[손해배상(기)][집37(4)민,131;공1990.2.15(866),336]
(a) Receipt (in cases where a part of the cargo for which a bill of lading has been issued is delayed due to a shipment after the last shipment date, whether a consignee may refuse such receipt and claim compensation for transfer (negative);
(b) In calculating the amount of loss of a consignee in cases falling under the preceding paragraph, whether profits accrued from the arrival of delayed cargo shall be deducted and the amount thereof;
A. As long as an employee or agent of a marine carrier accepts all the cargo and delivers it to the consignor in the received bill of lading, the validity as a receipt bill of lading for all the cargo cannot be denied even if a part of the cargo has not been loaded, and the consignee shall be deemed to have acquired the ownership of all the cargo kept by the carrier by lawfully acquiring the above received bill of lading, which is a delivery security, and the consignee shall not be deemed to have the right to refuse its receipt and claim compensation as a matter of course on the part of the consignee, unless otherwise stipulated that a part of the cargo was delayed and transported after the final date of loading stipulated in the letter of credit.
B. In calculating the amount of compensation for a case where a part of the cargo was loaded and transported late after the date of final shipment stated in the credit, benefits should be deducted from the fact that the ownership of the transported cargo belongs to the consignee, and the amount of such profit should be the amount equivalent to the market price at the time the consignee could have received the delayed transported cargo from the carrier.
(a) Articles 813, 820, and 133 of the Commercial Act;
Attorney Park Jong-ho et al., Counsel for the defendant-appellant
Korea Commercial Ship Co., Ltd. (formerly Preferred to as the "Korea Ship Ship Co., Ltd. (former Preferred to as the "Korea Ship Ship Co., Ltd.").
Seoul High Court Decision 87Na1339 delivered on March 3, 1988
The part of the judgment below against the defendant is reversed and that part of the case is remanded to the Seoul High Court.
As to the Defendant’s Attorney’s ground of appeal:
1. The facts found by the court below are as follows. The plaintiff, at the end of 1985.2.8 and the 1924 supply contract for the above 1,00,000 won and 168,000 won of delivery and 17,000 won of the latest 6,000 won of the latest 6,000 bill of credit were issued for the delivery of 1,680,000 won and 17,000 won of the difference between the 1,68,000 won and the 9,000,000,0000 won of the above 6,000 7,000,0000,000,0000,000,000,000,000,000,000,000,000,000,000,000,000,000.1,000.
2. The facts found by the court below are acceptable in light of the evidence.
Now, the Plaintiff had become aware of the omission of shipment of 4Plets in the instant column and 40,000 aviation volume by the non-party company, and the Plaintiff sent 326 aviation volume to the non-party company. Even though the Plaintiff had time been informed of the location of the omitted goods and the transport plan, it cannot be deemed that 326 of the above volume of flow was substitute goods due to the delay in the Defendant’s transportation. The Plaintiff’s re-import measures do not have causation with the delay in transportation. However, according to the evidence adopted by the lower court, the Plaintiff did not request the Plaintiff to re-import the imported goods to the non-party company for an omission in delivery to the non-party company within 7 days after being notified of the omission in shipment of the instant cargo, and the Plaintiff did not request the Plaintiff to re-import the imported goods to the non-party company for an omission in delivery to the non-party company within 47 days after being notified of the scheduled date of delivery of the goods by the non-party company.
3. The court below rejected the defendant's assertion that in calculating the amount of damages of this case, the market price at the time of arrival of the 4 set forth in the letter of credit for the import of the goods of this case should be deducted in calculating the amount of damages of this case on the ground that the plaintiff was not liable to receive the goods which were not shipped
The court below issued a bill of lading as it is a securities representing the right to claim the delivery of the cargo, which is delivered after the receipt or shipment of the cargo pursuant to the contract of carriage. The court below held that it was null and void because it did not meet the cause and requirements. However, as long as the defendant's employees or agents accepted the whole cargo of 16 mt and delivered it to the consignor, it cannot be denied as the validity of the receipt bill of lading for all the cargo of the consignee (see Article 813 of the Commercial Act) and the plaintiff, a consignee, acquired ownership of all the cargo of the carrier's custody by lawfully acquiring the above bill of lading, which is a delivery security (see Articles 820 and 133 of the Commercial Act). The court below did not err in the misapprehension of legal principles as to the amount of damages for delay in delivery of the cargo to the consignee, unless there were any special reasons for delay in delivery after the date of final shipment as stated in the letter of credit, and therefore, it cannot be viewed that the plaintiff has the right to claim compensation for damages for delay in this case.
Therefore, the part of the judgment below against the defendant is reversed, and that part of the case is remanded to the court below. It is so decided as per Disposition by the assent of all participating Justices.
Justices Yoon Young-young (Presiding Justice)