정기용선(定期傭船)하에서 발행된 선하증권(船荷證券)상의 운송인(運送人)의 확정(確定)과 히말라야약관의 적용범위에 대한 영국(英國) 귀족원(貴族院)의 Starsin 사건(2003.3.13.) = The Case Comment on Starsin Case Involved in Identifying the Carrier and Applying the Himalaya Clause

다국어 초록 (Multilingual Abstract)

Cargoes on board the vessel under the time charter party was damaged due to bad stowage. The bill of lading (B/L) was issued by the agent on behalf of the time charter as the Carrier, which was typed on the front page of it. However, there were the identity of carrier clause, demise clause which says that the shipowner shall be regarded as the carrier, on the reverse side of the B/L. The cargo claimant alleged that the shipowner rather than the time charterer was the carrier. The House of Lord rendered that the time charterer was the carrier, giving more priority to the signature, reflecting business efficiency. The cargo claimant also alleged that the shipowner was liable for the cargo damages based on the tort. The shipowner invoked the right to exempt his liability based on the Himalaya Clause. The House of Lord regarded the shipowner as the independent contractor for the carrier and thus was entitled to invoke the exemption right allowed in the B/L. However, his right was limited to the extent that the carrier was available. The bad stowage was not included in the catalogue of the carrier`s exemption from liability. Therefore, the exemption right was not allowed to the shipowner. Identifying the carrier under the time charter party is one of the most disputed issues in the Korean maritime law. This case will play as a good example to solve the issue. The dispute involving the Himalaya clause are increasing in the Korean jurisdiction. This case will be a good reference in interpreting the meaning of the clause.