• 무역상무연구
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• 제44권
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• pp.111-180
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• 2009

According to English law, in a voyage policy there is an implied warranty that at the commencement of the voyage the ship shall be seaworthy for the purpose of the particular adventure to be insured. However, Unites States law affords the implied warranty of seaworthiness a great deal of latitude. In the case of voyage policies, it has been traditionally held that the assured is bound not only to have his vessel seaworthy at the commencement of the voyage but also to keep her so, insofar as this can be achieved by himself and his agents, throughout the voyage. Additionally, a defect in seaworthiness, arising after the commencement of the risk, and permitted to continue from bad faith or want of ordinary prudence or diligence on the part of the insured or his agents, discharges the insurer from liability for any loss consequent to such bad faith, or want of prudence or diligence; but does not affect the insurance contract in reference to any other risk or loss covered by the policy, and which is not caused or exacerbated by the aforementioned defect. One of the most important areas of difference in the marine insurance contract between the U.K. and U.S. is the breach of warranty. Prior to the Wilburn Boat case, the MIA was thought to hold that the effect of a breach of warranty was similar under American law -in that under the general maritime law literal compliance with all promissory warranties is required. In this case, the Court concluded that state law should apply to a marine insurance policy, and found that there was no federal rule addressing the consequences of a breach of warranty in marine polices. However, it is of the utmost importance that this case brought to a close the imperative concordance between English and American law. Meanwhile, in relation to marine insurance contracts in Korea, this insurance is subject to English law and practice;, additionally, the international trade volume between Korea and the United States has assumed a vast scale. Therefore, we believe it is important to understand the differences in marine insurance law between the two countries in terms of marine insurance contracts, and most specifically warranties.

• 한국중재학회지:중재연구
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• 제19권1호
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• pp.147-169
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• 2009

This paper deals with disputes incurred from the CISG provisions in relation with the conformity of goods with a view to finding the general way of approach made by the court and arbitration tribunal in the case laws for the interpretation of CISG based on 6(six) cases thereon. Throughout this study, it has been noted that the German Supreme Court devoted most in creating the general principle of CISG interpretation in relation with national compulsory law of regulation applicable on the conformity of goods. It was New Zealand mussels case in which the German supreme court decided that the exporting country's compulsory law of regulation would be applied in determining the conformity of goods. Furthermore, German supreme court added that CISG does not place an obligation on the exporter to supply goods, which conform to all statutory or other public provisions in force in the import state unless the same provisions exist in the export State as well, or the importer informed the exporter about such provisions existing in the import state, or the exporter had knowledge of the provisions due to special circumstances. It is stipulated in CISG that the goods conform with contract if they are fit for the purpose for which goods of the same description would ordinarily be used. When questions arise concerning matters governed by the CISG that are not expressly defined in the CISG, the question is to be settled in conformity with general principles on which the convention is based. Only when such a general principle cannot be found may the tribunal turn to other sources such as UNIDROIT Principles, Principles of European Contract Law and Lex Mercatoria, etc. Interpretation of CISG should be autonomous, in the sense that it should not depend on principles and concepts derived from any national legal system. Even where a CISG rule is directly inspired by domestic law, the court should not fall back on its domestic law, but interpret the rule by reference to the CISG with a view to its international character and to the need to promote uniformity in its application and the observance of good faith in international trade.

• 한국중재학회지:중재연구
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• 제8권1호
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• pp.323-352
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• 1998

Documentary letters of credit including standby letters of credit are governed by the independence or abstraction rule and the doctrine of strict compliance. Since the former rule requires the issuing bank to honor the drafts regardless of the defective performance of the underlying contract, the applicant(the customer) will be without a remedy if he is unable to make himself whole by litigation on the underlying contract. Therefore, the applicant is exposed to a risk much higher than in the commercial letters of credit. The Uniform Customs and Practice for Documentary Credit(UCP) has no provisions allowing legal relief for the applicant on the abuse of L/C by unscrupulous beneficiary, but UCC ${\S}5-114$ has provision allowing injunctive relief for the applicant. In this paper, I attempted to clarify certain standards of injunctive relief available for the customer in the credit. When there is fraud in the L/C transaction by any of the parties concerned, we must weigh the principle of independence or abstraction and the fraud rules. According to banking practice and judicial precedence, we need not keep the principle of independence and abstaction even in fraudulent transaction and the bona fide sufferer must be protected. The purpose of this paper is to review the studies of Fraud rule and the Injunction and to suggest the applicable standards for the Injunction therory under letters of credit. Specially this paper analysed the following ; (1) the guideline for the fraud (exception) rule to the autonomy principle, (2) the appilcable standards of the Injunction, and (3) the implications on parties concerned in letters of credit transaction. Conclusively, the Injunction should be granted if (1) there is clear proof of fraud (2) the fraud constitutes fraudulent abuse if the independent purpose of L/C (3) irreparble injury might follow if injunction is not granted or the recovery of damages would be seriously endangered.

• Journal of Communications and Networks
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• 제5권1호
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• pp.73-81
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• 2003

The controlled load service defined within the IETF's Integrated Services architecture for quality-of-service (QoS) in the Internet requires source nodes to regulate their traffic while the network, in combination with an admission control strategy, provides a guarantee of performance equivalent to that achieved in a lightly loaded network. Packets sent in violation of the traffic contract are marked so that the network may assign them a lower priority in the use of bandwidth and buffer resources. In this paper, we define the requirements of a scheduler serving packets belonging to the controlled load service and present a novel scheduler that exactly achieves these requirements. In this set of requirements, besides efficiency and throughput, we include an additional important requirement to bound the additional delay of unmarked packets caused due to the transmission of marked packets while dropping as few marked packets as possible. Without such a bound, unmarked packets that are in compliance with the traffic contract are not likely to experience delays consistent with that in al lightly loaded network. For any given desired bound ${\alpha}$ on this additional delay, we present the CL(${\alpha}$) scheduler which achieves the bound while also achieving a per-packet work complexity of O(1) with respect to the number of flows. We provide an analytical proof of these properties of the CL(${\alpha}$) scheduler, and we also verify this with simulation using real traces of video traffic. The scheduler presented here may be readily adapted for use in scheduling flows with multi-level priorities such as in some real-time video streams, as well as in other emerging service models of the Internet that mark packets to identify drop precedences.

• 무역상무연구
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• 제46권
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• pp.29-60
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• 2010

The incentive and reasons to publish FIDIC Conditions of Contract for Design, Build and Operate Projects(DBO Form) are manifold. It is partly a response to the increasing need for sophisticated project delivery methods in both the public and private sectors and the already widespread use of the FIDIC Yellow Book with operation and maintenance obligations and partly a response to the challenge to decrease maintenance cost to a minimum by means of a new procurement route. As a result, FIDIC has developed a new model form to meet this market place requirement. On the other hand, FIDIC did not simply adapt the Yellow Book but has developed a new form from it, whilst preserving the style of the already known FIDIC Forms and maintaining the wording where it was not necessary to change it for the purposes of a DBO Form. Moreover DBO Form fills up supposed gaps in other FIDIC Forms and ameliorates the claim management and dispute management framework. FIDIC DBO approach may be shortly summarized as follows. First, DBO Form provides for single project responsibility. Second, DBO Form has the clear objective of ensuring the use of a most reliable and efficient technology at the lowest life-cycle cost. Third, DBO Form is intended to operate as an effective quality increase in the design and construction of projects. Fourth, DBO Form is intended to provide significant benefits with regard to system integration and reduction of risks. Fifth, DBO Form accelerates and enhances completion schedule compliance. Sixth, DBO takes care of all three supporting pillars of sustainability(including economical, environmental and social elements). DBO Form is obviously a good starting point for negotiations and the preparation of calls for tenders, thus saving the parties time and money. However, existing cultural and legal differences, particular local conditions and the particular needs of some branches of the industry may require the form to be adapted according to the particular needs of a project. And Civil law practitioners are strongly recommended to verify carefully the underlying legal concepts and background of each clause of the General Conditions in order to avoid unnecessary and sometimes unnatural changes and amendments being made. Note that when preparing the Particular Conditions ensure that terminology is consistent and that existing inherent concepts should not be ignored.

• 항공우주정책ㆍ법학회지
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• 제5권
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• pp.101-118
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• 1993

Generally there is no law and liability system which applies particulary to commercial space ventures. There are several international treaties and national statutes which deal with space ventures, but their impact on the liability of commercial space ventures has not been significant. Every state law in the United States will impose both tort and contract liability on those responsible for injuries or losses caused by defective products or by services performed negligently. As with the providers of other products and services, those who participate in commercial space ventures have exposure to liability in both tort and contract which is limited to the extent of the resulting damage The manufacturer of a small and cheap component which caused a satellite to fail to reach orbit or to operate nominally has the same exposure to liability as the provider of launch vehicle or the manufacturer of satellite into which the component was incorporaded. Considering the enormity of losses which may result from launch failure or satellite failure, those participated in commercial space ventures will do their best to limit their exposure to liability by contract to the extent permitted by law. In most states of the United States, contracts which limit or disclaim the liability are enforceable with respect to claims for losses or damage to property if they are drafted in compliance with the requirements of the applicable law. In California an attempt to disclaim the liability for one's own negligence will be enforceable only if the contract states explicitly that the parties intend to have the disclaimer apply to negligence claims. Most state laws of the United States will refuse to enforce contracts which attempt to disclaim the liability for gross negligence on public policy grounds. However, the public policy which favoured disclaiming the liability as to gross negligence for providers of launch services was pronounced by the United States Congress in the 1988 Amendments to the 1984 Commercial Space Launch Act. To extend the disclaimer of liability to remote purchasers, the contract of resale should state expressly that the disclaimer applies for the benefit of all contractors and subcontractors who participated in producing the product. This situation may occur when the purchaser of a satellite which has failed to reach orbit has not contracted directly with the provider of launch services. Contracts for launch services usually contain cross-waiver of liability clauses by which each participant in the launch agrees to be responsible for it's own loss and to waive any claims which it may have against other participants. The crosswaiver of liability clause may apply to the participants in the launch who are parties to the launch services agreement, but not apply to their subcontractors. The role of insurance in responding to many risks has been critical in assisting commercial space ventures grow. Today traditional property and liability insurance, such as pre-launch, launch and in-orbit insurance and third party liability insurance, have become mandatory parts of most space projects. The manufacture and pre-launch insurance covers direct physical loss or damage to the satellite, its apogee kick moter and including its related launch equipment from commencement of loading operations at the manufacture's plant until lift off. The launch and early orbit insurance covers the satellite for physical loss or damage from attachment of risk through to commissioning and for some period of initial operation between 180 days and 12 months after launch. The in-orbit insurance covers physical loss of or damage to the satellite occuring during or caused by an event during the policy period. The third party liability insurance covers the satellite owner' s liability exposure at the launch site and liability arising out of the launch and operation in orbit. In conclusion, the liability in commercial space ventures extends to any organization which participates in providing products and services used in the venture. Accordingly, it is essential for any organization participating in commercial space ventures to contractually disclaim its liability to the extent permitted by law. To achieve the effective disclaimers, it is necessary to determine the applicable law and to understand the requirements of the law which will govern the terms of the contract. A great deal of funds have been used in R&D for commercial space ventures to increase reliability, safety and success. However, the historical reliability of launches and success for commercial space ventures have proved to be slightly lower than we would have wished for. Space insurance has played an important role in reducing the high risks present in commercial space ventures.

• 무역상무연구
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• 제47권
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• pp.157-182
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• 2010

A counter-guarantee is an independent undertaking and it functions in the same way as an ordinary independent guarantee. However, the typical notion of independence which applies to the relationship between the guarantee and the underlying contract cannot be exactly transposed to the relationship between the counter-guarantee and the primary guarantee, because the primary guarantor bears its duties that derive from the mandate. In this respect, this study reviews, with some critics, a Korean appellate court's decision and argues that, in spite of the principle of independence between the counter-guarantee and the primary guarantee, the primary guarantor may not be entitled to reimbursement from the counter-guarantor, if it is objectively evident that the primary guarantor has failed to perform its duty of verifying compliance under the primary guarantor or if it is objectively evident that the primary guarantor knows that it is objectively evident that there was fraudulent calling by the beneficiary under the primary guarantee.

• Safety and Health at Work
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• 제12권2호
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• pp.261-267
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• 2021

Background: The series of serious industrial accidents in recent years at contractors to large companies has highlighted risk outsourcing as a real and urgent problem. This study aims to review the difference in the degree of risk exposure and the occurrence of industrial accidents depending on the type of company relations. Among in-house contractors, the focus will be on those handling hazardous chemicals that include companies for which outsourcing requires approval. Methods: This study uses the 9th wave of the Industrial Safety and Health Survey (2018). For determining the degree of risk exposure, the occurrence of industrial accidents, and industrial accident rate, multivariate, logistic, and fractional logit, regression analyses were used, respectively. Results: First, In-house contractors' degree of risk exposure is higher than that of the client companies. In particular, this gap is even greater for companies dealing with chemicals. Second, among only those that handle hazardous chemicals, in-house contractors do show a significantly higher rate of industrial accident occurrence. Third, In-house contractors have a significantly higher rate of industrial accidents from diseases than client companies. Conclusion: The analysis supports the intent of the legal amendment that strengthens the protection of in-house contracted workers who handle hazardous chemicals. Second, the results of this study suggest that safety and health management must go beyond legal compliance and ensure that it has substance and effectiveness. Last, there should be policy consideration is necessary to reduce attempts to hide industrial accidents.

• 무역상무연구
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• 제22권
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• pp.137-171
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• 2004

Under Article 2 of the Uniform Customs and Practice for Documentary Credits (1993 Revision. UCP), letter of credit means an arrangement whereby an issuing bank is to make a payment to a beneficiary, or is to accept and pay bills of exchange drawn by the beneficiary, or authorises another bank to effect such payment, or to accept and pay such bills of exchange, or to negotiate, against stipulated document(s), provided that the terms and conditions of the letter of credit are complied with. In letter of credit operations, all parties concerned deal with documents, and not with goods, services and/or other performances to which the documents may relate (UCP, Article 4). It is important to note that under UCP, if a letter of credit contains conditions without stating the document(s) to be presented in compliance therewith, banks will deem such conditions as not stated and will disregard them (Article 13 c). Section 5-108(g) of the Uniform Commercial Code also contains a similar provision. However on several occasions the Korean Supreme Court held that non-documentary conditions in letter of credit governed by UCP could be regarded as valid, although they were not desirable in the context of letter of credit transactions. The rationale underlying the decisions was that parties to the letter of credit transactions are free to determine the terms and conditions of the relevant letter of credit. After reviewing the relevant provisions of UCP, UCC, the International Standby Practices (ISP98) and the Supreme Court decisions of Korea, the author suggests that we classify conditions that do not require any documents (so called apparent non-documentary conditions) into two categories and treat them differently. There are apparent non-documentary conditions that are consistent with the nature of letter of credit and those which are inconsistent with the nature of letter of credit. In the first category there are two sub-categories, (i) those which are valid and (ii) those which are invalid and thus should be disregarded. In the second category there are two sub-categories, (i) those which are invalid and thus should be disregarded and (ii) those which are valid but deprive the instrument of the nature as letter of credit.

• 무역상무연구
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• 제43권
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• pp.239-273
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• 2009

Marine insurance contracts, which intended to provide indemnity against marine risks upon the payment of a premium, originated in Northern Italy in the late 12th and early 13th centuries. The law and practice of Italian merchants were later introduced into England through Lombard merchants. It is, therefore, quite exact that English and Continental marine insurance law have common root. Nevertheless, some significant divergences between English and Continental marine insurance systems occurred since the late 17th century, mainly due to different approaches adopted by English courts. The rule of warranty in English marine insurance was established in the second part of the 18th century by Lord Mansfield, who laid the foundations of the modern English law of marine insurance and developed different approaches, especially in the field of warranty in marine insurance law. Since the age of Lord Mansfield, English marine insurance law has developed a unique rule on warranty. Bearing in mind the realities of the 18th century, it could easily be understood why Lord Mansfield afforded such a strict legal character to marine warranties. At that time, the 'promise' given by the assured, played an important role for the insurer to assess the scope of the risk. Legal environments, however, have changed dramatically since the times of Lord Mansfield. Of course, it is still important that the assured keep his promises to the insurer under the insurance contract, which is based upon utmost good faith. Nevertheless, the remedy of automatic discharge from liability, regardless of existence of a casual link between the breach and loss seems harsh in the realities of the 21st century. After examining the warranty regime adopted by the German and Norwegian hull clauses, it is fair to say that they provide a more equitable approaches for the assured than does English law. Therefore, this article suggests that English warranty regime needs overall reform and it is time to reform.