[2] Whether a foreign arbitration clause stated in a bill of lading constitutes a special agreement in which the holder is exempted from the obligation or responsibility of the carrier (negative)

[3] The case holding that the Japanese arbitration agreement on the back of a bill of lading is binding on the holder of the bill of lading, and that the shipowner may invoke the carrier's claim of breach of arbitration in accordance with the terms and conditions of the last day

[2] A foreign arbitration agreement generally recognizes its validity in international trade relations, and, in fact, it is difficult for the parties to conduct arbitral proceedings in a foreign country. However, such an agreement alone does not constitute a special agreement to exempt a carrier from its obligation or liability by preventing the holder’s right to remedy infringement in an ordinary manner.

[3] The case holding that the Japanese arbitration agreement on the back of a bill of lading is binding on the holder of the bill of lading, and that the shipowner may invoke the carrier's claim for violation of the arbitration clause in accordance with the last sentence of the bill of lading

2. The costs of lawsuit shall be borne by the Plaintiff.

The following facts may be acknowledged in full view of the following facts: Gap evidence 1, 2, Eul evidence 3-1 through 3, Eul evidence 4-1 through 5, Gap evidence 6-1 through 6, Gap evidence 13-1 through 3, Gap evidence 14-1 through 5, Gap evidence 15-1, 2, Gap evidence 16-1 through 3, Gap evidence 17-1, 18-2, Eul evidence 20, Eul evidence 21-1 through 4, Eul evidence 21-1, Eul evidence 1, Eul evidence 5, Eul evidence 6-1 through 6, Gap evidence 13-1 to 5, Gap evidence 15-1, 16-1 through 6, Gap evidence 17-1, 18-2, Eul evidence 20, Eul evidence 21-1 through 4, Eul evidence 1, Eul evidence 1, nonparty 2's testimony.

A. On May 3, 2007, the Plaintiff, a company engaged in the Korean steel manufacturing, export and import business, etc., concluded a marine transportation contract with Nonparty D&D Co., Ltd. (hereinafter “di S&D”) on the condition that the Plaintiff would import steel products from Nonparty 1’s C&D (hereinafter “S”) under the condition of the FOB’s transfer. On May 3, 2007, the Plaintiff entered into a marine transportation contract with Nonparty 1 (hereinafter “instant vessel”) to request Defendant B&D to operate the iron rap imported by the Plaintiff from Japan, which is owned by Nonparty 1 C&D Co., Ltd. (hereinafter “Defendant B&D”).

B. On the other hand, D&D, the charterer of the instant vessel, concluded a maritime transport contract with Defendant Maslin Co., Ltd. (hereinafter “Defendant Maslin”), with the content that the Plaintiff charters the instant vessel to transport raps imported from Japan by sea. In order to transport raps imported from Japan, D&D concluded a maritime transport contract with Defendant Maslin as the carrier of the instant vessel.

C. In accordance with each of the above maritime transportation contracts, around September 2007, Defendant leapn was requested by the Plaintiff to transport 348 steel scrap 348 (hereinafter “instant cargo”) from the Plaintiff to the port of entry into the Republic of Korea at the port of U.S. in Japan. Accordingly, on the 22th day of the same month, the shipper of Japan selected at the port of U.S. in U.S. from the port of U.S. in Japan performed the loading and fixing of the instant cargo to the instant vessel.

D. On September 22, 2007, after the freight of this case was loaded to the ship of this case, the defendant leapman issued three copies of the bill of lading in the name of the consignor, the order of the consignee of the non-party Dong, the consignee of the Korea Development Bank, and the plaintiff as the plaintiff of the notification address (securities No. MIP0150-01, MIP01, MIP0150-02, MIP0150-03, hereinafter the "each bill of this case") to the non-party partner country.

E. At around 07:30 on September 22, 2007, the instant vessel was sailing along the port of the Republic of Korea after departing from the port of U.S. in U.S. on the port of the Republic of Korea. From around 08:0 on the 23th day of the same month to around 04:00 on the 24th day of the same month, the instant vessel passed away from 11:15 on the 23th day of the same month, and as a result, the instant vessel was severely shakened, there was an accident that 99 out of the instant cargo loaded in the form of 34-42.63 degrees North latitude and 130-10.76 degrees east on the niven deck at the sea of 130-10.76 degrees east of the same month (hereinafter “instant accident”).

F. On September 23, 2007, Nonparty 3, the captain of the instant vessel, determined that it is impossible to navigate to the port of port, which is the objective port due to the instant accident. On September 23, 2007, at around 18:30, Nonparty 3, the captain of the instant vessel, avoided the instant vessel to the south coast of the Marin Island, Japan, which is the nearest place at the accident’s point, and anchored the instant vessel, and kept checking the status of

G. Around 10:00 on September 24, 2007, the instant vessel departed from the port of anchorage, and around 13:15 on September 28, 2007, the instant vessel arrived at No. 15 of the port of anchorage 2 to 15 on September 28, 2007, and 9 out of the instant cargo was found to have been lost during the unloading process.

H. (1) On October 1, 2007, Hanuri Marine Damage Adjustment Co., Ltd., which the Plaintiff’s side requested, verified the damage of the cargo caused by the instant accident, and determined that a part of the instant cargo was lost due to the following: (a) there was an empty space of the degree of 2 B/L from each of the instant cargo; (b) the space was not properly opened with a cover of the instant cargo; and (c) the use of a cover of the entire cargo of this case was determined to have been safe if it was used by a cover of the instant cargo.

(2) On October 1, 2007, the Co., Ltd., the Defendant leapin test agent, who was requested to examine the damage to the cargo caused by the instant accident, determined that the cause of partial loss of the instant cargo was the deterioration of weather during the voyage of the instant vessel.

I. Meanwhile, each of the instant bills of lading purchased with related shipping documents and sold them to the Korea Development Bank, a L/C issuing bank. The Plaintiff purchased each of the above bills of lading from the said Korea Development Bank and duly holds it.

2. Determination as to the legitimacy of the lawsuit against Defendant leapin

A. Determination as to the main safety defense of Defendant leapman

(1) Notes

As to the lawsuit of this case seeking contractual liability and tort liability with respect to damages equivalent to the market price of 99 steel wrap 99 caused by the accident of this case as the legitimate holder of each of the instant B/L, the Plaintiff is the party who operated the instant B/L and transported the said cargo, and the subject who issued each of the said B/L, the legal relationship related to the transportation of the instant cargo shall be governed by the terms and conditions of each of the instant B/L. Since each of the instant B/L includes the arbitration clause, the Plaintiff’s lawsuit against the Defendant wrap is unlawful as it violates the said arbitration agreement.

(2) Determination:

살피건대, 갑 제4호증의 1 내지 3, 을 제1호증의 각 기재에 변론 전체의 취지를 종합하면, 이 사건 각 선하증권 이면약관 제3조 제2항은 “본 선하증권으로부터 발생되는 모든 분쟁은 일본해운거래소 도쿄해상중재원에 회부되어 그 규정에 따라 심리되어야 하며, 중재인들에 의하여 내려지는 판정은 최종적인 것으로 당사자 쌍방에 대하여 구속력을 가진다(Any dispute arising from this Bill of Lading shall be referred to arbitration in Tokyo by the Tokyo Maritime Arbitration Commission(TOMAC) of the Japan Shipping Exchange, Inc., in accordance with the Rules of TOMAC and any amendments thereto, and the award given by the arbitrators shall be final and binding on both parties.)”(이하 ‘이 사건 중재조항’이라 한다)라고 기재되어 있는 사실을 인정할 수 있고, 여기에 중재계약은 중재조항이 명기되어 있는 계약 자체 뿐만 아니라, 그 계약의 성립과 이행 및 효력의 존부에 직접 관련되거나 밀접하게 관련된 분쟁에까지 그 효력이 미치고, 동일한 사실관계에 기하여 계약책임과 불법행위책임이 경합하는 경우에 그 불법행위책임의 존부에 관한 분쟁은 계약내용의 이행과 밀접하게 관련된 분쟁으로서 중재합의가 규정하는 중재대상에 포함된다고 볼 수 있는 법리를 더하여 보면, 원고의 피고 윤스마린에 대한 이 사건 소는 위 각 선하증권을 발행한 피고 윤스마린이 이 사건 화물을 유실하였음을 전제로 한 분쟁을 대상으로 하고, 이러한 분쟁은 그것이 계약책임을 묻는 것이든 불법행위책임을 묻는 것이든 위 운송계약의 이행과 밀접하게 관련된 것으로서 이 사건 중재조항의 대상에 포함된다고 할 것이다.

Therefore, the plaintiff's lawsuit against the defendant leapin is illegal as it is filed in violation of the arbitration clause of this case. Thus, the above defense against the defendant leapin is justified.

B. Judgment on the plaintiff's second defense

(1) Notes

The Japanese arbitration agreement included in the terms and conditions of each of the instant B/L applies to the validity requirement of the agreement on exclusive international jurisdiction to a foreign court in determining the validity of the agreement. Japan designated in the instant arbitration clause as the place for dispute resolution has no reasonable connection with the instant dispute, and ② the Plaintiff, who is the holder of a bill of lading, was not an opportunity to participate in the instant arbitration clause such as being notified of the dispute, and not only was the Plaintiff, who was the holder of the bill of lading, but also was an agreement that excessively infringes on the Plaintiff’s right to trial, and thus, it is invalid because it is a legal act against public order and good morals.

(2) Determination:

(A) First, it is reasonable to consider the argument that the validity requirement of the exclusive international jurisdiction agreement, which provides a foreign court presented through the precedents of the Republic of Korea, should be applied even in determining the validity of the arbitration clause of this case. However, unlike the jurisdiction agreement in a lawsuit, it is not necessary to have a reasonable or other relevant relationship with the party or the case. Thus, the plaintiff's above argument cannot be accepted.

Considering that there is a need for domestic relations, the governing law of this case is a Japanese corporation, ② the shipping of this case is performed by the shipper of Japan selected by the non-party Dong branch in the U.S. registry in the U.S. registry in Japan, ③ each of the instant bills of lading was issued in the U.S. registry in Japan, ④ the accident of this case also occurred within the territorial sea of Japan, Japan designated as the place for dispute resolution in the arbitration clause in this case can be sufficiently recognized that there is reasonable relation to this case. Thus, the Plaintiff’s above assertion is not

(B) As to the assertion that the arbitration clause of this case is an agreement that excessively infringes on the plaintiff's right to trial, and is a juristic act contrary to the public order and good morals and good morals, the arbitration clause is an agreement between the parties to the dispute. The arbitration clause is an independent legal system that selects a third party as an arbitrator without going through the court's decision and entrusts the adjudication of arbitrator, and it is an independent legal system that finally solves a dispute. Thus, the arbitration clause of this case's bill of lading is identical to the declaration of waiver of the right to trial as an agreement between the parties to the transaction. The plaintiff, the holder of each bill of this case's bill of this case's bill of lading bill of this case's bill of this case's bill of lading bill of this case's bill of lading bill of this case's bill of lading bill of this case's bill of lading bill of this case's bill of lading bill of this case's bill of lading bill of lading bill of this case's bill of lading bill of this case's bill of lading bill of this case's bill of lading bill of this case's bill of arbitration.

(C) Therefore, we cannot accept the Plaintiff’s counterclaim as it is without merit.

3. Determination as to the legitimacy of the litigation against Defendant Blash

A. Defendant Nahovash’s defense of principal safety

(1) Notes

In the back of each of the instant bills of lading issued by Defendant Bohn, Defendant Bohn stated the so-called “Hara Clause” that the carriage-related persons may invoke the carrier’s defenses, such as limitation of liability, which the carrier may claim, and Defendant Bohman may assert that the instant lawsuit should be dismissed in violation of the arbitration agreement in accordance with the terms and conditions of the arbitration agreement on the back of each of the instant bills of lading, and thus, Defendant Bohn Hahn also invokes the aforementioned assertion by Defendant Bohn.

(2) Determination:

(A) Comprehensively taking account of the purport of the entire arguments on the bill of lading No. 4 and No. 1, Article 1 of the Terms and Conditions of this case, the assistant contractor of this case includes the owner and operator of the ship, the shipper, the shipper, the terminal operator, their respective agents, employees, and the persons supporting the voyage (Sub-Supporters and Round). The plaintiff's actions against the owner of the ship and the owner of the bill of lading of this case are stated as follows: "The assistant contractor of this case shall not be able to claim damages from the owner of the bill of lading of this case; the sub-Supported and Roth Group shall not be able to claim damages from the owner of the ship of this case; and the plaintiff shall be able to claim damages from the owner of the bill of lading of this case."

(B) However, the purpose of Article 5(2) of the Terms and Conditions of the instant bill of lading is to maintain equity by applying the matters concerning the method of and limitation on the carrier’s defense on the bill of lading to a carrier’s assistant. Thus, if, through the arbitration clause of the instant case, Defendant Hasman and the Plaintiff, who is the issuer of each of the instant bill of lading, agreed to have dispute settlement procedures other than the trial on all disputes arising out of each of the above bills of lading, it is reasonable to extend the above arbitration clause in relation to the dispute arising out of each of the above bills of lading between Defendant Masmannin and the Plaintiff, who is the holder of each of the instant bills of lading through the arbitration clause of the instant case, the above arbitration clause should be applied in relation to the dispute arising out of each of the above bills of lading, and there is no special circumstance to deem that Defendant Masmannin’s defense, which may be invoked by Defendant Hasmannish in accordance with Article 5(2) of the Terms and Conditions of the instant bill of lading, is limited to the defense on the merits.

(C) Therefore, as seen in the above 2-A. (2), the Plaintiff’s instant lawsuit against Defendant Malan was in violation of the instant arbitration clause, and is unlawful, and the Plaintiff’s instant lawsuit against Defendant Malann was also brought against the instant arbitration clause for the same reason, and thus, it is inappropriate to bring the Plaintiff’s instant lawsuit against Defendant Malann as it is in violation of the instant arbitration clause. Thus, the said defense against Defendant Mala Mala

B. Judgment on the plaintiff's second defense

(1) Notes

(A) Article 8(2) of the Arbitration Act provides that an arbitration agreement shall be made in writing, and Article 8(3) of the same Act provides that an arbitration agreement shall be included in a document signed by the parties in the same manner. However, it cannot be deemed that there was an arbitration agreement in writing signed by the parties pursuant to the above provision between the Plaintiff and Defendant Blashing. In addition, each of the terms and conditions of the instant bill of lading cannot be deemed that there was an arbitration agreement between the Plaintiff and Defendant Blashing, and that the terms and conditions of each of the instant bill of lading were merely borrowed from the standard form created by the Japan Shipping Assembly (JUBL-1994(B) to allow its domestic carriers in 194, which is the standard form created to allow its domestic carriers in 194, and thus, it cannot be deemed that there was an agreement on free will on an equal basis, such as reviewing the content thereof, and therefore, it cannot be deemed that there was no ground for the Defendant’s defense of safety.

(B) In addition, the arbitration clause of this case, which is invoked by Defendant Blash as the ground for this safety defense, applies to ① the validity requirements of the exclusive international jurisdiction agreement to a foreign court in determining the validity of the arbitration clause. Japan designated as the place for dispute resolution in the arbitration clause of this case, is not reasonably related to the dispute of this case. ② The plaintiff, who is the holder of bill of lading, was not an opportunity to participate in the dispute of this case, and the above arbitration clause of this case was an excessive infringement on the plaintiff's right to trial, and it is a juristic act contrary to public order and good morals because it is remarkably unreasonable and unfair, and ③ a special agreement to de facto exempt a carrier from the obligation or liability by blocking the way on which the plaintiff can receive relief of the right infringed by the ordinary method. Thus, it is null and void in accordance with Article 790 of the former Commercial Act (amended by Act No. 858 of Aug. 3, 207, hereinafter the same).

(C) Furthermore, inasmuch as the instant accident occurred by removing all the connection rates indicated in the cargo stuff guidelines on the instant vessel while recognizing the concern that the instant cargo might be destroyed intentionally or by the instant cargo, Defendant Naman’s defense cannot be invoked in accordance with the proviso of Article 789-3(2) of the former Commercial Act.

(2) Determination:

(가) 먼저, 원고와 나카하라 쉬핑 사이에 중재합의가 존재하지 아니한다는 주장에 관하여 살피건대, 갑 제4호증의 1 내지 3, 을 제1호증의 각 기재에 변론 전체의 취지를 종합하면, 이 사건의 준거법은 일본법인 점이 인정되고, 일본 중재법 제13조 제2항에서는, “중재합의는, 당사자 전부가 서명한 문서, 당사자가 교환한 서신 또는 전보(팩시밀리 장치 기타 격지자간의 통신수단으로 문자에 의한 통신내용의 기록이 수신자에게 제공되는 것을 사용해서 송신된 것을 포함한다.) 그 밖의 서면으로 하여야 한다{중재합의は、당사자の전부が서명した문서、당사자が교환した서간우は전보（ファクシミリ장치その타の격지자간の통신수단で문자による통신내용の기록が수신자に제공されるものを용いて송신されたものを함む。）その타の서면によってしなければならない。}”고 규정하고 있는바, 이 사건 각 선하증권은 일본 중재법 제13조 제2항에서 규정하고 있는 ‘그 밖의 서면’에 해당하는 것으로 볼 수 있어, 원고와 피고 나카하라 쉬핑은 위 각 선하증권 이면약관의 중재조항에 따라 중재합의를 한 것으로 보아야 하므로, 원고와 피고 나카하라 쉬핑 사이에 중재합의가 존재하지 않는다는 원고의 주장은 받아들이지 아니한다.

(B) Next, as to the argument that the Japanese arbitration agreement included in the terms and conditions of each of the instant B/L is null and void, (1) Japan designated as the place for dispute resolution in the instant arbitration clause has no reasonable connection with the instant dispute, and (2) as to the argument that the instant arbitration clause is null and void because it is not only an agreement that excessively infringes the Plaintiff’s right to trial, but also a juristic act that is obviously unreasonable and unfair and contrary to public order and good morals, it shall not be accepted for the reasons as described in the above 2-B(2), and (3) as to the argument that the instant arbitration clause is practically exempt from the carrier’s obligation or responsibility, the foreign arbitration agreement is ordinarily recognized in international trade relations, and even if it is difficult for the parties in fact to conduct arbitration procedures in a foreign country, such circumstance alone cannot be deemed as exempt from the carrier’s obligation or responsibility, and thus, the Plaintiff’s argument that the instant arbitration clause is null and void is without merit.

(C) Finally, the accident of this case occurred due to Defendant Blash’s intentional act or omission while recognizing the concern about the occurrence of the loss of the cargo by Defendant Blash’s intentional act or omission. As such, Defendant Blash’s assertion that Defendant Blash could not invoke the defense of Defendant Blash, there is no evidence to acknowledge this as to the fact that Defendant Blash directly carried out the work of removing the scrap, as well as Defendant Blash’s possession of the ship, and that Defendant Blash did not use the ship for navigation by reason of lease, etc., even if Defendant Blash’s removal of the scrap of the ship of this case caused the accident of this case by Defendant Blash’s removal of the scrap of the ship of this case, unless there is any assertion or evidence as to the above that Defendant Blash’s work of removing the scrap was caused by Defendant Blash’s intentional act or reckless act or omission by Defendant Blash’s above act or omission, the Plaintiff’s aforementioned assertion cannot be invoked as a ground for arbitration of this case’s tort.

(D) Accordingly, the Plaintiff’s counterclaim cannot be accepted as it is without merit.

4. Conclusion

Therefore, the plaintiff's lawsuit against the defendants is unlawful, and it is so decided as per Disposition by the assent of all.

Judges Park Sung-chul (Presiding Judge)