선박의 숨은 하자에 관한 연구 - 부산지방법원 2016. 3. 25. 선고 2014가단246949 판결 및 부산지방법원 2017. 5. 12. 선고 2016나43473 판결을 중심으로 -

Abstract

The latent defect of the ship stipulated as the event invoking the carrier’s exemption of liability under the article 796, sub-paragraph 11 of the Korean Commercial Act means the defect not discoverable by due diligence and it is the different concept from the unseaworthiness of ship under the article 794 of the Korean Commercial Act. The defect not discoverable by due diligence is understood to be the defect which is latent to the extent that the carrier could not have discovered by due diligence even if he fails to prove that he actually exercised the due diligence. Therefore, where the carrier seeks the exemption of liability from the latent defect of the ship, it does not matter whether the carrier actually exercised the due diligence or not. If the carrier proves the latent defect of the ship and also prove in accordance with the article 796 of the Korean Commercial Act that the damage to cargo might usually arise due to the latent defect of the ship, the carrier is exempted from the liability in respect of the damage to cargo, but it should be noted that the burden of proof required in respect of the casual connection is the burden of proof for the probability, not the burden of proof for the clear causation. Nevertheless, according to the proviso of the article 796 of the Korean Commercial Act, the carrier is not exempted from the liability, if the shipper proves that there was the violation of the duty to exercise the due diligence either in terms of seaworthiness or caring for cargo and that the damage to cargo occurred due to such violation. However, in respect of the shipper’s burden of proof for the carrier’s violation of the duty to exercise the due diligence in terms of seaworthiness, the shipper in the first instance should prove the unseaworthiness of the ship itself as the evidence of the violation of the carriage contract and further, should prove the casual connection between such unseaworthiness and the damage to cargo in accordance with general legal principle of the Korean Civil Act, but it is not easy in terms of shipper who does not retain any information on the ship. In addition, the shipper, as per the proviso of the article 796 of the Korean Commercial Act, should prove that the carrier did not exercise the due diligence with the result that the shipper’s burden of proof is very onerous.