• 한국중재학회지:중재연구
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• 제13권2호
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• pp.291-319
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• 2004

The seller may take a warranty with respect to the goods. If they are not as warranted, they may be held liable for the breach of warranty. Even when they has not made a warranty, the law will in some instances hold them responsible as though they had made a warranty. An express warranty is a part the basis for the sale. That is, the buyer has purchased the goods on the reasonable assumption that they were as stated by the seller. When the buyer intends to use the goods for a particular or usual purpose, as contrasted with the ordinary use for which they are customarily sold, the seller makes an implied warranty that the goods will be fit for the purpose when the buyer relies on the seller's skill or judgment to select or furnish suitable goods, and when the seller at the time of contracting knows or has reason to know the buyer's particular purpose and his reliance on the seller's judgment. A merchant seller who makes a sale of goods in which he customarily deals makes an implied warranty of merchantability. The Uniform Commercial Code expressly abolishes the requirement a privies to a limited extent by permitting a suit for breach of warranty to be brought against the seller by members of the buyer's family, his household, and his guests, with respect to personal injury sustained by them. Apart from the express provision made by the Code, there is a conflict of authority as to whether privies of contract is required in other cases, with the trend being toward the abolition of that requirement. At common law the rule was that only the parties to a transaction had my rights relating to it. Accordingly, the buyer could sue his immediate seller for breach of warranties. The rule was stated in the terms that there could be no suit for breach of warranty unless there was a privies of contract. The code expressly abolishes the requirement of privies to a limited extent by permitting a suit for breach of warranty to be bought against the seller by members of the buyer. Apart from the express provision made by the Code, there is a conflict of authority as to whether privies of contract is required in other cases, with the trend being toward the abolition of that requirement.

• 정보학연구
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• 제8권2호
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• pp.27-42
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• 2005

The S.G. Policy form contains the words "the good ship or vessel called the.....". The words "good ship" mean that the ship is deemed to be seaworthy at the commencement of the voyage and this was very necessary in the day when a separate policy was issued for each voyage. In fact the warranty do seaworthiness still applies to all voyage policies. Nevertheless, the law does not apply an absolute warranty of seaworthiness to a time policy, so a ship is not required to be seaworthy at the time the hull policy is effected. The implied warranty of seaworthiness does not extend to good, for the underwriter is not responsible for their condition, apart fro the action of the perils insured against. The implied warranty of seaworthiness is limited to the vessel herself, and does not extend to a lighter or other craft used to convey the goods to the ship. The underwriters waive any breach of the implied warranties of the seaworthiness of the ship and fitness of the ship to carry the subject-matter insured to destination, unless the assured or their servants are privy to such unseaworthiness of unfitness.

• 한국통신학회논문지
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• 제36권5B호
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• pp.484-489
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• 2011

우리나라 IT중소기업은 대부분 핵심적인 기술을 가진 기업에게 부품을 수급받고, 이를 조립하여 대기업에 납품하는 기업이 많다. IT 중소기업의 현실적인 지적재산관련 문제는 직접적인 소송 혹은 클레임의 문제가 아니라 계약상의 제 3자 지적재산 침해문제 혹은 계약이 없을 경우에는 각 준거법상의 묵시적 손해배상 책임의 문제이나, IT중소기업의 협상력이 크지 않기 때문에 계약상에 명시적인 보증조항을 삽입할 수 없고, 각 준거법상으로도 소송의 경제성이 없는 경우가 많아서 실효성이 없기 때문에 이에 대해서 정부기관 및 산하 연구기관에서 연구을 하여 개선안을 도출해야한다고 생각된다.

• 대한안전경영과학회지
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• 제16권3호
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• pp.307-316
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• 2014

In view of the increased threat arising terrorism, the International Maritime Organization(IMO) adopted the International Ship and Port Facility Security Code (ISPS Code) which attached to the SOLAS Convention. The ISPS Code requires a comprehensive set of measures to enhance the security of ships and port facilities. For example, a shipowner must obtain the International Ship Security Certificate(ISSC). If the carrying vessel has not ISSC, the ship may be detained by the contracting governments. The Joint Cargo Committee(JCC) in London adopted the Cargo ISPS Endorsement, in which the assured who knowingly ships the cargoes on a non-ISPS Code compliant vessel will have no cover. However, where there is no the Cargo ISPS Endorsement in a Marine Cargo Insurance Policy and the cargo is carried by a non-ISPS Code certified vessel, the legal problem is whether or not it would constitute a breach of an implied warranty of seaworthiness and/or an implied warranty of legality. The purpose of this article is to analyze the potential legal issue on the relations between non-ISPS Code compliant vessel and two implied warranties under Marine Insurance Act(1906) in U.K.

• 수산해양교육연구
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• 제6권1호
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• pp.45-57
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• 1994

One of the fundamental duty of the assured in a marine insurance contract is maintaining seaworthiness of the ship insured. Since duty of the seaworthiness of ship is a shipowners implied warranty in the marine insurance, the breach of the duty of seaworthiness by assured is recognized as immunity for the underwriter. This is a measure to protect the underwriter through prevention of unexpected casualties which may be occurred from the unseaworthiness. In the Korean Marine Insurance Act the legal character of the assured's duty of seaworthiness is not clear whether it is a legal duty or contracted one. Accordingly, in this paper the author pointed out that the duty of seaworthiness of the ship should be interpreted according to the English Law. As a conclusion, the hull insurance does not require even implied warranty concerning seaworthiness, since it is recognized as one of implied fundamental warranty of the English Marine Insurance Act. Especially, this issue pointed out is very meaningful and advisable under the consideration of the existing conditions of the marine insurance regime for the distant-water fishing vessels and the catch carriers in Korea.

• 무역상무연구
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• 제58권
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• pp.35-58
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• 2013

In Mash & Murrell, Diplock J said that "there is an implied warranty not merely that they shall be merchantable at the time they are put on the vessel, but that they shall be in such a state that they can endure the normal journey and be in a merchantable condition upon arrival." But in The Mercini Lady, Field J said that "the goods would be of satisfactory quality not only when the goods were delivered on to the vessel but also for a reasonable time thereafter." and "The proposed conditions were not excluded by clause 18. ${\cdots}$ clause 18 was not to be construed as extending to conditions ${\cdots}$". In relation to the problems on validity of the goods conformity clauses in FOB contracts, when considering Lord Wright's comments ("${\cdots}$ hence apt and precise words must be used to exclude it: the words guarantee or warranty are not sufficiently clear.") in Cammell Laird & Co Ltd v Manganese Bronze and Brass, FOB contracts are fundamentally one that seller's duty to deliver the goods is completing at the port of shipment and "principle of party autonomy" in Contract Law, I do not think that the terms implied by section 14 of the SGA and Common Law cannot absolutely excluded by the goods conformity clauses in sale contracts. Therefore, in order to exclude the implied terms, the parties must very clearly spell out this in the relevant clauses.

• 무역상무연구
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• 제62권
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• pp.33-53
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• 2014

This study examines the seller's liability for defects in title of goods under SGA. If the contracting parties choose SGA as a governing law, they should pay attention to whether a contractual stipulation for defects in title of goods is a condition or a warranty. It is because SGA divides contractual terms into a condition and a warranty. And its effects regarding a breach of a condition or a warranty are different. Under SGA s 12(1) as a condition, in a contract of sale, the seller has a right to sell the goods at the time of contract, and in the case of an agreement to sell, he will have such a right at the time when the property is to pass. Under SGA s 12(2) as a warranty, there is an implied warranty that (a) the goods are free, and will remain free until the time when the property is to pass, from any charge or encumbrance and (b) the buyer will enjoy quiet possession of the goods as long as the buyer retains an interest in the goods. But the seller will not be liable if the third party unlawfully interferes with the buyer's possession.

• Asia Marketing Journal
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• 제11권1호
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• pp.93-112
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• 2009

본 연구는 제품보증의 유형인 명시적 보증과 묵시적 보증이 소비자의 제품에 대한 태도에 미치는 영향을 제품보증과 관련된 선행연구들을 탐색하여 살펴보았다. 이에 따른 주시험 효과가 제품유형(탐색재 vs 경험재) 및 제조업체의 기업윤리 수준(고윤리 vs 저윤리)에 의해 조절되는지를 상호작용 효과의 차원에서 고찰하였다. 실증분석 결과에 의하면 소비자의 제품에 대한 태도는 제품보증이 명시적일 때가 묵시적일 때보다 높게 나타났다. 그리고 제품보증의 유형에 따른 주시험 효과는 해당 제품이 탐색재일 때보다 경험재일 때가 더 크게 나타났으며, 제조업체의 기업윤리 수준이 높을 때보다 낮게 인식할 때가 더 크게 나타났다. 다만, 이러한 조절효과는 두 가지 종속변수 중 제품태도는 통계적으로 유의한 결과를 보이지 않았고 구매의도에서만 유의한 결과가 나타났다.

• 무역상무연구
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• 제44권
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• pp.111-180
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• 2009

According to English law, in a voyage policy there is an implied warranty that at the commencement of the voyage the ship shall be seaworthy for the purpose of the particular adventure to be insured. However, Unites States law affords the implied warranty of seaworthiness a great deal of latitude. In the case of voyage policies, it has been traditionally held that the assured is bound not only to have his vessel seaworthy at the commencement of the voyage but also to keep her so, insofar as this can be achieved by himself and his agents, throughout the voyage. Additionally, a defect in seaworthiness, arising after the commencement of the risk, and permitted to continue from bad faith or want of ordinary prudence or diligence on the part of the insured or his agents, discharges the insurer from liability for any loss consequent to such bad faith, or want of prudence or diligence; but does not affect the insurance contract in reference to any other risk or loss covered by the policy, and which is not caused or exacerbated by the aforementioned defect. One of the most important areas of difference in the marine insurance contract between the U.K. and U.S. is the breach of warranty. Prior to the Wilburn Boat case, the MIA was thought to hold that the effect of a breach of warranty was similar under American law -in that under the general maritime law literal compliance with all promissory warranties is required. In this case, the Court concluded that state law should apply to a marine insurance policy, and found that there was no federal rule addressing the consequences of a breach of warranty in marine polices. However, it is of the utmost importance that this case brought to a close the imperative concordance between English and American law. Meanwhile, in relation to marine insurance contracts in Korea, this insurance is subject to English law and practice;, additionally, the international trade volume between Korea and the United States has assumed a vast scale. Therefore, we believe it is important to understand the differences in marine insurance law between the two countries in terms of marine insurance contracts, and most specifically warranties.

• Journal of Korea Trade
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• 제25권2호
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• pp.152-177
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• 2021

Purpose - This study analyses the excepted requirement and burden of proof of the carrier due to unseaworthiness through comparison between the marine transport contract and marine insurance contract. Design/methodology - This study uses the legal analytical normative approach. The juridical approach involves reviewing and examining theories, concepts, legal doctrines and legislation that are related to the problems. In this study a literature analysis using academic literature and internet data is conducted. Findings - The burden of proof in case of seaworthiness should be based on presumed fault, not proved fault. The burden of proving unseaworthiness/seaworthiness should shift to the carrier, and should be exercised before seeking the protections of the law or carriage contract. In other words, the insurer cannot escape coverage for unfitness of a vessel which arises while the vessel is at sea, which the assured could not have prevented in the exercise of due diligence. The insurer bears the burden of proving unseaworthiness. The warranty of seaworthiness is implied in hull, but not protection and indemnity policies. The 2015 Act repeals ss. 33(3) and 34 of MIA 1906. Otherwise the provisions of the MIA 1906 remain in force, including the definition of a promissory warranty and the recognition of implied warranties. There is less clarity about the position when the source of the loss occurs before the breach of warranty but the actual loss is suffered after the breach. Nonetheless, by s.10(2) of the 2015 Act the insurer appears not to be liable for any loss occurring after the breach of warranty and before there has been a remedy. Originality/value - When unseaworthiness is identified after the sailing of the vessel, mere acceptance of the ship does not mean the party waives any claims for damages or the right to terminate the contract, provided that failure to comply with the contractual obligations is of critical importance. The burden of proof with regards to loss of damage to a cargo caused by unseaworthiness is regulated by the applicable law. For instance, under the common law, if the cargo claimant alleges that the loss or damage has been caused by unseaworthiness, then he has the burden of proof to establish the followings: (i) that the vessel was unseaworthy at the beginning of the voyage; and that, (ii) that the loss or damage has been caused by such unseaworthiness. In other words, if the warranty of seaworthiness at the inception of the voyage is breached, the breach voids the policy if the ship owner had prior knowledge of the unseaworthy condition. By contrast, knowingly permitting the vessel to break ground in an unseaworthy condition denies liability only for loss or damage proximately caused by the unseaworthiness. Such a breach does not, therefore, void the entire policy, but only serves to exonerate the insurer for loss or damage proximately caused by the unseaworthy condition.