해상운송계약에 있어서 송하인 등 하주의 법적 지위의 변화 - 로테르담 규칙을 바탕으로 -

Previous maritime transport conventions did not pay much attention to the shipper's rights and obligations. In contrast, the right of control of the goods means the right under the contract of carriage to give the carrier instructions in respect of the goods in accordance with chapter 10 under the Rotterdam Rules. The right of control may be unilaterally exercised by the controlling party, even in the cases of an early delivery or a change of consignee that must be regarded as a variation to the contract of carriage. Such instructions must fit in the normal operations of the carrier. There are also recognised in the Rotterdam Rules contracts to which the Rules apply but where the parties also enjoy a degree of freedom of contract. In other words, these are categories of contract where the parties are free to vary and even derogate from the mandatory nature of the Rules. Such categories are not a novel phenomenon in the tradition of international maritime transport conventions but a few and controversial addition has been introduced by the Rules, characterised as ‘volume contract’. On the other hand, chapter 7 of the Rotterdam Rules, which consists of eight articles, provides more detailed rules on the shipper's obligations and liabilities. The shipper, namely, cargo-owner shall deliver the goods ready for carriage. In any event, the shipper shall deliver the goods in such condition that they will withstand the intended carriage, including their loading, handling, stowing, lashing and securing, and unloading, and that they will not cause harm to persons or property. Given the expanded chapter of shipper's obligation, the natural question will come across our mind: Are shipper's obligations and liabilities substantially increased under the Rotterdam Rules? In fact, criticisms against the Rotterdam Rules are sometimes heard based on the assumption that they impose onerous liabilities on the shipper. However, a more careful examination is necessary to decide if this is the case. In this sense, the shipper is more protected in this respect than under the previous conventions. At this stage, it would be suffice to point out that the often-heard assertion that the Rotterdam Rules substantially increased the level of shipper's obligations and liabilities is not self-evident. In this paper, a new approachment was made in respect of the warranty of seaworthiness : that is cargoworthiness of the ship, particularly focused on the reasonable fitness to carry the good or other movables to the destination contemplated by the policy, which is concerned with her capability to carry the particular cargo in question. This paper deals with the change of shipper's (namely, cargo-owner's) legal status in the carriage of goods by sea under the Rotterdam Rules.