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The Legal Study on The Bare Boat Charter of Hire Purchase Option Vessel
By Jin, Ho-Hyun
Major in Maritime Law
Department of Maritime Law and Policy The Graduate School of Korea Maritime University
Busan, Korea
Abstract
According to the Shipping Yearbook for 2010 published by the Korea Shipowners’ Association, there are a total of 333 vessels under bareboat charters vessel for hire-purchase with the option of Korean registration(here in after; 'BBCHPOK' vessel), and their total tonnage is approximately 16.9 million tons, comprising 60.7% of the total tonnage operated by Korean entrepreneurs.
This study was initiated to address the perceived problem regarding the issue of Korean legal jurisdiction over these foreign vessels classified as 'BBCHPOK' vessel.
The objective of this study is to understand the legal concepts governing these 'BBCHPOK' vessel and to review their legal status under Korean law.
Furthermore, this study seeks to identify solutions to the legal problems posed by the system of 'BBCHPOK' vessel, a problem that have continued to be a subject of debate since 1960s to 1970s, and aims to thereby contribute to the growth of Korea’s maritime and shipping industry.
The definition of 'BBCHPOK' vessel has been stated in various laws. Based on a comprehensive review synthesizing these definitions, 'BBCHPOK' vessel can be defined as “bareboat charters are foreign vessels chartered by Korean citizens or corporations, under the condition that the charterers shall simultaneously acquire owner ship and nationality of the vessel at the end of the charter period.”
The history of the system for the 'BBCHPOK' is as follows.
From the late 1960s to the early 1970s, Korea underwent rapid industrialization which resulted in expanding the scale of its shipping market, and the availability of many skilled crewmen at low labor costs created favorable conditions for conducting shipping business in Korea.
However, Korea’s shipping entrepreneurs lacked the ability to mobilize sufficient capital for purchasing vessels.
For this reason, Korean businesses sought methods to utilize foreign capital, but it was difficult to obtain loans of foreign capital since Korea still lacked credibility in the international business community at the time.
Therefore, Korean businesses used the Bare Boat Charter of Hire Purchase system(here in after; 'BBCHP' system) to secure vessels, relying on the method of mortgaging vessels to utilize foreign capital. At the time, the 'BBCHP' system was widely used internationally.
However, even in cases where a vessel was purchased through this method, the provisions of Korean law during this period imposed various regulations on foreign vessels, such as restrictions on crew manning, strict control over exchange of foreign currency and the waiver system.
The severity of this problem was urgently discussed with government representatives at the time, and as a result, the relevant regulations were eased with the rationale that the use of foreign vessels facilitated the development of Korea’s shipping industry, the relevant regulations were eased.
However, such deregulation was conditioned on the requirement that such vessels must be registered for Korean nationality at the time of acquiring
ownership. This was the origin of the system for 'BBHCPOK', and this system continues to be implemented today.
The consequences of the 'BBCHPOK' differ according to how the legal characteristics of this system is defined. There are divergent views in the debate over the legal characteristics of such contracts, including the view that the charter constitutes a sale on a deferred payment basis, the view that it constitutes a lease agreement, the view that it constitutes a lease agreement with the option of ownership acquisition, etc. This paper analyzes these aspects in detail.
In addition, in order to understand vessels under 'BBCHPOK', it is first necessary to establish an understanding of the legal characteristics of the ships. This study therefore examines the concept of a ship’s nationality, the legal effects of the nationality of ships and the definition of the nationality of a ship under international law.
As a result, this study establishes that the flag state of the ship has
“exclusive jurisdiction” on the high seas over ships under bareboat charters for hire-purchase with the option of Korean registration.
Therefore, since the bareboat charters vessel for hire-purchase with the option of Korean registration cannot be classified as Korean ships in accordance with Article 2 of the Republic of Korea’s Ships Act, it must be concluded that the Republic of Korea can not exercise“exclusive jurisdiction” on the high seas over such vessels.
Therefore, since there is no existing foundational law that offers provisions regarding the issue of a ship’s nationality in the case of bareboat charters vessel for hire-purchase with the option of Korean registration, attempts to exercise jurisdiction over such bareboat charters vessel for hire-purchase with the option of Korean registration under Korea law, despite the fact that such foreign vessels lack relevance to the related laws, naturally emerged as a problematic issue.
As a solution, the author proposes a legal model in which Korea would maintain its conventional method of ship registration under the existing ship
laws while adopting the International Ship Registration Act and implementing the system of designating ‘Jeju’ as a Special Zone for Ship Registration and simultaneously introducing a new registration system for bareboat charters. It is believed that this proposed legislation will be able to resolve the legal conflicts under Korea law that has been described above.
