해상보험법상 담보(warranty)의 개념과 영국 협회적하보험약관 제5조 및 상법 제706조 제1호(해상보험자 면책사유)에 관한 고찰

The warranty in marine insurance which was established by the learned Lord Mansfield in the late 18c has its own purpose to make the insurer estimate the risk to be insured precisely. In practice, the interpretation of warranty and implied warranty of seaworthiness has been in favour of the insurer in England. In particular, a lot of burden to satisfy the implied warranty of seaworthiness was imposed on the cargo owner. Section 5 of the current Institute Cargo Clause deals with the insurer’s waiver. It is submitted that this section is a result of consideration of cargo insured’s practical burden to comply with this implied warranty of seaworthiness. The precise interpretation and analysis on section 5 of Institute Cargo Clause is very important. It has been admitted that the English law and practice in the area of insurance is valid and applicable to Korean cases by Korean Supreme Court. Although the purpose of decision by the Korean supreme Court is acceptable, we should be very careful in acceptance of English law and practice in relation to the interpretation of warranty, because it has been criticised that the tendency of English courts as regarding the interpretation of warranty is biased for insurer. The decision in the case of The Good Luck which allows automatic discharge of insurer’s liability seems to be too much in favour of the insurer. We need to balance the legal interest between insurer and insured, relying on the principle of reasonable interpretation.