Hague-Visby 규칙상 숨은 결함조항의 문제점에 관한 고찰

A Study on Problems of Latent Defects Clause under the Hague-Visby Rules

Latent defect was an exception to the general obligation of seaworthiness which the vessel owner owed to charterers, passengers, seamen and owners of cargo under bills of lading. Latent defect was also an exception to the warranty under marine insurance contracts and other contracts. Clear and unambiguous terms, however, had to be employed in order to convince the courts that the parties intended to contract out of the general maritime obligation of seaworthiness. Latent defect is one of the least understood of the exculpatory exceptions available to the carrier under the Hague Rules. It applies only to a defect in the ship, and not in the cargo, which latter is customarily characterized as a hidden defect or an inherent vice. A latent defect is usually a basic fault in the construction of the ship and is rarely a matter of wear and tear. Art. 4(2)(p) of the Hague and Hague-Visby Rules provided that a carrier shall not be responsible for loss arising from latent defects not discoverable by due diligence. The purpose of this paper aims to analyse the problems of latent defects under the Hague-Visby Rules.