[구상금][공1983.12.15.(718),1740]
Whether the exemption clause stated in a bill of lading applies to tort liability (affirmative)
Unless there are special circumstances, between the holder of a bill of lading and the carrier who has received the bill of lading containing the terms and conditions of exemption, it shall be deemed that not only the non-performance of the contractual obligation to be asserted by the holder of the bill of lading but also the tort liability arising from the infringement of the ownership of the cargo was agreed to apply the said terms and conditions to tort liability. Thus, even if there is no separate, explicit, and implied agreement between the holder of the bill of lading and the carrier,
Articles 789, 814, 820, and 131 of the Commercial Act
Supreme Court en banc Decision 82Meu1533 Decided March 22, 1983
[Judgment of the court below]
Law Firm Maritime Transportation Co., Ltd., Counsel for the defendant-appellant
Seoul High Court Decision 82Na4156 delivered on March 30, 1983
The part of the judgment below against the defendant is reversed, and that part of the case is remanded to the Seoul High Court.
The grounds of appeal are examined.
1. The court below rejected the defense by holding that in this case where the plaintiff is liable for damages against the defendant regarding the defendant's defense of extinctive prescription as well as for tort liability against the defendant, and where tort liability is recognized against the defendant, the extinctive prescription provision for the liability for the maritime transport contract by the shipowner or the sea carrier under the Commercial Act or the terms and conditions of the transport contract shall not apply to the case of compensation for damages which are caused by tort explicitly or implicitly between the parties at the time, unless there is an agreement that the provisions for the extinctive prescription or the terms and conditions of
In the judgment of the Supreme Court 82Meu1533 Decided March 22, 1983, the party members concluded that the terms and conditions of the exemption stated in the bill of lading shall be deemed to be effective as a matter of course without any express or implied agreement between the marine carrier and the holder of the bill of lading to apply not only the contractual obligation to be asserted by the holder of the bill of lading, but also the liability for tort on the ground of infringement on the ownership of the cargo, and therefore, it would be consistent with the intent of the party concerned. Therefore, it seems that the hidden agreement was reached between the holder of the bill of lading and the carrier to apply the above exemption clause to the liability for tort on the ground of infringement on the ownership of the cargo. Therefore, unless the parties to the bill of lading agreed to apply the indemnity clause to the tort, the terms and conditions of the exemption stated in the bill of lading shall not apply to the tort liability.
Therefore, the judgment of the court below is erroneous in the interpretation of Articles 820 and 131 of the Commercial Act concerning bill of lading. Therefore, the judgment of the court below cannot be maintained and the answer to the different opinion is groundless.
Therefore, the judgment of the court below is reversed and remanded with the assent of all participating judges.
Justices Jeon Soo-hee (Presiding Justice)