해상법상 관련자들의 이해대립과 이익충돌의제 현상과 해결방안

There are varied persons or entities at stake in the maritime law. The maritime law governs the legal relation among persons who engage in maritime business with the vessel. The person who enters into the contract or the carriage with the consignor is called as a carrier. The carrier makes use of its own vessel or other borrowed vessels from the shipowner in carrying out transportation. Who between the ship owner and the charterer will be liable for damages in the breach of the contract or in tort is a big issue in the maritime law. The ship owner and bareboat charterer becomes conflicted in relation to recourse claim caused by the auction sale of the vessel when the shipowner's vessel became subject to the auction sale based on the maritime lien. The contract for the carriage became evolved and varied. In a same carriage of goods by sea, two different carriers such as contractual carrier and actual carrier exist. The cargo interests are allowed to raise a law suit against either the contractual carrier or the actual carrier. In the Hanjin Shipping Rehabilitation case, the cargo interest raised claims against the contractual carrier. However, it could not raise recourse claim against the actual carrier, Hanjin Shipping. There are several laws such as Rehabilitation Act, Competition law, International Private law other than maritime law which is applicable in the maritime cases. Each law or Act serves for its own purpose. The stake holders fall into disfavored position according to the applicable law. A fiduciary should exercise the fiduciary duty. The ship's master, ship's agent, and warehouse keepers are good examples of a fiduciary in the maritime business. In a wrongful delivery of cargo case, the warehouse keeper or ship's agent collude with the consignee in handing over the cargo without exchanging it with the B/L, which results in the breach of fiduciary duty. The freight forwarder has a duty to select a carrier under the Korean law. Such duty seems to come from the fiduciary duty. The conflict of interest among stake holders under the maritime law has been solved by the relevant provisions of the law, general terms or standard forms. The conflict between the laws itself may be solved by insertion of a special provision in the law. Making use of standard forms or general terms in the contract between parties may be a good way of solving problems.