불감항 과실에 관한 비교법적 연구 -로테르담 규칙과 헤이그 비스비 규칙과의 비교를 중심으로-

The carrier will be expected exercise only resonable skill and care to ensure that the vessel is seaworthy. In some cases the vessel starts its voyage in an unseaworthy condition, either because the crew were not aware of the cause of the unseaworthiness or because it is the practice of a particular trade to sail in such a condition, which would be remedied at a later stage, with the knowledge of the carrier. In these cases, would the carrier be in breach of his obligation to provide a seaworthy vessel? Article 14 of the Rotterdam Rules corresponds to a certain extent to Article 3(1) of the Hague and Hague-Visby Rules and establishes the duty of the carrier to exercise due diligence to provide a seaworthy vessel, that is to say a vessel which is in a condition to encounter whatever perils of the sea a ship of that kind, and laden in that way, may be fairly expected to encounter in the course of the contractual voyage. It embraces the three distinct aspects of seaworthiness recognized in maritime law, namely the physical condition of the ship, the efficiency of the crew and equipment, and the cargoworthiness of the vessel. In brief, this article amounts to imposing on the continuous duty of due diligence throughout the course of a voyage. Under the Hague and Hague-Visby Rules the obligation of due diligence ‘expires’ upon sailing from the load port. The addition of the words ‘and during the voyage by sea’ in article 14 of the Rotterdam Rules is an improvement of the position for cargo interests. The continuous duty is one of due diligence as opposed to an absolute duty. This raises the issue as to whether or not a defect which manifests itself after the commencement of a voyage but which is not capable of being repaired during the course of a voyage would lead to any less favourable finding for carriers than would have been the case under the Hague and Hague-Visby Rules. Based on the text of article 27.1 under the Rotterdam Rules, the conclusion does seem to be that the shipper’s duty to deliver the modified in the contract of carriage. This interpretation is supported by the fact that subparagraph 3, which concerns the stowage of goods inside a container or trailer. and thus also concerns the safety aspect, does not contain an ‘unless otherwise agreed’ qualification. This would mean that agreements between the shipper and the carrier are only valid if they concern aspects of the readiness for carriage, other than the safe transportability of the goods. The Rotterdam Rules introduces the concept ‘performing party’ for the purpose of extending the possibilities of recovery for the shipper and consignee from their contractual party(carrier) to all other parties that have undertaken to perform all or part of the carrier’s obligation during the maritime phase of the shipment (maritime performing party); it makes clear, of course, that the carrier shall be (and remain) responsible for the acts and omissions of such persons.