선박소유자 등의 책임제한의 주관적 배제사유에 관한 연구

Abstract

Considering that shipping industries activate international trade among nations and contribute to the economies of those nations, with regard to public interest, it is necessary to establish institutional strategies for shipping industries. A shipowner’s limitation of liability entails that the shipowner can limit his liability in certain circumstances when loss or damage has been caused to the property of others carried on his vessel during its voyage. However, in cases where the right to limitation is denied, if the standard of determination is obscure and unclear, a legal dispute often occurs and the shipowner’s or the claimant’s rights to a fair result can be compromised, which goes against the legislative purpose of the act on the limitation of liability. Therefore, due to the nature of maritime incidents in which foreign legal relationships are frequently involved, it is necessary to establish a uniform standard regarding conduct that bars the limitation of a shipowner’s liability.

The Korean Commercial Code also confirms the right on the shipowner to limit his liability. However, the application of this Code should be discussed in conjunction with the provisory clause, which sets forth conduct barring limitation under certain circumstances. Thus, despite an effective claim under the limitation regime, when the shipowner indulges in illegal behavior leading to such liabilities, the right to any limitation may be denied.

This thesis would analyze the shipowner’s limitation of liability and its conduct barring limitation from the perspective of the shipowner’s willful misconduct or other reckless acts or omissions while duly recognizing the concern about the incurrence of such damage, by referencing cases based on the regime in each country. In addition, the question of who has the onus of providing proof, which is not specified in the Code, will be discussed.

This thesis would analyze international conventions such as the 「International Convention relating to the Limitation of the Liability of Owners of Sea-going ships, 1957」and the 「Convention on Limitation of Liability for Maritime Claims, 1976」 and then, the regime of the shipowner’s limitation of liability in each country such as the UK, the US, and Japan. In addition, a legal stance and direction for improvement with regard to the provision for shipowner’s limitation of liability are suggested.