Maritime law

Maritime law, or admiralty law, (해사법/海事法) is a distinct body of law which governs maritime questions and offenses. It consists of both domestic law governing maritime activities, and private international law governing the relationships between private entities which operate vessels on the oceans.

It deals with matters including marine commerce, marine navigation, marine salvaging, shipping, sailors, and the transportation of passengers and goods by sea. Admiralty law also covers many commercial activities, although land based or occurring wholly on land, that are maritime in character.

Origin and nature
Law related to the transportation by sea has typically evolved from lex mercatoria, or the merchant law, and the customs and practices in the trade were traditionally important in forming the substance of the law in this field.

The law of each nation state and the merchant law of various areas or various groups exchanged mutual influences and co-evolved. The maritime law therefore inherently has an international trait and it is no wonder that there have been many efforts to unify or harmonize various laws of nation states into a more consistent and reasonable international legal system. We see many such results and still on-going efforts.

Global trend
Many countries have established and maintain separate maritime courts. In modern world, there is no way to prohibit parties to select a forum of their choice, by way of agreement above all. In a sense the court of each nation is competing in the open market for forum.

At the moment the English court is most popular as a forum especially for maritime cases. This is not because a party to the transaction was an English firm with more bargaining power over the jurisdiction battle. Actually there are may cases where English court is chosen by the parties even when both parties are not English. Many standardized contracts have pre-printed clauses to select English law as the governing law and English court as the venue, or to have an arbitration in London.

There could be many explanation to this phenomenon but one of the most important reason would be that English court has been successful in proving its usefulness and reliability by continuously making stable and predictable decisions through fair and efficient procedures.

Maritime court
It is said that an ideal court should satisfy four standards, that is, the conclusion should be right and correct, the procedure should be fair, the decision should be rendered in time, and the proceedings should not be overly expensive. The most important foundation to reach a correct conclusion would be correct fact-finding. Judge's good understanding of maritime industry and its specific legal system would facilitate the fact finding process and also give the parties some additional mental assurance that their cases are properly heard.

Korean court system
Korean court system is composed of national courts and all the judges are well qualified. But the judges are basically shuffled quite frequently to maintain the national homogeneity and this policy has its own pros and cons. One major problem though is that a judge hearing a maritime case may not necessarily have prior understanding of the maritime industry. This could hamper the capability of the judges and also lessen the confidences of the parties in the court's understanding of the factual background of the case.

At the moment Korean court cope with this problem by adopting specialty panels and non-judge deliberation experts. For example, maritime cases are heard by a specialty panel of international transaction related cases and Seoul District Court has two such specialty panels while several other district courts including Incheon and Busan have one each. Seoul High Court, which is an appellate court, has one specialty panel hearing international transaction related cases. This high court panel decides about 150 international transaction related cases per a year and 40 to 50 among them are maritime cases. In fact there are still many maritime cases in court panels other than the proper specialty panel due to various reasons.

Non-judge deliberation experts are mostly well renowned authorities in the field and they help and supplement the expertise of the court. These experts could in some extent participate in the examination and hearing of the cases together with the judges and therefore get more actively involved in the review of the case compared to amicus curiae. In addition expert witnesses are also very frequently used whenever necessary.

Predictability
Continuously providing correct and persuasive decisions is directly related to the predictability of the court. For this purpose, it is important to have well qualified judges who are persuasive enough to have insights and expertise as to the industry. It is also important to have a good system of laws regulating the issues concerned, together with well organized precedents and case laws that can allow the judges to supplement the black letter law or the codified laws in a way reasonably predictable to the parties. This is especially true with the maritime law area.

Fairness of procedure
Then comes the fairness of the procedure. The judiciary should be independent from any improper influences, from inside or outside, including influences from judge's own personal bias. Only the law open to the public should rule throughout the whole procedure in reaching the decision. Foreign parties used to be more sensitive whether their cases would be addressed with the same degree of fairness as the domestic parties. This concern is still out there when parties try to agree with a certain jurisdiction as the forum for their cases. It is very clear however that if a court of a nation failed to show its fairness by rendering a decision favoring its citizen party, the court is harming more important national interest in exchange for the private interest of the specific individual.

Timeliness and economy
Next come the timeliness and economy of the procedure. Justice delayed is justice denied. We can also say that justice too expensive is justice denied. In fact courts of most nations which have developed economy and stable democracy rarely fail to keep its predictability and fairness. However the courts of different nations show huge variety in terms of time and cost to be spent.

In this connection, it's meaningful to cite the report of a global bank which is doing an in-depth research every year as to the efficiency of the judicial systems of the world. According to the recent report, Korean judicial system ranked number two among 185 countries researched. It was number one if countries with small population were excluded. Korean court is currently trying to implement overall electronic litigation system taking advantage of the nation's superb IT infra-structure, and the efficiency of the judiciary is expected to improve.

International jurisdiction
The Korean court employs the substantial connection standard to determine the international jurisdiction. It is not too aggressive nor too passive in deciding the existence of the substantial connection. Also the parties agreement as to the jurisdiction and the governing law is well respected. In sum Korean court is ready to serve as a forum for international maritime cases.

It is a pity that many non-English parties agree to the English jurisdiction as the venue and the English law as the governing law. This is more true considering that the English court is generally more time consuming and expensive for the Asian parties who have to face the geographical distances and language barriers.

But it should be noted that there are still some improvements to be made if the Korean court wants to be a forum preferred internationally.

First, it would be highly recommendable to establish a separate maritime court. Under the current judiciary system the judges hearing maritime cases have insufficient time to build up the necessary expertise in the subject. In addition, they have very meager chances to make them known as reliable judges in the maritime society of the world. Korea has a separate patent court, family courts and an administrative court. All of these used to be part of a high court or district courts. We can start with one maritime court in Seoul and one in Busan, for example. Many maritime cases, especially maritime insurance cases, are at the moment allocated to non-specialty panels of the courts.

There are some additional issues to study such as treatment of lis pendens (pending lawsuit), introduction of foreign ideas to supplement the current procedures like discovery, affidavit, contempt of court, etc. The current service system of writs and briefs should also be improved.

Convenient access to Korean law
One important prerequisite to be mentioned is that we need to make Korean laws and cases known to the world. Publishing them in other languages and actively participating the international efforts to form unified norms at various levels are encouraged.

It is fortunate that Korea is showing progress in these areas. For example, Korea Legislation Research Institute is updating most of the current Korean laws in English. The Supreme Court is also periodically publishing cases and law articles in English. Recently the Supreme Court started to publish cases in Chinese too. The CLOUT data base of the UNCITRAL is also updating Korean case laws in relation to its various conventions and model laws.

It is worthwhile to mention the Maritime Law Research Center of the Korea University, where professor captain In-Hyeon Kim is actively publishing Korean maritime law cases in English. There are also Asian Legal Information Institute and Korean Legal Information Institute where you can find some English materials.

In addition, important standard terms and conditions in the maritime law field that are prepared in English should be translated into Korean with some authority and reliability. It was frustrating when the parties agreed the Korean law to govern but the actual contract was drafted in English using all the English legal terms, while the Korean translation prepared by the parties did not coincide with the corresponding English part.

Conclusion
Finally, even though there are much to be done for the unification of the maritime laws in the global level, we may dream to have more unified and harmonized law at least in the East Asian area. Issues that instantly occur to me would be the laws concerning shipowner's liability and the laws and practices relating to the bill of lading.