• 항공우주정책ㆍ법학회지
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• 제9권
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• pp.277-298
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• 1997

Air transportation industry was established on a basis of liability limitation from the outset. Many treaties, however, had to be drafted since 1960' s to meet the need of the Unites States, who argued full compensation without limitation like other torts cases, but most of them were in vain. The Japanese Initiative in 1992, though being aimed to lower a level of compensation in air crash cases to that of other transportation accidents, showed a way to the U.S. how to solve the issue. Instead of obtaining an multilateral agreement through ICAO, the U.S. persuaded IATA to organize intercarrier consensus for voluntary waive the limitation. IATA succeeded in adopting Intercarrier Liability Agreement in 1995, in which carriers agreed not to use Warsaw limitation and accepted strict liability up to 100,000SDRs. Through a series of negotiation to implement the Intercarrier agreement, US DOT tried to insert a domicile standard provision to the agreement which enable US victims to be compensated according to the law of the U.S. regardless of the situation. IATA opposed the intent aggressively. The U.S. set back to the starting point remaining issues for further discussion. The liability limitation under the Warsaw system is being collapsed. It is the result of a simple logic; liability limitation cannot be maintained without appropriate compensation.

• 항공우주정책ㆍ법학회지
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• 제5권
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• pp.171-205
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• 1993

On the contrary to the general principle of private law, carriers' liability for passengers and cargo owners have been quantatively limited in some cases. The author traces the rule of liability limitation in the law of Korea and United States to verify two hypotheses. The first hypothesis is that the rule of liability limitation has been introduced to motivate investment when new technology with high risk has been adopted in business. The second hypothesis is that the rule of liability limitation can be maintained only when damages have been fully compensated. The former is a necessary condition for liability limation, and the latter sufficient condition. There are strong evidences for the first hypothesis. Navigation or aviation, artificial satellite lauching, urban transportation system are good examples. The second hypothesis is supported by the fact that there have been continuous controversies on the Warsaw System, including the failure of ratification of Montreal Additional Protocols No.3 & 4 by the U.S. Senate and voluntary removal of liability limitation by the Japanese airline companies. Loss of cargo can be compensated fully, but damages from personal injury and death not. The value of human body and life is not easy to be estimated. Passengers, moreover, do not usually buy insurance for accidents in travel. Passengers do not accept insurance premium as the cost of being whole and alive. They do not accept accident rates realistically. They have no bargaining power in dealing with insurers. The rule of liability limitation in personal losses would not be supported in future because damages have not fully compensated.

• 무역상무연구
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• 제77권
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• pp.145-168
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• 2018

The purpose of this paper is to introduce the limitation of liabilities of multimodal transport operators(MTO) in Korea. Also, this paper reviews the revised draft of Korean Commercial Code in 2015. This paper analyzes Korean multimodal transport systemand the limitation of liabilities of MTO by analyzing articles, regulations and practices of Korean Commercial Code and it's the draft in 2015. The paper, also, studies multimodal transport rules by comparing specifically international treaty, rules, or practices. In Korea, Article 816 of Commercial Code treats multimodal transportation adopting the network liability regime. The Article describes only the case of the multimodal transportation where the maritime carriage is engaged. Korea proposed the draft of multimodal transport regulation of Commercial Code in 2015 because present law could not apply for the multimodal transportation involved in the air or land carriage. This paper support the draft of Korean Commercial Code in 2015 because it is necessary to make a predictable legal system of multimodal transport and the limitation of liability reflecting practices or customs.

• 한국항만경제학회지
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• 제31권2호
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• pp.41-53
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• 2015

Paracomon Inc. v. Telus Communication사건('Realice호 사건')에서 Realice호의 닻이 항해과정에서 해저광섬유케이블에 얽히는 사고가 발생하자, 선주사의 대표이사이자 선장은 사용 중인 케이블을 절단해 버렸다. 케이블 소유회사는 선주에게 수리비를 청구하였고, 선주는 케이블 소유회사의 청구액을 책임보험자에게 청구하였다. 그런데 캐나다 대법원은, 선주는 1976년 해사채권에 대한 책임제한에 관한 조약('1976년 책임제한조약')에 따라 케이블 소유회사에 대한 손해배상책임을 일정 한도로 제한할 수 있으나, 케이블을 절단한 선주의 비행은 1993년 캐나다 해상보험법(Canada Marine Insurance Act)상 보험자의 면책사유인 피보험자의 고의적 불법행위(wilful misconduct)에 해당되어 책임보험자에게 보험금을 청구할 수 없다고 판결하였다. 결국 이번 판결로 선주는, 케이블소유회사에 대한 책임제한권은 인정받았으나, 책임보험자에 대한 보험금청구권은 상실하게 되었다. Realice호 사건은 국제조약상 선주에게 인정되는 책임제한과 그에 대한 책임보험의 보상 간의 상호 관계를 최초로 다루고 있다는 점에서 우리에게 시사하는 바가 크다. 따라서 본 논문의 목적은 Realice호 사건에서 대법원의 판결 이유를 분석하고, 해운 보험업계 이해와 지금까지 확립된 해상법에 기초하여 판결의 정당성을 평가하는데 있다. 본 논문은 1976년 책임제한조약의 입법 연혁을 고려할 때 선주가 책임제한권을 갖는다는 대법원의 판결은 타당하지만, 해운 및 보험업계의 이해, 제3자의 직접청구권의 도입취지, 책임제한 배제사유의 입법 과정 등을 고려할 때 책임보험자가 면책된다는 대법원의 판결은 적절하지 않다는 결론을 내린다. 끝으로, 본 논문은 이번 대법원 판결에 기초하여 2014년 세월호 사건에서 선주의 책임제한과 책임보험자의 보상 문제를 검토한다.

• 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.

• 항공우주정책ㆍ법학회지
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• 제26권1호
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• pp.147-176
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• 2011

급속히 성장하고 있는 민용항공운송업의 발전과는 달리 중국의 현행 항공운송법은 상당히 원칙적이고 추상적으로 규정되어 있어 항공운송과 관련하여 일어나는 분쟁에 적용하는데 있어서 많은 어려움을 겪고 있다. 또한 여러 부문규장에 산재하는 운송관련 규정들은 항공운송법 체계의 혼란과 비통일성을 가져다주었다. 이는 중국항공운송업의 진일보의 발전을 저애한다. 이와 같은 점을 고려하여 이 논문에서는 항공운송인의 책임 제도를 중심으로 중국 항공운송법의 법체계와 주요내용들을 살펴보았다. 중국민항법과 국무원 산하의 민용항공총국에서 제정 및 반포한 부문규장에 산재되어 있는데 법체계는 운송인 책임기간, 책임부담의 범위, 책임배상한도액 및 예외, 책임부담의 원칙, 운송인의 면책사유, 이의제출기한, 법의 적용, 관할법원, 소송시효에 관한 중국 법규정을 분석 소개하였다. 이어서 중국법원에서 다룬 실제사건과 결부하여 중국항공운송법 상의 문제점들을 구체적으로 점검하고 법 개정의 필요성과 앞으로의 전망을 제시하였다. 앞으로 중국 항공운송법을 개정함에 있어서 운송인책임과 관련하여 우선 먼저 운송인의 배상책임한도액을 상향조정해야 한다. 둘째로 국내항공운송과 국제항공운송 구분이 없이 운송인의 배상책임한도액을 제정함이 바람직하다. 셋째로 항공기연착에 관한 법 규정을 보완해야 한다. 넷째로, 민항법과 관련 부문규장에서 여객에 대한 운송인의 정신적 손해배상 내용을 명확히 할 필요가 있으며 법원은 향후 항공운송분쟁에 관한 분쟁에서 정신적 손해배상청구가 있는 경우 고려요소, 배상금 금액의 산정 등 기준을 판결문에서 명확하고 자세하게 밝히는 것이 바람직하다.

• 환경정책연구
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• 제2권1호
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• pp.107-135
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• 2003

This study reviews the proposed liability and redress regime under the Cartagena Protocol on Biodiversity. Several core elements for the regime are discussed in comparison with those listed in the 1999 Basel Protocol on Liability and Compensation for Damage resulting from the Transboundary Movements of Hazardous Wastes and their Disposal. These are (1) scope of the rules and procedures; (2) channeling of liability; (3) legal standing; (4) definition of damage; (5) standard of care; (6) ancillary sources of compensation; (7) limitation of liability; (8) financial guarantees; and (9) mutual recognition and enforcement of judgments. Korea has given relatively little attention to the issue of liability and redress in the context of LMOs trade. As the Protocol is expected to enter into force soon, Korea needs to develop appropriate implementing domestic mechanisms for the Biosafety Protocol. Establishing an adequate domestic liability and compensation scheme will be one of the most important mechanisms not only to comply the Protocol but to ensure safety of LMOs in general. A further research is needed on the basis of a comparision of relevant legislations in different countries as well as analysis of current laws related to the accidents arising from LMOs trade, such as product liability laws, food safety laws, liability provisions in some environmental legislations.

• 무역상무연구
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• 제44권
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• pp.31-55
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• 2009

This study attempts to provide a comparative overview of the liability systems Korean law and the PELS adopt, that is, the approaches taken by Korean law and the PELS to deal with various irregularities of contractual performance. In addition, it examines in a comparative way the questions of what is the position of the seller's liability for his delivery of defective goods under the chosen liability system and what is the legal nature of the seller's liability. The study finds that the dual liability system taken by Korean law has caused some complexities as to the matter of which liability is applicable in some borderline cases. The problem in such complexities is originated in that the remedies available and the limitation period applicable are differentiated in accordance with one's different categorization among three types of default under the general liability and defective performance under the seller's guarantee liability. In this light, the study argues that the unified liability system under the PELS is superior because its concept of non-performance embraces in a unitary manner all the aspects of default including defects in quality, quantity and title. In addition, it finds that Korean law has suffered endless debates on the question of what are the true contents of the same remedies of rescission and damages provided under the seller's guarantee liability as under the general liability. The debates have been come along on the basis of the traditional presumption among some of civil law jurisdictions that two liabilities be different in terms of not only their legal nature but also their contents of remedies. The study argues that the problem may be circumvented, first, by another way of thinking that the unified liability in Korean law is inferred from the specification of the identical remedies for both the general liability and the seller's guarantee liability under the KCC, second, by the preposition that the requirement of fault be depended upon what remedy the buyer seeks to claim rather than what liability he does to rely on.

• 무역상무연구
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• 제67권
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• pp.97-118
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• 2015

This study reviews the judgements by the Korean Supreme Court on the time of delivery of goods, as it depends on which bonded place the goods are kept for the purpose of the customs clearance. Thereafter, this study analyzes the Ocean Carrier's liability, when the cargoes are mis-delivered without the presentation of bill of lading in relation to the specific bonded place such as an independent bonded warehouse or a self-use bonded warehouse. Furthermore, considering that voyage charter is a kind of marine transport, this study also reviews whether or not the Court's judgements, which has been developed in respect of the carriage of affreightment, could be applied to voyage charter in respect of the time of delivery goods and the Ocean Carrier's liability for mis-delivery. Lastly, in the case that the substantial importer takes the goods from the independent bonded warehouse without the presentation of bill of lading after the customs clearance, it is noted that the Court has made the Ocean Carrier liable for the mis-delivery through the application of theory of double deposit contract. The position of the Court would be understandable in terms of the protection for the bona-fide holder of bill of lading, but this study reviews the limitation of liability as the device for the protection of the Ocean Carrier, considering the situation where the Ocean Carrier is somewhat unreasonably sacrificed under the bonded system provided for the convenience of substantial importer.

• 한국중재학회지:중재연구
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• 제13권2호
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• pp.377-401
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• 2004

Delay in the air transport occurs when passengers, baggage or cargo do not arrive at their destination at the time indicated in the contract of carriage. The causes of delay in the carriage of cargo are no reservation, lack of space, failure to load the cargo on board, loading the cargo on the wrong plane, failure to off-load the cargo at the right place, or to deliver the covering documents at the right place. The Montreal Convention of 1999 Article 19 provides that "The carrier is liable for damage occasioned by delay in the carriage by air of cargo. Nevertheless, the carrier shall not be liable for damage occasioned by delay if it proves that it and its servants and agents took all measures that could reasonably be required to avoid the damage or that it was impossible for it or them to take such measures." The Montreal Convention Article 22 provides liability limits of the carrier in case of delay for cargo. In the carriage of cargo, the liability of the carrier is limited to 17 SDR per kilogram unless a special declaration as to the value of the cargo has been made. The Montreal Convention Article 19 has shortcomings: it is silent on the duration of the liability for carriage. It does not give any indication concerning the circumstances to be taken into account in cases of delay, and about the length of delay. In conclusion, it is desirable to define the period of carriage with accuracy, and to insert the word 'unreasonable' in Article 19.