부실기재선하증권을 발행한 해상운송인의 포장당 책임제한조항 적용가능성에 대한 연구－미국 Berisford Metals Corp. v. S/S Salvador, and A/S Ivarans Rederi(1985) 판례를 중심으로－ (A study on a misrepresented B/L and Package Limitation to a Carrier’s Liability)

서지정보

· 발행기관 : 국제거래법학회
· 수록지 정보 : 국제거래법연구 / 19권 / 2호 / 151 ~ 174페이지
· 저자명 : 김상만

초록

It has been widely acknowledged that a carrier’s liability shall be limited to certain amount per package or per an accident. In this respect, the Hague Rules,which was adopted in 1924, limits a carrier’s liability to 100 pounds per package.
Numerous countries including U.S.A, Korea, accepted the Hague Rules.
Nevertheless, it has been criticized that a carrier’s liability is limited even though the damage is caused by its willful or gross negligent conduct. The Hague-Visby Rules, which is an amendment to the Hague Rules, provides some an exception to the package limitation of a carrier’s liability. Korea accepted the Hague-Visby Rules, but U.S.A. didn’t. However, U.S. federal courts recognized some exceptions in case of vacant B/L, or misrepresented B/L.
In Berisford case regarding misrepresented B/L, the federal court concluded that carrier must held responsible for full value of the lost cargo and cannot invoke the $500 package limitation of liability provision of COGSA. The court applied a higher standard in the event that a carrier makes a representation in a B/L with respect to its own conduct since it is reasonably expected to be aware of its own actions, including whether or not it has loaded cargo. Furthemore, the court held that the carrier’s misrepresentation amounted to a fundamental breach going to the very essence of its contract and precluding it from invoking those package limitation of liability provision.

영어초록

It has been widely acknowledged that a carrier’s liability shall be limited to certain amount per package or per an accident. In this respect, the Hague Rules,which was adopted in 1924, limits a carrier’s liability to 100 pounds per package.
Numerous countries including U.S.A, Korea, accepted the Hague Rules.
Nevertheless, it has been criticized that a carrier’s liability is limited even though the damage is caused by its willful or gross negligent conduct. The Hague-Visby Rules, which is an amendment to the Hague Rules, provides some an exception to the package limitation of a carrier’s liability. Korea accepted the Hague-Visby Rules, but U.S.A. didn’t. However, U.S. federal courts recognized some exceptions in case of vacant B/L, or misrepresented B/L.
In Berisford case regarding misrepresented B/L, the federal court concluded that carrier must held responsible for full value of the lost cargo and cannot invoke the $500 package limitation of liability provision of COGSA. The court applied a higher standard in the event that a carrier makes a representation in a B/L with respect to its own conduct since it is reasonably expected to be aware of its own actions, including whether or not it has loaded cargo. Furthemore, the court held that the carrier’s misrepresentation amounted to a fundamental breach going to the very essence of its contract and precluding it from invoking those package limitation of liability provision.

참고자료

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