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(영문) 서울서부지법 2007. 12. 21. 선고 2006가합8979 판결

[손해배상(기)] 항소[각공2008상,335]

Main Issues

[1] The case holding that the forwarding agent and the carrier are liable for damages against the client in a case where a part of the cargo was transported at will without any separate deck transport agreement and caused damage to the cargo

[2] Where a time charterer bears the carrier's liability under a bill of lading

[3] The case holding that the limitation of liability is not allowed for a carrier to arbitrarily transport part of the cargo without a separate deck transport agreement as it constitutes an act of influence under the proviso of Article 789-2 (1) of the Commercial Act

Summary of Judgment

[1] The case holding that the forwarding agent and the carrier are liable for damages against the client in a case where a part of the cargo was transported at will without any separate deck transport agreement and caused damage to the cargo.

[2] In light of the contents of time charters concluded between the parties, if a charterer does not transfer to a charterer the right to use a ship, but if the charterer acquires the right to use the ship freely and the elements of a contract to supply the labor of the crew are accompanied thereby, it is a special contractual relationship formed customarily in the maritime business activity and the time charterer is liable for the same as the shipowner by analogy of Article 766 of the Commercial Act concerning the ship lessee in the external responsible relationship. Thus, a time charterer bears the responsibility as a carrier on the bill of lading issued by the captain.

[3] The case holding that the limitation of liability is not allowed for a carrier to arbitrarily transport part of the cargo without a separate deck transport agreement in light of the fact that the Commercial Act excludes the mandatory provisions of the Commercial Act concerning the carrier's duty or the reduction or exemption of liability, and that the value of the cargo loaded on deck should not be included in the amount of general average in the case of loss of the cargo loaded on deck

[Reference Provisions]

[1] Articles 115 and 788 of the Commercial Act / [2] Articles 766 and 788 of the Commercial Act / [3] Articles 789-2(1), 790(1) and (2), and 839(1) and (2) of the Commercial Act

Reference Cases

[2] Supreme Court Decision 91Da14215 delivered on February 25, 1992 (Gong1992, 1120)

Plaintiff

delel Tech Co., Ltd. (Attorney Cho In-bok, Counsel for the defendant-appellant)

Defendant

[Defendant-Appellant-Appellee] 1 others (Attorneys Kim Sung-won et al., Counsel for defendant-appellant-appellee)

Conclusion of Pleadings

November 16, 2007

Text

1. The Defendants are obligated to pay to the Plaintiff 371,628,394 won with 5% interest per annum from November 24, 2006 to December 21, 2007, and 20% interest per annum from the next day to the day of full payment.

2. The plaintiff's remaining claims are dismissed.

3. The costs of lawsuit shall be borne by the Defendants.

4. Paragraph 1 can be provisionally executed.

Purport of claim

The Defendants shall pay to the Plaintiff 423,173,087 won per annum with 20% interest per annum from the delivery date of a copy of the instant complaint to the day of complete payment.

Reasons

1. Basic facts

The following facts are not disputed between the parties, or may be acknowledged pursuant to the purport of Gap evidence 1 through 6, Gap evidence 11, 29, 37, 38, 39, and the whole pleadings:

(a) Status of a party;

The Plaintiff is a corporation engaged in the manufacture of industrial robots, the comprehensive trade, etc., and the Defendant Kamand Co., Ltd. (hereinafter “Defendant Kamand Co., Ltd.”) are corporations engaged in combined freight forwarding business, marine transportation brokerage business, etc., and Defendant Dojin Shipping Co., Ltd. (hereinafter “Defendant Dokjin Shipping”) are corporations engaged in ocean-going transportation business, etc.

B. Conclusion of a transport contract between the plaintiff and the defendant

원고는 2005. 4. 1. 일본 엔슈 리미티드(이하 ‘엔슈사’라 한다)에 실린더 헤드 라인 갠트리 로더(이하 ‘이 사건 화물’이라 한다)를 일본화 449,000,000엔에 수출하기로 하고, 피고 카고라운드에 이 사건 화물의 운송을 의뢰하고 운임으로 17,651,118원을 지급하였다. 피고 카고라운드는 피고 동진상선 사이에 이 사건 화물을 부산에서 일본 나고야까지 운송하기로 하는 해상 운송 계약을 체결하였다.

C. Damage to the Cargo of this case

(1) On April 1, 2005, the instant cargo was loaded into 7 flat-Rk Conck tack fluor, and was loaded at the port of Busan on April 1, 2005 at the port of Busan (hereinafter “instant vessel”). On April 6, 2005, the instant cargo arrived at the port of port of port of port of port of port of port of 2005, and was delivered to Schlage on April 14, 2005.

(2) 2005. 4. 14.부터 같은 달 18.까지 이 사건 화물에 대한 포장 해체 작업 도중 플랫 랙 컨테이너 4대에 적입되었던 화물 중 상당량에 녹손 및 부식손이 발견되었다. 이에 엔슈사 창고에서 2005. 4. 22. 검정인 일본 검정회사 NKKK(Nippon Kaiji Kentai Kyokai)의 다케오 미나미가 검정을 실시한 결과, 컨테이너 4대에 적입되었던 헤드 라인 갠트리 로더의 조립부속품 일부(34개 포장 단위 중 13개 포장 단위)에서 심한 침수손, 녹손, 부식손이 발견되었고, 이는 컨테이너 4대 갑판적 운송 중 해수 노출로 발생한 것으로 밝혀졌다(당시 피고 카고라운드의 일본 에이전트 Nopal International Co. Ltd.는 참여하지 아니함). 그 후 NKKK 사는 운송인 측에 이러한 상황을 판단해 볼 것을 권유하여 2005. 4. 28. MSC Co. Ltd.의 엠 코구레가 운송인 측 검정인으로 지정되어 엔슈사 공장에 가서 조사를 하였다.

(3) On the other hand, around June 7, 2005, at the request of the Eastyang Fire and Marine Insurance, the inspector belonging to the Hanri Damage Evaluation performed the verification, and it was found that the part of the cargo of this case was damaged due to the contact with the sea water during the marine transportation.

2. The parties' assertion;

A. Summary of the plaintiff's assertion

The Plaintiff: (a) entrusted the instant cargo transport intermediation to Defendant Kaman; and (b) Defendant Kaman entrusted Defendant Kaman with the instant cargo transport to Defendant Kaman Shipping; and (c) damaged the instant cargo by arbitrarily transporting part of the instant cargo on deck and exposing it to sea water; and (d) the Defendants are obliged to compensate for damages incurred to repair and replace the damaged cargo and delay damages.

B. Summary of the defendants' assertion

(1) Damage to the instant cargo was caused by the Plaintiff’s error in packing.

(2) Defendant East-in Ship is merely the time charterer of the instant vessel, and is not in the position to direct and supervise the master or crew with respect to the shipment of the instant cargo. In addition, Defendant East-in Ship is stated in the terms and conditions of the bill of lading issued by Defendant East-in Ship to allow on-board transport of the instant cargo. As such, Defendant East-in Ship’s transport of part of the instant cargo cannot be deemed as the intentional or reckless act of Defendant East-in Ship, and thus, the amount of compensation is limited to 500 SDR per package.

3. Facts of recognition.

The following facts are not disputed between the parties, or may be acknowledged in accordance with the purport of Gap evidence 3, 4, 8, 12 through 30 (including each number), Eul evidence 1, Eul 1 and 2, and the whole purport of arguments:

A. On June 14, 2004, Defendant Eastjin entered into a time charter (hereinafter “instant time charter”) with respect to the instant vessel between Tianjin Mtd (Tian Mtd.) and the owner of the instant vessel, and its main contents are as follows.

(1) The master shall make a prompt navigation to the maximum extent possible. The master shall follow the direction of the charterer with respect to charter and agency services of the ship even if employed by the shipowner. The charterer shall, at his own expense, conduct the removal of the cargo, container, loading, legality, tampling, tampling and unloading, unloading and tallying under the supervision of the master (Article VIII).

(2) If there are reasonable grounds for the time charterer to have an objection to the actions of the master, mate, or engineer, the shipowner must investigate the contents of the objection immediately after receiving the written reason from the time charterer, and if necessary, replace it (Article 9).

B. Defendant Jinjin, while loading the instant cargo to the instant vessel, issued a master B/L (Cleanter B/L, No.: DJSCBNGTOS13515) on behalf of the Plaintiff, and Defendant Chin issued a master B/L (Clean Housous B/L, No.: CRDNCNG05021) on the ground that Defendant CND did not appear to the Plaintiff.

C. On the surface of each of the above bills of lading does not contain an indication of reservation to the effect that the freight of this case is transported on deck. However, in the case of the bill of lading issued by the defendant dong-type, the terms and conditions stipulate that "in the case of the bill of lading issued by the defendant dong-type, the carrier has the right to load the container on deck in addition to the hold of the ship. (2) When the cargo is loaded and transported on deck, the carrier need not record, indicate, or seal it on the surface of the bill of lading, and if the bill of lading is issued by the defendant Kaman-type, there is no provision relating to deck in the terms and conditions.

(d) the cargo loaded into the three container container loaded on board the hold was not subject to particular damage.

E. The Plaintiff spent the following expenses to repair and replace part of the instant cargo due to damage.

[1 0. 0. 0 0. 0 0. 1 0. 1 0. 1 0. 1 0. 1 0. 5 0. 1 0. 1 0.1 0.060 0.08,0025 0298. 067.17. 067. 4 0. 0. 123,000 0.1 0. 0.1 0.1 0. 1 0.1 0.1 0.1 0.1 0.1 0.1 0.3 0. 5.1 0.1 0.1 0.3 0.1 0.1 0.3 0. 10.206 . 4. 3 0.205 .25. 3 0.4 .1

F. On July 2005, Schlage transferred the damage claim against the Defendants to the Plaintiff. On the 29th of the same month, Schlage notified the Defendants of the assignment of the claim.

G. On March 24, 2006, Defendant Kaman consented to the request for extension of the plaintiff's filing period by July 6, 2006. On June 29 of the same year, Defendant Kaman consented to the extension of the plaintiff's additional request by October 6, 2006.

4. Determination

A. Determination on the cause of the claim

According to the above facts, although the defendants are obligated to safely transport the cargo of this case on decks in violation of the duty to safely transport the cargo of this case, and thus, barring any special circumstance, the defendant Round is a forwarding agent, and the defendant Dog-jin is liable to compensate the plaintiff as a carrier for all damages incurred thereby (Article 115, Article 788 of the Commercial Act), and the amount is KRW 371,628,394 of the Commercial Act (the plaintiff sought payment of KRW 51,54,693 of his employee's withdrawal equipment from Japan), and the plaintiff's employee's Japanese business trip was for the repair of the cargo of this case. However, although it is insufficient to recognize the repair of the cargo of this case by only the statement of No. 31, the statement of No. 14 through No. 26, and No. 28, the plaintiff's claim for this part is not accepted).

Defendant East-jin Shipbuilding asserted that the time charterer of the instant vessel is the time charterer of the instant vessel, and the third party does not bear the liability for damages against the Plaintiff. On the other hand, if the time charter between the parties does not transfer to the charterer the right to use the vessel in light of the terms of the said contract, but if the charterer acquires the right to use the vessel, and thereby entails the elements of the labor supply contract for seafarers, it is a special contractual relationship formed customarily in the course of maritime business activities. In this case, the time charterer takes the same responsibility as the shipowner by applying Article 766 of the Commercial Act to the external liability relationship, and thus the time charterer takes the responsibility as a carrier on the bill of lading issued by the captain (see Supreme Court Decision 91Da14215, Feb. 25, 1992, etc.).

According to the above facts, it is reasonable to view that Defendant East-jin Ship is the time charterer of the instant ship, and that Defendant East-jin Ship is also liable for damages to the Plaintiff, because it is recognized that Defendant East-jin Ship, the time charterer, is entitled to freely use the ship and includes elements of labor supply contract for seafarers, such as guaranteeing the right to command the captain, the right to load cargo, container, etc., and the right to request replacement of the captain, etc. in the instant time charter. Therefore, this part of the argument by Defendant East-jin Ship is without merit.

B. Determination as to the failure of packing

Examining whether the damage to the cargo of this case was caused by the Plaintiff’s packing failure, it is insufficient to recognize it only with the evidence No. 6, and there is no other evidence to acknowledge it (in light of the fact that no damage is found with respect to the cargo loaded in the three container container loaded inside the ship, it appears that the damage to the part of the cargo of this case is due to deck transport rather than packing failure).

C. Determination on limitation of liability

The liability for damages caused by a maritime carrier’s breach of the duty of care as to the cargo may be limited to 500 SDR per package unit (the main text of Article 789-2(1) of the Commercial Act). The fact that the cargo of this case was loaded on 34 package units and damaged the 21 package unit among them is recognized as above.

However, under the proviso of the same paragraph, limitation of liability is not allowed if the damage to the cargo was caused by the carrier's willful misconduct or other reckless act or omission while recognizing the concern that the damage was caused by the carrier's willful misconduct or the damage. The cargo of this case is a straight and towing robot, and the cargo of this case was transported at sea for four days from the port of Busan to the port of port. The deck is highly likely to be damaged due to strong wind, wind, sea water, wind, straight, straight, solar power, heavy temperature change, etc. compared to the loading on deck, and our commercial law also excludes the mandatory provisions of the Commercial Act concerning the reduction or exemption of the carrier's obligation or liability (Article 790 (1) and (2) of the Commercial Act), and the cargo of this case is not to include the value of the cargo of this case in the amount of general average if the cargo loaded on deck is lost (Article 839 (1) and (2) of the Commercial Act).

On the other hand, in light of the following circumstances acknowledged in the above-mentioned facts, i.e., Defendant Dongjin-ray did not explain to the Plaintiff on deck free terms and conditions, ii) there is no provision on deck on the surface of the bill of lading issued to Defendant Dongjin-ray, and iii) there is no provision on deck in the bill of lading issued to Defendant Kaman-Tech as well as in the bill of lading issued to the Plaintiff, it is reasonable to view that Defendant Dongjin-ray cannot invoke the limitation of liability on the ground of the back bill of lading terms and conditions with respect to the Plaintiff.

In addition, even if there was an intentional or reckless act on the part of the master, crew, etc. of the carrier with respect to damage to the cargo, unless such intentional or reckless act was committed on the part of the carrier, the defendant dong-ray, a carrier, defense that the defendant dong-ray, could invoke the limitation on liability. Thus, in the time charter of this case, the charterer decided to perform the work of removing, unloading, cleaning, unloading, and tallying the cargo, and there is no other evidence to support that the captain or crew of the ship of this case had independently transported part of the cargo of this case against the order of the defendant dong-ray, the time charterer, the time charterer, and there is no reason to support this part of the defendant dong-ray's defense.

5. Conclusion

Therefore, the defendants are obligated to pay to the plaintiff 371,628,394 won as well as damages for delay at the rate of 5% per annum as stipulated in the Civil Act from November 24, 2006, which is the date of delivery of a copy of the complaint of this case to the plaintiff, until December 21, 2007, and 20% per annum as stipulated in the Act on Special Cases concerning Expedition, etc. of Legal Proceedings from the next day to the date of full payment. Thus, the plaintiff's claim of this case of this case is justified within the scope of the above recognition, and the remaining claims are dismissed as it is without merit. It is so decided as per Disposition.

Judges Kim Jae-in (Presiding Judge)