定期傭船者의 對外的 責任에 관한 美國法 考察

• 영문명: A Study on the Time Charterer’s Third-Party Liabilities under the American Law
• 발행기관: 한국사법학회(구 한국비교사법학회)
• 저자명: 丁鳳鎭(Bong-Jin Chung)
• 간행물 정보: 『비교사법』比較私法 제13권 제2호, 359~393쪽, 전체 35쪽
• 주제분류: 법학 > 법학
• 파일형태: PDF
• 발행일자: 2006.06.01

영문 초록

  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

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】

키워드

용선계약 정기용선 선박임대차 항해용선 운송인 해상물건운송법 미국 contract of affreightment time charter demise charter voyage charter carrier carriage of goods by sea act U.S.A.