[2] Whether Article 44 subparagraph 5 of the Conflict of Laws applies to the claim for damages caused by a tort (negative)

[3] Whether the carrier's limitation of liability is possible for damages incurred due to an intentional or reckless act committed by an employee of the carrier (affirmative)

[2] Article 44 subparagraph 5 of the Conflict of Laws provides that "the scope of a shipowner's liability for an act of a shipmaster and a seaman shall be governed by the law of the country of registry." However, even in the case of a claim for damages caused by a tort under the Civil Act, it shall not be deemed that the provision purports to exclude the application of Article 13 of the Conflict of Laws and the law of the country of registry from the application of the

[3] For the exclusion of the carrier’s liability limitation under the proviso of Article 789-2(1) of the Commercial Act, a carrier’s act or omission must be made with the knowledge of the concern about the carrier’s intent or the occurrence of damages, and even if there was an intentional or reckless act on the part of the crew and other employees of the carrier, the carrier may limit the carrier’s liability under the main sentence of Article 789-2(1) of the Commercial Act unless there was an intentional or reckless act on the part of the carrier himself.

1. On the first ground for appeal

The argument in the grounds of appeal is that the court below did not confirm whether the tort of this case was committed and the plaintiff's territorial law was the law of the Republic of Korea, so the law of this case is judged as the law of the Republic of Korea, thereby having committed an error of law.

Article 13 of the Conflict of Laws provides that "the establishment and effect of a claim arising from a tort shall be governed by the law of the place where the cause of the claim occurred," and Paragraph (2) provides that "the provisions of the preceding paragraph shall not apply where the facts arising from a foreign country have not been caused by a tort under the law of the Republic of Korea," and Paragraph (3) of the same Article provides that "If the facts arising from a foreign country constitute a tort under the laws of the Republic of Korea, even if the facts arising from a foreign country constitute a tort under the laws of the Republic of Korea, the injured party shall not claim it in addition to compensation and other disposition recognized by the laws of the Republic of Korea," while recognizing the application of the law of the Republic of Korea as a matter of principle in regard to the determination of the governing law of a tort, the so-called principle of the law of the place of the tort and the law of the suspension of the law that recognize the application of the laws of the Republic of Korea to the extent that

Therefore, as long as the suspension of law is the Republic of Korea, the plaintiff cannot receive relief beyond the scope of compensation for damages recognized by the law of the Republic of Korea. Thus, even if the court below erred by applying the law of the Republic of Korea in the measure recognizing the scope of compensation for damages of this case, it cannot be deemed that the court below affected the conclusion of the judgment in this case where only the plaintiff is dissatisfied with the scope of

In addition, Article 44 subparagraph 5 of the Conflict of Laws provides that "the scope of a shipowner's liability for an act of a shipmaster and a seaman shall be governed by the law of the country of registry." However, even in the case of a claim for damages caused by a tort under the Civil Act, it cannot be viewed that the above provision does not purport to exclude the application of Article 13 of the Conflict of Laws and the law of the country of registry as the governing law (see Supreme Court Decision 93Da18167 delivered on January 28, 1994). Thus, in this case, the court below is justified to take measures that did not apply the law of the country of registry under Article 44 subparagraph 5 of the Conflict of Laws as the governing law, and there is no error of law as alleged in the grounds of appeal

Ultimately, the grounds of appeal on this point cannot be accepted.

2. On the second ground for appeal

In order to avoid the limitation of liability of a carrier under the proviso of Article 789-2(1) of the Commercial Act, there must be an act or omission (hereinafter referred to as "act or omission") committed with intent of the carrier itself or with intent to cause damage to the carrier, and even if there was an intentional or reckless act on the part of the crew and other employees of the carrier, the carrier may limit liability under the main sentence of Article 789-2(1) of the Commercial Act, unless there was an intentional or reckless act on the part of the carrier himself.

In the same purport, the court below's rejection of the plaintiff's claim for exclusion of limitation of liability is just and reasonable in light of the records, since the plaintiff's act of intentional or reckless act of the carrier itself must be done with the carrier's intent or reckless act. Thus, it cannot be viewed as a carrier even if there was intentional or reckless act of the carrier's crew, etc., as alleged by the plaintiff. Furthermore, there is no evidence to prove that there was such intentional or reckless act of the carrier, and the defendant as the carrier did not have any error as otherwise alleged in the

3. On the third ground for appeal

The court below's rejection of the plaintiff's assertion that the cargo of this case was in violation of the duty of due care to the crew and other employees of the defendant's ship during the transshipment process is reasonable, and there is no evidence to prove that there was no error in the incomplete hearing, as alleged in the

4. Therefore, the appeal shall be dismissed and all costs of appeal shall be assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices.

Justices Park Jong-ho (Presiding Justice)