[1] Presumption effect of the bill of lading entry and the meaning of "the cargo was loaded in a conspicuous condition in appearance"

[2] In a case where a paper bill of lading has been issued on a container transport containing a site agreement on its contents, the burden of proving the validity of the site agreement and the status of its contents (=holder of the bill of lading)

[3] The case holding that there is insufficient evidence to prove that the consignor delivered the cargo that is not defective to the carrier during the container transport

[1] According to the provisions of Article 814-2 of the Commercial Code, a carrier is presumed to have received or loaded the cargo as stated in the bill of lading. Thus, in cases where an unclaimed bill of lading stating that the cargo has been loaded in the form of appearance in the bill of lading has been issued, the carrier shall be presumed to have received or loaded the cargo in good condition unless there are special circumstances. Therefore, in cases where the holder of an unclaimed bill of lading proves the damage caused by the damage of the cargo, it is sufficient to prove only the fact of damage to the cargo at the time of receiving the cargo from the carrier. Furthermore, although it is not necessary to prove that such damage was caused during the voyage, the "the external condition of the cargo" which is presumed as stated in the bill of lading is applicable only to the external defect that can be discovered if it is inspected with due care, the above presumption provision cannot be applied to the inside condition of the cargo that could not be discovered even if

[2] In the case of a container transport in the form of loading and sealing the cargo directly by the consignor to the carrier after loading and sealing the cargo to the container, such wording is valid in the case of special circumstances as stipulated in Article 814 (1) of the Commercial Act, or for the convenience of circulation of the bill of lading, even if it is stated on the bill of lading that "the carrier has received the cargo in good condition," such phrase is stated at the same time as "the consignor has loaded the cargo in a proper condition," or "the consignee has flive capacity," such as "the consignee has flive capacity," or "the carrier has flive capacity," and if there is no reasonable and proper way to inspect and confirm the contents of the bill of lading at the time of issuance of the bill of lading, such phrase shall be valid, and if there is no such proof that the contents of the bill of lading cannot be confirmed separately from the bill of lading bill of lading bill of lading bill of lading bill of lading bill of lading holder's internal condition and it shall be presumed that the bill of lading bill of lading bill of lading holder has been in good condition.

[3] The case holding that there is no evidence to prove that the consignor delivered the cargo that is not defective to the carrier during the container transport

[1] Article 814-2 of the Commercial Act / [2] Articles 814(1) and (2), 788, and 790 of the Commercial Act / [3] Articles 814(1) and (2), and 788 of the Commercial Act

Samsung Fire & Marine Insurance Co., Ltd. (Attorneys Jin full-time et al., Counsel for the plaintiff-appellant)

Seoul High Court Decision 200Na14488 delivered on August 1, 200

Seoul High Court Decision 98Na5175 delivered on September 8, 1998

The appeal is dismissed. The costs of appeal are assessed against the plaintiff.

1. Regarding ground of appeal No. 1

According to the provisions of Article 814-2 of the Commercial Act, since a carrier is presumed to have received or loaded the cargo as stated in a bill of lading, in cases where an unclaimed bill of lading stating that the cargo has been loaded in an open condition in appearance has been issued, a carrier shall be presumed to have received or loaded the cargo in good condition unless there are special circumstances. Therefore, in cases where the holder of an unclaimed bill of lading proves damage to the cargo due to damage of the cargo from the carrier, it is sufficient to prove only the fact of damage to the cargo at the time of receiving the cargo from the carrier, and there is no need to prove that such damage has occurred during the voyage. However, the "the external condition of the cargo" as stated in a bill of lading applies only to the external defect that can be discovered if it is inspected with due care, and even if there is considerable care, the above presumption provision cannot be applied to the inside condition of the cargo not discovered.

In addition, in the case of a container transport in the form of loading and sealing the cargo directly into a container by the consignor and then delivering it to the carrier, the so-called "the person who received it in good condition" is written in the bill of lading, even though the phrase "in order to satisfy the legal entries of the bill of lading under Article 814 (1) of the Commercial Act or for the convenience of circulation of the bill of lading," and at the same time, the so-called "the person who received it in good condition" is written in the bill of lading, such as "the person who received it in good condition" or "the person who received it in good condition" is written in the bill of lading, and there is no reasonable and adequate way to inspect and confirm the contents of the bill of lading as a carrier at the time of issuance of the bill of lading, and there is no such special circumstance as stipulated in Article 814 (2) of the Commercial Act, such stipulation shall be valid, and the above site's effect shall also affect the internal condition of the cargo not confirmed by the carrier.

Therefore, if the above site wording is stated in a bill of lading, it cannot be presumed that it was received or loaded in good condition with respect to the condition of the contents in the container because it stated that it was shipped in good appearance. Therefore, in such a case, the bill of lading holder must prove that the consignor has delivered the cargo in good condition to the carrier.

In the same purport, the judgment of the court below that the plaintiff shall claim and prove that the cargo was damaged while the carrier stores and transports the cargo, i.e., the consignor delivered the cargo without any defect to the carrier, but the carrier received defective cargo from the carrier, is just, and there is no error of law by misunderstanding the presumption of the bill of lading, the validity and content of the site terms and conditions stated in the unclaimed bill of lading, and the burden of proof as alleged in the ground of appeal.

2. Regarding ground of appeal No. 2

원심판결 이유에 의하면 원심은, 그 판시 채택 증거에 의하여 이 사건 컨테이너 24개 중 2, 3개에 약간의 못, 자갈, 나무조각 등의 이물질이 발견되었고, 이 사건 화물을 부산항에서 양하한 1995. 7. 7. 부산 지역의 강우량이 107.7mm이며, 위 양하시에 이 사건 컨테이너 1개의 상부가 움푹 파여 있고(50cm×100cm), 좌측 상부레일 1곳(길이 30cm)이 휘어 있는 사실이 인정되기는 하지만, 한편 이 사건 화물이 젖게 된 것은 해수(해수)가 아닌 담수에 의한 것인데, 중국 대련에서 송하인으로부터 운송인에게 화물이 인도된 1995. 7. 2. 및 같은 달 4일∼5일경에도 천둥이 치고 소나기가 내렸고, 운송인의 해상운송과정에 특별한 기상이변이나 해난사고는 없었으며, 컨테이너는 방수처리가 되어 있고 정기적으로 검사를 받아 왔는데 이 사건 컨테이너에서 빗물이 스며들 만한 구멍은 발견되지 않았고, 이 사건 컨테이너가 물에 침수되거나 컨테이너 야적지가 물에 잠기는 사고는 없었던 사실, 이 사건 컨테이너 24개 중 21개의 컨테이너에서 886롤이나 되는 많은 양의 내용물이 찢기거나 찔려 있었으나 못, 자갈 등의 이물질은 불과 2, 3개의 컨테이너에서 발견되었을 뿐인 사실, 비록 운송인이 컨테이너를 제공하더라도 이 사건 선하증권 이면약관 제6조에 화물이 운송인에 의하여 포장, 적입되지 아니한 경우, 컨테이너의 적입, 포장 또는 선적 당시 또는 그 이전에 송하인의 합리적인 조사에 의하여 명백히 발견될 수 있는 컨테이너의 부적합성 또는 하자로 인한 운송물의 손해에 대하여 운송인은 책임지지 아니한다고 규정되어 있을 뿐만 아니라, 컨테이너에 쉽게 발견되는 이물질이 있는 경우 송하인이 운송물의 적입시 이물질을 제거하는 것이 일반적인 관례인 사실, 화물에 발생한 손상 형태로 보아 컨테이너에서 발견된 이물질에 의한 손상이라거나 롤과 롤간의 접촉이라기 보다는 날카로운 물체에 찍히거나 찢어진 상태이며, 이는 운송물의 적입이나 적출과정에서 지게차의 앞날부분에 찍혀 나타날 수 있고, 실제 수하인인 한솔무역이 각 보세장치장에서 컨테이너에 있는 이 사건 운송물을 적출할 때 종이로 된 롤이 손상되지 않도록 통상 사용하는 롤 페이퍼 크램퍼(roll paper cramper)를 사용하지 않고 지게차를 사용한 사실 등에 비추어 송하인이 운송인에게 하자 없는 운송물을 인도하고 한솔무역이 운송인으로부터 위 운송물을 인도받을 당시 하자 있는 운송물을 수령하였다는 점을 인정하기에 부족하다고 판단하였다.

In light of the records, the above fact-finding and decision of the court below are justified, and there is no violation of the rules of evidence or misconception of facts due to insufficient deliberation, as otherwise alleged in the ground of appeal.

3. Therefore, the appeal is dismissed, and all 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 Son Ji-yol (Presiding Justice)