Following the advent of container revolution in 1960s, modern transport business has expanded with a rapid growth of the multimodal transport, the merging of different modes of transport into a whole. Today, significant amount of cargo is carried under the multimodal bills of lading issued by ocean ...
Following the advent of container revolution in 1960s, modern transport business has expanded with a rapid growth of the multimodal transport, the merging of different modes of transport into a whole. Today, significant amount of cargo is carried under the multimodal bills of lading issued by ocean carriers and freight forwarders, providing the shippers an efficient method of moving goods from “door to door.” However, a single provision governing the multimodal transport in the Korea's Commercial Code proves to be insufficient to cope with the increasing number of claims regarding the carrier's liability. Moreover, the traditional liability regimes of unimodal transport cause statutory conflicts and legal confusion. The parties participating in the multimodal transport have been subject to a vast array of diverse legal regimes applied to sea, rail, road and air, leading to substantial uncertainty and higher litigation costs. In order to settle the strenuous disputes regarding the carrier's liability, the multimodal transport operator (MTO) must take a single liability for the entire transport under uniform regulations. Neverthelss, several attempts to establish a uniform legal scheme to coordinate diverse legal structures of carrier's liability have been extremely ineffective, due to the discordance of regulation and policy embedded in each separate legal system of unimodal transport. This study intends to examine the multimodal problem and suggest practical legal scheme governing MTO's liability under the network liability system with reference to the Korea's 2010 Commercial Code Revising Draft. Chapter 1 consists of the objective of the study, the scope of research and the outline of the contents. Chapter 2 begins with a definition of the multimodal transport and a brief introduction of various international efforts to resolve international conventions. Reflecting the legal framework of such, the need for legislating MTO's liability regime in Korea's Commercial Code is discussed. Chapter 3 introduces fundamental legal principles of governing the multimodal transport, the network and uniform liability system. It provides general overview of the international conventions adopting each system, and legal issues concerning the current provision of the Korea's Commercial Code are debated. After that significant improvements of regulating MTO's liability proposed by the Korea's 2010 Commercial Code Revising Draft are discussed. Chapter 4 comprises analysis of each proposed provision regarding MTO's liability in the Korea's 2010 Commercial Code Revising Draft. Each subject is discussed with the comparison to the carrier's liability provisions of unimodal transport laws and international conventions. First, the limitation of MTO's liability is analyzed in detail with emphasis on the acceptable amount of limitation and the loss of the right to limit liability. Second, the legal effects of lacking the notice of loss or damage is explained. Third, time-bar is discussed in relation to the recent prominent decision of the Supreme Court of Korea. Fourth, MTO's non-contractual liability and Himalaya Clause are mentioned briefly. Chapter 5 concludes the study with the summary and general comments on the Korea's 2010 Commercial Code Revising Draft.
Following the advent of container revolution in 1960s, modern transport business has expanded with a rapid growth of the multimodal transport, the merging of different modes of transport into a whole. Today, significant amount of cargo is carried under the multimodal bills of lading issued by ocean carriers and freight forwarders, providing the shippers an efficient method of moving goods from “door to door.” However, a single provision governing the multimodal transport in the Korea's Commercial Code proves to be insufficient to cope with the increasing number of claims regarding the carrier's liability. Moreover, the traditional liability regimes of unimodal transport cause statutory conflicts and legal confusion. The parties participating in the multimodal transport have been subject to a vast array of diverse legal regimes applied to sea, rail, road and air, leading to substantial uncertainty and higher litigation costs. In order to settle the strenuous disputes regarding the carrier's liability, the multimodal transport operator (MTO) must take a single liability for the entire transport under uniform regulations. Neverthelss, several attempts to establish a uniform legal scheme to coordinate diverse legal structures of carrier's liability have been extremely ineffective, due to the discordance of regulation and policy embedded in each separate legal system of unimodal transport. This study intends to examine the multimodal problem and suggest practical legal scheme governing MTO's liability under the network liability system with reference to the Korea's 2010 Commercial Code Revising Draft. Chapter 1 consists of the objective of the study, the scope of research and the outline of the contents. Chapter 2 begins with a definition of the multimodal transport and a brief introduction of various international efforts to resolve international conventions. Reflecting the legal framework of such, the need for legislating MTO's liability regime in Korea's Commercial Code is discussed. Chapter 3 introduces fundamental legal principles of governing the multimodal transport, the network and uniform liability system. It provides general overview of the international conventions adopting each system, and legal issues concerning the current provision of the Korea's Commercial Code are debated. After that significant improvements of regulating MTO's liability proposed by the Korea's 2010 Commercial Code Revising Draft are discussed. Chapter 4 comprises analysis of each proposed provision regarding MTO's liability in the Korea's 2010 Commercial Code Revising Draft. Each subject is discussed with the comparison to the carrier's liability provisions of unimodal transport laws and international conventions. First, the limitation of MTO's liability is analyzed in detail with emphasis on the acceptable amount of limitation and the loss of the right to limit liability. Second, the legal effects of lacking the notice of loss or damage is explained. Third, time-bar is discussed in relation to the recent prominent decision of the Supreme Court of Korea. Fourth, MTO's non-contractual liability and Himalaya Clause are mentioned briefly. Chapter 5 concludes the study with the summary and general comments on the Korea's 2010 Commercial Code Revising Draft.
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