[손해배상(기)등][공2009하,1522]
If it is obvious that the portion of damage is the land transport section in the multimodal transport, the validity of the nine-month period specified in the multimodal transport securities (effective).
In the case of maritime transport, Article 811 of the former Commercial Act (amended by Act No. 8581 of Aug. 3, 2007) provides that the obligation of a carrier to a consignor or a consignee shall be extinguished if no judicial claim is made within one year from the date when the carrier delivers the goods to the consignee, and shall not be reduced, but shall not be reduced by agreement between the parties. On the other hand, in the case of land transport, the liability of a carrier pursuant to Articles 147 and 121 of the Commercial Act shall be terminated after one year from the date when the consignee receives the goods to the consignee and it shall be deemed that it may be extended or reduced by agreement between the parties. Even in the case where it is evident that the damage portion of multimodal transport is a land transport section, if the multimodal transport operator has had a sewage carrier transport the said section with respect to the maritime transport, it shall not be in conflict with the application of the Land Transport Act between the sewage carrier and the multimodal transport operator.
Articles 147 and 121 of the Commercial Act; Article 811 of the former Commercial Act (amended by Act No. 8581 of Aug. 3, 2007) (see current Article 814(1)); Article 105 of the Civil Act
Plaintiff 1 Co., Ltd. (Attorney Han-soo et al., Counsel for the plaintiff-appellant)
[Defendant-Appellant] Plaintiff 2 (Attorney Lee So-young et al., Counsel for defendant-appellant)
Defendant (Law Firm Jeong-dong International Law, Attorneys Seo Dong-hee et al., Counsel for the defendant-appellant)
Seoul High Court Decision 2007Na83733 decided July 10, 2008
All appeals are dismissed. The costs of appeal are assessed against the plaintiffs.
The grounds of appeal are examined.
1. As to the grounds of appeal Nos. 1 through 3
With respect to a bill of lading issued by a multimodal transport operator in accordance with the United Nations Conference on Trade and Development and International Commercial Conference (UNFCCCD/ICC), the liability of the carrier provides for the exclusion period that "if a lawsuit is not brought within nine months from the date on which the goods are to be delivered or from the date on which the goods are not delivered and the consignee is entitled to be deemed to have been lost, the multimodal transport operator shall be exempted from all responsibilities," the multimodal transport operator shall carry out the combined transport of the goods at least two different means of transport among land transport, maritime transport and air transport. Unless there are laws and regulations applicable as a whole to the multimodal transport, it is reasonable to interpret that the multimodal transport is subject to the limitation of individual mandatory rules applicable to the portion in which the damage is incurred. Since the parties to the contract are also aware of the contractual relationship of nine months as set forth in the bill of lading, there is no disadvantage such as the predictability of the parties even if the provisions of the bill of lading apply to the part in which the damage occurred, unless it is contrary to the mandatory provisions applicable to the bill of lading."
In particular, in the case of maritime transport, Article 811 of the former Commercial Act (amended by Act No. 8581 of Aug. 3, 2007; hereinafter “former Commercial Act”) provides that the obligation of a carrier to a consignor or a consignee shall be extinguished if no judicial claim is made within one year from the date when the carrier delivered the goods to the consignee, and shall not be reduced, but shall not be reduced. In the case of land transport, the liability of a carrier pursuant to Articles 147 and 121 of the former Commercial Act shall be terminated one year after the date when the consignee received the goods. This shall be deemed to have been extended or reduced by agreement between the consignee. In the case where it is evident that the damage portion of multimodal transport is a land transport portion, if the multimodal transport operator had a sewage carrier transport with respect to the said section, it shall not be in conflict with the application of the provisions on maritime transport between the sewage carrier and the multimodal transport operator, the period for filing a lawsuit shall be deemed to have been set as valid in the multimodal transport document.
In the same purport, the court below is just in holding that since it is evident that the loss of each of the goods of this case caused by the theft of this case occurred in the land transport section, it is difficult to view the terms and conditions of the lawsuit of this case as null and void, and there is no violation of the law as
2. As to the fourth ground for appeal
Article 7(1) of the B/L of this case provides that “The B/L of this case shall have effect to the extent that it does not go against the mandatory provisions of the international treaty or the internal law to which this contract applies.” Since Article 7(1) provides that “The mandatory provisions of the internal law of this case are premised on the application of the contract of this case to the contract of this case, it cannot be interpreted that the law of the country to which the contract of this case is the governing law is the law of the country to which the damage occurred.”
In the same purport, the court below is just in holding that the validity of the contract cannot be determined under the Cream Act, which is the country where the actual damage occurred, and there is no violation of the law as alleged in the grounds of appeal.
3. Conclusion
Therefore, all appeals are dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.
Justices Kim Young-ran (Presiding Justice)