海上旅客運送契約에 관한 立法論的 연구

Abstract

Until now carriage of goods was the central point in the field of study on the carriers under the contract of carriage by sea. But in recent years it is required that various ocean tours due to an increase of national income and leisure time. According to the prospect of experts, they forecast that the growth of tourist industry using the ocean and the activation of carriage of passengers by sea. Therefore the conflict will be occur frequently between carrier and passenger as the result of an increase of passenger ship accident. Accordingly, it is required that we should regulate a bill relating to the contract of the carriage of passengers by sea to solve the conflict on both sides.

From the earliest times ships have carried passengers, but the carriage of passengers has a different legal background from carriage of goods. First, for at least a century there has been close public regulation of passenger ships. This is continued under current law which provides for substantive regulation and the issuance of a certificate of inspection to passenger ships. Second, the contract of passage carries a different basis of liability from carriage of goods. Whereas at the common law carriage of goods involved the legal concept of bailment of seaworthiness, carriage of passengers simply required the exercise of reasonable care. Thus the shipowner was under a greater duty to care for goods than for people. Even today, of course, the doctrine of seaworthiness does not apply to passengers.

In General, the contract of carriage of passengers by sea is an ordinary contract for the conveyance from port to port by ship of persons, other than master, crew, owner, and latter's family or servants. It makes no difference whether the conveyance is made in liners or cargo vessels or whether it provides for a cruise, so that port of departure and port of destination are identical. Passengers claims typically involve personal injury or death as well as loss or damage to luggage. Furthermore, a passengers' claims for damages frequently give rise to conflicts of law problems. Internationally these matters are governed by the Athens Convention on the Carriage of Passengers and Their Luggage by Sea, 1974.

The convention is designed to consolidate and harmonize two earlier Brussels Conventions dealing with passengers and luggage and adopted in 1961 and 1967 respectively. The convention establishes a regime of liability for damage suffered by passengers carried on a seagoing vessel. It declares a carrier liability for damage or loss suffered by a passenger if the incident causing the damage occurred in the course of the carriage and was due to the fault or neglect of the carrier. Namely, the convention presumes fault in the case of death or injury due to shipwreck, collision, stranding, explosion, fire, or a defect in the ship, but limits recovery to 46,666 SDRs per passenger for death or personal injury

and 1,200 SDRs for any other loss (Article VI). This right to limit is lost if the damage resulted from an act or omission of the carrier done with intent to cause damage or recklessly with the knowledge that damage would probably occur (Article XIII ).

Recently, International Maritime Organization(IMO)'s Legal Committee is carrying out a review of the Athens Convention, with the aim of drafting amendments to the Convention, taking into account the work of the International Civil Aviation Organization(ICAO) in amending the Warsaw Convention, which covers liability in respect of the carriage by air of passengers, luggage and goods. The review of the Athens Convention focuss on the introduction of provision of financial security (Compulsory Insurance) as well as on other subjects such as the introduction of strict liability and the updating of limits of compensation. It is hoped that these amendments, once adopted, will encourage wider acceptance of the Athens Convention.

The IMO's Legal Committee at its 82nd session in October 2000 agreed that a draft Protocol to the Athens Convention would be ready for consideration by a Diplomatic Conference during the biennium 2002～2003. The draft Protocol introduces, among other things, the requirement of compulsory insurance for passenger claims, and proposes changes to the purely fault-based liability system which is a feature of the 1974 Athens Convention. For the purpose of solving this problem, many countries have recognized the desirability of determining by agreement certain rules relating to the carriage of passengers and their luggage by sea. So they have concluded several international conventions(for example, China, Russian Federation, Greece, Poland, Spain, Switzerland, United Kingdom etc.).

On the contrary, the Korean Commercial Code and the Amendment thereto, 1989 have only two articles with respect to the liability of the carrier of passengers and their luggage by sea. Those articles apply the provision of the carrier who carries passenger by land and the cargo by sea to this problem. The Korean Commercial Code, therefore, has no provision with respect to the liability of carrier who carries passengers by sea. But conflicts between passenger carrier by sea and passengers will be increased in proportion to the development of carriage of passengers by sea.

Consequently, this study aims to propose to legislate the new act of the contract of the carriage of passengers by sea. This act will be prescribe to reorganize the provisions of the limitation of the liability of the carrier who carriers passengers and their luggage by sea and to solve promptly the conflict between carrier and passenger in connection with the passengers' claim for damages and the compensation claim for a breach of a contract of the carriage of passengers by sea.

This study consists of five chapters as follows:

In Chapter 1. as the introduction, it describes the background, purpose, scope and way of study.

In Chapter 2, it observes basic concept and present condition on the carriage of passenger by sea. Particularly, it explains the meaning of passenger carrier and passenger and the concept of contract of carriage of passenger by sea. Besides it points out the present situation and the point at issue concerning the carriage of passenger by sea in domestic.

In Chapter 3, it deals with the international convention and the legislative examples of various countries. Especially it details the contents of Article and the process of conclusion on the International Convention for the Unification of Certain Rules Relating to the Carriage of Passengers by Sea, 1961, the International Convention for the Unification of Certain Rules Relating to Carriage of Passengers Luggage by Sea, 1967 and the Athens Convention Relating to the Carriage of Passengers and Their Luggage by Sea, 1974.

In Chapter 4, it explains in details for the main contents which enact a law concerning the contract of carriage of passengers by sea to draft a bill on the basis of the materials for the former study.

In Charter 5, it is suggested to draw up a bill relating to the contract of carriage of passengers by sea as proper provisions of the limitation of the liability of the carrier who carries passengers and their luggage by sea and passenger's compensation for damages.

In Chapter 6, as the conclusion, it summarizes the contents of each chapter and emphasizes the requirement of legislation relationg to the contract of carriage of passengers by sea.

833 SDRs for loss to cabin luggage

3,333 SDRs for loss or damage to a vehicle