해상운송에 있어서 화재에 대한 책임

Abstract

When fire exception is taken in a broad sense, the protection for the parties concerned of the cargo is significantly damaged. The view that not only the fire on the boarding the ship but also the fire outside the ship should be the cause for exemption is unilaterally advantageous to the carrier, therefore unfair. Thus, "fire" in Article 795 Clause 2 of the Commercial Law should be interpreted as "fire on the boarding the ship", though the interpretation does not reflect the intention of the Commercial Law revision.

In fact, it is difficult to assume the fire caused by carrier's intention or negligence, except for the fire caused by carrier's unseaworthiness. Giving an immunity to fire caused by the negligence of the crew, for instance, is against the principle of equity. Therefore, it is desirable to "carrier" in Article 795 Clause 2 Sentence 2 of the Commercial Law includes "employees including the crew."

For the following reasons, the carrier must prove all the facts regarding the fire. ① Giving an immunity for the damage caused by the fire is an exception in itself, and the burden of proof lies in the person who profits from the exceptional clause. ②It is practically impossible for the party concerned to prove the intention or negligence of the carrier. Therefore, the carrier cannot claim immunity unless he/she proves that the fire is not caused by one's intention or negligence.

There was a heated debate over the exemption for fire at the Working Group III of the United Nations Commission on International Trade Law, which was held to establish a new Convention on the Carriage of Goods by Sea. As a result, not only the fire caused by the carrier but also the fire cause by employees' intention or negligence was exempted from immunity and the proposal that gives an immunity only to the fire on the boarding the ship was adopted. Such proposal is highly desirable.