로테르담규칙에 있어서 해상물건운송계약당사자의 의무 및 책임에 관한 법리적 연구

This article contains legal issues that may rise in the application of the new carriage Convention. The New Convention deals with a much broader range of topics than either the Hague-Visby or the Hamburg Rules and intends to replace previous Conventions. The definition of contract of carriage employs the notion of different modes of transport, which derived from the UN Convention on Multimodal Transport and its previous Conventions but distinguishes it in the aspect that one of the modes must be carriage by sea. To avoid a potential conflict between the New Convention and other carriage Conventions, it provides a network solution. The structure of liability of the carrier is fault-based liability regime retaining the catalog of exceptions, but there hadbeen main changes which is door to door transportation, obligation on delivery of the goods, continuing duty on ship seaworthiness and apdition of the exception of nautical fault. The overall effect of these changes will have a significant impact on the balance of risks from cargo to ship. The provisions relating to the burden of proof have been carefully and skilfully constructed but they will not be easy to apply. The carrier has an initial burden of proving either that the cause or one of the causes of the loss is not attributable to its fault or that one or more of the excepted perils caused or contributed to the loss. At the next stage, the claimant may deprive the carrier of this defence in two ways with the result that the carrier is liable for all or part of the loss. The shipper's liability is fault-based, but in two special cases, the shipper will be liable for any breach irrespective of fault concerning the shipper's guarantee as to the accuracy of information for compliance of the contract particulars and liability for shipping dangerous goods. Even though the new Convention is the product through much negotiations between concerned parties and it may result a number of potential benefits, there are a number of matters. Thus, these benefits will not be realized. Moreover, the Convention could lead to unnecessary increase in complexity and legal uncertainty including burden of proof or conflicts between other existing Conventions.