하급심 판례평석 : 해상고유의 위험으로 인한 운송인의 면책 (대상판례: 서울지방법원 2002가합13497 판결) = Exemption of Liability of a Carrier based on the Perils of the Sea Defense

다국어 초록 (Multilingual Abstract)

Under the Hague Rules (and the Hague Visby Rules), a carrier is exempt from liability for loss of or damage to a cargo, arising from perils of the sea {Article Ⅳ, Paragraph 2(c)}. Therefore, in the countries which have enacted the Hague Rules or Hague Visby Rules, a carrier may rely on the perils of the sea defense to be exempt from liability. However, since the Hague Rules (and the Hague Visby Rules) do not have specific provisions for the requirements for the perils of the sea defense, the requirements for the perils of the sea defense are not clear in those countries which have the Hague Rules or Hague Visby Rules legislation. In general, the requirements for a perils of the sea defense under English law and Australian law are less strict than those under U.S. law. In particular, with regard to the issue of what circumstances may constitute a perils of the sea, under English law and Australian law, a perils of the sea defense may be available where bad weather was foreseeable. However, the position is different under U.S. law. On the other hand, Korea did not enact the Hague Rules or the Hague Visby Rules, but adopted the principles thereof in the Korean Commercial Code (KCC). Under the KCC, a carrier may also be exempt from liability based on the perils of the sea defense. However, the wordings of the provision of the KCC relating to the perils of the sea are different from those of the Hague Rules (and the Hague Visby Rules). In other words, the Hague Rules (and the Hague Visby Rules) provide to the effect that a carrier is not responsible for loss or damage arising from perils of the sea. On the other hand, the KCC provides to the effect that: A carrier is not responsible for loss or damage, if the carrier proves that there was the perils of the sea and the loss or damage can normally occur due to the perils of the sea. However, the foregoing provision is not applicable, if it is proved that the carrier did not exercise duty of care in respect of the seaworthiness of the vessel or in respect of the receipt, custody, carriage, or delivery etc. of the cargo and that if the carrier had exercised the above duty of care, the loss or damage could have been avoided (Article 789, Paragraph (2) of the KCC). Therefore, under the Hague Rules (or the Hague Visby Rules), a carrier must prove that the loss or damage was caused by the perils of the sea. However, under the KCC, a carrier need not prove the above, but may only prove that there was a perils of the sea and the loss or damage is the one that can normally occur due to such a perils of the sea. Further, under the KCC, the burden of proving that a carrier exercised duty of care in respect of seaworthiness of the vessel and in respect of receipt, custody, carriage, delivery etc. of the cargo has been shifted to a cargo owner. This position of the KCC is different from English law or Australian law. In sum, a carrier may more easily rely on the perils of the sea defense under the KCC than under the Hague Rules (and Hague Visby Rules) legislation. However, there is no court precedent in Korea regarding the issue of what circumstances would constitute a perils of the sea. Therefore, it has yet to be settled in Korea whether the perils of the sea defense would succeed where bad weather was foreseeable and how bad the weather should be for the perils of the sea defense to be accepted.