• 제목/요약/키워드: contract of carriage

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국제물품매매협약상 위험이전 (Passing of Risk of Loss of the Goods under CISG)

  • 허해관;오태형
    • 무역상무연구
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    • 제75권
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    • pp.1-28
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    • 2017
  • Article 67 of CISG which provides for the passing of risk of loss of the goods applies to the contract of sale involving carriage of the goods. The risk here is in nature the price risk. Under Article 67(1), if the seller is bound to hand the goods over to a carrier at a particular place, the risk passes to the buyer when the goods are handed over to the carrier at that place; if the seller is not bound to hand them over at a particular place, the risk passes to the buyer when the goods are handed over to the carrier. In these cases, the risk passes even though the seller duly retains documents controlling the disposition of the goods. Article 69 of CISG applies to the contract of sale that does not involve carriage of the goods. Under Article 69(1) which covers the situation that the buyer is bound to take over the goods at the place of business of the seller, the risk passes when the buyer takes over the goods, however if the buyer does not take over the goods in due time, the risk passes at the time when the goods are placed at the buyer's disposal and he commits a breach of contract by failing to take delivery. Under Article 69(2) which covers the situation that the buyer is bound to take over the goods at a place (including his own place of business) other than the place of business of the seller, the risk passes when delivery is due and the buyer is aware of the fact that the goods are placed at his disposal at that place. Under these provisions of CISG, this study suggests what should be the definition of the contract of sale involving carriage of the goods. This study goes further to looks into what should be the concepts of the handing over of the goods by the seller to the carrier, the taking over of the goods by the buyer and the placing the goods at the buyer's disposal by the seller. This study may, we hope, provide a guidance for clearer understanding of the exact time of passing of risk under CISG.

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복합운송인(複合運送人)의 책임(責任) 한계(限界)에 대한 형태별(形態別) 분류(分類)와 실무상(實務上) 적용(適用) (A Pattern of Multimodal Transport Liability and its Adaptation on Practice)

  • 김중관
    • 무역상무연구
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    • 제13권
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    • pp.257-281
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    • 2000
  • The world economy is becoming increasingly globalized. The globalization has resulted in far reaching agreements to deepen trade liberalization and enlarge its scope to cover new areas in addition to strengthening its supporting institutional base. Economic growth has developed international trade which has accelerated the development of international carriage of goods in 21st century. The international trade is basically founded on the contract of international sale of goods and backed up by the contract of international carriage of goods and the insurance on the goods carried. It is essential to incorporate each other sections for the efficient development of international trade. As a result of rapid expansion of international carriage of goods, rationalization of transport was required, which has brought about the International Multimodal Transport System through containerization. The approach to liability system will be a right way to solve the insurance problems for the development and enlargement of world trade volume. International multimodal transport system has affected international trade a lot, especially the field of insurance a grate deal. This paper is to analyze contents of liability system on Multimodal Transport with in the UN Convention on International Multimodal Transport of goods.

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국제항공화물의 운송 지연에 대한 항공운송인의 책임 (The Air Carrier연s Liability for Damage Caused by Delay in the Transport of International Air Cargo)

  • 이강빈
    • 한국중재학회지:중재연구
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    • 제13권2호
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    • pp.377-401
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    • 2004
  • Delay in the air transport occurs when passengers, baggage or cargo do not arrive at their destination at the time indicated in the contract of carriage. The causes of delay in the carriage of cargo are no reservation, lack of space, failure to load the cargo on board, loading the cargo on the wrong plane, failure to off-load the cargo at the right place, or to deliver the covering documents at the right place. The Montreal Convention of 1999 Article 19 provides that "The carrier is liable for damage occasioned by delay in the carriage by air of cargo. Nevertheless, the carrier shall not be liable for damage occasioned by delay if it proves that it and its servants and agents took all measures that could reasonably be required to avoid the damage or that it was impossible for it or them to take such measures." The Montreal Convention Article 22 provides liability limits of the carrier in case of delay for cargo. In the carriage of cargo, the liability of the carrier is limited to 17 SDR per kilogram unless a special declaration as to the value of the cargo has been made. The Montreal Convention Article 19 has shortcomings: it is silent on the duration of the liability for carriage. It does not give any indication concerning the circumstances to be taken into account in cases of delay, and about the length of delay. In conclusion, it is desirable to define the period of carriage with accuracy, and to insert the word 'unreasonable' in Article 19.

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국제해상보안규정(ISPS Code)의 시행이 해상법에 미칠 영향 (Legal Implications of the ISPS Code on Contract of Carriage by Sea)

  • 양정호;명창식
    • 무역상무연구
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    • 제37권
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    • pp.217-250
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    • 2008
  • The International Ship and Port Facility Security (ISPS) Code which was developed as the main response of the shipping sector to the miserable event of 11 September 2001 came into effect on 1 July 2004. The ISPS Code designed to detect and eliminate security threats affecting ships and port facilities used in international trade will significantly impact not only on the management and operation of the shipping industry but also on maritime law despite the fact that it is the regulatory framework of public law. It is expected that implementing the ISPS Code will contribute to reinforcement of maritime security on the one hand. However, on the other hand, more intensified security inspection and control measures of port states will also cause delay and additional costs which cause uncertainty in allocating security risk and cost between the contracting parties. Therefore, it is desire to insert new security clause dealing with main security issues or adapt existing clauses to new shipping environments to minimize disputes.

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항공화물운송상(航空貨物運送狀)의 성질(性質)과 유통성(流通性) (The Character and Negotiability of Air Waybill)

  • 이강빈
    • 항공우주정책ㆍ법학회지
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    • 제4권
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    • pp.65-85
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    • 1992
  • The air waybill is supposed to be made out by the consignor. If the carrier makes it out, he is deemed, subject to proof to the contrary, to have done so on behalf of the consignor. The air waybill shall be made out in three original parts. The first part shall be marked "for the carrier", and shall be signed by the consignor. The second part shall be marked "for the consignee", it shall be signed by the consignor and by the carrier and shall accompany the goods. The third part shall be signed by the carrier and handed by him to the consignor, after the goods have been accepted. According to the original Warsow Convention article 8, the air waybill must contain 17 particulars or items. However, the Hague Protocol reduced to three the number of particulars required to appear on the air waybill. Only one item is obligatory, namely, the notice that the carriage is subject to the rules of the Warsaw Convention. The absence of the air waybill entails unlimited liability of the carrier because it deprives him of the right to avail himself of the provisions of the Warsaw Convention which exclude or limit his liability. The consignor shall be liable for all damages suffered by the carrier or any other person by reason of the irregularity, incorrectness or incompleteness of the particulars and statements in the air waybill. Although the contract of the carriage of goods by air is not a formal contract, the document of carriage is issued. The issue of air wayhill is not essential for the existence or validity of the contract, but serves merely as a means of proof. The Hague Protocol has lessened the consequences of the carrier's neglect to faithfully accomplish the required formalities. Henceforth, these formalities no longer constitute legal obligations. The air waybill is the consignment note used for the carriage of goods by air. It is often called an air consignment note and is not a document of title or transferable/negotiable instrument. It is basically a receipt for the goods for despatch and is prima facie evidence of the conditions of carriage. Each of the original parts of the air waybill has evidential value and possession of his part is a condition for the exercise by the consignor or cosignee of his rights under the contract of carriage. Oveall, it is an usage that under a documentary letter of credit, the consignee on the air waybill is the opening bank of the letter of credit, and the notify party is the importer who applied for the letter of credit. In Korea there is an usage as to process of cargo delivery in air transportation as follows: The carrier carries the cargo into the bonded area of the airport and gives both the notice of arrival of the cargo and the consignee's air waybill to the notify party who is the importer. Then the notify party obtains the Letter of Guarantee from the opening bank in exchange for reimbursing the amount of the letter of credit or tendering the security therefor to the opening bank. The notify party then presents this document to the customs authorities for the process of customs clearance. The opening bank becomes a consignee only to ensure repayment of the funds it has expended, and the only interest of the opening bank as consignee is the reimbursement of the money paid to the exporter under the documentary letter of credit. Just as the bill of lading in maritime law, the air waybill has always been considered negotiable although the Warsaw Convention does not emphasize this aspect of negotiability. However, the Hague Protocol article 4 corrected the situation by stating that "nothing in this Convention prevents the issue of a negotiable air waybill." This provision officially recognizes that the air waybill must meet the needs of the present day business circles by being a negotiable instrument. Meanwhile, Montreal Additional Protocol no. 4 has brought important changes. Registration by computer is acceptable and the parties to the contract of carriage are allowed to replace the air waybill with a receipt for the goods. In conclusion, as the Warsaw Convention has not details of provisions relating to the issuing of the negotiable air waybill, it is hoped that there should be supplement to the Warsaw Convention and establishment of international commercial usage with regard to the negotiable air waybill.

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항공권의 초과예약(Overbooking)에 관한 항공사의 민사책임 (Air Carrier's Civil Liability for Overbooking)

  • 권창영
    • 항공우주정책ㆍ법학회지
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    • 제31권1호
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    • pp.99-144
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    • 2016
  • 대상사안에서 한국인은 유럽항공사(에어프랑스)의 초과예약으로 인하여 파리에서 서울행 항공기의 탑승이 거절되었다. 대상사안에서는 국제사법 시행 이후 국제항공운송계약의 준거법, 항공권의 초과예약으로 인한 탑승거절에 대하여 항공사가 부담하는 민사책임 등이 문제되었다. 운송계약이나 소비자의 상거소지 외에서 용역이 제공되는 계약이라고 하더라도 소비자계약에 해당하는 경우에는 소비자의 상대방이 계약체결에 앞서 그 국가에서 광고에 의한 거래의 권유 등 직업 또는 영업활동을 행하거나 그 국가외의 지역에서 그 국가로 광고에 의한 거래의 권유 등 직업 또는 영업활동을 행하고, 소비자가 그 국가에서 계약체결에 필요한 행위를 한 경우나, 소비자의 상대방이 그 국가에서 소비자의 주문을 받은 경우 등에는, 당사자가 준거법을 선택하지 아니하였더라도 국제사법 제27조 제2항이 적용되어 소비자의 상거소지법이 준거법이 된다(대법원 2014. 8. 28. 선고 2013다8410 판결). 이에 따르면, 대상사안에서 문제가 된 국제항공여객운송계약도 소비자계약에 해당하므로, 준거법은 국제사법 제27조 제2항에 의하여 상거소지법인 대한민국 법이 된다. 이는 로마협약(80/934/EEC) 제5조 제4항에서 운송계약이나 소비자에 대한 용역이 소비자가 상거소를 가지는 국가 이외의 장소에서 배타적으로 제공되어야 하는 용역의 제공에 관한 계약에 대하여는 소비자의 상거소지법의 적용을 배제하는 것과 반대견해로, 외국항공사를 이용하여 국제여행을 다녀오는 내국인이 점차 증가하고 있는 상황에서 내국인 보호에 커다란 이정표가 될 수 있다. 다음으로 초과예약의 관행을 긍정한다 하더라도, 항공사는 초과예약으로 인하여 탑승이 거절된 승객에게 적절한 대체항공편을 제공하여야 하고, 만약 그러한 의무를 이행하지 아니한 경우에는 민법상 채무불이행 책임을 부담한다고 판시하여, 항공사의 민사책임을 명확히 하였다는 점에서 의의가 있다.

국제물품매매협약상 매도인의 물품인도의무 (The Seller's Obligation to Deliver Goods under CISG)

  • 허해관
    • 무역상무연구
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    • 제77권
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    • pp.1-22
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    • 2018
  • Under CISG the places of delivery by the seller of the goods are: If the seller is not bound to deliver the goods at any other particular place and the contract of sale involves carriage of the goods, the seller has to hand the goods over to the first carrier for transmission to the buyer. However, if the contract does not involve carriage of the goods, he has to place them at the buyer's disposal at the place where, at the time of the conclusion of the contract, both the seller and the buyer knew that the goods were at, or were to be manufactured or produced. This rule applies when the contract relates to specific goods, or unidentified goods to be drawn from a specific stock or to be manufactured or produced. Finally, in ant other cases the seller has to place the goods at the buyer's disposal at the place where the seller had his place of business at the time of the conclusion of the contract. As to time of delivery, if a date is fixed by or determinable from the contract, the seller has to deliver the goods on that date. If a period for delivery is fixed by or determinable from the contract, he has to deliver the goods on any date within that period. In this way the seller chooses the specific date of delivery within that period, while circumstances indicate otherwise that the choice is to be made by the buyer. There no such date or period, the seller has to deliver the goods within a reasonable time after the conclusion of the contract. If the seller delivers the goods before such the date or period, the buyer is entitled to take delivery or refuse to take delivery. Under these backgrounds of provisions of CISG, this study first suggests the concepts of the handing over of the goods by the seller to the carrier and the placing them at the buyer's disposal. Then it goes further to looks into exactly where and when the delivery has to occur. In these context, this study more examines what happens if there is a breach of contract by the seller in connection with the delivery. That is, if the seller delivers non-conforming goods or at wrong place; what if there is a partial delivery or a premature delivery.

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국제복합운송계약에서 로테르담 규칙의 적용상 문제점에 관한 연구 (A Study on Problems Arising from Application of the Retterdam Rules under International Multimodal Transport Contracts)

  • 양정호
    • 무역상무연구
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    • 제46권
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    • pp.181-210
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    • 2010
  • The continuing advance of multimodal transport with the importance for efficient and effective logistics management emphasizes the need for uniform legal approach to international multimodal transport. However, the current fragmented instrument regulating such transport is being an obstacle to development of multimodal transport as it aggravates confusion and uncertainty. The Rotterdam rules, which was adopted in December 2008 by UNCITRAL, expands its scope of application to door-to-door transport. However, the new rules has some problems in its application to multimodal transport operation as it has been conceived not to regulate general multimodal carriage but to regulate contract of carriage by sea that extends its services to the transport by other modes. This article examines conflict of conventions in the Rotterdam Rules. The applicability of the Rotterdam Rules in international multimodal transport contract and possibility of potential conflict with other transport conventions are analyzed with some hypothetical cases. Furthermore, problems arising from application of the Rotterdam Rules under international multimodal transport Contracts are indicated in the chapter IV.

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몬트리올 협약상 국제항공화물운송에 관한 연구 - 항공화물운송장과 항공운송인의 책임을 중심으로 - (A Study on the International Carriage of Cargo by Air under the Montreal Convention-With respect to the Air Waybill and the Liability of Air Carrier)

  • 이강빈
    • 무역상무연구
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    • 제49권
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    • pp.283-324
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    • 2011
  • The purpose of this paper is to research the air waybill and the carrier's liability in respect of the carriage of cargo by air under the Montreal Convention of 1999. The Warsaw Convention for the unification of certain rules for international carriage by air was adopted in 1929 and modified successively in 1955, 1961, 1971, 1975 and 1999. The Montreal Convention of 1999 modernized and consolidated the Warsaw Convention and related instruments. Under the Montreal Convention, in respect of the carriage of cargo, the air waybill shall be made out by the consignor. If, at the request of the consignor, the carrier makes it out, the carrier shall be deemed to have done so on behalf of the consignor. The air waybill shall be made out in three orignal parts. Under the Montreal Convention, the consignor shall indemnify the carrier against all damages suffered by the carrier or any other person to whom the carrier is liable, by reason of the irregularity, incorrectness or incompleteness of the particulars and statement furnished by the consignor or on its behalf. The air waybill is not a document of title or negotiable instrument. Under the Montreal Convention, the air waybill is prima facie evidence of the conclusion of the contract, of the acceptance of the cargo and of the conditions of carriage. If the carrier carries out the instructions of the consignor for the disposition of the cargo without requiring the production of the part of the air waybill, the carrier will be liable, for any damage which may be accused thereby to any person who is lawfully in possession of the part of the air waybill. Under the Montreal Convention, the carrier is liable by application of principle of strict liability for the damage sustained during the carriage of cargo by air. The carrier is liable for the destruction or loss of, or damage to cargo and delay during the carriage by air. The period of the carriage by air does not extend to any carriage by land, by sea or by inland waterway performed outside an airport. Under the Montreal Convention, the carrier's liability is limited to a sum of 17 Special Drawing Rights per kilogramme. Any provision tending to relieve the carrier of liability or to fix a lower limit than that which is laid down in this Convention shall be and void. Under the Montreal Convention, if the carrier proves that the damage was caused by the negligence or other wrongful act or omission of the person claiming compensation, or the person from whom he derives his rights, the carrier shall be wholly or partly exonerated from ist liability to the claimant to the extent that such negligence or wrongful act or omission caused the damage. Under the Montreal Convention, any action for damages, however founded, whether under this Convention or in contract or in tort or otherwise, can only be brought subject to the conditions and such limits of liability as are set out in this Convention. Under the Montreal Convention, in the case of damage the person entitled to delivery must complain to the carrier forthwith after the discovery of the damage, and at the latest, within fourteen days from the date of receipt of cargo. In the case of delay, the complaint must be made at the latest within twenty-one days from the date on which the cargo has been placed at his disposal. if no complaint is made within the times aforesaid, no action shall lie against the carrier, save in the case of fraud on its part. Under the Montreal Convention, the right to damage shall be extinguished if an action is not brought within a period of two years, reckoned from the date of arrival at the destination, or from the date on which the aircraft ought to have arrived, or from the date on which the carriage stopped. In conclusion, the Montreal Convention has main outstanding issues with respect to the carrier's liability in respect of the carriage of cargo by air as follows : The amounts of limits of the carrier's liability, the duration of the carrier's liability, and the aviation liability insurance. Therefore, the conditions and limits of the carrier's liability under the Montreal Convention should be readjusted and regulated in detail.

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