상법상 실제운송인의 손해배상책임에 관한비판적 고찰과 입법론

Under the Korean legal system, as an actual carrier is not the contractual party to the contract for carriage of goods by sea, it has been tortiously liable for the damage to, or loss of cargo, should there be the negligence by its part. However, the RotterdamRules introduces a revolutionary liability regime for the actual carrier. According to the RotterdamRules, the liability of the actual carrier is same with that of a contractual carrier with the result that a shipper is entitled to bring the direct action to the actual carrier, as well as the contractual carrier on the same basis. Nevertheless, it is expected to take long time for the newapproach in respect of actual carrier’s liability to be confirmed by many countries, and furthermore most of shipping countries including Korea still adopt the Hague-Visby Rules where the shipper is not allowed to bring the direct action to the actual carrier. This study reviews on whether or not the alteration of actual carrier’s liability based on RotterdamRules would be reasonable, considering the current Korean legal system. Furthermore, this study,whilst recognizing that the overall introduction of the newliability regime is somewhat premature, suggests the imposition of contractual liability to the actual carrier froma long-termperspective. Having inmind that the article 809 of the Korean Commercial Act allows the shipper to bring the direct action to the shipowner only in the case that a time charterer is the contractual carrier, this study explores a method to apply the contractual liability to the actual carrier in the case that a slot charterer or freight forwarder is the contractual carrier, in order to establish the uniformliability system.