공동해손분담금 청구에 대한 감항능력결여의 항변에 관한 판례연구

Purpose This paper analyzes the cases related to the defense of the unseaworthiness for a Claim of general average contribution with recent two cases. Design/Methodology/Approach This paper focuses on the case study related to the general average, and is carried out through the literature method using academic papers and internet data for the analysis of this study. Findings The first case is an unreasonable argument from the shipowner’s side, and although there is a different theory on the reason for the judgment and the interpretation of the terminology of the general average contribution that the judge says, the conclusion is valid. On the other hand, As the second precedent is that the defect in the preparation of the voyage plan is called unseaworthiness and the voyage plan is important, the thoughtful shipowner was admitted that he would have corrected the defect if he knew about the defect, and thus the cargo insurer refused to share the general average expenditure due to a breach of Article 3 (1) of the Hague-Visby Rules. Research Implications Whether the shipowner in the first case or the cargo insurer in the second case does not see any consciousness of the community of fate sharing a common adventure, the awareness of the problem has been renewed once again. The adoption of YAR 2016 is attempting to balance the interests of the stakeholders related to the general average, but the fundamental problem of the general average system in modern times can be seen as the diminishing sense of common adventure behind it. In other words, it is questionable whether it is appropriate from the beginning to demand a sense of common adventure in the age of great voyage from shippers who expect seamless transport on sea and land centered on today’s container ships.