감항능력 주의의무의 구성요소에 관한 고찰 －영국판례를 중심으로－

Abstract

It is natural which the ship navigating in the sea must take the due diligence for seaworthiness and thus the ship having no due diligence for seaworthiness has no ability to accomplish the voyage toward the destination, and so it makes to be obligatory which the marine carrier has the due diligence for seaworthiness about the vessel to be used in the transportation or in case of violating it, it makes so as that the carrier takes the responsibility on the damage or loss caused. Upon Hague-Visby Rules Article 3, Section 1, the carrier who is entrusted with the consignor's cargo must have every conditions to transport its cargo to the destination safely and thus as its conditions, there are the crew who will operate the ship, the various equipment & necessities , document required for the ship sail as well as the ship's own due diligence for seaworthiness and when so, the ship can be safely sailed to the planned course, and thus the carrier must take every attention to hold these every conditions. Of course, our Commercial Law, Article 787 regulates the obligation of policy on the due diligence for seaworthiness of carrier. If defined in a word, the ability in which the ship given by the carrier for the sea transportation can be safely navigated means the Vessel seaworthiness and the obligation of carrier who prepares to have the obligation on due diligence of seaworthiness is called to be the " due diligence of seaworthiness ". The judgement on the due diligence of ship is not uniformly regulated but becomes the matters of facts, and has the relative characteristics which we must judge it upon circumstances. Also, as the element which determines the due diligence of seaworthiness, it can be largely classified as the due diligence for Vessel seaworthiness, that for Voyage seaworthiness, that for Human seaworthiness and that for Cargo- worthiness. Firstly, the due diligence for Vessel seaworthiness as the element of judging the due diligence of most basic seaworthiness is to offer the ship under the status suitable to cope with the common danger which is expected to meet while the ship exercises the voyage. Accordingly, as the conditions of judging the due diligence for Vessel seaworthiness, it will have to consider the ship's kind, ship's age, kind of sea-surface and period of voyage etc. wholly. Secondly, the due diligence for Voyage seaworthiness requires to have the personal & material equipment required to perform the voyage for the purpose of possessing the operational ability. Accordingly, the ship's tackle, sufficient spares and provisions must be taken for the safe voyage. Also, all kind of document under the public law of maritime affairs required for the safe voyage and all or any document required by the port & authorities at the time of entry & exit must be possessed. Therefore, in case of violating it, the carrier gets to violate the due diligence for seaworthiness, and also the ship to lose the seaworthiness. Thirdly, the due diligence for Human seaworthiness means which the captain having competence and a sufficient number of eligible & able crew must be operated in the ship for the purpose of accomplishing the voyage at the ship's departure. A most of sea accident is caused by the default of human and thus the importance on the due diligence for Human seaworthiness is gradually larger and larger. Accordingly, in case the cargo is lost or damaged by the no-eligible crew, the carrier will be responsible for the damage compensation. Fourth, the ship is the warehouse for cargo as well as the transportation means and thus the part for loading must be suitable for the transportation. Therefore, the Cargo worthiness is the condition matter of transporting ship on the loaded cargo. As like this, the ship must have the proper conditions through the wide-ranging part of hulls, voyage, manpower and cargo-loading capacity in order that the ship acquires the due diligence for seaworthiness. The carrier must pay attention to the due diligence properly for acquiring the due diligence for seaworthiness. Due to the recently-frequent sea accident, there are many domestic & foreign demand mentioning which we will have to take the stronger measures to gain the marine safety and to protect the marine environment, and so as its results, IMO has reinforced the international cooperation related more and more and the control on the ship. Accordingly, it is natural to apply the more-strict standard to the judgement of ship's seaworthiness. Hereupon, we make assurance doubly sure to gain the ship's seaworthiness, based on all kinds of case exemplified in this study, and so will devote ourselves to the sea accident's prevention.