2017년 중요해상판례소개 = Case Comments on Maritime cases during 2017

다국어 초록 (Multilingual Abstract)

In the KSC case 2017.1.25. Docket No. 2015da225851, a freight forwarder issued the house B/L and it was admitted as the contracting carrier.
In the KSC case 2017.9.7. Docket No. 2017da232417, the insurer made recourse claims against the carrier after it paid insurance proceeds to the cargo owner as the insured. The court decided that it was not entitled to make the recourse claim because it wrongfully paid insurance proceeds to insured. The court also decided that where unknown clause exists, the cargo owner should prove the condition of the cargo at the loading port.
In the KSC case 2017.6.8. Docket No. 2016da13109, the court decided that the contractual carrier had duty to stow the cargo in the container carefully while it was loaded by the carrier’s servant at Container Freight Station.
In the KSC case 2017.10.26. Docket No. 2016da227663, where on-deck clause is inserted in the B/L, the court decided that there was no fault of the carrier even though the cargo was loaded on deck. It was also confirmed that the importer was not listed in the party in the sea waybill, it was not allowed to make claim against the actual carrier who issued the sea waybill.
In the Changwon District court case 2017.2.23. Docket No. 2016la308, the court decided that the charterer has not yet obtained ownership for the chartered vessel from the ship owner and thus the relevant vessel did not fall into the definition of property of the debtor under Article 58 of Korean Rehabilitation Act.
In the Seul High court case 2017.1.10. Docket No. 2015na2029365, the court decided that the ship owner was entitled to receive the insurance proceeds in case that the BBCHP charter was not listed as a insured and the charterage was paid as a pure charterage rather than ship’s price.
In the Inchon District court case 2017.10.17. Docket No. 2015La838, the court decided that the creditor was not allowed to exercise maritime claim against the vessel in case that the maritime claims was made by the time charterer.
In the KSC case 2017.10.26. Docket No. 2015da42599, the English law designated by the governing law for the insurance contract was decided as the governing law for the direct action against the liability insurer because it was the most closely related country’s law.
In the Seoul Central District court case, 2017.11.3. Docket No. 2016gahap549207, the insurer was exempted from liability because the insured knew unseaworthy condition of the vessel under the English law when it started to sail in case of the Sewol Ferry Accident.
In the KSC case 2017.5.30. Docket No. 2014da233176, the anticipatory breach of contract theory under English law was not admitted because the shipyard had intention to continue its construction of the vessel thus the cancellation of the contract by the buyer was null and void.

참고문헌 (Reference)

• 1 김인현, "해상법연구" 삼우사 2008
• 2 최종현, "해상법상론" 박영사 2015
• 3 김인현, "해상법 중요 판례집I" 법문사 2018
• 4 김인현, "해상법" 법문사 2015
• 5 김창준, "한진해운의 도산법적 쟁점 - 공익채권, 회생담보권, BBCHP, 책임제한절차를 중심으로 -" 한국해법학회 39 (39): 39-82, 2017
• 6 김인현, "한진해운 회생절차상 선박압류금지명령(stay order)의 범위 - 한국과 싱가포르를 중심으로 -" 한국상사판례학회 30 (30): 129-164, 2017
• 7 우세나, "채무자 회생 및 파산에 관한 법률상 국적취득조건부 나용선 계약의 처리방안" 한국법정책학회 10 (10): 153-172, 2010
• 8 위계찬, "채무불이행의 독자적 유형으로서 이행거절" 한양법학회 24 (24): 399-436, 2013
• 9 김인현, "실무에서 나타나는 다양한 선하증권과 그 대용물" 국제거래법학회 22 (22): 259-283, 2013
• 10 이정원, "소유권취득조건부 선체용선계약의 법적 성질과 관련된 몇 가지 문제에 관한 고찰" 법학연구소 53 (53): 163-187, 2012
• 11 김인현, "세월호 사건에서 예상되는 손해배상책임의 제문제" 대한변호사협회 (442) : 25-47, 2014
• 12 김인현, "선박우선특권상 채무자와 선적국의 의미 - 2014년 대법원 판례를 중심으로-" 한국상사판례학회 28 (28): 505-537, 2015
• 13 이재복, "선박보험약관론" 보험연수원 1999
• 14 김도경, "선박금융과 국내선사의 도산 -특수목적법인의 처리방안을 중심으로-" 법무부 (55) : 78-114, 2011
• 15 이기수, "보험해상법" 박영사 2015
• 16 김준호, "민법강의" 법문사 2000
• 17 오수근, "도산법"
• 18 석광현, "국제사법 해설"
• 19 箱井崇史, "船舶金融法の諸相" 成文堂 2014
• 20 伊藤眞, "會社更生法" 有斐閣 2012
• 21 金東勳, "債務不履行의 類型에 따른 契約解除 法理의 재구성" 대한변호사협회 328 : 1-, 2003
• 22 In Hyeon, KIM, "Transport Law in South Korea" Wolters Kluwer 2017
• 23 Howard Bennett, "The Law of Marine Insurance" 2006
• 24 In Hyeon, KIM, "Legal Implication of Hanjin Shipping’s Rehabilitation Proceeding" 47 (47): 2017
• 25 John Wilson, "Carriage of Goods by Sea" PEARSON 2010
• 26 Mark Davis, "Bareboat Charters" LLP 2005