해상운송에 있어서 독립적 계약자의 지위

Abstract

Clause 2 of Article 798 of the Commercial Law provides that if an action for loss or damage to the goods is brought against a servant, agent or independent contractor, the servant or the agent shall be entitled to avail himself of the defenses and limits of liability which the carrier is entitled to invoke. In general, the law draws a line between “servant or agent” and “independent contractor” and exclude “independent contractor” from the scope of those who are entitled to avail himself from the defenses and limits of liability which the carrier is entitled to invoke. Meanwhile, a transit clause on a bill of lading generally provides that an independent contractor is also entitled to avail himself of limits of liability which the carrier is entitled to. Therefore, it is necessary to decide on the definition of “independent contractor” among assistants to the carrier and review whether the transit clause that entitles independent contractors to avail themselves of the same limits of liability is valid. In conclusion, Clause 2 of Article 798 of the Commercial Law does not apply to independent contractors other than actual carriers. In other words, when an independent contractor is liable for the loss or damage to the goods by illegal acts, he cannot avail himself of the same defenses and limits of liability which the carrier is entitled to invoke. However, the clauses that are actually traded in reality provide that independent contractors may also use the same defenses and limits of liability which the carrier is entitled to invoke. Since the clause in the Commercial Law has become nominal due to special contracts, it is necessary to introduce protection measures for consignees.

Moreover, although the carrier can claim limits of liability when the cause of unseaworthiness of ship is attributable to a negligent servant, an independent contractor must fully pay for damage when unseaworthiness of ship was caused by the negligence of the independent contractor himself. The complicated liability issue which treats different assistants differently for the same loss must be clarified in the legal theory. If the carrier has commissioned an acknowledged ship repairman for repair and inspection and supervised the process within the possible scope, the carrier must not be held responsible for unseaworthiness of the ship even though it was cause by the negligence of the repairman. Therefore, a new legislation seems to be the most desirable way to resolve the issue of interpretation on the matter of independent contractors.