in priority, and furthermore, the carrier uses the term 'paramount' as a nomination for such clauses. However, they are merely solitarily inserted clauses by the carrier in Contract of Adhesion, and we don't think they can have priority effects just for the reason that they have such a nomination. Thus, according to the Korean law, we think that the regulatory conflict can be acknowledged only in case that the law of certain country which accepted the international rules is specifically stipulated on the bill of lading concerned. Then, in other cases, we think that the paramount clauses should be considered to be one of the regular clauses in which the priority among contract contents should be decided according to the specific matter by designating an actual law to be applied as contents into the contract concerned. But, according to English Carriage of Good by Sea Act, 1971, the paramount clauses may have their legal effects, and, only in case that the effects of certain law are acknowledged in certain country, an agreement regarding governing law can be excluded. Except these particular cases, we think that the governing law should be decided according to the regulations in the private international law regarding decision on the governing law and its judgements and the regulations in each country's transportation- related law and its judgements. In conclusion, we think that these matters will result in the question of whether to acknowledge the effects of the clauses based on the governing law and the paramount clauses and in the legal interpretation problem regarding these two kinds of clauses by each country.