損害防止義務에 관한 小考

李長基 호남대학교 1986 호남대학교 학술논문집 Vol.7 No.1

It is human nature for a person to feel less responsibility for the safe keeping of his property when it is infured than he would feel if it was not ineured. The owner of insured property is less likely to be worried about the safety of his property, but a common law duty is placed upon him to exercise proper care of his property during the period of the insurance. Section 78(sub 4) of the Marine Insurance Actm 1906 States that "it is the duty of the assured and his agents, in all cases, to take such measures as may be reasonable for the purpose of averting or minimizing a loss" In practice, the insurers make the duty clear by inserting the wording of the Act in the "Bailee Clause" of the Institute Cargo Clauses. Any measure thus taken and expenditre so incurred is for the insurer's benefit, not for the benefit of the assured. It is reasonable, therefore, that the insurers should take, at least bear the expendi ture. The takingof action ofr the purpose of averting or minimizing loss is called "suing and labouring in and about the defence of the property" which property is the subject matter insured. To "sue and labout", then, means to take measures to prevent loss for which the insurer would be liable. Because suing and labouring is for the insurer's benefit, every policy contains a "suing and labouring clause." "The suing and labouring clause" and "the bailee clause were united into "the duty of the assured clause" in the newly revised Institute Cargo Clauses, but the gist is the same. Sue and labour charges require the following four essentials. 1) They must have been incurred to avert or minimize the loss caused by the peril imsured against, which had been actually occurred. 2) They must have been reasonably and prudently incurred. 3) They must have been incurred by the assured and their servants and agents. 4) They must have been incurred with a view to averting or minimizing a loss recoverable under the policy.

유류운송보험에 관한 고찰

李長基 湖南大學校 1996 호남대학교 학술논문집 Vol.17 No.1

Pollution damage from tankers is very serious in that accidents in tankers occur close to the shore. Therefore, in view of the ever-increasing potential hazards from oil spills caused by accidents involving oil tankers, some measures were approved to establish liability and to ensure that adequate compensation was available to persons who suffered damage. In this thesis, I outlined the conventions establishing liability and those limiting such liability and also considered the types of insurance effected in the carraige of oil. The important conventions on liability for oil pollution damage and on the limitation of liability are : ① Int'l Convention on Civil Liability for Oil Pollution Damage, 1969 : Civil Liability Convention(CLC) ② Int'l Convention on the Establishment of Int'l Fund for Conpensation, 1971 : Fund Convention(FC) ③ Convention on Limitation for Maritime Claims, 1976 And also I examined the claims for oil pollution damage in the United States and the Oil Pollution Act, 1990. In view of the types of insurance required in the carriage of oil, certain risks are covered by policies taken by tanker owners, while others are taken by cargo owners. The former is the Tanker Owners' Insurance and the latter is the Cargo Owners' Insurance. The types of the tanker owners' insurance are Hull and Machlnery Insurance, War and Related Risks Insurance, Loss of Earning Insurance, Protection and Indemnity Insurance and Covers by the Tanker Owners' Voluntary Agreement concerning Liability for Oil Pollution (TOVALOP). The cargo owners' insurance is given by Contract Regarding an Interim Supplement to Tanker Liability for Oil Pollution, 1971(CRISTAL) To sum up, the coverage available against the oil pollution damage is varied, but it must be clearly understood that potential oil pollution clean-up and potential third party liability are emormous and only so much is insurable.

救助料의 共同海損性

李長基 호남대학교 1986 호남대학교 학술논문집 Vol.6 No.1

Under English law, a clear distinction exists between salvage services rendered without a contract having been entered into and services in the nature of salvage incurred under contract: awards under the former category made to salvor independently of contract are not allowable I general average, whereas the remuneration made for the latter services being allowable in general average when incurred for the common safety. In other countries remuneration for services for the common safety, whether or not under contract, is allowable in general average. It has long been devated whether the remuneration awarded under Lloyd's Form of Salvage Agreement falls to be dealt with as general average expenditure, or whether the voluntary nature of the services - the “no cure, no pay” formula - maintains the basis of pure salvage. In order to obtain uniformity in England, Rule of Practice CI was adopted in 1942 to make salvage services, rendered by or accepted under agreement, allowable as general average provided they were incurred for the common safety within the meaning of Rule “A” of the York - Antwerp Rules. Rule Ⅵ therefore achieves uniformity in this matter by removing the distinction made under English law and allowing in general average under the York - Antwerp Rules all remuneration for salvage incurred for the common safety, whether under contract or otherwise.

국제복합운송법제의 전개과정에 관한 고찰

이장기 湖南大學校 1997 호남대학교 학술논문집 Vol.18 No.1

This paper looked into the developments of international multimodal transport legal regimes and the possibility of entering into force of the UN Multimodal Transport Convention(The MT Convention) in that the Hamburg Rules entered into force on Novemver 1, 1992 and have many similarities with the MT Convention. If the MT Convention enters into force, it will be helpful to shippers, transport operators and insurers in that: ·It will help to avoid the conflicts with the other international transport legal regimes since it will allow the shipper to choose between segmented and multimodal transport; ·It will create order out of the chaos of liability systems now in force for multimodal transport; ·It will simplify claims procedures for shippers; ·It will be unlikely to introduce massive insurance premium increaces or giant new claims, and will allow liability insurance to be provided without too much difficulty or expence. Consequently, the entry into force of the MT Convention will result in a better protection of the shippers' interests compared with the present system and the transport industry should be able to adjust itself to the new regimes with little difficulty.

複合運送責任制度의 費用에 관한 硏究 : 責任限度를 中心으로 with special emphasis on liability limit

李長基 湖南大學校 1990 호남대학교 학술논문집 Vol.11 No.1

This study concentrates on the cost problems of the three liability systems in the International Multimodal Transportation, with special emphasis on liability limit of each transport legal regime in order to examine which system will be the most advantageous to the shipper. In order to solve this question, cost problems of each system were examined by assuming that the following limits of liability were considered under each system. Under the network system, the three limits of liability considered were: (1) Limits identical to those of the present system, with the limits of the Hague Rules, the Hague-Visby Rules and the Hamburg Rules, respectively, applying to sea carriers. Under the uniform system, the two limits of liability considered were: (2) A limit identical to that of the Hague Rules or the Hague-Visby Rules: (3) A limit identical to that of the Warsaw Convention. Under the modified uniform system, the limit of liability considered was. (4) A limit identical to that of UN Multimodal Convention. The higher limits of liability under the UN Convention would allow the cargo insurer to make recourse against the carrier and obtain a batter settlement than what is possible at present. Futhermore, as the risk of multimodal transport operator is higher under the UN Convention than at present, the risk for the cargo insurer is crrespondingly lower and this should result in lower cargo insurance premiums. In so far as insurance premiums are concerned, the effects of the higher limit of liability for the carrier under the UN Convemtion could be assumed to result in correspondingly higher premium, however, the greater attention to cargo care and the consequent reduction in damages might very well negate such increases. Therefore, the most advantageous liability regime for the shipper will be the modified uniform system under the UN Convention.

국제복합운송법제상의 책임체계에 관한 고찰

이장기 호남대학교 1998 호남대학교 학술논문집 Vol.19 No.1

In view of the importance of the liability systems in the multimodal transport legal regimes, this study analyzed the charcteristics of the three systems of liability. One is network system in the Tokyo Rules, uniform system in the TCM Convention and modified uniform system in the MT Convention. In particular, the study attempted to determine the comparative economic advantages and disadvantages of the three liability systems with a view to discovering which will provide the least cost and greatest overall benefits to shippers, and emphasis was placed on each of major components of the three systems; i.e. level of liability of the MTO, concealed damage, exemptions of liability and cargo insurance premium. For the purpose of accomplishing the objectives, this study took advantage of the qualitative approach used in Insurance and Liability Systems in International Multimodal Transportation-An Economic Assessment in a Canadian Context (ESAB 76-14: March 1976), a study carried out by the Canadian Transport Commission. The study of which system is more advantageous to the shipper in the total cost shows that the modified uniform system doesn't seem to result in great cost burdens to the shipper in that it won't increase the liability of the MTO and increase, in turn, liability insurance cost and freight and consequently decrease the importance of cargo insurance.

近因說의 考察

李長基 湖南大學校 1985 호남대학교 학술논문집 Vol.5 No.-

There are several theories of causation according to the method of understanding in the causation of the marine insurance. Marine Insurance law of England adopts the doctrine of proximate cause. The doctrine is expressed in the aphorism causa proxima non remota spectatur (" regard the proximate not the remote cause") Francis Bacon stated the reason for the rule thus : "It were infinite for the law to judge the causes of causes, and their impulsion one of another; therefore it contenteth itself with the immediate cause." The insurer is liable for any loss proximately caused by a peril insured against, but the problem is what is the proximate cause of a loss. When we consider the opinions of scholars and the judgements of courts, we can define the proximate cause of a loss as follows: The proximate cause of a loss is 1) not plural but singular, 2) a cause having natural and ineiitable relation with ultimate loss, 3) a cause proximate to the loss, not necessarily in time, but in efficiency, 4) a cause having a direct and uninterrupted sequence with ultimate loss. There are two cases necessary to determine the causation. One is a loss caused by joint action of several different causes and the other is a loss caused by combination of causes. The English law judge the proximate cause by applying which cause is the most effective and predominant one, I admit this in the former case, however, in the latter case, I think we have to apply the principle of preference of perils excepted (that is, once perils excepted occur, the insurer is not liable for any loss after the occurrence of the excepted perils without asking which cause made the excepted perils occur). Therefore, whether the insurer compensates for the loss or not is determined according as the first or preceding perils and the following perils are perils insured against, or perils excepted, or perils not insured against.

海上保險에 있어서의 因果關係理論의 檢討

李長基 호남대학교 1989 호남대학교 학술논문집 Vol.10 No.-

There are two kinds of views where the loss has been caused by a combination of several different perils : one is that the only one of these perils considered dominant should be deemed to be the cause of the loss and the other perils less dominant should be ignored and so the only diminant peril has to bear the whole loss : the other is that several different perils should be deemed to be the causes of the loss and so each of them has to bear its proportional part of the loss. The former can be called singular causation theory and the latter, plural causation theory. So far, in the marine insurance contract, it has been taken for granted that the loss was caused by the only one dominant peril and that it was the intention of the contracting parties. But I don't think it is fair for both the insurer and the insured because it is thought to have come from the convenient idea of deciding the causation. On the contrary, it will lead to an irrational result because the loss is, in most cases, caused by a combination of several different perils. As a result, I propose two principles that are supposed to be more rational and agree with the intention of the contracting parties. One is that, like Article 20 in Norwegian Marine Insurance Plan of 1964, where the loss has been caused by a combination of several different perils, the loss shall be apportioned proportionally over several perils according to the influence which each of them must be assumed to have had on the occurrence and extent of the loss. The other is that, like Article 21 of the above, where it is impossible to apportion the influence over the perils, each peril shall be deemed to have had equal influence on the occurrence and extent of the loss and the loss shall be apportioned equally over each peril.

유류오염보험에 관한 소고

이장기 호남대학교 2001 호남대학교 학술논문집 Vol.22 No.1

Insurance is used to compensate oil pollution damage, but the level of cover under existing insurance and compensation arrangements fall far short of the huge costs which could arise in cleaning up a major incident. Reliance on voluntary compensation schemes is uncertain and some significant costs are not covered at all. Therefore, it was suggested the setting-up a fund with contributions from sources connected with the carriage of oil by sea including shipbuilders and also proposed recently to create a fund to which all parts of society contribute, which I think a very good idea.

미국의 기름오염관계법에 관한 소고

이장기 호남대학교 2002 호남대학교 학술논문집 Vol.23 No.1

American Oil Pollution Laws are based on the three essential elements, that is, the strict liability, the guarantee of financial responsibility and the establishment of fund. And the establishment of fund seems to enable oil pollution risks to be spread by making the general public bear the expenses because it seems to be persuasive to argue that society as a whole should finance the said fund via taxation in that society is the consumer of the polluting agent.