선하증권과의 상환없는 운송물 인도와 선박소유자의 책임 - 대법원 2014. 5. 9. 자 2014마223 결정을 중심으로 -

There is a debate on an issue of the ship-owner's liability for mis-delivery of cargo without production of the original bills of lading. In the U.K., as the validity of all exceptions and limitation of liability clauses which protect the ship-owner is a question of construction, the parties to the contract may rely on an appropriately drafted clauses. Thus, it is highly advisable whether there was an agreement for the exclusion and limitation of the ship-owner's liability or not should be strictly examined, before discussing whether article 769(1) of the Korean Commercial Code (hereunder, KCC) applies to a specific claim or not. Meanwhile, the validity of any clauses exempting or/and limiting ship-owner's liability should be discussed in accordance with the period of the ship-owner's liability. In addition, it should be kept in mind that the Convention on Limitation of Liability for Maritime Claims, 1976 (hereunder, the LLMC 1976) has evolved with the close influences from other International Convention which dealt with the carriers' liability. Especially, since the Hague-Visby rules confines the carrier's liability from the time when the goods are loaded on to the time they are discharged from the ship, the meaning of "claims in respect of ··· loss of or damage to property, occurring on board or in direct connection with the operation of the ship" of article 2(1)(a) of the LLMC 1976 should be interpreted that the scope of a ship-owner's limitation of liability is restricted to a carrier's coverage for the carriage of goods under the Hague-Visby rules. Therefore, given the purpose of the LLMC 1976 that the Convention was to extend the right to limit, not to restrict it, a claim for a ship-owner's liability for mis-delivery of goods without exchange of the original bills of lading can be referred in article 2(1)(a) of the LLMC 1976, subject to article 3 and 4 of the LLMC 1976.