해상운송인의 책임에 관한 연구 : 국제협약의 비교를 중심으로

Abstract

The liability of carrier in Roman law was basically absolute even if the loss of or damage to the goods were arisen from a cause beyond carrier's control. The liability of common carrier at common law was also strict for the safe delivery of the goods carried.

To avoid the common law doctrine of holding a common carrier to the absolute liability except for loss resulting from an act of God or the public enemy, carriers provided clauses exempting them from liability in their contract of carriage(bills of lading). As a result, it became that there seems to be no other obligation on the shipowner than to receive the freight.

To remedy such abuses, the Harter Act in 1893 was enacted in the United States. The act made it unlawful to insert in such bill of lading clauses exempting the master or owner of the vessel from liability for negligence or fault, or relieving them of the obligation to make the vessel seaworthy or for careful handling and stowage.

Afterwards, Canada, Australia, and New Zealand, which were English colonies, succeeded the Harter Act of the United States and used different law from England. Having realized that such provision of law weakened competition of its shipping industry only, England attempted to internationally unify the provision of liability and obligation of ocean carrier.

As a result, the International Law Association and the ComitIJ Maritime International took the lead in urging uniform international regulation of the rights and duties of ocean carriers.

After several years of preparation work, the International Convention for the Unification of Certain Rules of Law relating to Bills of Lading was signed in Brussels on 25 Aug., 1924, which is called as Hague Rules.

Despite the substantial uniformity, conflicts in the determination of the carrier's liability and the validity of negligence clauses in bills of lading remained. In 1968 the so-called Visby Rules(The Brussels Protocol of Amendments to the Hague Rules) were, accordingly signed, which is called as Hague-Visby Rules.

The developing countries contended that these international conventions favor the carrier and pressed for reforms which would shift some liability back to the carrier. Thus the U.N. Convention on the Carriage of Goods by Sea, 1978 was adopted at Hamburg in March 1978, which is called as Hamburg Rules.

As a result, the international conventions have got two system such as Hague regime and Hamburg regime, which were caused confuse to the application of the convention. This facts were required for new convention.

At the ending of 2001, the new convention was prepared by ComitIJ Maritime International(CMI) and U.N. Commission on International Trade Law(UNCITRAL), which is called as CMI-UNCITRAL Draft and is studying by working group ？？(Transport Law) of UNCITRAL. They are planning to complete the 3rd review in Nov, 2006 and submit to the general assembly of UNCITRAL for their approval.

In this report, the main topics are the identity of carrier, period of carrier's responsibility and principle of carrier's liability. The difference of provisions in connection with the main topics in Hague Rules, Hague-Visby Rules, Hamburg Rules and CMI-UNCITRAL Draft are as follows.

(a) Identity of the carrier.

The Hague Rules and Hague-Visby Rules(called hereinafter as Hague regime) stipulated only that carrier includes the owner or the charterer who enters into a contract of carriage with a shipper. The stipulation is merely instanced as examples regarding the range of the carrier. Accordingly, it is not possible positively to identify the carrier accurately from the contract of carriage issued because it is frequently not the party whose name or logo appears on the face of the contract.

The Hamburg Rules take the solution to the problem under Hague regime by stipulating the definitions of carrier and actual carrier. In the Rules, the carrier means any person by whom or in whose name a contract of carriage of goods by sea has been included with a shipper, while the actual carrier means any person to whom the performance of the carriage of the goods or of part the carriage, has been entrust by the carrier, and includes any other person to whom such performance has been entrusted.

CMI-UNCITRAL Draft stipulates the definition of carrier and performing party. The performing party is wide-range conception than actual carrier in the Hamburg Rules.

The carrier, so-called as contracting carrier in Hamburg Rules and CMI-UNCITRAL Draft, shall be responsible for the whole carriage and the cargo owner has right to bring his claim against the actual carrier in Hamburg Rules or performing party in CMI-UNCITRAL Draft if the loss, damage or delay of the goods occurred while they are in his charge.

(b) Period of carrier's responsibility.

The Hague regime stipulated that carriage of goods covers the period from the time when the goods are loaded on to the time when they are discharged from the ship.

The Hamburg Rules stipulates that the responsibility of the carrier for the goods covers the period which is the carrier in charge of the goods at the port of loading, during the carriage and at the port of discharge.

CMI-UNCITRAL Draft stipulates that the responsibility of the carrier for the goods covers the period from the time when the carrier or a performing party has received the goods for carriage until the time when the goods are delivered to the consignee.

As mentioned above, the Hague regime covers from tackle to tackle, the Hamburg Rules cover from port to port, and CMI-UNCITRAL Draft stipulates for door to door rule in principle.

(c) Basis of carrier's liability.

The carrier under Hague regime shall properly and carefully load, handle, stow, carry, keep, care for, and discharge the goods carried, but the carrier under Hamburg Rules shall take all measures that could reasonably by required to avoid the loss of or damage to the goods as well as from delay in delivery. By the way, as CMI-UNCITRAL Draft stipulated that the carrier shall [properly and carefully] carry the goods to the place of destination and deliver then to the consignee the working group of UNCITRAL is studying whether the phrase of "properly and carefully" just like the provisions of Hague regime is inserted or abandoned.

In the Hague regime, the carrier shall be found to exercise due diligence to the seaworthiness, while the seaworthiness provision was abrogated in the Hamburg Rules because it was implied duty of the carrier. But, the seaworthiness provision was revised in CMI-UNCITRAL Draft as the same provision with the Hague regime except the period of seaworthiness which the ocean carrier shall maintain.

In the Hague regime, the catalogue of the carrier's seventeen exceptions were stipulated, but abandoned in the Hamburg Rules. Therefore, the carrier under Hague regime can escape his liability by alleging that the loss or damage arising or resulting from the catalogue of the carrier's seventeen exceptions. But there is no alternative other than carrier's proof that carrier in the Hamburg Rules, his servants and agents took all measures that could reasonably be required to avoid the accident and its consequences in order to escape his liability except fire. In cases of fire in the Hamburg Rules, it is for the claimant, i.e. the concerned in cargo to prove that the fire was caused by the fault on the part of the carrier. CMI-UNCITRAL Draft stipulated the catalogue of the carrier's fifteen exceptions similar to Hague regime.

The carrier's liability under Hague regime is based on the principal of fault or negligence, while the carrier's liability under Hamburg Rules is based on the principal of presumed fault or negligence. The above means that there is dispute the burden of proof in Hague regime, but the burden of proof rests on carrier under Hamburg Rules without dispute. In the CMI-UNCITRAL Draft the carrier is liable if the claimant proves that " the loss, damage, or delay themselves, or the occurrence that caused or contributed to the loss, damage, or delay took place during the period of the carrier's responsibility and is relieved if it proves that the cause or one the causes of the loss, damage, or delay is not attributable to its fault or to the fault of any person mentioned in article 14 bis.

The Hague Rules established an maximum limit of carrier's liability of 100 pounds sterling per package or unit. The Hague-Visby Rules replaced this single standard with double standard. Under the Hague-Visby Rules the limits of liability are either 10,000 poincare france(amended later to be 666.67 units of account) per package or unit or 30 francs(amended later to be 2 units of account) per kilogramme of the goods lost or damaged, whichever is the higher, and adopted the so-called "container clause" respecting containerized cargoes. Under the Hamburg Rules, in respect of loss or damage to the goods, the carrier's liability is limited to an amount of 835 units of account per package or other shipping unit, or 2.5 units of account per kilogramme of gross weight of the goods, whichever is the higher. On the other hand, so far as liability for delay in delivery is concerned, such liability is limited to an amount equivalent to 2.5times the freight payable for the goods delayed but not exceeding a total freight payable under the contract of carriage of the goods by sea. The aggregate liability of the carrier under both heads for delay and loss or damage, shall not exceed the total liability for which he would be liable in a situation of total loss of the goods under the heading of the physical damage.

CMI-UNCITRAL Draft stipulated for the same regulations as the Hamburg Rules, but the amounts for limitation are still studied, not yet decided.

On the other hand, the Hague-Visby Rules are considered not to be internationally unified though may countries are using them, and the Hamburg Rules are also considered to be a failed one. Therefore, a country in which shipping is its main industry, such as Korea, needs to pay attention to the trend of CMI-UNICITRAL Draft, the only novel convention for it.

Hence, referring to this convention, I suggest revising Korean Commercial Code as such.

780-2(Definition of carrier)

Carrier means a person that enters into a contract of carriage with a shipper.

781-2(Period of carrier's responsibility)

↘ The carrier takes responsibility for the goods since he receives the goods for carriage until the goods are delivered to the consignee.

♭ The time and location of receipt of the goods is the time and location agreed in the contract of carriage or, failing any specific provision relation to the receipt of the goods in such contract, the time and location in accordance with the customs, practices, or usages in the trade. In the absence of any such provisions in the contract of carriage or of such customs, practices, or usages, the time and location of receipt of the goods is when and where the carrier or a performing party actually takes custody of the goods.

♩ The time and location of delivery of the goods is those agreed in the contract of carriage, or, failing any specific provision relating to the delivery of the goods in such contract, the time and location that is in accordance with the customs, practices, or usages in the trade. In the absence of any such specific provision in the contract of carriage or of such customs, practices, or usages, the time and location of delivery is that of the discharge or unloading of the goods from the final vessel or vehicle in which they are carried under the contract of carriage.

♪ If the carrier is required to hand over the goods at the place of delivery to an authority or other third party to whom, pursuant to law or regulation applicable at the place of delivery, the goods must be handed over and from whom the consignee may collect them, such handling over will be regarded as a delivery of the goods by the carrier to the consignee under paragraph ♩.

781-3 (Carriage preceding or subsequent to sea carriage)

The carrier is liable for the loss of or damage to goods occurring solely during either of the following periods from the time of receipt of the goods by the carrier to the time of their loading on to the vessel or from the time of their discharge from the vessel to the time of their delivery to the consignee.

788(Exemption from liability)

↘ The carrier is exempted from its liability resulting from loss, damage or delay during the period of the carrier's responsibility as defined in 781-2, if it proves that the cause or one of the causes of the loss, damage, or delay is not attributable to its fault or to the fault of any other person employed by carrier.

♭ Carrier is not liable for loss or damage of the goods belonged to the master, crew pilot, or any other employee for the voyage or the ship's management.

♩ Carrier is not liable for the loss or damage of the goods due to fire if it proves that the cause or one the causes of fire is not attributable to its fault or to the fault of master, crew, pilot, or any other employee of the shipowner.

789-3(Limits of liability)

↘ The carrier's liability in compliance with article 787 and 789 is limited to 666.67 units of account per package or other shipping unit of the goods carried.

789-3(Deck cargo)

↘ Goods may be carried on or above deck in the following cases

1. such carriage is required by applicable laws or administrative rules or regulations, or

2. they are carried in or on containers on decks that are specially fitted to carry such containers, or

3. the carriage on deck is in accordance with the contract of carriage, or complies with the customs, usages, and practices of the trade.

♭ If the goods have been shipped in accordance with paragraphs ↘1 and 3, the carrier shall not be liable for loss or damage to these goods or delay in delivery caused by special risks involved in their carriage on deck. If the goods are carried on or above deck pursuant to paragraph ↘2, the carrier shall be liable for loss of or damage to such goods, or for delay in delivery without regard to whether they are carried on of above deck. If the goods are carried on deck in cases other than those permitted under paragraph ↘2, the carrier shall be liable for loss of or damage to the goods or delay in delivery that are exclusively the consequence of their carriage on deck.

♩ If the goods have been shipped in accordance with paragraph ↘3, the fact that particular goods are carried on deck must be included in the contract particulars. Failing this, the carrier shall have the burden of proving that carriage on deck complies with paragraph ↘3.

♪ If the carrier under this article is liable for loss or damage to goods carried on deck or for delay in their delivery, its liability is limited to the extent provided for in article 789-3. However, if the carrier and shipper expressly have agreed that the goods will be carried under deck, the carrier is not entitled to limit its liability for any loss of or damage to the goods that exclusively resulted from their carriage on deck.