국제해상물건운송계약에 관한 2008년 UNCITRAL 조약(로테르담규칙)의 適用範圍와 契約自由의 原則

UN general assembly passed Convention on Contracts for the International Carriage of Goods Wholly or Partly by Sea on December 11, 2008. The Convention called as Rotterdam Rule will be a substitute of the Hague-Visby Rules. Because the Convention is applicable for the door-to-door carriage, it is called as maritime plus convention. The writer addresses (i) the scope of the application and (ii) Freedom of Contract provisions of the Convention in this article. The Convention aims at achieving the uniformity and predictability. The scope of the application under this Convention is expanded from the contract for the carriage of goods coupled with the issuance of the bill of lading in the Hague-Visby Rule to the contract of the carriage in the liner trade regardless of the issuance of the bill of lading. The Convention is applicable for the combined transport which necessarily includes maritime lag. In this sense, the scope of the application of the Convention is expanded as opposed to the Hague-Vsby Rules. Under the Hague-Visby Rules, the carrier is not allowed to derogate from the obligation and liability stipulated under the Convention whereas the shipper is not subject to the mandatory obligation and liability. On the other hand, the Convention does not allow the shipper to derogate from its obligation and liability. However, the Convention adopts several provisions on the freedom of contracts, reflecting new maritime transportation circumstances. Under the volume contract, the carrier and shipper are allowed to increase or decrease the their obligation or liability. Under the Convention, consequential damages caused by delay should be paid by the carrier to the shipper. The definition of the delay is controlled by the agreed time under the Convention. In this sense, the freedom of contract is maintained. The Hague-Visby Rules do not have any provision on jurisdiction and thus the validity of the exclusive jurisdiction clause is left to the national law. The Convention reduced the effect of the exclusive jurisdiction agreement one of the selectable forum by the claimants. In this sense, the freedom of contract principle is damaged. It appears that the Convention achieve, as a whole, the uniformity and predictability in that the scope of the application is expanded and the concealed damages is subject to the application of this Convention. There are differences between Korean Commercial Code and this Convention in the scope of the application, applicable law in case of concealed damages and mandatory application for the shipper's obligation and liability. These different rules in the Convention may be reflected in the upcoming revision of Korean Commercial Code.