航海傭船契約約款의 解釋論的 硏究 : 1994年 GENCON과 英國判例法을 中心으로
- 航海傭船契約約款의 解釋論的 硏究 : 1994年 GENCON과 英國判例法을 中心으로
- Alternative Title
- (A) Study on Voyage Charter Party in English Law and Case concerning GENCON 1994
- Publication Year
- 한국해양대학교 대학원
- "GENCON" charter has long been used among individuals or companies as a main Voyage charter since BIMCO(The Baltic and International Maritime Conference) invented in 1922. Many of Korean shipping companies and shippers widely use the charterparty as a main charterparty. The use of "GENCON" charter is mainly for transporting grains and raw materials. the use of the charter hasn't changed but the charter itself had to make several changes in its ideas and clauses. In 1976, BIMCO made amendments for its "GENCON" charter not only because of their own necessities but because of massive changes from contemporary circumstances which are happening in the international trade.
In the way of research, I interpreted the clauses in GENCON charter 1994, and then compared those clauses with the provisions in Korea commercial Law and English Laws and Cases. the clauses of "GENCON" charter could be divided into three parts : Carrier's responsibility clauses and Danger and Arbitration clauses. "Carrier" that I used in the thesis means the united concept of shipowner and charterer, I took the notion from "carrier" of Hague - Visby rules(Article 1). With interpreting the clauses, I did compare the changes in the clauses with the previous clauses and studied the influences due to the changes. I
In the chapter Ⅱ, I have highlighted some legal aspects concerning Voyage charter including the differences with other charters such as Time charter and Demise charter.
The biggest difference among those charters can be found through the period of charter. The period of voyage charter usually depends on the length of the voyage of a ship. whereas, other charters are mainly used more than one voyage. Sometimes more than one voyage chartering happens but it is definitely different from Time charter or Demise charter. The legal characteristics of such charterparties are construed in the implied duties of the carriers and the legal relationships between the charterparties.
According to the Carrier's responsibility clauses(chapter Ⅲ), the shipowner has contractual responsibilities from preliminary voyage. the start of preliminary voyage means contract starts between parties, also charterer has responsibility to provide the ship with full and complete cargo. Like other charters, shipowner or his agent (including captain) has the duty of seaworthiness, and undertakes expressed duties and implied duties. They are found in the clauses in the chapter Ⅲ(the preamble of GENCON 1994).
In the ChapterⅢ, most clauses define the duties of shipowner and charterer. Shipowner and his agent should provide the ship which is seaworthiness with the charterer. otherwise, the use of the cancelling clause may be entitle to the charterer. It is also included in implied duty for shipowners but charterer should offer full and complete cargoes. And charterers are responsible for loss and demage cause by loading and discharge. To the contrary of using Gross term in GENCON 1976, now FIO term is the only term applied to GENCON 1994, the responsibilities of charterer are more expanded than those of the former charter. Also another amended clause is about freight, In the previous GENCON, the advanced payment of freight was not accepted but, in GENCON 1994, the advanced payment of freight becomes a practice.
In the Danger and Arbitration Clauses (chapter Ⅳ), There are some clauses as following
: Both to Blame collision clause, General Average and New Jason clauses, General Strike clause, War clause, General Ice clauses and Governing Law and Arbitration Clauses. Not like the referred clauses above, there are mostly exception clauses for ship owner. There are also some necessities to check governing Law and Arbitration clause, so long as you use GENCON charter as a main contractual charterparty, without any doubt, should choose English Law as your governing Law.
As mentioned above, I dealt with the amendments of GENCON 1994 based upon English precedents. Also I tried to point out the concerns which need revisions for future amendments compared to Korean present maritime law.
At first, there are only section 782 and 798 which have just simple comments on the Inclusion of Laytime - which is one of the main grounds of conflict among parties - in Korean maritime Law.
Secondly, on noticer of the readiness to discharge, there is a provision which is subject to carrier to notice the charterer for the readiness to load or discharge. However, the readiness of discharge is prepared on the captain's responsibility in practice and actually, as the role of the representative of the carrier, the captain, in practice a qualified deliverer, delivers the readiness of discharge. Therefore, the captain should be expressed as a deliverer of readiness to discharge and the deliverer of the readiness needs to be expressed as the captain.
Thirdly, On the way of the readiness to discharge, there does not have reference in Korean Maritime Law but has the expression "notices without delay"(Korean Commercial code section 732 sub section 1 and section 798 subsection 1). Also In GENCON 1994, there is no expressed provision to notice the readiness to discharge, on the contrary there is an abstractual expression "notice to the designated receiver in the discharge port." But the charterparty definition provision of BIMCO 1980 regulated that "in writing" means written document, telegram, Telex, Fax etc. so the substances on the way to deliver the readiness should be expressly defined.
Finally on the way of the payment of freight, for Korean maritime law has not been any provisions on the advance freight or collective freight, in practice collective freight is the principle of the payment by the undertaking characteristic of the contract of carriage and in the case of breach of contract of carriage, has regulation on the return of advance freight.(commercial code section 134). However the GENCON 1994 adopted that the principle of the payment of freight and was entitle for the parties to choose the advance freight or collective freight in real marine circumstance without changes in the clauses. Therefore Korean commercial code should be entitle for the parties to choice of payment of freight based upon the freedom of contract and maritime practice.
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