국제물품매매계약에서 정박기간과체선료 조항(LD Clauses)에 관한 연구 - 영국관습법을 중심으로 - (A Study on the Laytime and Demurrage Clauses(LD Clauses) in Contracts for the International Sale of Goods)

서지정보

· 발행기관 : 한국무역상무학회
· 수록지 정보 : 무역상무연구 / 69권 / 85 ~ 105페이지
· 저자명 : 최명국

초록

Thefact thatoneof thepartiestothesalecontract hashadtopaydemurragetothe shipowner under LDclauses in the charterparty does not of itselfmean that he can recover that lossfromhissalecounterpartyunder thesalecontract: theroutetosuch recovery is through express clauses in the sale contract itself. LD clauses in a sale contract standfreeandindependentof their counterpartsintherelevant charterparty.
LD clauses in a sale contract should be construed and applied as clauses in sale contracts, not as adjuncts to charterparties. Their interpretation should therefore be coloured not by decisions on laytime and demurrage in charterparties, but by their relationshiptothe contractual duties of CIF andFOBsellers andbuyers. The results discussed here have implications for the drafting of LDclauses in sale contracts.
If unwelcome surprises are to be avoided, it seems to advisable to start fromthe principle:what exactlydotraderswantorneedinLDclauses.Theyneedaclausewhich covers themagainst charterparty losses where those losses are the result of dealy causedby the counterparty tothe sale contract. The parties tothe sale contracts are well advisedtoprepareLDclausesconcentratingonthatpurposeandbearinginmind the followiing questions. First, should the loading and discharge code in the sale contract appear in traders' or trade associations' standard terms and conditions or shouldtheybeleft toadhocnegotiationincontract sheets?Second, shouldthat code beascompleteaspossible, coveringloadingordischargeperiodsor rates,demurrage anddespatch, or isit enoughforonlysomeof thosematterstobecoveredexplicitly, leavingothermatterstobegoverned“aspercharterparty”?Third,doestheintroduction or incorporationof astipulationfor thegivingof anoticeof readinessmakethestart of laytimemore or less predictable as between seller and buyer? Finally should a loading and discharge code in a sale contract actully be called a “laytime and demmurrage clauses”?

영어초록

Thefact thatoneof thepartiestothesalecontract hashadtopaydemurragetothe shipowner under LDclauses in the charterparty does not of itselfmean that he can recover that lossfromhissalecounterpartyunder thesalecontract: theroutetosuch recovery is through express clauses in the sale contract itself. LD clauses in a sale contract standfreeandindependentof their counterpartsintherelevant charterparty.
LD clauses in a sale contract should be construed and applied as clauses in sale contracts, not as adjuncts to charterparties. Their interpretation should therefore be coloured not by decisions on laytime and demurrage in charterparties, but by their relationshiptothe contractual duties of CIF andFOBsellers andbuyers. The results discussed here have implications for the drafting of LDclauses in sale contracts.
If unwelcome surprises are to be avoided, it seems to advisable to start fromthe principle:what exactlydotraderswantorneedinLDclauses.Theyneedaclausewhich covers themagainst charterparty losses where those losses are the result of dealy causedby the counterparty tothe sale contract. The parties tothe sale contracts are well advisedtoprepareLDclausesconcentratingonthatpurposeandbearinginmind the followiing questions. First, should the loading and discharge code in the sale contract appear in traders' or trade associations' standard terms and conditions or shouldtheybeleft toadhocnegotiationincontract sheets?Second, shouldthat code beascompleteaspossible, coveringloadingordischargeperiodsor rates,demurrage anddespatch, or isit enoughforonlysomeof thosematterstobecoveredexplicitly, leavingothermatterstobegoverned“aspercharterparty”?Third,doestheintroduction or incorporationof astipulationfor thegivingof anoticeof readinessmakethestart of laytimemore or less predictable as between seller and buyer? Finally should a loading and discharge code in a sale contract actully be called a “laytime and demmurrage clauses”?

참고자료

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