[2] Whether the Convention on the Unification of Certain Rules Relating to International Carriage by Air applies in preference to the Civil Act or the Commercial Act to the legal relationship concerning international carriage by air (affirmative)

[3] The case holding that in case where a domestic transporter without any instruction from the carrier and the consignee return the goods to the exporting company at the request of the importing company without notifying the consignee of the arrival of the goods, the consignee is liable for damages caused by the infringement of the consignee's right to request the delivery of the goods

[2] With respect to legal relations concerning international carriage by air, the Convention on the Unification of Certain Rules Relating to International Carriage by Air amended at the Hague in 1955 applies in preference to the Civil Code or the Commercial Code as a general law.

[3] The case holding that in a case where the domestic transporter without any instruction from the carrier and the consignee return the goods to the exporting company at the request of the importing company without notifying the consignee of the arrival of the goods, the consignee is liable for damages caused by the infringement of the consignee's right to request the delivery of the goods

1. Whether the defendant is a carrier

In the event of the issuance of a house air waybill (hereinafter referred to as "house air waybill"), a contracting carrier who bears the rights and obligations in accordance with the carriage contract in relation to a consignor and consignee, is a contracting carrier, who is requested by a consignor or his/her agent, entrusts the actual carrier with the whole or part of the carriage, and prepares and delivers a house air waybill.

In light of the above legal principles and records, the judgment of the court below that the coaches or coaches stated on the cargo waybill of this case as a contracting carrier and the defendant is merely a domestic shipping agent under the cargo transport contract is just, and there is no error in the misapprehension of legal principles as to a carrier or incomplete deliberation, contrary to the allegations in the grounds of appeal. The judgment of the court below pointed out in the grounds of appeal by the defendant is related to the criteria for determining who is liable to pay the freight in the export and import sales contract concluded under the terms and conditions of the delivery on board (F.O.B.) and there is no room

2. Whether the Warsaw Convention is applied;

With respect to legal relations concerning international carriage by air, the Convention for the Unification of Certain Rules Relating to International Carriage by Air amended at Hague in 1955 (hereinafter “Sasaw Convention”) shall take precedence over the Civil Act or the Commercial Act as a general law (see Supreme Court Decisions 82Meu1372, Jul. 22, 1986; 2001Da67164, Jul. 22, 2004).

Article 18(1) of the Warsaw Convention provides, “A carrier shall be liable for any damage incurred in the event of the destruction, loss, or damage of any consignment baggage or cargo, if the accident causing such damage was caused by air transport.” However, this provision provides for the carrier’s liability for damages caused by the destruction, etc. of any consignment baggage or cargo generated in the course of air transport, which is separate from Articles 12 and 13 of the Warsaw Convention, providing for the consignor and consignee’s right to the cargo. As such, Articles 12 and 13 of the Warsaw Convention apply to the consignor’s right to dispose of the cargo or the consignee’s right to request the delivery of the cargo, regardless of whether or not the accident causing the damage occurred during air transport.

Meanwhile, according to Articles 12 and 13 of the Warsaw Convention, as long as the consignor has not lawfully exercised the right to dispose of the cargo against the carrier, the consignee has the right to receive the notice of arrival of the cargo and to request the delivery of the air waybill for the consignee when the cargo arrives at the place of destination.

However, in this case, the defendant, who is the domestic carriage agent of the cargo transport contract, did not receive any instruction from the carrier, and returned the cargo to the exporting company at the request of the importing company without giving notice of the arrival of the cargo to the plaintiff who is the consignee, thereby infringing the plaintiff's right to request the delivery of the cargo, which is recognized by Article 13 of the Warsaw Convention, and therefore, the plaintiff is liable to compensate for the loss

In this regard, the judgment of the court below that applied the Warsaw Convention to the legal relations of an air waybill and recognized the defendant's tort liability is just in conclusion, and there is no error in the misapprehension of legal principles as to whether the Warsaw Convention is applied or not, as alleged in the ground of appeal

3. Conclusion

Therefore, the appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee Kang-tae (Presiding Justice)