해상법상 손해배상책임 제도의 문제점 (Problems of Liability Regime in Maritime Law)

서지정보

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· 저자명 : 권기훈

초록

The liability regime in the maritime law is significantly different from that of the law in general in that it strongly favors carriers. Though making fundamental changes to the global regime could be an option in theory, it is not a realistic one. The possibility of suggesting alternatives in consideration for interested parties is also very limited with the given situation and the existing regime.
First, regarding error of navigation, when a certain act is necessary to secure the safety of both ship and cargo or when distinguishing between the safety of ship and that of cargo is difficult, it is desirable to protect interested parties by interpreting it as negligence for cargo to the fullest extent.
Also, considering that most cargo damages are due to agents’ fault, and thereby, leave carriers exempt from liability, “the actual fault or privity of the carrier” needs to be admitted as a exclusion cause of limitation of liability and even be considered to be legislated into law.
Regarding fire, it is not necessary to limit the cause of fire to the ship where damages occurred in order to prevent the expansion of exemption. However, the fire has to occur on the ship and cause damages to the cargo on the ship in order to exempt carriers from liability. Except for the cases of fire due to carrier’s negligence of seaworthiness, it is difficult to imagine cases of fire due to the actual fault of privity of the carrier. Exempting carriers from liability in the case of fire, for example, due to the negligence of a crew, is against the principle of equity. Therefore, “the carrier”in the Article 795, Clause 2 of the Commercial Law should be interpreted to include agents such as crew members.
Regarding “the latent defects not discoverable by due diligence”, the Article 796, Clause 11 of the Commercial Law is redundant as long as the latent defects not discoverable by due diligence is considered unseaworthiness. If the purpose of the clause is to admit latent defects of facilities other than the ship in case, such as cranes, as the conversion cause of burden of proof, we must clarify the definition and avoid unnecessary disputes by referring them as “the latent defects of cranes and other facilities not discoverable by due diligence”, as in the Japanese law.
In order for the maritime law to serve as a reasonable mediator in legal disputes, efforts need be made to revise or interpret the law so that it does not favor just carriers and consider the interest of interested parties. This thesis wishes to be the first step in the direction for changes in compensation law and related insurance policies and a cornerstone for progress in the related fields.

영어초록

The liability regime in the maritime law is significantly different from that of the law in general in that it strongly favors carriers. Though making fundamental changes to the global regime could be an option in theory, it is not a realistic one. The possibility of suggesting alternatives in consideration for interested parties is also very limited with the given situation and the existing regime.
First, regarding error of navigation, when a certain act is necessary to secure the safety of both ship and cargo or when distinguishing between the safety of ship and that of cargo is difficult, it is desirable to protect interested parties by interpreting it as negligence for cargo to the fullest extent.
Also, considering that most cargo damages are due to agents’ fault, and thereby, leave carriers exempt from liability, “the actual fault or privity of the carrier” needs to be admitted as a exclusion cause of limitation of liability and even be considered to be legislated into law.
Regarding fire, it is not necessary to limit the cause of fire to the ship where damages occurred in order to prevent the expansion of exemption. However, the fire has to occur on the ship and cause damages to the cargo on the ship in order to exempt carriers from liability. Except for the cases of fire due to carrier’s negligence of seaworthiness, it is difficult to imagine cases of fire due to the actual fault of privity of the carrier. Exempting carriers from liability in the case of fire, for example, due to the negligence of a crew, is against the principle of equity. Therefore, “the carrier”in the Article 795, Clause 2 of the Commercial Law should be interpreted to include agents such as crew members.
Regarding “the latent defects not discoverable by due diligence”, the Article 796, Clause 11 of the Commercial Law is redundant as long as the latent defects not discoverable by due diligence is considered unseaworthiness. If the purpose of the clause is to admit latent defects of facilities other than the ship in case, such as cranes, as the conversion cause of burden of proof, we must clarify the definition and avoid unnecessary disputes by referring them as “the latent defects of cranes and other facilities not discoverable by due diligence”, as in the Japanese law.
In order for the maritime law to serve as a reasonable mediator in legal disputes, efforts need be made to revise or interpret the law so that it does not favor just carriers and consider the interest of interested parties. This thesis wishes to be the first step in the direction for changes in compensation law and related insurance policies and a cornerstone for progress in the related fields.

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