해상운송에 있어서 독립적 계약자의 지위

다국어 초록 (Multilingual Abstract)

Clause 2 of Article 798 of the Commercial Law provides that if an action for loss or damage to the goods is brought against a servant, agent or independent contractor, the servant or the agent shall be entitled to avail himself of the defenses and limits of liability which the carrier is entitled to invoke. In general, the law draws a line between “servant or agent” and “independent contractor” and exclude “independent contractor” from the scope of those who are entitled to avail himself from the defenses and limits of liability which the carrier is entitled to invoke. Meanwhile, a transit clause on a bill of lading generally provides that an independent contractor is also entitled to avail himself of limits of liability which the carrier is entitled to. Therefore, it is necessary to decide on the definition of “independent contractor” among assistants to the carrier and review whether the transit clause that entitles independent contractors to avail themselves of the same limits of liability is valid. In conclusion, Clause 2 of Article 798 of the Commercial Law does not apply to independent contractors other than actual carriers. In other words, when an independent contractor is liable for the loss or damage to the goods by illegal acts, he cannot avail himself of the same defenses and limits of liability which the carrier is entitled to invoke. However, the clauses that are actually traded in reality provide that independent contractors may also use the same defenses and limits of liability which the carrier is entitled to invoke. Since the clause in the Commercial Law has become nominal due to special contracts, it is necessary to introduce protection measures for consignees.
Moreover, although the carrier can claim limits of liability when the cause of unseaworthiness of ship is attributable to a negligent servant, an independent contractor must fully pay for damage when unseaworthiness of ship was caused by the negligence of the independent contractor himself. The complicated liability issue which treats different assistants differently for the same loss must be clarified in the legal theory. If the carrier has commissioned an acknowledged ship repairman for repair and inspection and supervised the process within the possible scope, the carrier must not be held responsible for unseaworthiness of the ship even though it was cause by the negligence of the repairman. Therefore, a new legislation seems to be the most desirable way to resolve the issue of interpretation on the matter of independent contractors.

목차 (Table of Contents)

• Ⅰ. 서론
• Ⅱ. 해상운송에 있어서 독립적 계약자
• Ⅲ. 책임제한의 원용
• Ⅳ. 독립적 계약자의 과실에 따른 불감항책임
• Ⅴ. 결론
• 참고문헌
• Abstract

참고문헌 (Reference)

1 김동진, "히말라야 약관(Himalaya Clause)에 대한 소고" 부산지방변호사회 (2) : 2007

2 송상현, "해상법원론" 박영사 2005

3 정영석, "해상법원론" 텍스트북스 2008

4 최종현, "해상법상론" 박영사 2009

5 김인현, "해상법" 법문사 2008

6 박규용, "이행보조자의 유책에 대한 채무자의 책임" 한국법학회 (15) : 275-290, 2004

7 권기훈, "이행보조자의 과실에 대한 운송인의 불감항책임" 한국해사법학회 20 (20): 87-110, 2008

8 정찬형, "상법강의(하)" 박영사 2009

9 채이식, "상법강의(하)" 박영사 2003

10 落合誠一, "運送責任の基礎理論" 弘文堂 1979

11 小町谷操三, "船荷證券統一法論及び國際海上物品運送法註釋" 勁草書房 1958

12 田中誠二, "海商法祥論" 千倉書房 1985

13 村田治美, "海商法テキスト" 成山堂書店 1984

14 重田晴生, "海商法" 靑林書院 1994

15 中村眞證, "海上物品運送人責任論" 成文堂 1974

16 菊池洋一, "改正國際海上物品運送法" 商事法務硏究會 1992

17 김인현, "定期傭船하에서 발행된 船荷證券상의 運送人의 確定과 히말라야약관의 적용범위에 대한 英國 貴族院의 Starsin 사건(2003.3.13.)" 한국해법학회 29 (29): 55-82, 2007

18 戶田修三, "國際海上物品運送法" 靑林書院 1997

19 田中誠二, "國際海上物品運送法" 經草書房 1964

20 Tetley, "THE HIMALAYA CLAUSE-REVISITED" 9 : 2003

21 Boyd, Burrows, "Scrutton on Charterparties and Bills of Lading 20th ed" Sweet & Maxwell 1996

22 P. Kincaid, "Privity Reform in England" 116 : 2000

23 Tetley, "Marine Cargo Claims, 4th ed" BLAIS 2008

24 Gaskell, "Debattista and Swatton, Chorley and Giles Shipping Law,8th ed" Isaac Pitman and Sons 1995

25 Cohen, Tenner, "Chase and Chynsky, Benedict on Admiralty vol. 2A (7th ed.)" Matthew Bender 1990

26 Colinvaux, "Carver’s Carriage by Sea, vol.1 13th ed" Stevens and Sons 1982

27 Treitel, "Carver on Bills of Lading" Sweet & Maxwell Ltd 2001

28 Ivamy, "Carriage of Goods by Sea" Butterworths 1989

29 Schenbaum, "Admiralty and Maritime Law, 4th ed" West Publishing Co 2004

30 채이식, "2005년 商法 제5편 海商編 改正案에 대한 小考" 한국해법학회 27 (27): 439-464, 2005