海商法上의 準據法 決定에 關한 硏究

Abstract

"Private international law" or "conflict of laws" can be defined as a legal dispute in which an individual's rights are subject to the laws of two or more jurisdictions. Specially modern maritime transport, being essentially international or interjurisdictional, is subject to frequent problems concerning the appropriate choice of law, choice of jurisdiction, and recognition of foreign judgments. In addition, conflicts of law issues often arise because the vessel itself may be arrested and suit may be commenced against it or its owners in any one of the world's admiralty courts. Thus, maritime law is particularly suited as a source of material for the study of conflict of laws.

In relation to the determination of the appropriate choice of law, one of the conflicts of maritime law issues, "the law of the flag" or "the law of the ship's nationality" is commonly used to apply to several provisions which is imposed in Korean Private International Law. Despite the vessel's flag or nationality plays an important part in the choice of law problems, the theory of the law of the flag suffers from serious difficulties. For example, what law applies in cases of vessels wearing flags of convenience, or in cases of double flagging, or to collisions on the high seas between vessels of different flags? Judging from this point of view, I want to find out whether the law of the flag determining the applicable law is appropriate or not.

In the dissertation, first of all, I try to describe both the pertinent terms and definitions, and present day significance of the law of the flag in private international law. This analysis is followed by a description of determining the choice of law, a description of modern legislation, and commentaries by various authors on the maritime legal matters. These descriptions fall into three categories according to the formation of Korean Maritime Law. If there is not proper to apply the law of the flag to individual maritime legal issue under consideration, I would suggest a legislative proposal against it. While the law of the flag is available, it is mean that the theory has the most significant relationship between ship's flag and each legal matters. In this case, it is necessary for me to analyze the law of the flag including flags of convenience for the confirmation of relationship each other.

Thus, the former descriptions are followed by a discussion of the strengths and weaknesses of law of the flag theory. Specially I concentrated my attention on the latter, an additional problem of law of the flag. It is closely related to flags of convenience, which is not the vessel's bona fide nationality.

The flag of convenience is a flag flown by a vessel registered in one state, with which the vessel has few or no connections, while in reality the vessel is owned in or operated from another state. Flags of convenience are usually utilized for economic reasons - avoiding high taxes, maintaining coasts, complying with certain international conventions, and fulfilling and the obligation to hire certain nationals. The survey shows that flags of convenience are utilized on 61.8 percent of the world's vessels according to Shipping Statistics Yearbook in 2000.

In this case, the question of whether there exists a "genuine link" between a state and its flag vessels may be addressed indirectly. And the article 8 of Korean Private International Law stipulates the Exception of Choice of Law Clause, "where the law of the country with which it is most closely connected is obviously existed, the legal relationship concerned is governed by the law of the country". Thus, it is essential for me to study on the constructive method of the relationship between a state and its flag vessels because the article 8 of Korean Private International Law can be applied to the flags of convenience.

The fact of the matter is that the flag is only one of many contacts which can be used in determining the applicable law. In United States, two judicial devices which serve as solutions to many of the problems arising from flags of convenience are the lifting of the corporate veil and the piercing of the corporate veil. The principle that one could not look past the incorporated entity to pursue the shareholder and persons who control a company. Vessels at times are incorporated in one state, possibly fly the flag of another state, and may be owned and controlled by persons in yet another state. In consequence, courts have often deemed the vessel not connected to the state of its flag but connected rather to the state of the persons actually controlling and owning the vessel. At the very least, the domicile or nationality of those persons is a strong contact that may be considered when fixing the properly applicable law. For reference, the method of seven factor approach consists of the place of the wrongful act, the law of the flag, the alliance or domicile of the injured person, the alliance of the defendant shipowner, the place of the contract, the inaccessibility of the foreign forum, and the law of the forum.

In addition to that, one should not overlook the support for a genuine link approach which is found in the 1986 United Nations Convention on Conditions for Registration of Ships. The Convention is not yet in force, article 1 states one of the objectives to be "ensuring" or "strengthening the genuine link between a State and ships flying its flag." Article 5(3)(b) provides for periodic inspections by surveyors from a state's maritime administration. A state adhering to the treaty must either make provisions for the owning (article 8) or manning (article 9) of its flag vessels by its nationals. Article 10 provides that the company owning a vessel must have its principal place of business in a flag state, or at least have a representative domiciled there. Support for a genuine link between a vessel and its flag state is also found at section 501 of the Restatement (Third) of Foreign Relations Law, article 5(1) of the 1958 Geneva Convention on the High Seas, and article 91(1) of the 1982 Law of the Sea Convention.

After considering all the factors, the use of flags of convenience can be applied to the Exception of Choice of Law Clause of Korean Private International Law. In this case, the law of the flag should be only one indicator or contact among many. It should rarely, if ever, be the sole consideration in determining the proper law of the maritime field. Thus, it is essential to think over many contacts which can be used in determining the applicable law through most significant relationship theory.