船荷證券의 히말라야約款(Himalaya Clause)에 대한 고찰 - 대법원 2007. 4. 27. 선고, 2007다4943의 판례평석을 중심으로 -

Today marine transportation occupies 99% and more of the total in terms of weightin the area of international trade.Furthermore, in case of regular line, of the transportations are performed through a range of carriage in a general ship contracts, mostly accompanies a bil of lading.And there are bulk cargo transportations in which a charter is made and at the some time a bil of lading is widely seen to be issued.This theme studies the origin, proces of legislation and efficiency of socalled Himalaya Clause, one of many behind provisions attached to the bil of lading, through translation and critique of the Great Court rule2007 da 4943. The core point of the rule is the efficiency of the above Clause and its aplicability to the independent contractor as wel.The case is on damage to the cargo which caught fire by itself during a negligent custody, and here offers a lot of problems as folowing ;(1) Whether Accident Fire Claim Act is applicable, (2) How to identify a transporter in a marine transportation contract,(3) The status of a ship agent, (4) Whether an independent contractor who conducts his own business independently from any marine transporter, is to be treated as an employee or an agent of a carrier,(5) The status of an actual carrier,(6) Exemption and restriction of a transporter’s responsibility, and again exceptions onto such,and several others.Therefore the above rule is one of the most important issued in 2007 on the world of marine law.The writer, however, clearly perceives bad results of exemption and/or restriction of a transporter’s responsibility and now can not help but denounce the Court’s rule.