[2] Whether there is a liability to compensate for damages caused by a special circumstance that either knew or could have known the amount of the damages (negative)

[3] Where the main claim and the conjunctive claim are compatible with each other, the dismissal of part of the main claim and the acceptance of only the amount less than the conjunctive claim shall be made as to whether the conjunctive claim are determined

[4] In a case where only the primary claim is determined and the conjunctive claim is not determined, whether the conjunctive claim for which the judgment was omitted is transferred to the appellate court for the first instance (affirmative)

[2] When a person who did not perform an obligation or committed an illegal act knew or could have known the existence of a special circumstance, he/she is obligated to compensate for damages caused by such special circumstance, and it does not have to have known or could have known the amount of damages caused by such special circumstance.

[3] Even in a case where the primary claim and the conjunctive claim are compatible with each other, where a reasonable need exists to make a claim by attaching the order of the trial, a request may be made by attaching the order of the trial. In such a case, where the primary claim are not wholly accepted, a lawsuit may be brought by combining the main claim with the purport that it will make a judgment on the conjunctive claim within the scope of the amount not cited in the primary claim. Thus, in a case where only a part of the primary claim is accepted, the issue of whether to hear the conjunctive claim depends on the interpretation of the intent of the parties in the lawsuit is the issue. Thus, where the court dismisses part of the claim based on the primary claim and cites only the amount less than the primary claim, it shall determine whether to determine the conjunctive claim according to the result of the judgment by making a judgment on the conjunctive claim within the scope of the amount not cited in the primary claim where the plaintiff does not fully accept the primary claim.

[4] In the case of preliminary consolidation, several claims are indivisiblely combined into one litigation procedure, so even in a case where a decision is made only on the main claim and a decision is not made on the conjunctive claim, if an appeal is filed against the judgment, the conjunctive claim omitted will also be transferred to the appellate court.

A. Summary of the judgment of the court below in this part

원심은, 해운업자인 원고가 1996. 9. 5.경 미국의 운송주선업자인 오션브리지 쉽핑 인터내셔날 인크(OCEANBRIDGE SHIPPING INT'L INC., 이하 '오션브리지'라고 한다)와 사이에 미국 로스엔젤레스항에서 대한민국 부산항까지 컨테이너 1개를 운송하기로 하는 계약을 체결하고 선하증권(이하 '이 사건 선하증권'이라고 한다)을 발행하였는데, 그 선하증권상에는, 송하인 오션브리지, 수하인 주식회사 국제포워딩(INTERNATIONAL FORWARDING CO., LTD., 오션브리지의 국내대리점이다. 이하 '국제포워딩'이라고 한다), 적입된 화물 건축자재 322카툰(이하 '이 사건 화물'이라고 한다)으로 기재되어 있는 사실, 이 사건 화물의 수출업자는 오스모닉 인크(OSMONICS, INC., 이하 '오스모닉'이라고 한다)이고, 수입업자는 주식회사 삼광수기(이하 '삼광수기'라고 한다)인데, 오션브리지는 원고와의 위 운송계약에 앞서 오스모닉으로부터 이 사건 화물의 운송을 의뢰받고 운송계약을 체결한 후 송하인을 오스모닉, 수하인을 삼광수기로 한 선하증권을 발행한 바 있는 사실, 원고는 이 사건 화물을 부산항으로 운송하여 1996. 9. 23. 양하한 후 같은 달 30. 국제포워딩의 요청에 따라 양산시 유산동에 있는 피고의 창고에 보관을 의뢰하여 입고시킨 사실, 한편 피고는 1996. 7. 13. 원고의 요청에 따라 원고의 국내대리점인 우주해운 주식회사에게, "원고 회사의 선박 편으로 반입되는 보세화물을 피고가 화주의 요청 기타 사유로 보관하는 경우 원고 발행의 화물인도지시서(D/O; Delivery Order) 없이는 어떠한 경우에도 화물을 출고하지 아니하며, 이를 위반하여 발생되는 모든 민·형사상의 책임을 지겠다."는 취지의 각서를 제출해 두고 있었던 사실, 그런데 국제포워딩은 1996. 10. 4. 오션브리지로부터 아직 원고 발행의 이 사건 선하증권을 수령하지 못한 상태에서 삼광수기에게 자신 명의의 화물인도지시서를 교부하였고, 삼광수기는 1996. 10. 9. 피고에게 위 화물인도지시서와 수입화물대금 결제은행인 기업은행 남동공단지점으로부터 발급받은 화물선취보증서(L/G; Letter of Guarantee)를 제출하면서 이 사건 화물의 인도를 요구한 사실, 이에 피고가 이 사건 선하증권이나 원고의 화물인도지시서가 없는 상태에서 이 사건 화물을 삼광수기에게 인도한 사실, 한편, 오션브리지는 국제포워딩에게 미화 116,874.38$(이하 '미화'는 생략한다)의 채권을 가지고 있었는데, 이 채권의 담보를 위하여 자신이 송하인으로 되어 있는 원고 발행의 이 사건 선하증권을 국제포워딩에게 보내지 않고 있었던 것인데, 피고가 국제포워딩의 화물인도지시서를 근거로 이 사건 화물을 반출한 것이고, 오션브리지는 결국 국제포워딩으로부터 위 채권을 변제받지 못한 사실, 그러자 오션브리지는 1997. 11. 4.경 미국에서 원고를 상대로, 이 사건 선하증권과의 상환 없이 이 사건 화물이 불법 반출되어 선하증권의 정당한 소지인으로서의 권리가 침해되었음을 이유로 청구금액 116,874.38$에 달하는 손해배상청구소송을 제기하였고, 이에 원고는 위 소송과정에서 1999. 5. 25. 오션브리지에게 소송합의금으로 10,000$를 지급하였으며, 변호사비용 등으로 32,269$를 지출한 사실을 인정한 다음, 위 인정 사실에 의하면, 피고는 이 사건 화물의 인도 전에 이미 원고측에 대하여 원고 회사의 선박 편으로 반입되는 보세화물을 피고가 화주의 요청 기타 사유로 보관하는 경우 원고 발행의 화물인도지시서 없이는 어떠한 경우에도 화물을 출고하지 않을 것임을 확약한 바 있음에도, 원고의 의뢰에 따라 보관하게 된 이 사건 화물에 관하여 원고의 동의나 화물인도지시서가 없는 상태에서 이를 수입업자인 삼광수기에게 임의로 인도하였고, 그로 인하여 선하증권 소지인으로서의 권리가 침해된 오션브리지가 원고를 상대로 미국에서 손해배상청구소송을 제기하여 그 소송과정에서 원고가 오션브리지에게 소송합의금과 변호사비용 등을 지출하는 손해를 입었으므로, 피고는 원고에 대하여 불법행위 또는 채무불이행에 기한 손해배상책임을 부담한다고 판단하여, 그 손해배상책임의 이행을 구하는 원고의 주위적 청구의 일부를 받아들였다.

B. Judgment on the Defendant’s grounds of appeal

However, it is difficult to accept the lower court’s determination that the Defendant is liable for damages arising from tort or nonperformance with respect to the Plaintiff’s damages arising from the litigation agreement fees and attorney fees, etc. for the following reasons.

Even if the Defendant is liable for damages due to the Defendant’s delivery of the instant cargo without the Plaintiff’s order of delivery or the instant bill of lading, the damages that the Defendant is liable for shall, in principle, be limited to the damages that have proximate causal relation with the Defendant’s delivery of the

However, according to the plaintiff's assertion, Orbdo was attracting the bill of lading of this case as a security for the obligation to distribute the freight of this case, and although the defendant arbitrarily delivered the freight of this case, he brought a lawsuit against the plaintiff for compensation in the United States on the ground that he suffered loss of Orbdo caused loss of the freight of this case, which is a security for the obligation to distribute the freight of this case, which is the obligation to deliver the freight of this case, as a consignee, if the bill of lading issued as a broker, is submitted, it is clear in the fact of the court below's finding that the agent bears the duty to immediately deliver the freight of this case to the Sambdoer who is the consignee, and therefore, it is clear that the agent has no right to retain the freight of this case at any time to secure the obligation to distribute the freight of this case. Thus, even if the defendant delivered the freight of this case without permission, barring any special circumstance, the plaintiff as the plaintiff does not have the duty to pay compensation for the damage of Orbdo for the above act of the defendant.

Nevertheless, in the above lawsuit in the U.S., the plaintiff voluntarily paid the amount of compensation for damages and the costs of the lawsuit incurred as a result are borne by the plaintiff. Thus, the payment of the above amount and the burden of the costs of the lawsuit cannot be deemed to be based on the damages liability attributable to the plaintiff due to the default or tort of the defendant's voluntary delivery. Thus, there is no proximate causal relation between the plaintiff's damages incurred by the payment of the above agreed amount and the costs of the lawsuit and the defendant's above act (see Supreme Court Decision 92Da28518 delivered on December 22, 1992).

Furthermore, there is no room to deem that there was a proximate causal relation between the above act of the defendant and the entire damage that the plaintiff seeks as the main claim, as seen above, that the defendant could suffer loss due to voluntary delivery of the cargo of this case, and there was no data to deem that there was a special circumstance that the plaintiff could have known that there was a special circumstance that the plaintiff would have been liable to compensate for loss due to such special circumstance, and that there was no possibility to acknowledge the damage due to the special circumstance. Accordingly, the plaintiff's claim for damages of this case can only be dismissed. Thus, the plaintiff's claim for damages of this case cannot be dismissed.

Therefore, it is evident that the court below accepted part of the plaintiff's primary claim under the premise that there is a proximate causal relation between the defendant's above act and the agreement amount paid by the plaintiff. Thus, it is obvious that the court below erred by misunderstanding the legal principles as to proximate causal relation, which affected the conclusion of the judgment. Thus, the part against the defendant as to the primary claim among the judgment below should not be reversed without examining the defendant's remaining grounds

C. Judgment on the Plaintiff’s ground of appeal as to the primary claim part

As seen above, in the instant case where there is no proximate causal relation between the Defendant’s above act and the Plaintiff’s damage sought as the primary claim, and there is no possibility of recognizing it as a damage due to special circumstances, it is difficult to deem that the Defendant could have known the fact that he could have suffered damage due to voluntary delivery of the instant cargo, and thus, it is not reasonable to deem the Defendant to have recognized it in excess of the damage compensation recognized by the lower court (it is difficult to deem that the Defendant could have known that he could have suffered damage, as long as there is no room for causing the damage as above).

In addition, in light of the records, although the defendant submitted the above letter to the plaintiff's domestic agency, it is merely the meaning that the warehouse business operator, such as the defendant, fulfilled his duty of care as a matter of law, and if he violated it, he shall not be liable for damages. It is clear that the damages incurred due to the violation of such duty of care is not the meaning that he would be liable for damages without any reason regardless of the existence of proximate causal relation or the possibility of the defendant's predictability as to special circumstances. Thus, the plaintiff and the defendant cannot be deemed to have agreed to prevent ordinary damages and special damages.

Therefore, the court below's dismissal of part of the claim for main damages is inadequate, but it is therefore justified, and there is no error of law such as misunderstanding of legal principles as to the scope of damages and proximate causal relation, misunderstanding of facts as to the possibility of expectation of the defendant due to violation of the rules of evidence, misunderstanding of facts as to mitigation of burden of proof as to the liability for damages as stated in Gap evidence 1 (written evidence). The plaintiff's ground of appeal as to this part

2. Judgment on the Plaintiff’s ground of appeal as to the conjunctive claim

In a case where the primary claim and the primary claim are compatible with each other, if a reasonable need exists to make a claim with the order of a trial (see Supreme Court Decision 2001Da17633, Feb. 8, 2002). In such a case, where the primary claim is not wholly accepted, the primary claim may be brought in an indivisible combination with the purport that it is possible to make a judgment on the conjunctive claim within the scope of the amount not accepted in the primary claim (see Supreme Court Decision 98Da17145, Sept. 4, 2002). Thus, in a case where the primary claim are partially accepted, the issue of whether to examine the conjunctive claim depends on the interpretation of the intent of the parties to the lawsuit. Accordingly, in a case where the court dismisses part of the primary claim based on the primary claim and cites only the amount less than the conjunctive claim, if the primary claim is not accepted in whole, it shall be determined in accordance with the purport that the conjunctive claim should be determined within the scope of the amount not accepted in the primary claim.

According to the records, the plaintiff primarily sought compensation for the above amount of 42,269 dollars and damages for delay on the ground that the defendant's act constitutes a default or tort, and the plaintiff agreed to pay 16,135 dollars in total, including 10,000 dollars and 16,135 dollars in total, which correspond to 1,250 dollars in the litigation agreement that the plaintiff paid. The court below accepted part of the above main claim only for the above amount and damages for delay on the ground that the delivery price on the invoice of this case is not equivalent to 19,224.40 dollars in the above conjunctive claim. The above two claims can be accepted regardless of the other claim's acceptance. However, in light of the above legal principles, the court below should have determined that if the plaintiff's main claim is not accepted in whole, the plaintiff's main claim should be accepted within the scope of the conjunctive claim.

Nevertheless, the court below rejected only 19,224.40 dollars and damages for delay on the basis of the above main cause, but did not decide on the plaintiff's conjunctive claim for the payment of USD 26,135 and damages for delay. The court below erred in misunderstanding the legal principles as to the conjunctive consolidation of claims, which affected the conclusion of the judgment. This error is obvious that the court below erred in misunderstanding the legal principles as to the conjunctive claim, which affected the judgment on the remainder of the conjunctive claim which violated the obligation to explain. In the case of the conjunctive consolidation, even if several claims are joined in one litigation procedure and the judgment on the conjunctive claim is not judged, the part of the conjunctive claim whose judgment was omitted shall also become the appellate court (see Supreme Court en banc Decision 98Da2253 delivered on November 16, 200), and the part of the judgment of the court below as to the conjunctive claim shall not be exempted from being reversed.

3. Conclusion

Therefore, among the judgment below, the part against the defendant as to the main claim and the conjunctive claim are reversed, and that part of the case is remanded to the court below for a new trial and determination. The plaintiff's remaining appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Song Jin-hun (Presiding Justice)