해상고유의 위험의 범위와 요건에 관한 비교 고찰

Perils of the sea refers to the natural accidents peculiar to the sea. It can be maritime accidents and dangers such as storms, waves, wind, collision of vessel, fire, smoke and noxious fumes; sinking, flooding and capsizing, loss of propulsion or steering, and any other hazards resulting from the unique environment of the sea. Other than inevitable perils or accidents upon the sea are not excused, whether there is a bill of lading containing the expression of peril of the sea. It also includes accidents caused as a result of stranding, striking a submerged object, or encountering heavy weather or other unusual forces of nature. After reviewing the meaning of the term ‘perils of the sea’, there is a fact that the meaning of the term has yet to be fully established. The definition of the term as provided under the Rules for Construction of Policy 7, which refers only to fortuitous accidents or casualties of the seas and does not include the ordinary winds and waves, is deemed to be inconclusive. From the reinterpretation of the Marine Insurance Act 1906 and the study of the various judicial decisions affecting this area of marine insurance, there is found to be an urgent need to have a reviewed definition and interpretation of the term. In discussing perils of the sea, three important points have often appeared. When the term ‘perils of the sea’ are mentioned, what often crosses our minds is the picture of a ship tumbling in exceptionally forceful winds and extraordinarily violent waves. Nevertheless, by interpreting and reinterpreting the wording of the Marine Insurance Act 1906 and by considering several judgements, it is found that losses by perils of the sea are not strictly confined to those caused by extraordinary violence of the winds and waves but may also include all losses proximately occasioned by the fortuitous action of the winds and waves.