항만하역사업자의 책임에 관한 연구

Abstract

According to the trend of a large-sized vessel and a industrial carrier, the harbor is realizing the exclusive use berth and the mechanization of stevedoring work. Also the function of harbor is extending the base of physical distribution and is developing into the base of general cargo distribution that include the function of stevedoring, storage, ware- housing , loading, unloading, stowage, trimming, dunnaging and lashing as well as the function of distributing center and information center.

Therefore the international unification of legal principle of liability for all distribution is a matter of importance to the revitalization of general cargo distribution and also the legal system on the liability of terminal operators is an important matter on the whole legal system of liability for cargo distribution

But there is no legal system on the liability of terminal operators in korea. Practically it depends on the principle of civil law and normal business practice.

If the contract of terminals is concluded, it is very important who is the contractor. Because the contents of liability vary greatly with the contractors.

As a general rule, the shippers have three ways to claim damages resulting from loss of or damage to the goods.

First, he can claim a compensation for damage from the carrier under the contract. In this case, it can be settled by the interpretation of general principle of civil law and commercial law.

Second, he can claim damages on tort against the carrier. This case is almost the same as the upper cases.

Third, he can claim damages on tort against the terminal operators. In this case, if the Himalaya clause, any person whomsoever carriage is performed or undertaken(including all sub-contractors of carrier) can be invoked the benefit of every right, defence and limitation of the carrier, is expressly existed in the contract, the operator will enjoy the benefit of every right as a carrier.

But the problem is that the range of compensation for shipper is changed by the clause of a special contract. In spite of the same payment of shipper, why it is that the range of damage compensation for shipper is different? The purpose of this paper is to solve the upper problem.

Moreover, the contract of terminal operators, according to the form of a contract, is divided into two forms.

First, In the case of the charter-party, the stevedoring contract is concluded between the operator and a shipper. If any damages for goods occurs, the shipper will claim against the operator and have a compensation for damages.

Second, In the case of the liner-contract, the shipper is used to enter into a contract with a carrier. Therefore the shipper claims against the carrier for cargo damages. After compensation for damages, the carrier will have the right of compensation for the operator. According as the korean commercial law, the carrier can enjoy the right of immunities and limits of liability for cargo damages of the shipper but the operator must cover all the expanses for the carrier`s damages. Also, if the shipper claims in tort against the operator directly, the operator must have a liability in accordance with the contents of the contract.

In the same manner way as upper problem, why must the contents of a claim of damage for the same contract become different with the contractor?

This contradiction must not be solved by the present legal system. For that reason, it is need to legislate for the law on the liability and legal position of the operator. So this paper suggests the three principles of legislation.

First, it needs to be in harmony with the international unification and the present law on the liability of a carrier.

Second, the benefit of immunity and limit of liability of carrier must expand into the liability in tort of the sub-executor of terminal operators.

Third, it needs to provide expressly the scope of application on the liability in tort of the sub-executor of terminal operators.

In conclusion, this paper suggests new terminal operator's legal liability system.