[1] The meaning of a contract of carriage of goods and the standard for determining a carrier under a contract of carriage

[2] The requirements for acquiring the status of a carrier in relation to a client where the forwarding agent has entered into a contract of carriage as a carrier

[3] The criteria for determining whether a freight forwarder was requested only to a freight forwarder, where it is unclear whether the freight forwarder was requested to a freight forwarder

[4] In a case where the cargo was destroyed by the negligence of the actual carrier and the terminal operator before the ship agency takes possession of the cargo, whether the ship agency can be held liable for the loss of the cargo (negative)

[5] The case holding that the freight forwarder is not liable for damages under Article 115 of the Commercial Act since it proves that the freight forwarder or his employee did not neglect to pay due attention to the receipt, delivery, custody, the selection of the carrier or another freight forwarder, and other transportation

[6] Whether the scope of “employee or agent of a carrier” under Article 789-3(2) of the Commercial Act includes an independent contractor who runs his own business (negative), and whether such independent contractor may invoke a defense under Article 811 of the Commercial Act (negative)

[7] Whether a terminal operator, an independent contractor, may invoke the limitation of liability that can be asserted by a carrier in accordance with the above standardized contract, where the so-called "Harday Clause" provides that the person involved in the carriage may invoke the defense such as the limitation of liability that a carrier may claim on the back of the bill of lading (affirmative in principle)

[8] Whether an agreement which provides that a carrier may invoke the limitation of liability which the carrier may claim in cases of a person related to transportation other than an employee or agent of the carrier is null and void under Article 790 (1) of the Commercial Act, which is contrary to the provisions of Article 789-3 of the Commercial Act (negative)

[9] Whether the so-called "Hriday Clause" can be deemed to be "a clause which has lost fairness in violation of the principle of trust and good faith" as stipulated in Article 6 (1) of the Regulation of Standardized Contracts Act or a clause which falls under any subparagraph of Article 6 (2) of the same Act (negative)

[1] The contract of carriage of goods is established when one of the parties promises to transfer goods from one place to another and the other party promises to pay a certain amount of remuneration therefor. The carrier, who bears the rights and obligations under the contract of carriage, shall be determined according to who takes over the carriage in relation to the client.

[2] If a forwarding agent prepares a bill of lading at the request of the principal in accordance with Article 116 of the Commercial Act or determines the amount of freight in the freight forwarding contract pursuant to Article 119(2) of the same Act, he/she may obtain the status as a carrier. However, if the forwarding agent does not obtain the status as a carrier pursuant to the above provisions, even if the forwarding agent enters into a contract of carriage as a carrier, he/she still holds the status as a forwarding agent in relation to the client.

[3] Even if a freight forwarder received a request for transportation-related affairs from a client, if it is unclear whether the freight forwarder was requested or not, the intention of the party should be examined to determine whether the freight forwarder acquired the status of the carrier. However, if the intention of the party is unclear, it should be determined whether the freight forwarder can be deemed to have taken over the freight from the client in accordance with logical and empirical rules, comprehensively taking into account all the circumstances such as the name of the issuer of the cargo bill and the payment method of the freight, etc.

[4] The shipping agency is a person who acts as an agent for a person engaged in marine transportation business and performs all duties related to the delivery of cargo under a contract with a carrier. If the cargo was destroyed due to the negligence of the actual carrier and terminal operator before the ship agency who performs such duties occupies the cargo, the ship agency shall not be held liable for tort against the loss of the cargo.

[5] The case holding that a forwarding agent is not liable for damages under Article 115 of the Commercial Act since he or his employee proves that he or his employee did not neglect to pay due attention to the receipt, delivery, custody, selection of a carrier or another forwarding agent, and other carriage of the goods

[6] The term "employee or agent of a carrier" under Article 789-3 (2) of the Commercial Code refers to a person who performs his/her duties under the direction and supervision of a carrier pursuant to an employment contract or a delegation contract, etc. and includes an independent contractor who conducts his/her own business in accordance with his/her own judgment regardless of such direction and supervision. Thus, such independent contractor cannot invoke a defense under Article 811 of the Commercial Code.

[7] In the back of a bill of lading, where the claim for compensation for the damage of the cargo was made against the person involved in the carriage other than the carrier, the person involved in the carriage may invoke defenses such as the limitation of liability, which can be asserted by the carrier, such as the subcontractor, the shipper, the terminal operator, the inspector, and the direct and indirect subcontractor in the carriage, including the subcontractor, the inspector, the land, sea, air carrier, and the direct and indirect subcontractor in connection with the carriage, and the persons listed above are not limited to them, unless the damage was caused by the intentional act or omission with awareness that the damage was caused by the willful misconduct or the loss, damage, or delay of the cargo, the independent terminal operator, an independent contractor, may invoke the limitation of liability of the carrier in accordance with the above terms and conditions.

[8] Article 789-3 (2) of the Commercial Code limits a person who may invoke "liability limitation which can be asserted by a carrier" to an "employee or agent of a carrier," and it does not apply to a person other than an employee or agent of a carrier. Thus, even if the parties agree that a carrier may invoke the liability limitation which can be asserted by a carrier in cases of a person related to transportation other than an employee or agent of a carrier, it shall not be deemed a special agreement that reduces the obligation or responsibility of a carrier contrary to the provisions of Article 789-3 of the Commercial Code, and therefore, it shall not be deemed as null and void pursuant to Article 790 (1) of the Commercial Code

[9] Although the so-called "H days Clause" has different details concerning the scope of the person involved in the carriage who is entitled to invoke the defense or the limitation of the limitation of liability of the carrier, it shall not be deemed to be the "a clause which loses fairness contrary to the principle of trust and good faith" as stipulated in Article 6 (1) of the Regulation of Standardized Contracts Act or any provision falling under any subparagraph of Article 6 (2) of the same Act in light of the fact that it is internationally used as a whole in relation to the risk or peculiarity of maritime carriage as well as indirectly related to the freight to be borne by the consignor.

[1] Article 125 of the Commercial Act / [2] Articles 114, 116, and 119 (2) of the Commercial Act / [3] Articles 114 and 115 of the Commercial Act / [4] Article 78 of the Commercial Act / [5] Article 115 of the Commercial Act / [6] Articles 789-3 (2) and 81 of the Commercial Act / [7] Article 105 of the Civil Act, Article 789-3 (2) of the Commercial Act / [8] Article 105 of the Civil Act, Article 789-3 (2) of the Commercial Act, Article 790 (1) of the Commercial Act / [9] Article 105 of the Civil Act, Article 789-3 (2) of the Commercial Act, Article 6 (1) and (2) of the Regulation of Standardized Contracts Act

[1] Supreme Court Decision 63Da126 delivered on April 18, 1963 (No. 11-1, 256), Supreme Court Decision 82Nu92 delivered on April 26, 1983 (Gong1983, 898) / [6] Supreme Court Decision 2001Da75318 delivered on February 13, 2004 (Gong2004, 460) / [7] Supreme Court Decision 95Da25237 delivered on January 24, 1997 (Gong197Sang, 621)

ageS Trade Co., Ltd. (Law Firm Samyang, Attorneys Song-won et al., Counsel for the defendant-appellant)

UPS SS Korea Co., Ltd and one other (Law Firm Sho Chang, et al., Counsel for the defendant-appellant)

Busan District Court Decision 2006Na4936 Decided December 21, 2006

All appeals are dismissed. The costs of appeal are assessed against the Plaintiff.

The grounds of appeal are examined.

1. As to the grounds of appeal on Defendant UPS SS Korea Ltd.

A. As to the responsibility of Defendant UPS SS Korea Co., Ltd. as the carrier

(1) A contract of carriage of goods is established when one of the parties promises to move the goods from one place to another and the other party promises to pay a certain amount of remuneration therefor (see Supreme Court Decisions 63Da126, Apr. 18, 1963; 82Nu92, Apr. 26, 1983); and a carrier who bears the rights and obligations under the contract of carriage shall be determined in accordance with who takes over the carriage in relation to the client. Meanwhile, even if the forwarding agent engages in the business of carriage in his own name as the principal agent, it is in principle that the shipping agent acts as the principal agent in his own name, but even if the shipping agent actually acted in the name of the principal agent or the principal, if the forwarding agent acts as the principal agent, he is not the principal agent (see Supreme Court Decision 85Da1080, Oct. 13, 1987).

In addition, if the freight forwarder receives a request for transportation-related affairs from the client, it is not clear whether the freight forwarder is requested or not, the intention of the party should be examined to determine whether the freight forwarder acquires the status of the carrier. However, if the intention of the party is unclear, it should be determined whether the freight forwarder can be deemed to have taken over the freight from the client in accordance with logical and empirical rules, comprehensively taking into account all the circumstances, such as the name of the issuer of the cargo bill and the payment method of the freight, etc.

(2) According to the above legal principles, reasoning of the judgment below, and the records, the plaintiff entered into a contract on the import of IPP-27,00 g (hereinafter "the cargo of this case") with the PPP-27,00 g (hereinafter "F.O.B") on behalf of the exporting company located in the Republic of China, and the plaintiff entered into such contract on the shipment of the cargo of this case into an international transport chain service through Kim Young-young (UPSOE FIS REVE, INC, INC) on behalf of the defendant UPS Korea Co., Ltd. (hereinafter "UPS Korea Co., Ltd."), prior to the issuance of the bill of this case, the plaintiff entered the shipment of the cargo of this case into the bill of lading on behalf of the defendant SPS Korea Co., Ltd., Ltd. (hereinafter "UPS RES Korea Co., Ltd."), and entered such facts as the "Korea Co., Ltd.'s shipping agency" on the shipment of the cargo of this case into the contract.

The court below erred in failing to determine the plaintiff's assertion that Defendant UPS Korea is liable for damages as a carrier with respect to the loss of the cargo of this case. However, as seen above, it is clear that the plaintiff's assertion will be rejected, and the above erroneous judgment of the court below does not affect the conclusion of the judgment. Thus, contrary to the allegations in the grounds of appeal, the court below did not err in the misapprehension of legal principles as to the confirmation of a carrier affecting the conclusion

B. As to the responsibility of the defendant UPS Korea as the forwarding agent or the shipping agent

(1) If a forwarding agent proves that he or his employee did not neglect his care in connection with the receipt, delivery, or custody of the goods, the selection of a carrier or another forwarding agent, or any other carriage of the goods in accordance with Article 115 of the Commercial Act, he shall not be liable to compensate for any damage caused by the loss of the goods.

On the other hand, the ship's agent is a person who acts as an agent for a person engaged in marine transportation business and performs all duties related to the delivery of cargo under a contract with a carrier. If the cargo was damaged due to the negligence of the actual carrier and terminal operator before the ship's agent who performs such duties is transferred the possession of the cargo, the ship's agent cannot be held liable for tort against the loss of the cargo to the ship's agent.

(2) In light of the above legal principles and the facts acknowledged by the court below, there is no room to regard Defendant UPS Korea as a forwarding agent. However, the instant cargo should be kept in the freezing 18 degrees in its nature. However, the actual carrier did not notify the same while delivering the cargo to the Defendant Korea Hepson Terminal Co., Ltd. (hereinafter “Hupson Terminal”), which actually takes charge of the storage of the cargo and the storage of the cargo, and Defendant Hepson Terminal, who was in custody in the bonded storage station upon delivery of the cargo in accordance with the service contract with the actual carrier, was naturally destroyed by neglecting the dangerous substance management code of the freezing container without properly examining the cargo management code of the freezing container. Accordingly, in light of these facts, Defendant UPS Korea and its employees were proved not to have been negligent in the receipt, delivery, storage of the cargo, the carrier, the other shipping company’s choice, and other transportation, and thus, the liability for damages under Article 115 of the Commercial Act shall not be held liable for damages under the Commercial Act.

In addition, in light of the facts acknowledged above, Defendant UPS Korea may be deemed to have held the position of a ship's agent to carry out the duties of delivering the goods at the place of destination, but the loss of the goods of this case occurred before Defendant UPS Korea occupies the goods of this case, and thus, Defendant UPS Korea cannot be held liable for tort against it.

The court below determined that Defendant UPS Korea is not a forwarding agent, and further did not determine the Plaintiff’s assertion that there was tort regarding the loss of the cargo of this case as a shipping agent. However, as seen above, the Plaintiff’s above assertion cannot be accepted. As such, the court below’s above error did not affect the conclusion of the judgment. Thus, contrary to the allegations in the grounds of appeal, the court below did not err in the misapprehension of legal principles as to the liability for damages as a forwarding agent or the tort liability of the shipping agent, or omission of judgment.

2. As to the ground of appeal on Defendant Hepson Terminal

Article 789-3(2) of the Commercial Act provides that "When a claim for compensation for damage concerning the cargo has been made to an employee or agent of the carrier, such employee or agent may invoke the defenses and limits of liability which may be asserted by the carrier. However, this provision shall not apply if the damage is caused by the willful misconduct or other reckless act or omission of such employee or agent while recognizing the concern about the occurrence of the loss, damage or delay of the cargo." Here, the term "employee or agent" means a person who performs the work under the direction and supervision of the carrier under the terms of employment contract or delegation, and regardless of such direction and supervision, it does not include an independent contractor who performs the own own business. Thus, such independent contractor cannot invoke defenses within the terms of Article 811 of the Commercial Act as stated above (see Supreme Court Decision 201Da75318, Feb. 13, 2004).

Article 789-3 (2) of the Commercial Act limits a person who may invoke the "liability limitation which a carrier may claim" to an "employee or agent of a carrier" and it shall not apply to a person other than an employee or agent of a carrier. Thus, even if the parties agree that a person other than an employee or agent of a carrier may invoke the liability limitation which a carrier may claim, it shall not be deemed a special agreement that reduces the obligation or liability of a carrier contrary to the provisions of Article 789-3 of the Commercial Act, and therefore, it shall not be said that it shall not be effective in accordance with Article 790 (1) of the Commercial Act.

On the other hand, while the so-called horses clause has different contents concerning the scope of the parties involved in the carriage who can invoke the carrier's defense or the limitation of liability, it shall not be deemed to fall under any of the provisions of Article 6 (1) of the Regulation of Standardized Contracts Act or any of the subparagraphs of Article 6 (2) of the same Act in light of the fact that the risks or characteristics of marine transportation are generally recorded on the back of the bill of lading with respect to the risks or characteristics of marine transportation, and that it is indirectly related to the freight to be borne by the client.

In the same purport, the court below is just in holding that Defendant Heason Terminal, a terminal operator who was in custody of the freight in this case in accordance with the service contract with Korea Shipping, could invoke the defenses as to the carrier's limitation of liability in accordance with the so-called weekend Clause stated on the back of the bill of lading with respect to the freight in this case. In so determining, the court below did not err in the misapprehension of legal principles as to the validity of the so-called Mapo Clause and its scope of application, which affected the judgment, or in the omission of judgment, contrary to what is alleged in the ground of appeal.

3. Therefore, all appeals are dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park Si-hwan (Presiding Justice)