개품운송계약에서 해상운송인의 손해배상책임 감면에 관한 비판적 검토

Under the Commercial Act amended 2007, a contract of carriage of individual goods shall take effect when a carrier undertakes to carry individual goods by a ship at sea and a shipper agrees to pay the freight to the carrier(§791). The carrier shall be liable for loss resulting from loss of, damage to or delay in delivery of the goods, unless he proves that neither he, nor the crew, nor any of his employees has failed to exercise due diligence in connection with the following particulars at the commencement of the voyage: 1) make the ship seaworthy; 2) properly man, equip and supply the ship; and 3) make the holds, refrigerating and cool chambers, and all other parts of the ship in which goods are stowed, fit and safe for their reception, carriage and preservation(§794). If the carrier fails to prove that he or the crew or other employees of the ship exercised his duty of care in respect of receiving, loading, stowage, carriage, keeping, discharging and delivering of the goods, he shall be liable to compensate for loss resulting from loss of, damage to or delay in delivery of the goods(§795 (1)), the carrier shall not be responsible for loss in respect of the goods arising or resulting from an act of the master, seaman, pilot, or other employees of the carrier in the navigation or the management of the ship, or a fire. The above shall not apply where the fire was caused by the intentional act or negligence of the carrier(§795 (2)). The carrier shall be relieved of the liability for compensation if he has proved that any facts referred to in the following subparagraphs existed and that the loss in respect of the goods is usually caused by such fact: Provided, that the same shall not apply if it was proved that he failed to exercise due diligence in accordance with Articles 794 and 795 (1) and that he could have avoided such loss if he had exercised such diligence: 1) perils or accidents of the sea and other navigable waters; 2) act of the God; 3) war, riots, or civil commotions; 4) piracy and other similar acts; 5) judicial seizure, quarantine restrictions and other restraint by public authorities; 6) act of the shipper or the owner of the goods or his employees; 7) strikes, restraint of labor or lockouts; 8) saving life or property at sea or any deviation in saving life or property at sea or any reasonable deviation; 9) insufficiency in packing the goods, or inadequacy of marks; 10) particular nature or latent defects of the goods; and 11) latent defects of the ship(§796). Under the Commercial Act amended 2007, the carrier may limit his liability for compensation under Articles 794 through 796 to the monetary equivalent of 666 and 67/100 (666.67) Units of Account per package or shipping unit or 2 Units of Account per kilogram, whichever is higher: Provided, that the carrier shall not limit his liability if it is proved that the damage resulted from an act or omission of the carrier done with intent to cause such damage, or recklessly and with knowledge that damage would probably result(§797 (1)). But there are many problems in the provisions about limitation and exemption of the sea carrier's liabilities and responsibilities. This paper, thus, I have investigated the legal problems of limitation and exemption of the sea carrier's liabilities, and suggested the settlement methods such legal problems in comparison with International Conventions under the commercial Act.