Korean Maritime Law update: 2007- Focused on the revised Maritime Law Section in the Korean Commercial Code

Journal of Maritime Law and Commerce

Volumn 39, Issue 3, 2008, Pages 433-453

  In, Hyeon Kim ^a  

^a Pusan National University   (South Korea)

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EID: 54549127219     PISSN: 00222410     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (69)

1. For the current Korean Maritime Law Section in KCC, please refer to In Hyeon Kim, An Introduction to Korean Law Governing Carriage of Goods by Sea, 36 Journal of Maritime Law & Commerce 447 (2005). A good textbook regarding to Korean Maritime Law, written in English, is "An Introduction to Korean Maritime Law" (2000) is by Prof. Lee Sik Chai.
2. Please refer to Footnote 15.
3. The committee was led by the Chairman, Prof. Lee Sik Chai (then Dean of Korea University, current chairman of the IMO Legal committee).
4. Prof. Lee Sik Chai explains the reason why he proposed streamlining the Maritime Law Section in an article entitled "A study of the 2005 proposal for the Korean Maritime Law," 27-2 Journal of Korean Maritime Law Association 442 (2005).
5. In Hyeon Kim, Maritime Law 121 (2007).
6. Lee Sik Chai, supra note 1, at 160. In Hyeon Kim, supra note 1, at 151.
7. Lee Sik Chai, Ibid., at 112.
8. Dong Yoon, Chung, Commercial Law II, 764(2008); In Hyeon Kim, supra note 1, at 130. However, there is a strong view that the time charter party is a kind of contract for the carriage of goods. Lee Sik, Chai, supra note 1, at 114.
9. Lee Sik Chai, supra note 4, at 443.
10. Lee Sik Chai, supra note 1, at 125.
11. In Hyeon, Kim, Maritime Law Treatise (2002). Lee Sik, Chai, supra note 4, at 456.
12. Lee Sik Chai, supra note 4, 456; Jong Hyeon Choi, 30-1 Journal of KMLA 56 (2008).
13. For details, please refer to In Hyeon Kim, supra note 1, at 458, 459.
14. For details. Ibid., at 462.
15. In Korean Supreme Court case 2004.7.22. Docket No. 2002da44267, the Court decided that the higher figure should be selected for limitation calculations in an attempt to give the cargo interests higher figures in so far as possible. There was discrepancy between figures in the Number of Package field and Kind of Package field in the bill of the lading in question. The Court did not select the quantity in the Number of Package field because it was a smaller number than in the Kind of Package field, saying that the party's intention was to use the higher number as the calculation base regardless where the number is written down in the bill of lading. Please refer for details to, In Hyeon, Kim, Maritime Law Update 2004/2005, 36 Journal of Maritime Law and Commerce 365 (2005). Furthermore, in the Korean Supreme Court case 2006.10.26. Docket No. 2004da27082, the Court did not allow the carrier to limit its liability in an on deck carriage case, saying that there was a reckless mind of the carrier personally when the lower level managerial staff decided to load the cargo on deck without agreement with the consignor. Please refer for details to, In Hyeon, Kim, Maritime Law Update 2006, 38 Journal of Maritime Law and Commerce 404 (2007). Following this Supreme Court's judgment, a lower court (Seoul Western District Court 2007.12.21. Docket No. 2006gahap8979) also did not allow the carrier to limit its liability in an on-deck carriage case.
16. Lee Sik, Chai, supra note 1, at 193.
17. Chan Hyung, Chung, Lecture on Commercial Law, 921(2008).
18. Uniform Rules for Sea Waybills(1990) by CMI states the followings under Art. 5(ii); In the absence of reservation by the carrier, any statement in a sea waybill or similar document as to the quantity or condition of the goods shall (a) as between the carrier and the shipper be prima facie evidence of receipt of the goods as so stated; (b) as between the carrier and the consignee be conclusive evidence of receipt of the goods as so stated, and proof to the contrary shall not be permitted, provided always that the consignee has acted in good faith.
19. Dong Yoon Chung, supra note 8, at 913.
20. Art. 852 relates to the general provisions on the issuance of the B/L under the contract for common carriage.
21. Art. 855 relates to the general provisions on the issuance of the B/L under the voyage charter party.
22. Refer to Wan Yong Chung, "Study on the newly adopted Electronic Bill of Lading provision" 30-1 Journal of KMLA 86 (2008).
23. Wan Yong Chung, supra note 22, at 110.
24. For details, please refer to In Hyeon Kim, supra note 1, at 473.
25. German Transportation Law has been introduced by several academics in Korea since its revision. Jung Ho, Kim, "New German Transport Law and its possible effect on Korean law" 37 Journal of Korea University Law 37(2001); Chang June, Kim, "New provision on multi-modal transportation, 26-2 Journal of KMLA 341(2004)."
26. 27-2 Journal of KMLA 585-595(2005).
27. 27-2 Journal of KMLA 597(2005).
28. Lee Sik, Chai, supra note 4, at 455.
29. Chan Hyung, Chung, supra note 16, at 833. German Transport Law Art 452a also selects the network liability system.
30. In Hyeon Kim, "2007 Revised Korea Maritime Law on the structural change and Multi-modal transportation", 30-1 Journal of KMLA 34(2008).
31. This provision is contrary to the KMLA's proposal. The KMLA recommended that in order to provide predictability for the parties, the maritime law section of the KCC will be applicable even in the case of concealed damage.
32. In Hyeon, Kim, supra note 30, at 39. China has a provision in its code on multi-modal transportation (Chinese Maritime Law Art. 106). The Japanese Commercial Code does not have a provision on multi-modal transportation.
33. In Hyeon, Kim, supra note 30, at 41.
34. Ibid., at 45.
35. In Hyeon Kim, supra note 28, at 45.
36. It might be reasonable that the adoption of the limitation scheme in the land transportation should be interchanged with the adoption of the carrier's strict liability scheme
37. In Hyeon Kim, "Legal Analysis of the Application of KCC Art. 806" 24-1 Journal of KMLA 193 (2002).
38. Dong Chul Lim, "Sub-contract for carriage and liability of the shipowner", Journal of KMLA 30(1993)
39. Lee Sik Chai, supra note 4, at 457.
40. The title of Article 806 says the sub-contract for carriage of goods. According to the former view, when the time charterer makes a contract for the carriage with the cargo interest, it is the first contract of carriage with the cargo interest because the contract between the shipowner and the time charterer is a kind of contract of demise(=lease of the vessel) rather a contract of carriage and thus the contract between the time charterer and the shipper is not the sub-contract for the carriage. It is only a contract for the carriage.
41. Dong Chul, Lim, supra note 38, at 15.
42. In Pusan District court case 1998.6.3. Docket No. 96gahap17786, the shipowner was liable when the time charterer was a carrier. In Seoul Civil District court case 1990.8.23. Docket No. 89gahap48654, the shipowner was not liable when the time charterer was a carrier because Art. 806 was not applicable in the case.
43. Lee Sik, Chai, supra note 4, at 457.
44. Dong Yoon, Chung, supra note, at 890; Chan Hyung, Chung, supra note 29, at 831; Lee Sik, Chai, Ibid., at 457.
45. Jong Hyun, Choi, supra note 12, at 77, In Hyeon Kim, supra note 5, at 146.
46. For details, In Hyeon, Kim, supra note 1, at 468.
47. According to newly proposed KCC art. 817: Regardless the governing law in the common carriage contract, when one of the places of the receipt, loading, or discharging is Korea, the special agreement to derogate the obligation and liability of the carrier are null and void to the extent not allowed by this Chapter.
48. Lee Sik, Chai, supra note 4, at 455.
49. Lee Sik, Chai, supra note 4, at 459.
50. Ibid., at 459.
51. [2007] Korean Case Report 754.
52. On the other hand, a freight forwarder acted as the carrier in Korean Supreme Court case 2003.10.24. Docket No. 2001da72296. It functioned as the pure freight forwarder in Korean Supreme Court case 20032.14. Docket No. 2002da 39326. For details, please refer to In Hyeon, Kim, 36 Journal of Maritime Law and Commerce 371(2005).
53. [2007] Korean Case Reports 784.
54. The case was commented by Prof. Se Ryun, Choi, "A comment on the Korean Supreme Court's Judgment of 27 April 2007, Case No. 2007da4943", 30-1 Journal of KMLA 115(2008).
55. In the first instance the ocean carrier's defense of fire exemption was denied because it was caused by the carrier's personal fault.
56. This article is similar to Art. 3(8) of Hague-Visby Rules. KCC Art. 790(1) No special contract between parties that reduces or exempts any obligation or liability of the carrier contrary to the provisions of Art. 787 to 789, shall be null and void. This provision shall also apply to stipulation transferring the benefit of insurance on goods to the carrier, or to similar one.
57. Hague-Visby Rules expressly exclude the independent contractor in Art. 4bis(2), saying that if such an action is brought against a servant or agent of the carrier(such servant or agent not being an independent contractor), such servant or agent shall be entitled to avail himself of the defenses and limits of liability which the carrier is entitled to invoke under this Convention.
58. Se Ryun, Choi agrees with the decision, supra note 54, at 135.
59. According to Korean Supreme Court case, 2002.2.8. Docket No. 2001da58641, 2004.2.13. Docket No. 2001da75318, 2004.5.14. Docket No. 2001da33918, the independent contractor falls outside of "servant or agent" in Art. 789(2) of the Hague-Visby Rules and thus can not invoke the benefit of the carrier by the operation of the law. For example, the Korean Supreme Court case 2004.2.13.. Docket No. 2001da7538 the Court decided that a warehouse keeper was not within the scope of the definition of the above. For details, please refer to In Hyeon Kim. Korean Maritime Law Update: 2004, 36 Journal of Maritime Law and Commerce, 368(2005). They are allowed to limit liability through the Himalaya clause in the Bill of Lading.
60. The court did not examine the scope of "the subcontractor" in the House B/L. The Hutchison Terminal Korea invoked the right vested in the Himalaya clause. The clause includes the wording of "anyone participating in the performance of the Carriage other than the Carrier." The Chinese exporter as the shipper promised the carrier to allow anyone participating in the performance of the carriage to enjoy the carrier's benefit to limit its liability. The Hutchison Terminal Korea invoked its right based on the House B/L. The carrier under the House B/L was UPS rather than KMTC. Hutchison Terminal was an independent contractor of Korea Shipping Co. Ltd. In order for the Hutchison Terminal Korea to enjoy the same benefits as UPS as the carrier, the Court should decide whether it can fall within the definition of "anyone participating in the performance of the carriage." The Himalaya clause says that anyone includes "subcontractor, stevedores, terminal operator, carriers involved in land, maritime, sea transportation, and they are not exhaustive.£ Based on this language, the Court accepted the terminal operator was a covered person. Without any further explanation the Court admit that it can be within the definition. The Hutchison Terminal Korea acted as an independent contractor of the ocean carrier who is the subcontractor of UPS, as the contracting carrier. Therefore, Hutchison Terminal Korea can be regarded as the sub-subcontractor of UPS which is outside of the definition of the subcontractor. The wording of terminal operator in the clause can be a kind of candidate. However, it is not clear whether the carrier and the shipper had the intention to allow the terminal operator without contractual relationship with the carrier to invoke the benefit of the limitation of the liability. The Court should have examined the definition of "anyone" in the Himalaya clause more thoroughly. The U.S Supreme Court's Kirby case will be a good guideline on the issue of the scope of the beneficiary in the Himalaya clause.
61. [2007] Korean Case Reports 1241.
62. The security arrangement was a kind of modified pledge (a so-called pledge transferring title held in trust). This security arrangement is different from normal pledge in that there are two aspects to the legal relationship. By the security arrangement, the pledgee became the title holder (owner) of the collateral, in this case the cargo of the logs, in the relation between the pledgee and the third party, while the title still remains in the pledgor in the relation between the pledgor and the pledgee. In the normal pledge, the pledgee (creditor) has a security interest for securing its debt against the pledgor (debtor) but the pledgee does not have the title to the collateral.
63. Korean Civil Code Art. 188.
64. (2007) Korean Case Reports 1241.
65. For detailed case comment, refer to Jin Kwon, Kim, "A Comment on the Korean Supreme Court's Judgment of 12 July 207, Case No. 2005Da39617, 30-1 Journal of KMLA 139(2008)."
66. Art. 8 says mat the law which is most closely related to the case may be applicable.
67. Prof. Jin Kwon, Kim has concurred view with the writer. Supra note 63, at 170.
68. Art. 13(1) The administration may order the owner or the possessor of the wreck(including vessel or discarded things) to dispose of it when it decides the wreck involves a danger to impede the usefulness of me public water or the danger to pollute the water.
69. There are other Acts for regulating wreck removal within the territorial water and within open port area; the Open Port Ordinance Act and the Maritime Traffic Safety Act both have pertinent provisions to impose the obligation upon the owner or the possessor of the vessel to dispose the wreck.