상법상 정박기간 및 체선료의 법리에 관한 연구

Disputes relating to laytime and demurrage frequently occur, however studies and discussions on these legal issues in Korea have been very limited. Scholars and practitioners have generally either introduced the principles under English law or briefly explained that demurrage accrues from the time the agreed laytime expires without providing an in-depth analysis of the relevant provisions of the Commercial Act. Laytime and demurrage are the most important factors that could distinguish voyage charters from contracts of carriage of goods or other types of charter parties. Articles 829, 830, and 838 of the Commercial Act deal with commencement of laytime, its interruption and demurrage. Where a voyage charter which is subject to Korean law does not contain express provisions on laytime and demurrage, these articles of the Commercial Act shall apply. It is necessary to interpret and apply these provisions in line with the teleological method of interpretation in order to correspond as closely as possible to international shipping practice, which has developed based on English law and practice. If the law and practice differ significantly depending on the governing law over a particular voyage charter, the participants in the international shipping market may suffer unexpected losses and a big burden of ascertaining the applicable laws for each voyage charter, even though they do not have specialized legal knowledge. The Commercial Act provides that Notice of Readiness shall be tendered to the Charterer by the Shipowner at loading port and it be tendered to Receiver by Master at discharging port respectively. Considering the nature of voyage charter, even where laytime is not expressly stipulated in a voyage charter, a grace period reasonably and practically required for loading or discharging at the designated port may be deemed as laytime. Laytime commences when the vessel is ready for loading or discharging and Notice of Readiness is tendered. Unlike English law, the Commercial Act does not require that the vessel shall be “an arrived ship” for commencement of laytime. Nevertheless, from the true construction perspectives, it is appropriate to conclude that the vessel must arrive at the designated port for commencement of laytime under the Commercial Act. With regard to legal nature of demurrage, majority of scholars and Korean courts have classified it as a “statutory special remuneration” rather than as damages arising from breach of voyage charter. However, it is difficult to regard the “reasonable remuneration” stated in the law as being identical to demurrage agreed by the parties to voyage charter. From historical perspectives, it is found that the Commercial Act has consistently distinguished between demurrage as a legal term and “reasonable remuneration”. Furthermore, where a voyage charter contains clauses for laytime and demurrage, it is appropriate to understand that demurrage is a contractual claim arising from the effect of the contract itself. For these reasons, it is reasonable to define that demurrage accrued in accordance with the express provisions of a voyage charter as liquidated damages, whilst the claim for “reasonable remuneration’ under the Commercial Act is a statutory claim available where there is no clause for laytime and demurrage in the voyage charter.