船舶共濟約款上 堪航能力擔保에 관한 硏究

Abstract

under article 7, paragraph 1, "Warranty means, whether or not it is specified in mutual insurance policy, that certain issues shall be executed or not be executed, that certain terms shall be understood to meet, and that the existence of certain facts is accepted or denied. And if it is not met exactly, KSA is exempted from responsibilities on and after the violation date." But, the concept of warranty, the principle to strictly execute the warranty, the effect of violence on warranty provisions, possibility of waiver of warranty by KSA are prescribed, specifying that "unless otherwise approved by KSA in advance." Under article 7, paragraph 2, allowance of warranty violence and violence correction are regulated

specifying that "In the event of warranty violence in relation to loading, operations, navigation areas, towing, rescues, or shipping date, the warranty shall be effective only when notified to KSA immediately after the recognition of the violence and agreed about the revised terms and conditions of warranty and/or the additional mutual insurance fee."

The provisions of article 7, paragraph 2, and article 2, paragraph 3 of the revised ship mutual insurance clauses are shown as revised from the part of the provisions of MIA warranties. Article 7, paragraph 3, shows that MIA regards seaworthy warranty and warranty of legality as implied warranty, and according to article 7, paragraph 3, such provisions of MIA are proved to be applied to the clauses. Especially, in consideration of the fact that ship mutual insurance contract is a type of time insurance, the question arose about whether it is unreasonable to mutual insurance contractors for KSA to be allowed to exempt from responsibilities in case of non-seaworthiness by securing seaworthy maintenance under article 7, paragraph 3 of the revised ship insurance clauses. Therefore, this study examines the problems in warranty provisions of article 7 of the revised ship mutual insurance clauses and the improvement plans for the problems, if any.

specifying that "In order to meet the requirements of implied warranty, the entered ship shall maintain seaworthiness while sailing, be used for legal marine business, and the marine business shall be carried out in a legal manner." In addition, under article 7, paragraph 4, the requirements of held cover of KSA in regard to particular warranty violence are regulated

specifying that "The warranty violation shall be allowed only in the event that it is specified in the policy, it cannot be applied to the terms and conditions of a contract on account of changes in the situation, or the warranty is against the regulations and laws. And, the loss and damage can be compensated in case that the warranty meets the requirements by correcting the violence before the loss and damage." Under article 7, paragraph 3, the seaworthy warranty and warranty of legality of the entered ships are regulated

for there are many cases that only one ship is being operated and insured, and some questions arose whether they get proper compensation for the mutual-aid accidents because they enter into an insurance contract depending only on KSA's mutual insurance clauses not knowing the specialized information.

A review on ship mutual insurance clauses in such efforts shows that the amended ship mutual insurance clauses of KSA has clauses governed by Korean laws in article 1, paragraph 1 as follows

As to marine insurance of the Korean coastal ships, Korea Shipping Association(hereinafter referred to as "KSA") operates a mutual-aid project, and most of the contracts for a mutual-aid project are made with small&medium shipping companies, rather than large shipping companies. An association mutual-aid is a mutual-aid system which has been put in practice under article 6 of Korea Shipping Association Act to help mutual-aid contractors run a business stably by providing with mutual-aid money that is collected from mutual-aid contractors in the event of accidents(mutual-aid accident) specified in the agreement within a given period of time, and can be defined as a marine-specific insurance which collectively covers accidents that occur in the course of business operations in relation to ship operations.

In particular, ship mutual insurance is a system that compensates in accordance with ship mutual insurance agreement as for the loss or responsibilities of mutual-aid contractors caused by marine accidents in relation to the insured ships, and the standardized terms and conditions of the agreement used for the above accidents are ship mutual insurance clause. Institute Time Clause-Hulls(hereinafter referred to as "ITC-Hulls") has applied by KSA in the same manner with other insurance companies on the market since KSA began a ship mutual insurance business in 1963, and, in 1993, ship mutual insurance clauses in Korean were established and used to meet the mutual-aid contractors' right to know as to the separate mutual-aid contract. However, since 2000, with increase of separate contractors, as there arose differences in the scope of compensation on account of the divergence in governing laws and coverage scope of ship mutual insurance clauses in Korean between ITC Hulls and KSA, the first full-scale amendments of ship insurance clauses in Korean were established at the end of the 2006 and has been in effect for equivalent application of these provisions and clause service in English as to ocean ships.

As for the owners of small ships, the prevailing coastal ship in Korea, a review on general contents of the clauses, indication of problems on these issue, and presentation of improvement plans must be carried out

"This mutual insurance contract is subject to the Korean Act." Especially, article 7 shows warranty provisions under Marine Insurance Act(hereinafter referred to as "MIA") which is not covered by current Korean law as follows