독립계약자에 대한 히말라야 약관적용 문제 및 특별규정안의 제안

International transport of cargo by means of maritime transport or multimodal transport is made possible through combination of various businesses and complex procedures including receipt, shipment, arrangement, management, unloading and delivery of cargo. Therefore, even if a transport agreement is concluded between a shipper and a carrier, it would be almost impossible for the carrier solely to take care of all the operations related to the transport concerned. Thus, it is one of common business practices that the carrier concludes a sub-contract with several independent contractors such as stevedore, warehousing businesses and terminal operators in order to completely perform transportation of cargo. Then, international agreements and most of national laws prescribe exemption or limitation of liability of the carrier and his/her employee and agent against any damage resulted from loss or damage of cargo in the process of transportation or from delay in delivery. However, the problem is that, in some countries including South Korea and China, carriers' object causes or right for limitation of liability are not acknowledged for their intendant contractors. Therefore, this study will review international conventions that are related to acknowledgement of availing of the Himalaya Clause onto independent contractors. Then, it reviewed relevant provisions of the commercial laws of South Korea, relevant decisions and attitude of the law, regulations under the maritime laws of China and characteristics and problems of the Chinese regulations and decisions and legislative solutions for such problems.