• 무역상무연구
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• 제12권
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• pp.377-401
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• 1999

This study is focused on the privity of the contract of carriage of goods by sea, so to speak, privity between B/L holder and carrier by transfer of bill of lading, privity by attornment to delivery order and conflict between bills of lading and charterparty terms. Under a CIF contract, possession of the bill of lading is equivalent to possession of the goods, and delivery of the bill of lading to the buyer or to a third party may be effective to pass the property in the goods to such person. The bill of lading is a document of title enabling the holder to obtain credit from banks before the arrival of the goods, for the transfer of the bill of lading can operate as a pledge of the goods themselves. In addition, it is by virtue of the bill of lading that the buyer or his assignee can obtain redress against the carrier for any breach of its terms and of the contract of carriage that it evidences. In other words the bill of lading creates a privity between its holder and the carrier as if the contract was made between them. The use of delivery orders in overseas sales is commen where bulk cargoes are split into more parcels than there are bills of lading, and this practice gives rise to considerable difficulties. For example, where the holder of a bill of lading transferred one of the delivery orders to the buyer who presented it to the carrier and paid the freight of the goods to which the order related, it was held that there was a contract between the buyer and the carrier under which the carrier could be made liable in repect of damage to the goods. The contract was on the same terms as that evidenced by, or contained in, the bill of lading, which was expressly incorporated by reference in the delivery order. If the transferee of the delivery order presents it and claims the goods, he may also be taken to have offered to enter into an implied contract incorporating some of the terms of the contract of carriage ; and he will, on the carrier's acceptance of that offer, not only acquire rights, but also incur liabilities under that contract. Where the terms of the charterparties conflict with those of the bills of lading, it is interpreted as below. First, goods may be shipped in a ship chartered by the shipper directly from the shipowner. In that case any bill of lading issued by the shipowner operates, as between shipowner and charterer, as a mere receipt. But if the bill of lading has been indorsed to a third party, between that third party and carrier, the bill of lading will normally be the contract of carriage. Secondly, goods may be shipped by a seller on a ship chartered by the buyer for taking delivery of the goods under the contract of sale. If the seller takes a bill of lading in his own name and to his own order, the terms of that bill of lading would govern the contractual relations between seller and carrier. Thirdly, a ship may be chartered by her owner to a charterer and then subchartered by the chaterer to a shipper, to whom a bill of lading may later be issued by the shipowner. In such a case, the bill of lading is regarded as evidencing a contract of carriage between the shipowner and cargo-owners.

• 한국건설관리학회:학술대회논문집
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• 한국건설관리학회 2002년도 학술대회지
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• pp.300-305
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• 2002

건설프로젝트를 수행해 나감에 있어 과실과 무책임으로 인한 크고 작은 사고 및 손실은 건설참여자간에 다양한 유형의 분쟁을 야기하게 되는데, 상호간의 계약적 관계의 유무에 따라 계약당사자간의 분쟁과 비계약적 참여간의 분쟁으로 구분된다. 전통적으로 과실과 무책임에 따른 손실추궁은 상호간에 계약관계가 존재하는 것을 전제로 하였기 때문에 건설분쟁을 해결하기 위한 그동안의 접근방법도 주로 계약관계를 갖고 있는 당사자간의 분쟁에 관심이 맞추어져 왔다. 그러나 최근 제조업책임법의 사례 등에서 볼 수 있듯이 국내외적으로 비계약적 참여자간에도 과실이 증명될 경우 그에 따른 책임을 추궁하는 경향을 보이고 있다. 본 연구는 국내 건설 프로젝트에서 발생하는 직접적인 계약관계가 없는 비계약자간의 분쟁판례를 유형별로 분석하고, 설문조사를 통해 이러한 제3자적 관계에 의한 건설분쟁이 턴키제도 및 건설사업관리(CM)제도 등 건설발주방식 및 환경분쟁 등에 어떤 영향을 미치는 지를 고찰하여 건설참여 전문가 개개인의 전문가적 책임과 계약관계가 없는 제3자에 대한 책임의 중요성을 재인식함으로써 건설산업 참여자들의 분쟁위험을 최소화하고 건설산업의 신뢰도를 재고시키는 여건조성을 위한 기초적 연구자료로써 활용될 수 있을 것이다.

• 무역상무연구
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• 제33권
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• pp.191-219
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• 2007

Section 39(5) of Marine Insurance Act 1906 concerns the case where with the privity of the assured, the ship is sent to sea in an unseaworthy state. The underwriters argue that the assured had"blind-eye knowledge" of the particular respect in which the ship was unseaworthy. Blind-eye knowledge requires a conscious reason for blinding the eye. There must be at least a suspicion of a truth about which one do not want to know and which one refuse to investigate. What has caused greater difficulty is the broad provision in s.17 which appears to be unlimited in its scope. The expression "utmost good faith" appears to derive from the idea of uberrimae fidei, words which indeed appear in the sidenote. The concept of uberrima fides does not appear to have derived from civil law and it has been regarded as unnecessary in civilian systems. S.17 raises many questions. But only two of them are critical to the decision of the present appeal-the fraudulent claim question and the litigation question. It is however necessary to discuss them in the context of a consideration of the problematic character of s.17. In the Star Sea Case, for the defendants to succeed in their defence under this part of the case the defendants have to show that claim was made fraudulently. They have failed to obtain a finding of fraud. It is not enough that until part of the way through the trial the owners failed to disclose to the defendants would have wished to see in order to provide them with some, albeit inadequate, evidential support for their alleged defence under s.39(5). The defence under s.17 fails. The Purpose of this work is to analyze the Star Sea Case, and to explore problems of the MIA relating to the judgement of this case.

• 무역상무연구
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• 제14권
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• pp.153-176
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• 2000

The U.K. Bills of Lading Act 1855 had sought to circumvent the problems arising from the doctrine of privity of contracts. Among the principal factors in the introduction of the Act was the exceptional decision of the court in the case of Grant Norway. The Act 1855 was intended to reverse Grant Norway, but has no effect whatever. As it was not properly drafted, there had been a lot of situations where the Act 1855 was not applicable. In those cases, the courts have implied a contract between cosignee and carrier. This is the effect of the common law Brandt v. Liverpool doctrine. With the enactment of the Carriage of Goods by Sea Act 1992, all of the problems shall be resolved. It repeals the Act 1855 and replaces it with provisions covering not only B/L but also sea waybills and ship's delivery orders. According to the new law, title to sue is now vested in the lawful holder of a bill of lading, the consignee identified in a sea waybill or the person entitled to delivery under a ship's delivery order, irrespective of whether or not they are owners of the goods covered by the document.

• 한국항해항만학회지
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• 제32권1호
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• pp.97-102
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• 2008

선박의 대형화 및 해상사업의 기업화 등에 따라 해상운송에 있어 화물의 하역, 보관 등의 전문적인 부분을 담당하고 있는 항만하역업자, 항만터미널운영자, 창고업자 등 독립계약자의 역할은 점점 증대되어 가고 있는 추세이다. 하지만 국제해상운송은 해상운송인과 화주를 중심으로 체결한 운송계약을 중심으로 이루어져 왔으므로, 영국 보통법상의 직접계약관계의 원칙에 의해 계약당사자가 아닌 자는 계약상의 이익을 원용할 수 없다는 입장을 유지하여 왔다. 이에 대해 이를 완화하고자 하는 다양한 방안이 적용되고 있으며, '히말라야약관'도 그러한 방안중의 하나이다. 본 논문은 최근 대법원판결을 통해 우리나라 법원의 히말라야약관의 유효성 인정에 대한 내용을 재검토하고 독립계약자, 특히 항만터미널운영자의 운송계약상 제3자의 권리인정에 관한 문제에 대한 각국의 경향에 대해 살펴본다.

• 무역상무연구
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• 제57권
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• pp.137-169
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• 2013

This article intends to analyse some features in Exclusion Clauses of the Institute Cargo Clauses 2009 and the results of analysis are following. First, the insufficiency of packing or preparation exclusion under the revised Clause 4.3 is now more limited than before and the Clause suggest the test of sufficiency or suitability "to withstand the ordinary incidents of the insured transit". Secondly, the word "proximately" was deleted under the revised Clause 4.5 for the insurer to be identified more easily as a cause, but it remains to be seen whether that re-drafting will be successful. Thirdly, The exclusion under the revised Clause 4.6 does not apply unless the insurer can prove that, at the time the subject-matter insured is loaded on board the vessel, the assured was aware, or in the ordinary course of business should have been aware, that the relevant insolvency or financial default could prvent the normal prosecution of the voyage, and to a person who purchase the goods from the assured in good faith under a binding contract. Fourthly, the exclusion in respect of unseaworthiness of vessel under Clause 5.1.1 applies only where the assured is privy to the unseaworthiness, whereas the exclusion in respect of unfitness of container or conveyance under Clause 5.1.2 includes the privity of the employee. Finally, Clause 7 establishes the definition of terrorism, and adds ideological and religious motive to political motive.

• 무역상무연구
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• 제69권
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• pp.201-220
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• 2016

A bill of lading is a document which is signed by the carrier or his agent acknowledging that the goods have been shipped on board a named vessel bound for the destination and stating the terms on which the goods so received are to be carried. Therefore, the bill of lading is a document of title enabling the holder to obtain credit from banks before the arrival of the goods, for the transfer of the bill of lading can operate as a pledge of the goods themselves. In the other words the bill of lading creates a privity between its holder and the carrier as if the contract was made. A bill of lading, for obtaining credit from banks, must appear to indicate the carrier's name and signature, the "shipped on board" notation, the port of loading and unloading stated in the sales contract and the credit. Data in the bill of lading, when read in context with the sales contract, the credit, the bill of lading itself and international standard banking practice, need not be identical to, but must not conflict with, data in that bill of lading, any other stipulated document, the sales contract or the credit. The surrender bill of lading, stamping "surrendered" on the original bill of lading by request of the shipper, is not recognized the legal effectiveness as a document of title by the statutory law and court. The surrender bill of lading may increase the risk of impossibility of payment to the holder. Therefore, the surrender bill of lading should be used restrictively between the credible parties and suggested to avoid in the other cases.

• 한국건설관리학회:학술대회논문집
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• 한국건설관리학회 2004년도 제5회 정기학술발표대회 논문집
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• pp.486-489
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• 2004

국내 건설산업은 국가 경쟁력과 생산성의 확대를 위해 민간자본을 유치하여 SOC시설을 확충하고 있다. 하지만 민간주체가 발주자의 역활을 수행하는 민자 SOC사업의 수행과정 중 시공단계에서 기존의 재정사업과 같은 업무체계의 적용으로 인해 민자 SOC사업의 장점이 충분히 활용되지 못하고 있으며 참여 주체들 사이에 비효율적인 업무 부담이 발생하고 있다. 본 연구에서는 현재 수행 중인 2개 민자 SOC사업의 시공단계를 대상으로 관계법령과 실시 협약서를 분석하여 각 참여주체들간의 계약구조와 업무범위 및 수행체계를 분석하고 문제점을 파악하였다. 민자 SOC사업의 문제점을 개선하는 방향으로서, 감리자의 업무 범위와 체계를 개선하여 과중한 업무부담을 줄이고 주무관청의 총체적 사업관리를 위해 감리를 대신할 전문조직을 설치하여 최적의 업무체계를 구축할 것을 제시한다.

• 보건행정학회지
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• 제18권2호
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• pp.39-66
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• 2008

This study examines organizational qualities such as vision, mission, teamwork, fairness, and empowerment and their effects on organizational members. As a result of analysis, these qualities are identified to affect member satisfaction, but not to affect job involvement. Member satisfaction affects job satisfaction, and this relationship retains indirect influence through an increase in member satisfaction. Further, improved member satisfaction and job involvement are found to affect organizational commitment. These results are derived from complete enumeration on members of an organization where particular traits such as member position, job classification, and the privity of contract are intermixed. In case where research is conducted on the aforementioned traits separately, different results would be anticipated depending on each trait. The implications of this study are as follows. First, clear-cut organizational vision and mission established by the top management of an organization prevent confusion amongst its members, and thus have the highest level of effect on member satisfaction. Second, teamwork in reference to the. relationship amongst team members of a work group and goal awareness improves member satisfaction. Third, autonomy for job performance and related empowerment improve member satisfaction. Last, fairness in wages and promotion affects member satisfaction. Therefore, internal qualities of an organization perceived by its members have a higher degree of influence over external qualities including compensation and promotion on the members. In addition, these internal qualities indirectly affect job involvement through an increase in member satisfaction, and, in turn, member satisfaction and job involvement affect organizational commitment of the members. In case of member satisfaction, not only does it affect organizational commitment of the members of an organization directly, but also affects organizational commitment indirectly through job involvement. This study is conducted with only one hospital in consideration, and thus its findings may not be generalized for every medical organization. However, this study retains distinct attributes of complete. enumeration, and the precedence of each variable is closely investigated.

• 한국건설관리학회논문집
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• 제2권1호
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• pp.78-87
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• 2001

최근 들어 설계서의 누락, 오류 및 불분명과 관련된 클레임이 급증하고 있으며, 다양한 건설분쟁해결방법이 모색되고 있다. 그러나 대부분의 시공자들은 발주자가 제시하는 클레임조정결과의 내용이 건설현장을 적절히 반영하지 못하였음을 이유로 이를 받아들이지 아니하고 있는 실정이다. 본 연구의 목적은 계약당사자의 책임 및 건설 클레임을 분석한 후 공공공사의 입찰 및 계약제도의 개선방안을 제시하는데 있다. 본 연구 결과 클레임을 최소화하기 위한 방안을 요약하면 다음과 같다. (1) 반복공사에서는 표준도 축적 및 재활용되어야 하고 발주자별로 특화된 시방서가 활용되어야 한다. (2) 설계자의 한계를 초과하는 부분에 대해서는 전문가책임보험제도가 도입되어야 한다. (3) 도면에 대한 개념이 구체화되어야 한다. (4) 설계업무대가기준이 정립되어야 한다. (5) 다양한 계약체계가 확립되어야 한다.