예선계약상 감항능력주의의무에 관한 고찰

The shipowners are always confronted with various marine risks in marine adventures. The tugowner will exercise due diligence to tender the tug at the place of departure in a seaworthy condition and in all respects ready to perform the towage, but the tugowner gives no other warranties, express or implied. The tugowner shall at all times have right to substitute any tug or tugs for any other tug or tugs of adequate power at any time whether before or after the commencement of the towage or other services and shall be at liberty to employ a tug or tugs belonging to other tugowners for the whole or part of the towage or other service contemplated under the Towcon or Towhire agreement. On the other hand, the towowner shall exercise due diligence to ensure that the tow shall, at the commencement of the towage, be in all respects fit to be towed from the place of departure to the place of destination. The towowner undertakes that the tow will be suitably trimmed and prepared and ready to be towed at the time when the tug arrives at the place of departure and fitted and equipped with such shapes, signals, navigational and other lights of a type required for the towage. The towowner shall supply to the tugowner or the tugmaster, on the arrival of the tug at the place of departure a certificate of tow- worthiness for the tow issued by a recognised firm of Marine Surveyors or Survey Organisation, provided always that the tugowner shall not be under any obligation to perform the towage until in his discretion he is satisfied that the tow is in all respects trimmed, prepared, fit and ready for towage but the tugowner shall not unreasonably withhold his approval. Difficulty arises when the division of financial liability under the Knock-for-Knock agreement is considered together with the respective obligation of the tug and the tow to provide, respectively, a seaworthy and tow-worthy ship. The question of which clause prevails would then arise. If the duty of seaworthiness or tow-worthiness is considered as the primary obligation that needs to be fulfilled, this would then mean that when this obligation is breached the Knock-for-Knock agreement applies in spite of the breach of the seaworthiness or tow-worthiness obligation.