[2] In a case where a bonded warehouse operator delivers air freight to a person other than a consignee without an air carrier’s instruction, whether the liability for damages arises (affirmative)

[3] Whether a customs bonded warehouse operator's duty of care is affected by the reason that the customs bonded warehouse operator carried out the goods according to the procedures and control under the Customs Administration Act (negative)

[4] Whether a consignee on the air waybill is obligated to anticipate that a bonded warehouse operator will deliver cargo to a person other than a consignee on the air waybill without an air carrier’s instruction and prevent such delivery (negative)

[5] The case holding that the judgment of the court below that dismissed the defendant's appeal merely without determining the successor's claim even though the plaintiff won the lawsuit but the successor succeeded to the plaintiff in the appellate trial, there was a ground for reversal ex officio

[2] Where air freight enters into a bonded warehouse for customs clearance, it shall be deemed that an implied contract for air freight exists between a carrier and a bonded warehouse operator. Accordingly, a bonded warehouse operator is obligated to deliver the freight to a carrier or his/her designated person in accordance with the depositing contract with a carrier. Meanwhile, a carrier is obligated to deliver the freight to a consignee on an air waybill or his/her designated person. Since a bonded warehouse operator is obligated to deliver the freight to a consignee on an air waybill or his/her designated person, the bonded warehouse operator is obligated to deliver the freight to a consignee on an air waybill as an assistant for the performance of a carrier and to deliver the freight to a consignee or a designated person by a consignee who is the legitimate recipient of an air transport. In the event that a bonded warehouse operator delivers the freight to a person other than a consignee

[3] As long as a bonded warehouse operator bears the duty to deliver the goods to a consignee or a person designated by a consignee as an assistant to perform a carrier, the procedures for and control of the removal of the goods pursuant to the Customs Administration Act are merely for the purposes of customs administration, such as the collection of customs duties or the efficiency of the management of imported goods. Thus, the circumstances of removal of the goods therefrom do not affect the bonded warehouse operator's duty of care under a contract of deposit concluded between

[4] According to the Warsaw Convention amended at Hague on 1955, which is a special law on the legal relations of international carriage by air, as amended by the Korean government, the consignee on the air waybill has the right to notify the carrier of the fact when the cargo arrives at the place of destination. If the consignee pays the debt to the carrier and satisfies the conditions of the carriage stipulated in the air waybill, the consignee on the air waybill has the right to request the issuance of the air waybill and the delivery of the cargo. Thus, it cannot be deemed that the consignee on the air waybill has the obligation to prevent the consignee on the air waybill from delivering the cargo to a person other than the consignee on the air waybill without the carrier’s instruction.

[5] The case holding that the judgment of the court below which dismissed the defendant's appeal merely without determining the successor's claim even though the plaintiff won a favorable judgment in the court of first instance, but the successor's participation in the plaintiff was made in the appellate court

A. The defendant shall pay to the succeeding intervenor the sum of KRW 382,903,375 and the sum of KRW 5 percent per annum from January 12, 1998 to May 31, 2003 and the sum of twenty percent per annum from the next day to the date of full payment.

B. The successor intervenor's remaining claims are dismissed.

2. The total costs of the lawsuit shall be borne by the defendant.

1. As to the grounds of appeal Nos. 1 and 2

In the carriage of air freight, the delivery of imported air freight which the carrier arrived at the airport to the bonded warehouse operator for customs clearance cannot be deemed as delivery of air freight to the consignee regardless of the control of the carrier or the forwarding agent (see Supreme Court Decision 94Da46404 delivered on September 6, 1996). Thus, in case where air freight enters the bonded warehouse for customs clearance, an implied contract for air freight between the carrier and the bonded warehouse operator is established. Accordingly, the bonded warehouse operator has a duty to deliver the freight to the consignee on the air waybill or his/her designated person in accordance with the deposit contract with the carrier, and on the other hand, the carrier has a duty to hand over the freight to the consignee on the air waybill or his/her designated person. Thus, the bonded warehouse operator bears the duty to hand over the freight to the consignee on the air waybill or his/her designated person as an assistant to the carrier.

Therefore, when a bonded warehouse operator delivers a cargo to a person other than a consignee without a carrier's instructions, he is liable to compensate for damages caused by infringing the consignee's right to request the delivery of the cargo.

The judgment of the court below which held that the carrier has the status as a bailor for the air cargo of this case on the premise that the air cargo of this case entered into a bonded warehouse operated by the defendant cannot be deemed to have completed the carrier's obligation to deliver the cargo of this case. It is just and there is no error in the misapprehension of legal principles as to the parties to the deposit contract at the time of the entry of the air cargo of this case into the bonded warehouse and the time

2. As to the third ground for appeal

As long as a bonded warehouse operator is obligated to deliver cargo to a consignee or a person designated by a consignee as an assistant to perform a carrier, the procedures for and control of the release of cargo pursuant to the Customs Administration Act are only for the customs administration, such as the collection of customs duties or the efficiency of the management of imported cargo, so the circumstances that the shipment of the cargo accordingly do not affect the customs bonded warehouse operator's duty of care under a deposit contract concluded between a carrier and a bonded warehouse operator

The decision of the court below to the same purport is just, and there is no error in the misapprehension of legal principles as to the bonded warehouse operator's duty of care.

3. As to the grounds of appeal Nos. 4, 5, and 6

The court below held that the defendant was aware of the fact that the air waybill was issued with respect to the cargo of this case on the ground that the ocean transportation declaration certificate issued by the customs office prior to the storage and release of the cargo of this case and the import declaration certificate issued by the customs office with respect to the cargo of this case. Thus, it is reasonable to view that the defendant knew or could sufficiently know that the consignee on the air waybill could differ from the actual importer in the case of credit transaction method ordinarily used in international trade. At the time of carrying out the cargo of this case, the copy of the air waybill could only be cleared through customs clearance and delivered the cargo to the actual importer with the approval certificate proving customs clearance as the customs clearance certificate, and there were many cases of infringement on the consignee's rights by delivering the cargo to the actual importer. The court below's determination that the defendant did not err in the misapprehension of the legal principles as to the cargo of this case or in the misapprehension of the legal principles as to the cargo of this case, since the identity of consignee on the air waybill and the import declaration certificate as to the cargo of this case did not constitute tort against the plaintiff.

4. As to ground of appeal No. 7

According to the Warsaw Convention as amended at Hague in 1955, which is a special law on the legal relations of international carriage by air, in which the Korean government has joined, the consignee on the air waybill has the right to notify the carrier of the fact when the cargo arrives at the place of destination, to pay the carrier the amount of the debt, and to request the delivery of the air waybill and the delivery of the cargo if the freight satisfies the conditions of the carriage as stated in the air waybill (Article 13 of the above Convention). Thus, the consignee on the air waybill cannot be deemed to have a duty to prevent the consignee on the air waybill by predicting the delivery of the cargo to a person other than the consignee on the air waybill without the carrier’s instruction, and therefore, it is difficult to view that the consignee did not stop it as a consignee’s negligence. Accordingly, the decision of the court below to the same purport is justifiable, and there is no error in the misapprehension of legal principles as to comparative negligence and negligence

5. Ex officio determination

In light of the records, the plaintiff transferred the right to claim damages of this case to the succeeding intervenor on July 9, 199, and notified the defendant of the transfer of claim on March 23, 200 during the original trial proceeding, and then the succeeding intervenor withdrawn from the application for succession. In the case where the plaintiff lawfully withdraws, the court below should have determined the claim of the succeeding intervenor by changing the judgment of the first instance court. However, the court below merely dismissed the defendant's appeal, thereby maintaining the judgment of the first instance which accepted the plaintiff's claim. Thus, the court below erred by misapprehending the legal principles as to withdrawal from the lawsuit and participation in succession, which affected the conclusion of the judgment.

Therefore, the judgment of the court below shall be reversed, and since this case is deemed sufficient to be directly tried by this court on the basis of the facts established by the court below, the defendant shall make a decision pursuant to Article 437 of the Civil Procedure Act. The defendant shall make a decision to the succeeding intervenor as to the amount of 382,903,375 won and the damages for delay at the rate of 5 percent per annum under the Civil Act from January 12, 1998 to May 31, 2003 (the annual rate of 5 percent is justified since the claim for tort was accepted) pursuant to the Act on Special Cases Concerning the Promotion, etc. of Legal Proceedings amended by Act No. 6868, May 103, 2003, and damages for delay shall be paid at the rate of 20 percent per annum under the above Special Cases Concerning the Settlement of Legal Proceedings (the remaining claims of the succeeding intervenor are without merit).

6. Conclusion

Therefore, the judgment of the court below is reversed, and it is so decided as per Disposition by the assent of all participating Justices.

Justices Shin Shin-chul (Presiding Justice)