• Journal of Korea Port Economic Association
• /
• v.31 no.2
• /
• pp.41-53
• /
• 2015

In Paracomon Inc. v. Telus Communication, Realice's anchor became entangled with a working fiber-optic submarine cable during its voyage and are presentative of the shipowner(the captain) cut the cable. The owner of the cable brought a claim for the repair cost against the shipowner. The shipowner then advanced a third party claim against a liability insurance underwriter. The Supreme Court of Canada (SCC) held that the shipowner was entitled to limit its liability under the 1976 Convention on the Limitation of Liability for Maritime Claims. The SCC also ruled that even though the misdeed of the shipowner was insufficient to break its right to limitation of liability, its wrongdoing constituted willful misconduct under the 1993 Canada Marine Insurance Act, allowing the underwriter to deny coverage for the incident. Thecasewasthefirsttoaddresstheinterrelationship between the shipowner's right to limit liability under the international convention regime and the availability of liability insurance with respect to such limited liability. This study analyzes the reasoning behind the SCC's judgment and evaluates the appropriateness of this court's decision based on the current maritime industry as well as prevailing maritime law. It concludes that the SCC's decision to declare that the shipowner retained the right to limit its liability is appropriate under the Limitation Convention (1976). However, its declaration that the liability insurer was discharged from liability is not correct in due consideration of the common recognition in the maritime industry, the intended purpose of a third party's right against the liability insurer, and the adoption process of the conduct barring limitation. Based on the SCC's decision, this study finally reviews the issue of the shipowner's right to limit and the coverage of the liability insurer in the Sewol case (2014).

• International Commerce and Information Review
• /
• v.8 no.4
• /
• pp.147-156
• /
• 2006

In all cargo cases one of the first things the person handling the claim must do is decide who is potentially liable as a carrier of the goods. This issue arises because bills of lading often do not identify the carrier. The "carrier" could be the shipowner or the charterer or both. The issue of the identity of the "carrier" is a question of fact. The question to ask in each case is who undertook or agreed to carry and deliver the goods. The answer to this question will largely depend on the facts. The shipowner is almost always liable as a carrier under Common law provided there is no demise charter of the ship. The more recent case law, however, suggests that in the usual situation both the charterer and shipowner will be liable. Accordingly, both the owner and charterer should be put on notice of any claim and, in the event an extension of suit time is required, the extension should be obtained from both. An alternative method by which the charterer can avoid liability is to insert and 'Identity of Carrier' clause in the bill of lading.

• THE INTERNATIONAL COMMERCE & LAW REVIEW
• /
• v.69
• /
• pp.327-348
• /
• 2016

Under the Korean legal system, as an actual carrier is not the contractual party to the contract for carriage of goods by sea, it has been tortiously liable for the damage to, or loss of cargo, should there be the negligence by its part. However, the Rotterdam Rules introduces a revolutionary liability regime for the actual carrier. According to the Rotterdam Rules, the liability of the actual carrier is same with that of a contractual carrier with the result that a shipper is entitled to bring the direct action to the actual carrier, as well as the contractual carrier on the same basis. Nevertheless, it is expected to take long time for the new approach in respect of actual carrier's liability to be confirmed by many countries, and furthermore most of shipping countries including Korea still adopt the Hague-Vis by Rules where the shipper is not allowed to bring the direct action to the actual carrier. This study reviews on whether or not the alteration of actual carrier's liability based on Rotterdam Rules would be reasonable, considering the current Korean legal system. Furthermore, this study, whilst recognizing that the overall introduction of the new liability regime is somewhat premature, suggests the imposition of contractual liability to the actual carrier from a long-term perspective. Having in mind that the article 809 of the Korean Commercial Act allows the shipper to bring the direct action to the shipowner only in the case that a time charterer is the contractual carrier, this study explores a method to apply the contractual liability to the actual carrier in the case that a slot charterer or freight forwarder is the contractual carrier, in order to establish the uniform liability system.

• International Commerce and Information Review
• /
• v.15 no.2
• /
• pp.285-313
• /
• 2013

By the revision of the Commercial Code of Korea in 1991 and 2007, some provisions for the regulation of Time Charterparty have been introduced into our own maritime law system. But, those provisions are in their nature mainly the reproduction of the provisions prescribed in the standard forms of time charterparty which are widely used, such as BALTIME Charter and NYPE Form, and the subject matters of their regulation are restrictive, so that the applicability of the provisions is not desirable. The cargo is lost or damaged, the cargo owner should seek compensation form, or sue, the carrier as, traditionally, under the COGSA, the cargo carrier is responsible for loss of damage of cargo. However, it is difficult to determine who is the responsible carrier under charters. There is no test to determine the carrier, but the courts in every country generally consider the bill of lading. Although the master has general authority to sign bills of lading on behalf of the shipowner, he can also sign bills of lading for, and on behalf of, the charterer. In this case, the charter is considered the carrier. Furthermore, the charterer is authorized to contract with third parties on behalf of the shipowner and, as such, the responsible carrier is the shipowner. Therefore, when determining the carrier we should examine carefully the all factors and the circumstances surrounding the case. Also, negligence of a captain of a time-chartered ship causing damages to a third party. It will analyze the legal character of a time-charter contract, review judicial precedents on time-charter. The Inter-Club Agreement was drawn up and is intended to be a somewhat easier way of allocating liability for cargo claims between owners and charterers and, although there is still scope for disputes to arise, the Inter-Club Agreement does in fact to some extent make the allocation of liabilities for cargo claims easier. Finally, it will also make legislative suggestions to resolve complex issues involving maritime transportation contracts under the current Commercial Code.

• Journal of the Korean Institute of Navigation
• /
• v.18 no.4
• /
• pp.59-81
• /
• 1994

Korean property and liability insurance companies have underwrited hull insurance without proper undrewriting ability. But after April 1996. in case of Korean insurance market being opened the companies have to make hull insurance rate by themselves. Accordingly, in this study, the writer embodies important factors in making hull insurance rate by an empirical survey. In empirical survey, the writer used a questionnaire, 74 proper data was obtained from 96 officers working in making hull insurance rate in 12 Korean property and liablity insurance companies and 24 the foreign companies at home. Reliability was tested by Cronbach's Alpha and a conceptual validity by Factor Analysis. Hypothesis estabilished in this study was tested by Correlation and Multiple Regression Analysis. Results of testing hypothesis are as follows: Firstly, the traits of insurer and the assured influence significantly(P<0.05) on making hull insurance rate. Secondly, expected loss ratio, ship manager, ship's age, insured amount, level of the cost of repairing and salvage, shipowner, period of insurance, level of overseas rating, profit and expense, trading limits, ship's classification, conditions of insurance, and ship's size influence significantly(P<0.05) on making hull insurance rate.

• Journal of Korea Port Economic Association
• /
• v.29 no.1
• /
• pp.47-66
• /
• 2013

This article reviews some problems arises from signing by the master bills of lading issued on time chartered ship. The underlying purpose of time charters is generally for the charterers to have the services of the vessel in order to engage in the business of carriage of goods by sea, a business which is likely to involve the issue of bills of lading to shippers. Charterer under the charter have a right to issue B/L, thereby the master must sign bill of lading as presented, but may not vary the contract. Bills of lading signed by, or on behalf of the master, impose contractual liabilities upon the shipowner. Charterer have no right to ask the master to sign a bill of lading in any way deviating from the charterparty. If the shipowner suffers loss as a result of the master obeying any order about employment or agency, he will be entitled to an indemnity from the charterer. The master may refuse to sign bills of lading which contain some discrepancy such as a false statement and manifestly inconsistent with the requirements of the charterparty.

• The Journal of shipping and logistics
• /
• v.34 no.4
• /
• pp.583-613
• /
• 2018

This study analyse the safe port warranty undertaking for shipowner of time charterer with the Ocean Victory Case. Litigation ensued between those in the charterparty chain. When the hull insurer, Gard, took an assignment of the rights of the vessel's owners and demise charterers in a claim against the time charterers that the vessel had been ordered by them to an unsafe port in breach of the charter. Although the claim succeeded, the Court of Appeal overturned the decision. The Supreme Court delivered its judgment on May 10, 2017, dealing with three important issues, safe port, joint insurance, and limitation of liability. Especially on the safe port issue, the court held that the port was not unsafe within the meaning of the safe port undertaking so the charterers were not in breach of it. The conditions in the port amounted to an abnormal occurrence as that expression is understood.

• Journal of Fisheries and Marine Sciences Education
• /
• v.5 no.2
• /
• pp.98-109
• /
• 1993

By the Article 28 of the Korean Fishing Vessels Act and the Article 47-1 of the Enforcement Ordinance of the Act, fishing vessels over 5 gross tone must be insured the fishing vessels mutual insurance or marine insurance. Therefore the distant-water fishing vessels and vessels registered with Classification Society can be insured to the marine insurance, and non-registered vessels and the small fishing vessels can be insured to the fishing vessels mutual insurance of Fisheries Co-operatives. Moreover, the shipowners of fishing vessels over 5 gross tons to be insured a liability insurance for their crew, and it is to compensate effectively the crewman's accidents prescribed in the Seaman's Act. The shipowner's Liability Insurance to be insured the seaman's Compensation Insurance or the seaman's mutual insurance of the Fisheries Co-operatives and the Protection and Indemnity but they still involve lots of problems to cover the crewman's accidents reasonably. The author's views on the improvement way of the fisheries mutual insurance system are as follows. 1. The size of fishing vessels over 5 gross tons prescribed by the Article 28 of the Fishing Vessels Act must be revised into over 1 gross tons. And the regulations concerning penalties against nonfulfilment of the regulation must be strengthened in order to have legal effectiveness. 2. The level of the government subsidy for the fisheries mutual insurance must be raised up from the large point of view for protection of fishermen. It is concluded that the Government have to take charge of the remutual insurance in order to develop the fisheries mutual insurance system. 3. The mutual insurance system of fish catch have to be executed in order to guarantee the stable income for fishermen on the base of the amount of money by fish catch in the previous year.

• THE INTERNATIONAL COMMERCE & LAW REVIEW
• /
• v.34
• /
• pp.77-108
• /
• 2007

The traditional name given to the insurance of third party liabilities and certain contractual liabilities which arise in connection with the operation of ships is protection and indemnity(P & I) insurance. P & I insurance is very different from traditional hull and machinery insurance in that shipowners' hull and machinery insurance is designed primarily to protect the assured against losses to his vessel, whereas P & I insurance seeks to indemnify an shipowner in respect of the discharge of legal liabilities he has incurred in operating his own vessels. This study is to examine the background of establishment of British P & I clubs md, therefore, the identity of P & I insurance. The present British P & I clubs are the remote descendants of the many small and local hull mutual insurance clubs that were formed by British shipowners in the end of 18th century. At that time, British shipowners were dissatified with the state of marine insurance market and, therefore, established clubs together in mutual hull insurance clubs. After the removal of the company monopoly in 1824, greater competition had a good effect on the rates, terms of cover and service offered by the commercial marine insurance market and by Lloyd's underwriters, and the hull clubs became less necessary and went into decline. The burden of British shipowners on liabilities to third parties was steadily increased after the middle of the 19th century, but the amount insured under hull policy was limited in the insured value of the ship. Eventually, the first protection club, that is, the Shipowners' Mutual Protection Society was formed in 1855. It was designed to like past mutual hull clubs, but to cover liabilities for loss of life and personal injury and also the collision risks excluded from the current marine policies, particularly the excess above the limits in hull policies. In 1870, the risks of liability for loss of or damage to cargo carried on board the insured ship was first awarded by the British shipowners. After 1874, many protection clubs formed indemnity club to cover the risk of liability for loss or damage to cargo. As mentioned above, British P & I clubs have been steadily changed according to the response of shipowners under the rapidly changing law of British shipowners' liability, and so on in the future.

• Journal of Korea Port Economic Association
• /
• v.22 no.2
• /
• pp.83-108
• /
• 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.