A Study on the Carrier’s Duty to Exercise the Due Diligence in terms of Seaworthiness under the Korean Law
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Korean Commercial Act adopted the article Ⅲ, rule 1 of the Hague-Visby Rules in respect of a carrier’s duty to provide a shipper with the seaworthy ship and therefore, the carrier should exercise the due diligence in terms of seaworthiness before and at the beginning of the voyage in accordance with the article 794 of the Korean Commercial Act. However, it is unclear what it exactly means for the carrier to exercise the due diligence in terms of seaworthiness. The author opines that the strict criteria for the carrier’s due diligence should be applied, considering that the carrier is entitled to seek the exemption of liability as per the article 795 (2) and 796 of the Korean Commercial Act. In this regards, it is noteworthy that the English Court has applied the test of prudent carrier in deciding whether or not the carrier exercised the due diligence in terms of seaworthiness. Therefore, the author analyses the test of prudent carrier which has been developed in the English cases and suggests its implication. Even though the Korean Commercial Act adopted the Hague-Visby Rules, the legal principle for the exemption of liability of the Korean Commercial Act are stipulated differently from that of the Hague-Visby Rules. In other words, the carrier should bear the burden of proof for his due diligence in terms of seaworthiness as per the article 794 of the Korean Commercial Act if he invokes the exemption of liability arising out of the navigational error or the occurrence of fire in the article 795 (2), but once he invokes the exemption of liability in connection with the occurrence of the events described in the article 796, the burden of proof for the carrier’s diligence is shifted to the claimant. Furthermore, it is unclear who should bear the burden of proof for not only unseaworthiness itself but also the casual connection between the unseaworthiness and the loss of or damage to cargo with regards to the application of the article 794, 795 (2) and 796 of the Korean Commercial Act. Bearing those issues in mind, the author studies and proposes the balanced burden of proof between the carrier and the claimant in order to reasonably coordinate the interests.
Abstract
Korean Commercial Act adopted the article Ⅲ, rule 1 of the Hague-Visby Rules in respect of a carrier’s duty to provide a shipper with the seaworthy ship and therefore, the carrier should exercise the due diligence in terms of seaworthiness before and at the beginning of the voyage in accordance with the article 794 of the Korean Commercial Act. However, it is unclear what it exactly means for the carrier to exercise the due diligence in terms of seaworthiness. The author opines that the strict criteria for the carrier’s due diligence should be applied, considering that the carrier is entitled to seek the exemption of liability as per the article 795 (2) and 796 of the Korean Commercial Act. In this regards, it is noteworthy that the English Court has applied the test of prudent carrier in deciding whether or not the carrier exercised the due diligence in terms of seaworthiness. Therefore, the author analyses the test of prudent carrier which has been developed in the English cases and suggests its implication. Even though the Korean Commercial Act adopted the Hague-Visby Rules, the legal principle for the exemption of liability of the Korean Commercial Act are stipulated differently from that of the Hague-Visby Rules. In other words, the carrier should bear the burden of proof for his due diligence in terms of seaworthiness as per the article 794 of the Korean Commercial Act if he invokes the exemption of liability arising out of the navigational error or the occurrence of fire in the article 795 (2), but once he invokes the exemption of liability in connection with the occurrence of the events described in the article 796, the burden of proof for the carrier’s diligence is shifted to the claimant. Furthermore, it is unclear who should bear the burden of proof for not only unseaworthiness itself but also the casual connection between the unseaworthiness and the loss of or damage to cargo with regards to the application of the article 794, 795 (2) and 796 of the Korean Commercial Act. Bearing those issues in mind, the author studies and proposes the balanced burden of proof between the carrier and the claimant in order to reasonably coordinate the interests.
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