헤이그규칙상 해상고유의 위험의 법리- The Bunga Seroja 사건을 중심으로 -

Abstract

There has been much concern in recent years about the erosion of international uniformity in the law governing international carriage of goods by sea. That concern has arisen mainly because of the increasing tendency for countries to make unilateral modifications to the text of the Hague or Hague-Visby Rules. Disuniformity caused by modifications of the basic text is obvious: one need only look at the text of the rules enacted in each country in question to see how the law differs there. Less obvious but perhaps equally far-reaching in effect is the disuniformity caused by differing national interpretations of the same text. The "perils of the sea" exception in article IV, rule 2(c) of the Hague Rules is a case in point. The text itself has not changed since 1924 and appears in the same form in both the Hague and Hague-Visby Rules as well as in most of the modifications of those texts. Despite this superficial international uniformity, there are fundamental differences in the way rule 2(c) is interpreted in different countries. The Bunga Seroja began as a case about "the perils of the sea" defense in article IV, rule 2(c) of the Hague Rules. The Australian High Court ultimately found it unnecessary to make any decision about "the perils of the sea" because it adopted an interpretation of the Hague Rules article III and IV that has the potential to change the operation of every one of the Hague Rules defenses in Australia. Although the international disuniformity produced by the High Court's decision in The Bunga Seroja is less obvious than that wrought by the Australian Federal Parliament's 1998 amendment of the text of the Hague-Visby Rules, it is probably more far-reaching in practice.