• 무역학회지
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• 제44권6호
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• pp.1-21
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• 2019

In the case of a sea transport contract, the decision of the governing law, together with the choice of lex fori, shall be a legal issue in all legal disputes involving damage to the goods. In sea transport contracts, a paramount clause is often established in conjunction with the governing law clause, which can lead to conflict between these two clauses. Most B/L's back clauses contain a paramount clause that provides that the Hague Rules, Hague-Visby Rules, or foreign laws that prevail over other provisions of the terms. The Hague Rules and the Hague-Visby Rules, however, set different standards regarding the extent of the sea carrier's liability. Therefore, in the interpretation of ground conditions, it is an important question whether the Hague Rules or the Hague-Visby Rules are applied or whether each rule is applied as a law. For example, the paramount clause in the Superior Pescadores case was problematic in the interpretation of the term 'Hague Rules.' In this case, the English Court held that the expression 'Hague Rules' could be used to mean the Hague-Visby Rules, and not exclusively the Hague Rules. Therefore, the Hague-Visby Rules were applied in the judgment of this case, which suggests that this case can be a valuable precedent in future legal matters.

• 무역상무연구
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• 제49권
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• pp.325-358
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• 2011

The purpose of this study aims to analyse the implications of volume contract clause with Rotterdam Rules. The Hague-Visby Rules have been in force this jurisdiction for over 30 years. In those three decades they have performed valiant service, both for the development of maritime law in this country and for the countless parties from around the world who have chosen courts and arbitral tribunals in London for the resolution of disputes arising under bills of lading or under charterparties incorporating the Hague-Visby Rules. While the Hague-Visby Rules apply only to bills of lading or any other similar documents of title and hence all other contracts of carriage are not subject to the current regime, this is not the case for the Rotterdam Rules which, broadly speaking, apply to contracts of carriage whether or not a shipping document or electronic transport record is issued. To preserve freedom of contract where necessary, however, a number of significant concessions were made and Article 80 represents one of the most controversial: that of volume contracts. However, the provision lends itself to abuse under each one of the elements as there is no minimum quantity, period of time or frequency and the minimum number of shipments is clearly just two. This means that important contracts of affreighment concluded pursuant to, for example, oil supply agreements have the same right to be excluded from the scope of application of the Rotterdam Rules. The fact that a volume contract may incorporate by reference the carrier's public schedule of services and the transport document or other similar documents as terms of the contract would make a carefully drafted booking note for consecutive shipments a potential volume contract as well.

• 대한안전경영과학회지
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• 제14권1호
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• pp.109-116
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• 2012

It could be debated that the owners were indemnified from the charterers even in respect of the loss of deck cargo caused by the negligence on the part of the owners' servants by a clause 13(b) of NYPE(1993) form, where NYPE(1993) incorporated the Hague/Visby Rules by a paramount clause and did not contained an on deck statement to state or identify what or how much deck cargo was being carried, however the relevant bills of lading all had such statement. The socol 3 of U.K. is a very helpful decision on (1) an on deck statement in bill of lading was sufficient to exclude application of the Hague/Visby Rules to the carriage of deck cargo, as a result, the clause 13(b) should not be null and void by the clause 3(8) of the Hague/Visby Rules (3) the clause 13(b) could not protect the owners from the loss and/or liability caused by negligence and/or breach of the obligation of seaworthiness on the part of the owners, their servants and agents. Therefore, the purpose of this study is to critically analyze the decision in the socol 3, and provide the decision's practical implications in order to prevent legal disputes as to the on deck carriage between the owners and the charterters.

• 통상정보연구
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• 제11권1호
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• pp.291-308
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• 2009

The implied obligation under the contract of affreightment not to carry dangerous goods without prior notice to the carrier applies to the contractual relationship between the charterer and the owner under charterparties. The charterers will be in breach of an implied undertaking under the common law if they load dangerous cargoes without making notice of dangerous nature of them to the owner. It is indicated to be necessary to change the term "shipper" to "charterer", with relation to such implied obligation, where the Hague/Hague-Visby Rules are incorporated into the charter, however, it is not so apparent where an actual shipper is involved. So long as an actual shipper could be identified, the shipper rather than the charterer shall be responsible for damages arising from the dangerous nature of the cargo itself. In this case, the actual shipper is interpreted to have an implied contractual relationship with the carrier just by the act of delivering the cargo to the carrier for loading. If the vessel were damaged by shipment of the dangerous cargo under charterparty, the carrier can claim against such damages based on the contractual obligations under charterparties: "implied and expressed duty not to ship dangerous cargo without notice to the carrier"; "Art.IV.6 of the Hague/Hague-Visby Rules"; "Indemnity Clause" and "Redelivery Clause". The carrier has the conventional right under the Hague/Hague-Visby Rules to land, destroy or render the goods innocuous where the dangerous cargo threatens the means of transport or other interests on board. When the carrier has not consented to make the shipment, the carrier's disposal right could be exercised without limitation. However, where the carrier has consented to make the shipment of the dangerous goods with the knowledge concerned, the right of disposal of such goods should be exercised with limitation.

• 무역상무연구
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• 제53권
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• pp.101-133
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• 2012

The paper aims to analyse the obligations and Responsibilities of shipper in the Rotterdam Rules. The Rotterdam Rules, has underlying intention that it will provide uniform law for the international carriage of goods by sea. It is highly expected that the Rotterdam Rules will create the new international legal regime replacing Hague-Visby Rules and Hamburg Rules. Rotterdam Rules provide the obligations and responsibilities of shipper in express. The shippers obliged to provide, (a) duty as to the condition in which the cargo has to be delivered to the carrier, (b) cooperation of the shipper and the carrier in providing information and instruction, and (c) shipper's obligation to provide information, instructions and documents. The shipper is liable for loss or damage sustained by the carrier if the carrier proves that such loss or damages was caused by a breach of the shipper's obligations. However, the shipper is relieved of all or part of its liability if the cause or one of the causes of the loss or damage is not attributable to its fault or to the fault. But, the shipper shall indemnify the carrier against loss or damage resulting from the inaccuracy of such information. Rotterdam Rules is providing rather concrete as to the shipper's responsibilities and burden of proof in separate chapter. The question is whether such burden of proof of the fault should be imposed to the shipper.

• 무역상무연구
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• 제42권
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• pp.189-210
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• 2009

The United Nations General Assembly adopted the United Nations Convention on Contracts for the International Carriage of Goods Wholly or Partly by Sea(hereinafter referred to as "The Rotterdam Rules") on 11 December 2008. Rotterdam Rules aims to create a contemporary and uniform law providing for modern door-to-door container transport including an international sea leg. but not limited to port-to port carriage of goods. The structure of the liability regime in Rotterdam Rules are globally close to that of the Hague-Visby Rule even though it differs from that of the Hague-Visby Rules in some significant aspects. The Rotterdam Rules are very long. Therefore the Rotterdam Rules will be difficult to understand for even the skilled ship operator or owner or charterer or shipper or consignee or receiver because they are so complicated. This paper only seeks to highlight the salient features of the liability and limitation of liability regime under the Rotterdam Rules. It is expected that the harmonization and modernization of the international legal regime. coupled with the bold attempt to balance the carrier and cargo interests should lead to an overall reduction in transaction costs. increased predictability and greater commercial confidence for international business transactions.

• 무역상무연구
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• 제31권
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• pp.59-78
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• 2006

The purpose of this research is to discuss the excepted perils of carriers, to expose moot points arising from the applications of the excepted perils of the carriers, and then to suggests improvements them. The methodology of this research depended largely upon a combination of the related precedents, international treaties related to the excepted perils of carriers. The excepted perils of carriers in marine carriage begin with extremely limited perils based on the receptum liabilities and the absolute liability principle in English common law. Proceed via the intemperate expansion of the excepted perils by the widespread diffusion of the principle of free contract. but via the American Harter Act, The Hague Rules, The Hague Visby Rules, and The Hamburg Rules Came contracted. This study conducted an analysis of the excepted perils for the carriers and suggests improvements in them but it remains regrettable that we are not in a position to sustain them since we are lacking is precedents connected with The Hamburg rules.

• 한국항만경제학회지
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• 제22권4호
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• pp.1-17
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• 2006

지상조항은 수출용의 선하증권에 대해 적용하는 것을 원칙으로 하지만 미국과 일본과 같이 수출입 모두에 적용하는 국가도 있다. 경합하는 경우에는 법원은 자국의 법률에 의해 규율하는 것이 된다. 그 경우에도 Hague 규칙의 내용을 적용하고 있다면 타국의 국내법이라도 상관하지 않는다는 의미이다. 이 경우 국내법이 Hague 규칙을 기초로 하고 있는 이상 Hague 규칙에 위반하는 조항은 무효가 된다. 법정지중에는 Hague 규칙을 체결하지 않는 국가도 있으므로 결국 이것을 유효하게 할지의 여부는 법원이 결정하게 된다. 한편 Irbenskiy Proliv호 사건에서는 준거법을 영국법, 재판관할을 영국의 지방법원(High Court)으로 하는 브라질에서 일본까지의 선하증권에 의한 운송에 있어서 하주가 운송인의 과실 또는 본선의 불감항에 의해 화물손해가 발생했다고 주장하여 운송인에게 손해배상을 청구하였다. 법원은 당해 선하증권상의 광범한 면책약관을 해석하는데 있어서 보통법의 문제로서 그 효력을 인정하여 운송인의 면책에 대한 주장을 인정하였다. 본 연구에서는 Irbenskiy Proliv호 사건을 중심으로 영국법의 준거법과 관련된 선하증권 면책약관의 효력에 대해 분석하고 또한 선하증권 면책약관의 효력에 관한 여러 사례를 체계적으로 고찰함으로써 무역업계와 학계에 기여하고자 함이 본 연구의 필요성이자 연구의 목적이다. 우리나라의 경우에도 1991년 개정상법은 1968년 Hague-Visby 규칙의 주요 규정을 원용하고 있는데, 지상약관 준거법 등과 관련된 Irbenskiy Proliv호 사건의 판결내용은 향후 이와 관련된 우리나라의 법체계에 있어서도 그 시사하는 바가 크다고 생각한다.효율적인 정전관리체계 수립을 위한 정책적 제안으로 전력의 안전공급체제 견지, 비상전원 설치에 대한 정책적 지원, 정전피해보상제도 개선 등을 제시하였다. 조건으로 부각됨에 따라, 다양한 위험들을 효과적으로 평가하고 대응책을 제시함으로써 체계적인 위험관리가 이루어져야 하며, 이제는 전사적 위험관리가 새로운 트렌드로 자리잡아가고 있다. 위험요소 분석의 첫 번째 단계는 위험요소를 인지하는 작업으로, 이는 모든 경비시설내에서 손실에 대한 취약성을 확인하는 것을 말한다. 두 번째 단계는 위험요소에 대한 사정이 있어서 손실의 발생가능성을 고려하는 것이고, 세 번째 단계는 손실의 위험성을 평가하는 것이다. 취약성을 평가하고, 손실발생가능성을 측정하고, 그 손실로 인한 위험성을 계량화(수치화)한 위험분석의 결과를 토대로 위험요소별 평가등급을 정하고 최종적으로 위험수준을 결정하게 된다. 위험수준은 경비안전시스템에 대한 보완대책 수립의 기초가 된다. 손실에 대비하고 손실을 최소화하기 위한 위험관리대책을 수립함에 있어 보험이 가장 주요한 수단이기는 하나, 모든 위험을 다 보험에 맡길 수는 없다. 오히려 경비의 비용효과를 고려하고, 경비화일을 활용하여 발전적인 위험관리대안을 제시해야 한다. 이 때 위험요소의 원천을 제거하는 것이 최상의 방책이며, 그 경로를 차단하는 것이 차선이다. 아울러, 안전에 관한 회사내규를 강화하고, 안전과 위험관리에 관한 교육을 지속적이고 반복적으로 실시하여야 한다. 위험관리는 사업의 손실후 연속성을 위해 가장 효율적인 손실전 준비를 하는 것이다. 따라서 가장 비용효과적이고 생산적인 위험관리 방안을 제시하는 것이 무엇보다 중요하며, 이 기능은 지속적으로 유지 발전되어야 한다.보를

• 무역상무연구
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• 제51권
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• pp.317-358
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• 2011

The purpose of this study aims to analyse the key differences of the sea waybill and electronic B/L in the international transport documents. Sea waybills look remarkably like ordinary bills of lading. Indeed, in two important ways, they are just like bills of lading: the front of the document will near a description of the quantity and apparent condition of the goods; and the back of the document provides evidence of the terms of the contract of carriage. They differ from bills of lading in that, far from indicating that the goods described are deliverable to the order of the shipper or of the consignee, they will make it explicit that the goods are deliverable only to the consignee. Again, different carries will do thai in a variety of ways. For example, the document may call itself non-negotiable, omitting the word order from the consignee box on the front of the document, and stating explicitly that the goods will be deliverable to the consignee or his authorised representative on proper proof of identity and authorisation. The Hague-Visby Rules and Hamburg Rules give no guidance as to any right to instruct the carrier in respect of goods while they are in transit. However, in applying Article 50 of the Rotterdam Rules, in particular when applying it in the context of seawaybills, straight bills of lading or ship's delivery orders, regard would need to be had to preserve the shipper's rights under any of those three documents even after the buyer of goods covered by them has acquired rights of its own. And, the right of control is defined at Article 1.12 of the Rotterdam Rules. The right to give instruction is further limited by the terms of Article 50.1 to three particular types of instruction in respect of the goods, relating broadly to the goods, their delivery en route, and the identity of the consignee. And, the CMI formulated the CMI Uniform Rules for Sea Waybills for voluntary incorporation into any contract of carriage covered by such a document. Recognising that neither the Hague nor the Hague-Visby Rules are applicable to sea waybills, the CMI Rules provide that a contract of carriage covered by a waybill shall be governed by whichever international or national law, if any, would have been compulsorily applicable if the contract had in fact been covered by a bill of lading or similar document of title.

• 무역상무연구
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• 제20권
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• pp.369-385
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• 2003

Contracts of carriage evidenced by bill of lading which are made between carrier and unidentified number of the shipper are to a large extent regulated by statute law such as Hague-Visby Rules and Hamburg Rules. These rules qualifies the contractual liberty of parties and especially restrains the carrier from introducing exemption from his liability beyond those admitted by the Rules. However, these Rules are applied only to goods in respect of which a bill of lading or similar document of title has been issued. In this reason, it is possible that liability of carrier in respect of goods shipped could become an issue where electronic bill of lading is used instead of paper bill of lading because electronic bill of lading is not generally recognised document of title in existing rule. Thus, this article discuss the relation between the carrier who create electronic bill of lading and the Rules regulating liability of carrier. Also, new Rules which has been examining in UNCITRAL will be introduced.