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hit : 803 date : 2008-09-01 09:52:55   
name :   심상도
subject :   [답변]EOSP에서 NOR TENDER(TANKER CP)
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1. 질의 내용

ㅇ 인접한 Anchorage는 1.15.(?)가 소요되는 지점인 EOSP에서 NOR 통보.
ㅇ 계약 내용 : NOR은 Customary Anchorage에 본선이 도착하여 통지(제6조)
ㅇ 용선자 주장 : The Johanna Oldendorff 판례의 의하여 선주측 별도 입증없는 한, LMLN 16/05에 의거, EOSP에서의 NOR 통지는 적법하지 않음.


2. 검토 의견(선주측 대응방안)

가. EOSP와 Anchorage 구분

계약상 명시적으로 NOR은 Customary Anchorage에서 통보하게 되어 있으므로, EOSP에서의 통보는 용선자의 주장대로 적법하지 않은 것으로 추정됨. 다만, EOSP와 Anchorage가 매우 근접한 것으로 감안한다며, EOSP가 이미 Anchorage의 한 부분임을 입증하여, 본선의 NOR장소는 Anchorage라고 주장 필요함(가능시).
* EOSP는 NOR 등과 관련 의미 없는 장소이므로, 이에 대한 언급 불필요.

나. Johanna Oldendorff 판례 관련

기본적으로 용선자 주장대로, 대기선박들이 있는 지역외 장소에서 선석대기시 이에 대하여 선주는 선박의 준비완료 입증책임이 있는 것은 사실이나, 본건에서 선주 주장은 별도의 장소에서의 준비완료를 주장하는 것이 아니라, 선박들이 대기하는 장소(where waiting ships lie)에서 본선이 NOR 통지 하였음을 주장할 필요 있음. 따라서, 본선 NOR 당시 근방에서 선박들이 대기하고 있음을 보여주면 선주측 주장에 많은 도움이 될 것임.
* Johanna Oldendorff 판례에 따라 선주가 본선이 준비완료를 하였다는 별도 입증을 할 수도 있겠으나, 이 점은 입증방법이 사실상 모호하고, 상기 선주 주장과 논리적으로 일관되지 않으므로, 상기 주장이 실패할 경우 고려해 볼 수 있는 사항임.

다. LMLN 16/05 판례 관련

기본적으로 중재판정은 법원판례와 달리, 사후 구속력이 없고(no binding authority) 또 중재 사건에 대한 전체적인 사실관계를 확인할 수 없으므로 중재내용을 본건에 적용할 수 없음을 적시할 필요가 있으며, 설사 본 중재판례가 본건과 비슷하다 하더라도, 관련 중재판례는 EOSP가 항계의 시작점(just entering port area)이며, EOSP에서 Anchorage 까지 1시간 소요된 점을 보면, EOSP와 Anchorage가 상당한 거리가 있음을 추정할 수 있음. 따라서, 본 선적항에서의 사정이 판례와 다르다는 점을 주장(즉, EOSP와 Anchorge가 일정부분 겹친다는 점 등, 가능시)하면, LMLN 16/05의 내용이 본건에 참고조차 할 수 없다고 주장할 수 있음.


3. 결 론

분쟁의 시초는 EOSP와 NOR을 연결시킨 점에 있는 것으로 보이므로, 선주측은 EOSP가 Anchorage와 겹쳐있다는 전제하에 EOSP 도착으로 Anchorage 도착이 되었으며, 이에 따라 계약서상 정당히 NOR을 통지하였음을 주장할 필요 있음. 끝.
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