서렌더(surrender) 선하증권상 송하인의 히말라야 약관에 대한 구속력

Bill of lading is issued by carrier (ship owner or his agent) on receipt of goods after completion of customs formalities. Bill of Lading is used as a document of title, proof of receipt of goods, and contract of carriage. On surrender of the bills, no further bill need be produced by the buyer (as consignee) and release is granted. If original bill of lading is surrendered at port of loading, a surrender message can be arranged from carrier or his agent’s office at load port to their counterpart at destination port advising them not to insist for original bill of lading from consignee to release the goods. Is the documentary shipper subject to the obligations and liabilities imposed on the (contractual) shipper and is entitled to the (contractual) shipper’s rights and defences? This article makes some remedies over the documentary shipper system, and believes the documentary shipper should have the right to ask for transport document on delivery of the cargo without having to have anyone else’s instructions, he should be the first to own the right of control over the cargo and he should have the right to sue. The amended documentary shipper system not only fits into the sales law, and make the seller’s right of stoppage in transit practicable, and it goes along well with seaway transport practices. A shipper of goods, when negotiating a contract of carriage, will be aware that the obligations arising from that contract will rarely be performed personally by the contractual carrier but will be delegated to employees of the carrier or to independent contractors engaged to carry out a particular function, such as stevedore engaged to load or discharge the cargo. The Bill included an express clause stipulating that any servant, agent or independent contractor employed by the carrier should be entitled to the protection of every exemption available to the carrier and that, in respect of this clause, the carrier was contracting not only on his own behalf but also as agent or trustee on behalf of the parties named. Two requirements must be satisfied before such an exception will operate. First, the limitation of liability of liability clause must either expressly or impliedly extend its benefit to the employees seeking to rely on it; and, secondly, such employees must have been performing the very services provided for in the contract between their employer and the customer when the loss occurred. There is, however, one proviso in relation to contracts for the carriage of goods by sea. In such a context the statutory right to enforce a contractual provision is not intended to confer positive rights on a third party, its effect being expressly restricted to enabling a third party to avail himself of an exclusion of limitation of liability provision in such a contract.