선박운항과 관련된 담보제도 및 개선에 대한 연구

Abstract

Shipowner possesses several vessels. The value of the vessel is very high. The shipowner tries to borrow money by putting the vessel as a security for the payment of debt from the bank. The most widely engaged security in shipping business is the mortgage. The shipowner puts the vessel as a collateral for the payment of debt which it owes to the bank. The KCC allows the shipowner of the vessel to put the vessel as the collateral for the mortgage. The vessel over 20 tons is not allowed to be the collateral for the pledge. The maritime lien is a very special security for the counter party of the shipowner. Even though it is not required to be registered in the registration book, the maritime lien holder always prevails over the mortgagee, as a result which affects the right of the mortgagee such as the bank negatively. In the meantime, the shipowner enters into the COA with volume cargo owner for the long term basis. The total freight amount is enormous in the long term COA. Under the Korean law, the shipowner puts its right to collect future freight from the cargo owner as a collateral for the payment of debt it owes to the bank as the lender. In addition, the liner shipping company owns container boxes. The company wanted to borrow money from bank by putting the containers boxes as security. However, the mortgage was not allowed for the container boxes. New Act of Security for Movable came into effect as of June 2012 and the shipowner is allowed to put its movable such as the container boxes to the banker while it still maintains the possession of the movable and thus it can make use of the movable in its business. Under the Act, the shipowner as the creditor for the future freight against the charterer (cargo owner) is also put its right for the future freight as a security when it tries to borrow money from the bank. Small vessel under 20 tons is subject to the pledge. However, under the Korean law the owner of the movable should hand over the possession of the movable to the pledgee, which resulted in the detrimental effect to the owner because it can no longer make use of the vessel for its business. This difficulty was solved when the Korean government passed the Mortgage Act for small vessel in 2007. However, the motor yacht is still not the subject to the mortgage. The authors suggest that a new kind of insurance may help the shipowner to solve the issue of low appraisal of the value of the vessel from the bank as the lender, due to the existence of the maritime lien under the Korean law. In this insurance, the shipowner enters into the insurance with the insurer for the benefit of the third party bank as the lender. When a vessel is subject to the maritime lien and thus the bank could not satisfy the debts which the owner owes to it fully from the auction amount of the vessel, the insurer will indemnify the loss to the bank as the third party beneficiary.