해상운송물 인도에 대한 보세창고업자의 책임에 관한 연구

Abstract

In sea carriage, the carrier is obliged to deliver the cargo to the right holder of the bill of lading. However, due to the recent speed up of ships and the development of transportation systems, there are cases in which cargo arrives before the bill of lading arrives. Imported cargo that have not undergone customs inspection are stored in a bonded warehouse until they are delivered by redemption with a bill of lading. In practice, the bonded warehouse operator does not directly sign a storage contract with the carrier, but normally forms a storage contract relationship with the actual importer. However, if the implied contractual relationship theory is followed, there is a problem as to which party's instructions should be followed if there are instructions from the actual importer and the carrier. Therefore, it seems more appropriate to clarify the legal status or liability relationship of the parties to explain the relationship as a contract theory for a third party with the bonded warehouse operator and the actual importer as the parties and the carrier as the third party. In particular, in the case of damages caused by illegal acts by delivering cargo stored in a bonded warehouse without repayment of the bill of lading, a third party directly claims damages for the debtor's illegal acts in the recent the Supreme Court of French unlike Korea. Therefore, if we accept this theory, we can illuminate the relationship of responsibility with the contract theory for third parties without using the implied contractual relationship theory. With regard to the limitation of liability for damage to the cargo caused in the course of sea transportation, the carrier will be subject to limitation of liability pursuant to Article 798 (2) of the Commercial Act, but there is no such provision for independent contractors. The Supreme Court ruled that, if the Himalaya clause which includes the subject of limitation of liability for independent contractors, are included in the bill of lading, independent contractors may also invoke the limitation of carrier's liability under Article 798 (2) of the Commercial Act. However, the independent contractor is not a direct contracting party to the contract of carriage, and if the Himalaya clause is not written intentionally or negligently by the contracting party, the device to protect the independent contractor will disappear. Therefore, it is necessary to make it possible to invoke the limitation of the carrier's liability to the independent contractor by specifying the subject matter of the independent contractor subject to the limitation of liability, such as France's Law n ° 66-420 of June 18, 1966 ON CHARTER AND SHIPPING CONTRACTS or Taiwan's Maritime Act. there is In order to solve this problem, legal supplementation through amendment of the Commercial Act seems necessary.