선주책임제한제도의 개선방향에 관한 연구

Abstract

The purpose of this paper is to study ‘Improvement of Limitation of Shipowner's Liability’ system(herein after called as the "system").

The system is considered as a system of protection of shipowner.

However, the system requires a sacrifice of crediter.

The system has been existed as different forms and contents in most countries. After 1681, the legislation of 'Ordonnance de la marine(Marine Ordinnances)' in France, the need of the unification of maritime law, has been increased. So, many countries have made every effort for the unification of maritime law.

In 20th century, International Conventions, for example, "International Convention for the Unification of the Liability of Owners of Sea-going Vessels, 1924", "International Convention relating to the Limitation of the Liability of Owners of Sea-going Ships, 1957", "Convention on Limitation of Liability for Maritime Claims, 1976", were concluded by I.M.O. or C.M.I.

After the conclusion of that International Conventions, the trend of ocean accident has been huge. So, the International Conventions have increased the amount of limitation fund by protocol or amendment. For example, the protocol of 1996 on "Convention on Limitation of Liability for Maritime Claims, 1976".

Korean maritime law accepted "Convention on Limitation of Liability for Maritime Claims, 1976". The law is evaluated progressive. But, the law has some problems. The problems should have been improved as follows:

First, shipowner of large vessel should pay relatively much limitation fund.

Second, the condition for exclusion of the system, the clause should be stated "wilfully", instead of "wilfully...or recklessly".

Third, the system should regulate general maritime claims, not only shipower's liability.

Forth, 'the procedure rule' should be used actively. And, 'compulsory insurance' should be introduced until amount of fund is satisfying for creditor.

Lastly, in case, damage exceeds shipowner's ability of means remarkably, the system shoud be applicated.