• Title/Summary/Keyword: Liability of carrier

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A Juridical Approach to Causal Relations between Ocean Freight Shipping and Seaworthiness of Vessel (해상화물운송에 있어서 선박의 감항성(勘航性)과 인과관계(因果關係)에 관한 법리적(法理的) 접근(接近))

  • Park, Chang-Sik;Kim, Cheong-Yeul
    • Journal of Korea Port Economic Association
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    • v.22 no.2
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    • pp.83-108
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    • 2006
  • Regarding the ocean carrier's responsibility for damage indemnification, both his or her duty of care and reason of legal exemption have been considered important. The International Convention for the Unification of Certain Rules relating to Bills of Lading also provides that the ocean carrier indemnifies for the loss or damage of freight on the basis of the principle of liability with fault. In other words, the carrier assumes responsibility only for the loss or damage of freight which is under his or her control and whose safety must be carefully maintained by him or her. The carrier's duty of care which is required for freight safety in accordance with the convention is associated with two themes, seaworthiness of vessel and freight itself. To make ocean freight shipping effective necessities the seaworthiness of the ship that will conduct the shipping service under its responsibility. This will ultimately lead to making the service impressive to the shipper as freight owner. Thus the purpose of this study is to contribute to more reasonable shipping by the shipowner or the carrier who needs to ensure seaworthiness of vessel, and prevent unseaworthiness that may be incurred in accordance with freight characteristics. For the purpose, this paper reviewed the meaning of seaworthiness of vessel through a juridical approach to its causal relationship with ocean freight shipping.

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Air Carrier's Civil Liability for Overbooking (항공권의 초과예약(Overbooking)에 관한 항공사의 민사책임)

  • Kwon, Chang-Young
    • The Korean Journal of Air & Space Law and Policy
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    • v.31 no.1
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    • pp.99-144
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    • 2016
  • The summary of the case is as follows: a Korean passenger booked and purchased a business class ticket from Air France that was scheduled to depart from Paris and arrive in Seoul. When the passenger arrived at the check-in counter, he was told that all business class seats were occupied. It was because the flight was overbooked by Air France. The passenger cancelled the Air France flight and took another air carrier. After arriving in Korea, he brought suit against Air France for damages. The purpose of this article is to discuss the governing law when interpreting the contract of international air carriage in accordance with the Korean Private International Act (2001) and to analyze air carrier's civil liability for the bumped passenger in the overbooking case. If the parties have not chosen the applicable law the contract shall be governed by the law of the habitual residence of the consumer in the following situations: prior to the conclusion of the contract, the opposite party of the consumer conducted solicitation of transactions and other occupational or business activities by an advertisement in that country or conducted solicitation of transactions and other occupational or business activities by an advertisement into that country from the areas outside that country and the consumer took all the steps necessary for the conclusion of the contract in that country or in case the opposite party of the consumer received an order of the consumer in that country [Article 27 (1), (2) of the Private International Act]. Since the contract of international carriage falls into the consumer contract, the Supreme Court viewed that the governing law of the contract in this case would be the law of the habitual residence of the consumer (Supreme Court Decision 2013Da8410 decided on Aug. 28, 2014). This interpretation differs from the article 5 (4) of Rome Convention(80/934/EEC) which declares that the consumer contract article shall not apply to neither a contract of carriage nor a contract for the supply of services where the services are to be supplied to the consumer exclusively in a country other than that in which he has his habitual residence. Even though overbooking can be considered as a common industry practice, an air carrier must burden civil liability in case of breach of contract for the involuntary bumped passenger(Seoul Central District Court Decision 2014Na48391 decided on Jan. 29, 2015). In case of involuntary bumping, an air carrier must offer re-routing to passenger's final destination by an alternative flight. If an air carrier fails to effect performance in accordance with the tenor and purport of the obligation, the involuntary bumped passenger may claim damages(Article 390 of the Civil Code).

Handling of Dangerous Goods Under Charterparties - Focusing on Anglo/American Law and Practicies - (용선계약하에서 위험물취급에 관한 고찰 -영미법논리를 중심으로-)

  • Kim, Sun-Ok
    • International Commerce and Information Review
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    • v.11 no.1
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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.

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A Study on the Surrender B/L and the Subrogation Claim of Marine Cargo Insurance under International Trade Transaction (국제무역거래상 권리포기 선하증권과 관련된 해상화물보험의 대위청구권에 관한 연구)

  • LEE, Jae-Sung
    • THE INTERNATIONAL COMMERCE & LAW REVIEW
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    • v.65
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    • pp.71-94
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    • 2015
  • The insurer's right to take legal proceedings in the name of the assured against a third party who has caused loss of or damage to the goods is of particular importance in marine cargo insurance under international trade transaction. The amounts recovered in subrogation actions, known in practice simply as recoveries, form a significant element in the balancing of the cargo insurer's underwriting account by improving ing the loss record. However, even if the carrier involved in the accident have a liability for damages, in some cases can not claim damages in accordance with the after clauses and carrier's exemption clauses indemnity carrier under the contract of carriage. In recent, the dispute cases to argue damages claim of the carrier in connection with business practices of surrender B/L, the claim is dismissed cases in accordance with the Arbitration Rules of the after clauses. In the future, the surrender B/L is continually to use as a marine transport method, it may also be interested in insurance subrogation of damages claims to insurance accident by a surrender B/L.

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A Basic Study on the Maritime Performing Party System and the Difference between the Maritime System and China's system

  • Liu, Xiaoxian;Noh, Chang-Kyun
    • Journal of Navigation and Port Research
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    • v.36 no.4
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    • pp.299-303
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    • 2012
  • "United Nations Convention on Contracts for the International Carriage of Goods Wholly or Partly by Sea" was passed in July 3, 2008. on September 23, 2009 signing ceremony was held in Rotterdam. The system of maritime performing party is a special system in the transport convention, and constitutes an integral part of the Convention. Maritime performing party system is not the first system which brings in the carrier's independent contractor, but it is the most comprehensive and thorough one. It unified the duty of carrier's independent contractor in the maritime segment, and it is also an important progress in the developing process of international maritime legal system. There are some differences between the maritime performing party and China's current related system, i.e, the port maritime performing party and the intermediate performing party are included in the maritime performing party, and they can enjoy the carrier's exception clause and limitation of liability.

The Characteristic of the Carrier's Liability Due to the Illegal Act of the Crew during International Air Transportation (국제항공운송 과정에서의 기장 등의 직무상 불법행위에 기한 운송인의 손해배상책임이 가지는 특수성)

  • Kim, Min-Seok
    • The Korean Journal of Air & Space Law and Policy
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    • v.35 no.3
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    • pp.3-37
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    • 2020
  • The aircraft crew operating on international routes performs almost identical tasks as police officials in terms of dealing with the unlawful interference in the aircraft. This means that the liability question which is related to the law enforcement by the police officer may arise regarding the crew's performance of his or her duties. With regard to the carrier's liability due to the crew's unlawful action, there are distinctive characteristics from the liability due to police officers' unlawful action. In case of the claim for damages by the crew's unlawful action, the first question should be whether such action complies with the requirements under the Tokyo Convention 1963. If such action does not conform with the Tokyo Convention 1963, we should examine that claim under the State Compensation Act, the Montreal Convention 1999, and the Civil Act of Korea. The examination under the Tokyo Convention 1963 is not so different from the Korean Court's precedents. However, the court should consider the characteristics of the environment surrounding the crew. The action which is not indemnified under the Tokyo Convention 1963 should be examined under the tort laws. Because the aircraft crew is private persons entrusted with public duties under Korean Law, the State Compensation Act may apply. However, further studies regarding the harmonious interpretation with the Montreal Convention 1999 is needed. With regard to the carrier's liability, the Montreal Convention of 1999 should be applied to the crew's unlawful actions onboard. This is because the Montreal Convention of 1999 preempts the national law for the events that occurred during transportation, and there is no provision which excludes such unlawful actions from the scope of its application. On the other hand, the national law, such as the Civil Act of Korea, applies to unlawful actions taken after transportation. This is because the interpretation that infinitely expands the scope of the Montreal Convention 1999 should not be allowed. Given the foregoing, the standard of the claim for damages due to the crew's unlawful action varies depending on the place where the specific action was taken. As a result, the type of damage recoverable and the burden of proof also varies accordingly. Carriers and crew members must perform their duties with this in mind, but in particular, they should observe the proportionality, and when interpreting the law, it is necessary for the court or lawyer to consider the special characteristics of the work environment.

Portal's Liability for User Reply to News Article, Provided by the News Media -A Critical Analysis on 2005 GaHap64571 of Seoul Central District Court- (언론사로부터 전재 받은 뉴스기사의 댓글에 대한 포털의 작위의무 -서울중앙지법 2005가합64571 판결에 대한 비판적 고찰-)

  • Kim, Gyong-Ho
    • Korean journal of communication and information
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    • v.42
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    • pp.140-167
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    • 2008
  • This study analyzes the legal reasoning of Seoul Central District Court, which imposed legal liability on portals for posting defamatory user replies to news articles, written and provided by the news media, onto their 'News Windows'. Saddling portals with the burden of verifying the facts associated in news articles and imposing the legal obligation as a publisher entail a grave risk of impairment of free flow of information and freedom of expression. Of course, it would ultimately result in tightening up private censorship of information which the Constitution does not allow, and funker keep portals from posting even news articles in which expressed views and opinions are lawful. When judging whether portals should assume liability fur libelous user replies to news articles, it is necessary to distinguish the territory under the direct authority of portals from cafes and bulletin boards managed by third parties. In addition, imposing legal liability above the level of common carrier should be limited to the cases; when portals arbitrarily change the contents of news articles or when the articles portals changed contain libelous contents. Even if those conditions are met, the altered contents should obviously constitute libel. Only in the presence of proof that portals knew the illegality of news articles and did not take proper steps including deleting those replies, should portals not be considered as an accomplice. Nor should portals take responsibility for users' defamatory replies for those reasons.

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A Review on the Air Carrier's Liability for the Cargo under the Montreal Convention and the Commercial Law through the Recent Supreme Court's Case (최근 판례를 통해 본 몬트리올 협약과 상법상 항공운송인의 책임 - 대법원 2016. 3. 24. 선고 2013다81514판결 -)

  • Kim, Kwang-Rok
    • The Korean Journal of Air & Space Law and Policy
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    • v.32 no.2
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    • pp.33-66
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    • 2017
  • The Korean government enacted the Chapter 6 as of Air Transportation to the Korean Commercial Act, which was enforced in 2011, in order to treat some arguments occurred from air transportation Contracts since air transportations has rapidly increased in Korea. Air transportations has been used more in the field of international market than in the field of domestic market under it's own characteristic. Therefore, many international agreements and protocols related to the air transportations has been appeared from old times and the 1999 Convention for the Unification of Certain Rules for International Carriage by Air ("Montreal Convention") is one of them. The Montreal Convention was adopted in May 28, 1999 at International Conference of Air Law hosted by the International Civil Aviation Organization ("ICAO") in Montreal, Canada where the Headquarter of ICAO is located. The Montreal Convention has been effected from September 5, 2003 and the Korean government ratified the convention in 2007. Therefore, the Montreal Convention came in to force in Korea since 2007. This year, 2017, is the 10th anniversary year since the Montreal Convention has taken effect in Korea. However, there are rare cases that argued the Montreal Convention's scope of application and this Article examines the Korean Supreme Court's case that argued the Convention's scope of application. Thus the Article basically analyzes the case from the perspective of the Montreal Convention's scope of application and examines the Montreal Convention's articles related to the air carrier's liability and extent of compensation for damage that occurred from the international carriage by air. Also this Article analyzes the Korean Commercial Act Chapter 6, which regulated the air carrier's liability and the Article tries to make a comparison between the Montreal Convention and the Korean Commercial Act in order to draw some scheme for the betterment of Korean Commercial Act. It is the hope that the Article contribute to the improvement of Korean Commercial Act through the comparison with the chance of the 10th Anniversary of the Montreal Convention in Korea.

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The Limitation of Air Carriers' Cargo and Baggage Liability in International Aviation Law: With Reference to the U.S. Courts' Decisions (국제항공법상 화물.수하물에 대한 운송인의 책임상한제도 - 미국의 판례 분석을 중심으로 -)

  • Moon, Joon-Jo
    • The Korean Journal of Air & Space Law and Policy
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    • v.22 no.2
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    • pp.109-133
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    • 2007
  • The legal labyrinth through which we have just walked is one in which even a highly proficient lawyer could easily become lost. Warsaw Convention's original objective of uniformity of private international aviation liability law has been eroded as the world community ha attempted again to address perceived problems. Efforts to create simplicity and certainty of recovery actually may have created less of both. In any particular case, the issue of which international convention, intercarrier agreement or national law to apply will likely be inconsistent with other decisions. The law has evolved faster for some nations, and slower for others. Under the Warsaw Convention of 1929, strict liability is imposed on the air carrier for damage, loss, or destruction of cargo, luggage, or goods sustained either: (1) during carriage in air, which is comprised of the period during which cargo is 'in charge of the carrier (a) within an aerodrome, (b) on board the aircraft, or (c) in any place if the aircraft lands outside an aerodrome; or (2) as a result of delay. By 2007, 151 nations had ratified the original Warsaw Convention, 136 nations had ratified the Hague Protocol, 84 had ratified the Guadalajara Protocol, and 53 nations had ratified Montreal Protocol No.4, all of which have entered into force. In November 2003, the Montreal Convention of 1999 entered into force. Several airlines have embraced the Montreal Agreement or the IATA Intercarrier Agreements. Only seven nations had ratified the moribund Guatemala City Protocol. Meanwhile, the highly influential U.S. Second Circuit has rendered an opinion that no treaty on the subject was in force at all unless both affected nations had ratified the identical convention, leaving some cases to fall between the cracks into the arena of common law. Moreover, in the United States, a surface transportation movement prior or subsequent to the air movement may, depending upon the facts, be subject to Warsaw, or to common law. At present, International private air law regime can be described as a "situation of utter chaos" in which "even legal advisers and judges are confused." The net result of this barnacle-like layering of international and domestic rules, standards, agreements, and criteria in the elimination of legal simplicity and the substitution in its stead of complexity and commercial uncertainty, which manifestly can not inure to the efficient and economical flow of world trade. All this makes a strong case for universal ratification of the Montreal Convention, which will supersede the Warsaw Convention and its various reformulations. Now that the Montreal Convention has entered into force, the insurance community may press the airlines to embrace it, which in turn may encourage the world's governments to ratify it. Under the Montreal Convention, the common law defence is available to the carrier even when it was not the sole cause of the loss or damage, again making way for the application of comparative fault principle. Hopefully, the recent entry into force of the Montreal Convention of 1999 will re-establish the international legal uniformity the Warsaw Convention of 1929 sought to achieve, though far a transitional period at least, the courts of different nations will be applying different legal regimes.

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A Study on the Aviation Case Law -Focusing on the Application of Treaties for the International Carriage by Air- (항공판례의 연구 -국제항공운송조약의 적용문제를 중심으로-)

  • Kim, Jong-Bok
    • The Korean Journal of Air & Space Law and Policy
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    • v.21 no.1
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    • pp.29-63
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    • 2006
  • This paper studied and introduced the aviation law cases in applying the treaties of the Warsaw System to the liability of the international air carrier by categorizing four main sections. Firstly, this paper handled the cases regarding the defining an international flight, exclusivity of the treaties as international air carrie's liability Convention, determining treaty relationship between the countries which one country has ratified only the Hague Protocol, an amended version of the Warsaw Convention, while the other has ratified only the original, unamended Warsaw Convention. Annotation assisted the case if it needed. Secondly, the cases relating to the issues of actual and contracting carrier, successive carrier, agents and servants of the carrier and others were studied. Thirdly, the issues relating to the accident in the course of any operations of embarking or disembarking of passengers, the occurrence during the transportation by air of baggage or goods and delay in the transportation by air of passengers, baggage or goods in addition to the cancellation of the flights were studied according to the applicable range. Fourthly, I studied the time issue with effective date of the treaties. Conclusively, it is not excessive to emphasize the importance of cases in Aviation Law like all other legal areas, therefore, a full-dress future reaserch of aviation cases is expected in here Korea with this paper as a foundation although it studied and introduced only a part of numerous aviation law cases.

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