선박관리회사의 대리와 위탁계약에 따른 당사자 및 제3자 관계 분석

The general contractual position of a shipmanagement company is based on the law of agency. The agent must perform with reasonable care and skill the duties allotted to him by the agreement, must observe any lawful and reasonable instructions given by the principal so far as they are consistent with the terms of the agreement and must be strictly within the limits of his actual authority. The shipmanagement company does not conduct business in its own right but acts as an agent on behalf of a principal - the shipowner. The law of agency also regulates the internal relationship between the management company and the owner in ship management. This is the case because the management company acts as intermediary for the owner, by having the daily operation of the ship. Sometimes, as in the case of contracts for services, like in our example of ship management, it will only require the exercise of reasonable care or due diligence. In particular, an agent owes fiduciary duties to its principal. The distinguishing obligation of a fiduciary is the obligation of loyalty. Although it has been said that the essence of a fiduciary obligation is that it creates obligations of a different character from those deriving from the contract itself, where the agency is based on a contract between the principal and the agent, the fiduciary duties may in certain cases be varied by the terms of the contract. Where the agent contracts expressly as agent for the principal as a named or identifiable principal, the third parties contract with the principal, not the agent, and only principal can sue and be sued on the contract. This is so even where in making the contract the agent exceeds his authority, though in such a case he becomes liable to third party for damages for breach of the implied warranty of authority. Where the agent contracts as such but without disclosing the principal's identity, it is a question of construction of the contract whether the third party entered into the contract on the basis that he was willing to treat as the other party any person by whom the agent was authorized to make the contract or whether he looks to the credit of the agent, not of the principal. In the former case, the third parties contract is with the principal, in the latter, with the agent. Where an agent acts on behalf of a principal within the scope of his authority and the third party knew or ought to have known that the agent was acting as an agent, the acts of the agent shall directly bind the principal and the third party to each other, unless it follows from the circumstances of the case, for example by the reference to a contract of consignment, that the agent undertakes to bind himself only.