定期傭船者의 對外的 責任에 관한 美國法 考察 = A Study on the Time Charterer’s Third-Party Liabilities under the American Law

다국어 초록 (Multilingual Abstract)

  Under the American law, when a shipper of cargo is issued a bill of lading under a time charter party, the question arises whether the contract of carriage is with the time charterer or the shipowner or both of them. Carriage of Goods by Sea Act (“COGSA”) states “[t]he term ‘carrier’ includes the owner or the charterer who enters into a contract with a shipper.” Under COGSA, only the person who is found to be a “carrier” under that Act will be liable for damage to the cargo. Some courts is using principles of agency law to determine whether the bill of lading was issued on behalf of the shipowner or time charterer. In many cases, the lines of authority are not clear, as when a bill of lading is signed by the time charterer “for the master.” In order to determine who is the carrier, the court must look at the authority of the time charterer to sign on behalf of the master and the master’s authority to bind the shipowner. Generally, when the time charterer or his agent signs “for the maser,” the shipowner is bound as a COGSA carrier. If it is shown, however, that the signature “for the master” was without the authority of the shipowner, the latter is not personally bound and does not become a COGSA carrier by virtue of the time charterer’s signature. The usual approach to the issue of who is the COGSA carrier assumes that there can be only one contractual carrier, either the shipowner or the time charterer, but not both. Some courts, however, take a more expansive and practical approach, holding that there can be more then one COGSA carrier. Under the practical approach, all the parties involved in the carriage of goods can be found to be COGSA carriers. Under the Korean maritime law, the time charterer’s third party liability has been determined based upon only the characteristics of the time charter party. The opinions of the courts and the majority of scholars in Korea have considered the time charter to be similar to the demise charter, and have held that the time charterer, not the shipowner, liable to the third party who has suffered cargo damages. However, considering there are various types of time charters, this approach is improper. I suggest to amend the Korean law on the time charterer’s liability to a third party based on the American maritime law and global standard.

목차 (Table of Contents)

• Ⅰ. 序論
  Ⅱ. 美國法상 定期傭船契約의 意義
  Ⅲ. 美國法상 定期傭船者의 運送人으로서의 契約責任 - 海上物件運送法상의 責任
  Ⅳ. 美國法상 定期傭船者의 제3자에 대한 不法行爲責任
  Ⅴ. 美國 海上法상의 責任 制限
  Ⅵ. 結論 - 우리나라법과의 比較
  [참고문헌]
  【ABSTRACT】
  

참고문헌 (Reference)

• 1 전창원, "표준무역운송실무" 무역연구원 1998
• 2 이승호, "정기용선계약에 관한 연구" 성균관대학교 2005.6
• 3 이창희, "정기용선계약법의 개정 방향에 관한 연구" 전남대학교 2003.6
• 4 "상법학신론(하)" 박영사 2004
• 5 "상법강의 (하)" 박영사 2006
• 6 서헌제, "사례중심체계 상법강의 (하)" 법문사 2002
• 7 이기수, "보험법ㆍ해상법학" 박영사 2000
• 8 Hideo Yoshimoto, "The Time Charter in Japan" 1988
• 9 Ralph H. Folsom, "Jr. International Business Transactions in a Nutshell" 1988
• 10 Tony Nunes, "Charterer’s Liability under the Ship Time Charter"
• 11 Nicholas J. Healy, "Cases and Materials on Admiralty" 2002
• 12 Jo Desha Lucas, "Cases and Materials" Admiralty 2003