[2] Whether Article 811 of the Commercial Act applies to a tort liability due to a carrier's bad faith (affirmative)

[2] Article 789-3(1) of the Commercial Act provides that the provisions on the liability of a carrier under the Commercial Act concerning the liability of a carrier shall also apply to the liability of a carrier for damages caused by a tort, and Article 811 of the same Act provides that " regardless of the cause of the claim, the liability of a carrier due to a carrier's bad faith shall apply to the claims and obligations against a consignee of a carrier. Therefore, the liability of a tort caused by a carrier shall also be extinguished if no judicial claim is

1. According to the reasoning of the judgment below, the fact-finding and judgment of the court below are as follows.

서진무역을 경영하던 제1심 공동피고 고용국은 1992. 12.경 홍콩에 소재한 소외 모글림 엔터프라이지즈 컴퍼니(Mogleam Enterprises Co., 이하 모글림이라고만 한다)와 사이에, 휴대용 가스버너 13,000개(이하 이 사건 화물이라고 한다)를 대금 미화 159,500달러에 홍콩으로 수출하기로 하는 내용의 수출계약을 체결하고 수출대금은 신용장에 의해 결제받기로 약정하였다. 모글림은 위 수입계약의 대금결제를 위하여, 오스트레일리아 시드니 소재 냇웨스트 오스트레일리아 뱅크 리미티드(Natwest Australia Bank Limited, 이하 소외 은행이라고 한다)에 신용장개설을 의뢰하였고, 이에 따라 소외 은행은 위 서진무역을 수익자로 한 취소불능화환신용장을 개설하였다. 고용국은 1993. 6. 28. 피고 회사와 사이에 이 사건 화물에 대한 해상운송계약을 체결한 다음 부산항에서 피고 회사에게 이 사건 화물을 인도하였고, 이에 피고 회사는 이 사건 화물을 선박 '프레스 타일러(Press Tyler) V-133W'호에 선적한 다음 송하인을 위 서진무역으로, 수하인을 단순 지시식으로, 통지처를 모글림으로 하는 선하증권(이하 이 사건 선하증권이라고 한다)을 작성하여 고용국에게 교부하였다.

The Plaintiff purchased the said Credit on the same day in accordance with the export transaction agreement between the employment country and the shipping documents, and paid KRW 127,552,150 converted the export price for the goods of this case to the employment country at the general exchange rate at the time of the purchase of the bill of lading at the time. Upon the Plaintiff’s request for the payment of the letter of credit in the course of sending the said Credit to the non-party bank along with the shipping documents, the bank rejected payment of the letter of credit on the ground that the documents presented on July 5 of the same year are inconsistent with the conditions of the letter of credit and that the applicant refused to accept the shipping documents, and returned the above shipping documents, such as the bill of lading, to the Plaintiff on the 26th of the same month.

On the other hand, the Defendant Company transported the instant cargo at sea and unloaded after arrival at Hong Kong around July 1993. The Defendant Company stored the instant cargo to Nonparty presses, a vessel agent in Hong Kong, in the Hong Kong company. However, the said press link did not receive the instant bill of lading on July 10, 1993, and delivered the instant cargo to Mogggggl, without delivering the instant bill of lading.

Based on the above facts, the court below determined that the lawsuit of this case where the plaintiff filed a claim for damages due to tort, such as the loss of the cargo, against the defendant who is the carrier as the holder of the bill of lading of this case, was unlawful since from July 10, 1993 to April 29, 1995, one year after the date when the bill of lading holder would have received the cargo of this case, i.e., the date when the cargo of this case should have arrived at the destination of the cargo of this case, and the bill of lading holder would have received the cargo of this case if it was presented

2. Regarding ground of appeal No. 1

Article 811 of the Commercial Code provides that "any claims and obligations of a carrier against a charterer, consignor, or consignee shall be terminated if no judicial claim is made within one year from the date on which the carrier delivers the goods to the consignee or from the date of delivery to the consignee, regardless of the cause of the claims, unless the carrier has made a judicial claim. However, this period may be extended by agreement between the parties." If a bill of lading has been issued in accordance with a marine transportation contract, the legitimate holder of the bill of lading shall

However, according to the records, the plaintiff holds the bill of lading in the form of simple instruction issued by the defendant as the consignor for the English trade (English name SYJ SYBOL CORP). The signature of the employment country (English name VOh) which is the representative of the above Western trade is recognized. Since the signature of the documentary trade stated on the back of the bill of lading in this case is valid as a summary endorsement under Article 513(1) of the Civil Act, the plaintiff who acquired the bill of this case by the summary endorsement is presumed to be the legitimate holder and thus, it is deemed to be the "Consignee" under Article 811 of the Commercial Act. Even if the plaintiff holds the bill of this case for the purpose of collateral, it does not affect the status as the consignee.

The court below is just in applying the above provision to the plaintiff as a legitimate holder of the bill of lading of this case as a consignee under Article 811 of the Commercial Act, and there is no error in the misapprehension of legal principles as to consignee. The ground of appeal pointing this out is not acceptable.

3. Regarding ground of appeal No. 2

Article 789-3(1) of the Commercial Act provides that the provisions of the Commercial Act on the liability of a carrier shall also apply to the liability of a carrier for damage caused by a tort of a carrier, and Article 811 of the same Act provides that Article 811 of the same Act shall apply to the claims and obligations of a carrier against a consignee, etc.

The court below is just in rejecting the plaintiff's assertion that Article 811 of the Commercial Act does not apply to the carrier's bad faith, and there is no error of law by misunderstanding legal principles as pointed out in the grounds of appeal. In addition, the Supreme Court Decision 91Da14994 Decided January 21, 1992 cited in the grounds of appeal is related to the validity of the provision concerning the period of filing a lawsuit as stipulated in the terms and conditions of a bill of lading issued under the former Commercial Act (amended by Act No. 4470 of December 31, 1991), and it cannot be viewed as an appropriate precedent as to whether Article 811 of the Commercial Act applies to the case of a carrier's bad faith.

4. Therefore, the appeal is dismissed, and the costs of appeal are assessed against the plaintiff-Appellant. It is so decided as per Disposition by the assent of all Justices who reviewed the appeal.

Justices Park Jong-chul (Presiding Justice)