무유보·선(先)선적 선하증권을 위한 송하인의 보상장발행 관행에 관한 법적 논점 (Legal Issues on the Practices of the Letters of Indemnity Issued in Exchange for Clean/Antedated Bills of Lading)

서지정보

· 발행기관 : 한국기업법학회
· 수록지 정보 : 기업법연구 / 22권 / 4호 / 523 ~ 554페이지
· 저자명 : 양석완

초록

A letter of indemnity at shipment is a written undertaking by a shipper to indemnity a carrier for any responsibility that the carrier may incur for having issued a clean bill of lading when, in actual fact, the goods received were not as stated on the bill of lading.
This practice has been frowned upon by the courts, who often characterize the practice as fraudulent. The court have had harsh comments for such practices : Antedated and false bills of lading are a cancer in the international trade. A bill of lading is issued in international trade with the purpose that it should be relied upon by those into whose hands it properly comes - consignees, bankers, and endorsees. A bank that receives a bill of lading signed by or on behalf of a shipowner (as one of the documents presented under a letter of credit) relies upon the veracity and authenticity of the bill. Honest commerce requires that those who put the bills of lading into circulation do so only where the bill of lading, as far as they know, represents the true facts.
The use of letters of indemnity to procure clean bills of lading and antedated bills of lading is a reprehensible practice that, despite legal sanctions, is unfortunately widespread. Shippers whose goods fail to meet the standards as required by the documentary credit, the contract of sale, or commerce generally, should be forced to deal with the consignee or the other party to the sale contract if they are unable to or unwilling to ship the goods under claused bills of lading. Enlisting the help of the carrier to perpetrate a fraud on an innocent third party is unacceptable, and should not be tolerated by the courts or by the shipping industry.
The purpose of this paper is to provide a multi-jurisdictional analysis of the law regarding letters of indemnity, permitting identification of current trends and of areas most in need of reform.
I would urge the shipping community to create a duty to inform system of acceptable clauses for bills of lading in conjunction with documentary credit system, which parties acting in good faith with a genuine factual dispute could employ, rather than resorting to hidden transactions unapparent to the consignee.

영어초록

A letter of indemnity at shipment is a written undertaking by a shipper to indemnity a carrier for any responsibility that the carrier may incur for having issued a clean bill of lading when, in actual fact, the goods received were not as stated on the bill of lading.
This practice has been frowned upon by the courts, who often characterize the practice as fraudulent. The court have had harsh comments for such practices : Antedated and false bills of lading are a cancer in the international trade. A bill of lading is issued in international trade with the purpose that it should be relied upon by those into whose hands it properly comes - consignees, bankers, and endorsees. A bank that receives a bill of lading signed by or on behalf of a shipowner (as one of the documents presented under a letter of credit) relies upon the veracity and authenticity of the bill. Honest commerce requires that those who put the bills of lading into circulation do so only where the bill of lading, as far as they know, represents the true facts.
The use of letters of indemnity to procure clean bills of lading and antedated bills of lading is a reprehensible practice that, despite legal sanctions, is unfortunately widespread. Shippers whose goods fail to meet the standards as required by the documentary credit, the contract of sale, or commerce generally, should be forced to deal with the consignee or the other party to the sale contract if they are unable to or unwilling to ship the goods under claused bills of lading. Enlisting the help of the carrier to perpetrate a fraud on an innocent third party is unacceptable, and should not be tolerated by the courts or by the shipping industry.
The purpose of this paper is to provide a multi-jurisdictional analysis of the law regarding letters of indemnity, permitting identification of current trends and of areas most in need of reform.
I would urge the shipping community to create a duty to inform system of acceptable clauses for bills of lading in conjunction with documentary credit system, which parties acting in good faith with a genuine factual dispute could employ, rather than resorting to hidden transactions unapparent to the consignee.

참고자료

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