SOUTH KOREA Law and Practice Contributed by: Woorin Sung and Hee Kyung Jeong, D&A LLC
6. Passenger Claims 6.1 Laws and Conventions Applicable to the Resolution of Passenger Claims South Korea is not a party to the Athens Conven - tion relating to the Carriage of Passengers and their Luggage by Sea, and maritime passenger claims are governed by the domestic legal framework, primarily the Commercial Act of South Korea, rather than by international conventions. While the Commercial Act regulates liability for passenger carriage by sea and the carrier’s duty of safety, it does not prescribe a separate limitation period for claims arising from the death or personal injury of passengers. Accordingly, the limitation period for such passenger claims is determined in accordance with the general principles of the Civil Act of South Korea, under which a three- year extinctive prescription applies where liability is established as a tort. The Commercial Act of South Korea limits the car - rier’s aggregate liability to an amount calculated by multiplying a fixed unit amount by the number of pas - sengers that the vessel is authorised to carry under its vessel certificate. In addition, claims for damages suffered by passen - gers arising from a vessel’s collision or other naviga - tional accidents are secured by maritime liens under the Act. 7. Enforcement of Law and Jurisdiction and Arbitration Clauses 7.1 Enforcement of Law and Jurisdiction Clauses Stated in Bills of Lading South Korean courts, in principle, recognise and enforce governing law and jurisdiction clauses stated in bills of lading. In addition, where a bill of lading con - tains a governing law and jurisdiction clause, and the holder acquires the bill without raising any objection, the prevailing view is that an agreement on the gov - erning law is deemed to have been formed between the parties.
7.2 Enforcement of Law and Arbitration Clauses Incorporated Into a Bill of Lading South Korean courts do not automatically regard a law and jurisdiction clause in a charter party as being incorporated into a related bill of lading. Rather, such incorporation is recognised only where certain require - ments are satisfied, including: • whether the holder of the bill of lading could rea - sonably have been aware of the contents of the charterparty; and • whether the incorporation wording clearly indicates that the arbitration clause is incorporated. In practice, there is a case in which the court has denied the incorporation of a governing law and arbi - tration clause into a bill of lading, even though the charterparty itself was governed by English law, on the grounds that the bill of lading contained no provision stating that the arbitration clause was incorporated into the bill of lading or that the general terms of the charterparty were incorporated therein. 7.3 New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards South Korea is a party to the United Nations Conven - tion on the Recognition and Enforcement of Foreign Arbitral Awards (the New York Convention, 1958), and its provisions apply directly in South Korea. The rec - ognition and enforcement of foreign arbitral awards are carried out in accordance with the Arbitration Act of South Korea. However, recognition or enforcement may be refused on an exceptional basis only where one of the limited grounds for refusal set out in the Convention is established. In practice, South Korean courts have maintained an arbitration-friendly approach and tend to interpret the grounds for refusing the recognition and enforcement of foreign arbitral awards strictly and narrowly. 7.4 Arrest of Vessels Subject to Foreign Arbitration or Jurisdiction South Korean courts may order the provisional attach - ment (arrest) of a vessel even where a claim is subject to the jurisdiction of foreign arbitration pursuant to a law and jurisdiction clause. In South Korea, the issue of jurisdiction over the merits of a dispute is distinct
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