한국해양대학교

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해사소송에 있어서 국제재판관할에 관한 연구 : 선박충돌과 선하증권을 중심으로

Title
해사소송에 있어서 국제재판관할에 관한 연구 : 선박충돌과 선하증권을 중심으로
Alternative Title
A Study on Jurisdiction in a Maritime Action
Author(s)
장경식
Publication Year
2005
Publisher
한국해양대학교 대학원
URI
http://kmou.dcollection.net/jsp/common/DcLoOrgPer.jsp?sItemId=000002176272
http://repository.kmou.ac.kr/handle/2014.oak/10655
Abstract
As "the international" is a main character of marine business as its own nature, if a dispute arose in the course of marine business and the dispute could not be settled amicably out of court, it should be the first thing for the parties concerned to consider filing a law suit at which State's court, so called, "forum shopping".

As each State has different legal systems and the legal effects in a State may be different from those in other States, a judgement of a court in one State may differ from that in another State, which may lead each party concerned attempt to have his action tried in a particular jurisdiction where he feels he will receive the most favorable judgement.

There have been no international Conventions, practices, principles or rules internationally accepted or approved to govern the choice of forum and each State has determined jurisdiction in an international litigation on the basis of its own domestic laws or practices etc..

In the circumstances, the thesis attempts to make legislative suggestions on the proper and reasonable determination of international jurisdictions in maritime actions relating to a dispute on the collision at sea between vessels as a typical case of a tort and to a dispute about bills of lading as a typical case of a breach of contract, reflecting practices, principles and rules acceptable internationally with respect to a choice of forum.

Regarding the choice of jurisdiction in a maritime action in respect of a collision at sea between vessels, the study is made in four categories such as ① collision at domestic territorial seas, ② collision at foreign territorial seas, ③ collision at high seas between vessels with the same national flags and ④ collision at high seas between vessels with different national flags.

When a collision occurs at both domestic territorial seas and foreign territorial seas, it is natural that a coastal State has a jurisdiction in the case as the sovereign authority of a coastal State reaches to the place of collision.

But, there is a question if a coastal State still has a jurisdiction in case that the flags of vessels involved even in a collision at territorial seas are the same. It is more fair and reasonable that the State of the same flags has a jurisdiction in such a case instead of the coastal State for a more convenient, economical, efficient and speedy proceedings.

As there is no coastal State when a collision occurs at high seas, there have been no agreed principles or rules to determine jurisdiction in the case.

It is also fair and natural that the State of the same flags has a jurisdiction in a collision case between vessels with the same flags at high seas.

Korean Private International Law prescribes that the law of the State of a vessel caused the collision is applicable instead of the law of the State of a victim vessel in a collision case between vessels with different flags at high seas. In the Law, even though the meaning of "law" does not appear to be clear, it should be considered as including jurisdiction.

However, it is more appropriate that Korean Court should accept jurisdiction in a collision case at high seas if a Korean vessel is involved because it is very difficult to find which vessel has to be blamed for a collision and each State inclines toward the protection of its own people etc..

In conclusion, it is suggested that Article 61 of Korean Private International Law should be revised reflecting that the State of the same flags should have jurisdiction in a collision case between vessels with the same flags at both territorial waters and high seas and that Korean Court should accept jurisdiction in a collision case at high seas if a Korean vessel is involved.

In the meantime, with regard to the jurisdiction in an international litigation concerning a bill of lading, the study to find a proper and reasonable jurisdiction is made in three sections such as ① the validity of a jurisdiction clause on a bill of lading, ② the jurisdiction in an action concerning the effect of a right in rem of a bill of lading, for example, a dispute between a person who originally receives a bill of lading from ocean carrier and a present holder of the bill of lading by assignments and ③ the jurisdiction in a litigation concerning the effect of obligations of a bill of lading between ocean carrier who issued a bill of lading and a holder of the bill of lading.

First, the validity of a jurisdiction clause on a bill of lading should be held as an agreement between the parties concerned has to be held in respect according to the principle of personal autonomy, unless the agreement is very unfair and unreasonable.

Second, the State where relevant bill of lading is should have jurisdiction in an action concerning the effect of a right in rem of a bill of lading because of the reasons that the protection of circulation of a bill of lading is very important, that a bill of lading represents a cargo concerned, that the disposal of the cargo has to be made by the bill of lading and that in most cases the place where a bill of lading is should finally meet the destination of cargo as the cargo has to be exchanged for the bill of lading and so on.

Third, if an agreement on jurisdiction was not made or not available, the State where relevant bill of lading is should also have jurisdiction in a litigation concerning the effect of obligations of a bill of lading because even though the items on a bill of lading are mentioned based on the contract of carriage of goods, the mentioning on the bill of lading itself should be considered as a prima facie evidence and therefore, ocean carrier who issued a bill of lading shall be responsible for the fulfillment of obligations as mentioned on the bill of lading and the place where a bill of lading is should finally meet the destination of cargo in most cases as the cargo has to be exchanged for the bill of lading.

In conclusion, it is suggested that a new Article regarding jurisdiction in an action concerning bill of lading should be made in Korean Private International Law reflecting that a jurisdiction clause on a bill of lading should be considered as valid unless the clause is very unfair and unreasonable and that the State where relevant bill of lading is should have jurisdiction, if an agreement on jurisdiction was not made or not available.
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해사법학과 > Thesis
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