A recent Supreme Court decision dated June 13 2000 (case 98Da35389) confirmed that the contributory negligence set-off stated in the Civil Code is permitted in determining the scope of liability for damage resulting from a breach of a carriage contract.
The court held that a contributory negligence set-off should be permitted even in cases of simple carelessness by a claimant if such carelessness contributed to or aggravated the damage. In deciding the scope of liability for damage, the questions of whether such contributory negligence exists and if so, the ratio thereof, should be determined by considering (i) the overall circumstances of execution and performance of the contract in question, and (ii) the fault of each party.
The court further held that the finding of facts in relation to the contributory negligence and judgment thereof are matters for the first and second instance courts, unless their findings are manifestly unreasonable.
A point raised on appeal related to a warranty of the insurance policy. The court held that the warranty relating to the expected sailing date was not breached when the vessel departed from the port nine days late, on the grounds that the expected sailing date was qualified by the words "sailing on or about".
A further issue on appeal was the validity of the extension of the time-bar period. The court held that an extension of the time-bar period was properly granted, by the following wording:
"In relation to the subject claim for damage arising out of the subject carriage, each party waives the benefit of prescription with respect to the period elapsed from the time of delivery of the subject cargo to the date of this agreement, and hereby agrees that an additional prescription period of six months shall commence from December 7 1993 up to June 7 1994."
The above agreement was held to be valid both as a waiver on expiration of the prescription period and as extension of the time-bar period.
For further information on this topic please contact Young Seok Lee or Hee-Joo Lee of Jin & Lee by telephone (+82 2 538 0180) or by fax (+82 2 538 0244) or by email ([email protected] or [email protected]).
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