SOUTH KOREA Law and Practice Contributed by: Choon Won Lee and Dahee Kim, Jipyong LLC
3. Cargo Claims 3.1 Bills of Lading
Liability exemptions are available under Korean law, including fire and navigation/ship manage - ment error exemption, similar to those provided under Article IV Rules 2(a) and (b) of the Hague– Visby Rules. Package/weight limitations are also available, similar to those provided under Article IV Rule 5(a) of the Hague–Visby Rules. The provisions on the carrier’s liability apply to both contract and tort. Therefore, there would not be any significant difference whether the ship-owner is the actual carrier or the contrac - tual carrier. 3.4 Misdeclaration of Cargo There is as yet no clear jurisprudence on mis - declaration of cargo in South Korean law or judgments. That said, the prevailing view is that the issues regarding misdeclaration of cargo would be dealt with in accordance with general principles. Under the Commercial Act of Korea, it is deemed that the shipper has guaranteed the accuracy of the cargo details (type, quantity, etc) that it has provided to the carrier (Article 853 (3)). Then, if the shipper has misdeclared the cargo details to the carrier, it would constitute a breach of the shipper’s obligation under the contract of car - riage, and the shipper would be liable to com - pensate any damage sustained to the carrier arising from that breach. 3.5 Time Bar for Filing Claims for Damaged or Lost Cargo Under the Commercial Act of Korea, the time bar, for both the carrier’s liability and its claim against the cargo interests, which encompasses the cargo interests’ claim for damaged or lost cargo against the carrier, is one year from the date when the cargo was delivered or would have been delivered to the consignee, either for
South Korea is not a member state of the inter - national conventions concerning bills of lading, such as the Hague–Visby Rules and the Rot - terdam Rules. Instead, the Commercial Act of Korea stipulates provisions on carriage by sea and bills of lading, which are generally under - stood to reflect the contents of the Hague–Visby Rules. 3.2 Title to Sue on a Bill of Lading Under the Commercial Act of Korea, where a bill of lading-holder has acquired the bill of lading in good faith (meaning without knowing of any inaccuracy between the contents of the bill of lading and the actual circumstances regarding the cargo, eg, type, quantity, number of pack - ages/units, quality, etc), the carrier (meaning the issuer of the bill of lading or the party who is stated as carrier in the bill of lading) shall bear liabilities in accordance with the contents of the bill of lading. Thus, any such lawful bill of lading- holder shall have the title to sue on the bill of lading. An assignment of title to sue, separate from the claim itself, is not allowed under South Korean law. 3.3 Ship-Owners’ Liability and Limitation of Liability for Cargo Damages As discussed in 3.1 Bills of Lading , the Com- mercial Act of Korea has provisions reflecting the Hague–Visby Rules. Accordingly, under South Korean law, the carrier shall be liable for loss or damage to the cargo, and/or delay in carriage of the cargo, unless the carrier can prove that it has not breached its duty of seaworthiness and due care for carriage of the cargo.
505 CHAMBERS.COM
Powered by FlippingBook