[1] In the case of marine transportation for which a bill of lading was issued, if the carrier agreed to deliver the cargo by the method of so-called "on-line limit", the time when the obligation to deliver the cargo was fulfilled, and if the carrier had the shipper who received the request from the actual importer perform the cargo and delivered the cargo without repayment of the bill of lading, whether the tort was established (affirmative) and the legal status of the shipper (

[2] The case holding that, although tort liability against a bill of lading holder is recognized in a marine transportation contract where a consignee bears the cost of transportation other than freight and the cost of loading and unloading, tort liability is not recognized against a performance assistant of an actual importer in charge of loading and unloading and bonded transportation

[1] If a bill of lading has been issued for maritime transport, a carrier fulfills the contractual obligation by delivering the cargo to a legitimate holder of the bill of lading, and the method and time of performance of such obligation can be determined by an agreement between the parties. If the consignee has employed the shipper at his own expense and the consignee has agreed to deliver the cargo in accordance with the method of unloading by receiving the cargo (hereinafter referred to as "on-board limit"), the consignee's obligation of delivery shall be fulfilled at the time of receiving the cargo. In this case, if the carrier delivered the cargo to the shipper at his own expense without delivering the cargo with the bill of lading or the cargo delivery guarantee certificate, etc. of the consignee in lieu thereof (hereinafter referred to as "bill of lading, etc.") and the actual importer at his own expense, the carrier did not perform the obligation of delivery to the shipper at his own expense, and barring any special circumstance, it is already established as tort against the legitimate holder of the bill of lading even if the shipper or the shipper becomes an assistant of the carrier or its employee after delivery to the shipper is not a legitimate holder of the bill of lading.

[2] The case holding that in a marine transportation contract where the carrier delivers the cargo to the performance assistant of the actual importer in charge of loading and unloading and bonded transportation without redemption of the bill of lading, if the carrier delivers the cargo to the consignee, then the legitimate holder of the bill of lading cannot be deemed as tort, and the above performance assistant's transporting the cargo to the de facto importer's own bonded storage place without redemption of the bill of lading, it cannot be deemed as tort separately in relation to the legitimate holder of the bill of lading

[1] Article 788 of the Commercial Act, Article 750 of the Civil Act / [2] Article 788 of the Commercial Act, Article 750 of the Civil Act

The administrator of Yangyang Shipping Co., Ltd. (Law Firm Jeong-dong International Law, Attorneys Seo Dong-hee, Counsel for the plaintiff-appellant)

Co., Ltd. (Law Firm Pacific, Attorneys Lee Jong-chul et al., Counsel for the plaintiff-appellant)

Seoul High Court Decision 2003Na2323 delivered on December 2, 2003

The part of the lower judgment against the Defendant is reversed, and that part of the case is remanded to the Seoul High Court.

1. The facts duly established by the court below are as follows.

(1) On June 22, 200, K non-ethyl Co., Ltd. (hereinafter referred to as "K non-ethyl") requested a Daegu Bank (hereinafter referred to as "TG") to issue a letter of credit for the purpose of importing 2,002.25t (the actual quantity of loading and unloading 2,006.645t) from Bohish and Alphine Intephine Trading (hereinafter referred to as "Voest Intephal and Alphine") 2,000, to issue the letter of credit for 1,250, 250, 250, 250, 300, 60, 300, 60, 300, 60, 60, 300, 60, 300, 250, 250, 206, 300, 250, 206, 306, 201, 306, 306, 25, 25, 206, 25, 3000

(2) On October 21, 1992, the plaintiff (the non-party was ordered to commence the company reorganization procedure by the Seoul District Court, and the non-party was appointed as the administrator on November 9, 200, and on May 20, 200, the company reorganization procedure was completed) entered into a maritime transportation contract between Bosa and Bosain to transport the steel 2,002.25t imported by ice from Bosanan to Bosaan Port from Bosanan (MVACCRATRE) for the instant cargo, and the shipper entered the steel stuff into a transportation contract between Bosanan and Bosain for the instant cargo, and on July 27, 200, the consignee issued the bill of lading No. 375-25 (B/L No. 375) with respect to the bill of lading No. 5375 (B/L No. 375).

(3) Upon entering the port of port on July 30, 200 and entering the port of port on July 31, 200, 200, Qcene 86 of Part 8 operated by the Defendant, who is the terminal operating company, was in contact with the Defendant on July 31, 200, and on July 29, 200, upon obtaining a license for the combustion equipment from the head of the Daegu Customs Office, requested the Defendant to transport the entire steel 2,002.25t to the ice private bonded transportation equipment. The Defendant’s participating company completed the bonded transportation report and completed the bonded transportation report by the Defendant’s third day to the Defendant’s third day on July 31, 200 through August 1, 200, the Defendant temporarily unloaded the cargo to the 8rd B/L, but had the Defendant, without receiving the B/L or cargo delivery instruction, made the entire cargo to ethyl ethyl at the city of Youngcheon-do, and had the Defendant’s third day off the cargo.

(4) On August 24, 200, the Daegu Bank paid USD 260,052 to the import price of the instant cargo and possessed the instant bill of lading. The Daegu Bank did not pay for the letter of credit to the Daegu Bank and did not pay for the letter of credit on November 2, 2000, and requested the Plaintiff to deliver the instant cargo. However, the Daegu Bank did not receive the instant cargo by shipping it out to the place of its own bonded storage and making use of it.

2. Based on the above factual basis, the lower court determined that the Plaintiff may exercise the right of indemnity against the Defendant, where the Plaintiff and the Defendant jointly discharged the freight by compensating for damages caused by the unauthorized delivery of the instant freight to the legitimate holder of the bill of lading, even if the Defendant were in the position of an independent contractor, and thus, the carrier and the terminal operating company are in the relationship between the carrier and the employee, and thus, where the Defendant delivered the freight to the consignee without exchange of the bill of lading or the order of delivery, the Plaintiff, the carrier, at the same time, bears the liability for nonperformance under the transport contract and the liability for tort arising from the infringement of the ownership of the cargo.

3. However, we cannot agree with the above determination by the court below for the following reasons.

If a bill of lading has been issued for marine transportation, the carrier fulfills the contractual obligation by delivering the cargo to the consignee, i.e., the legitimate holder of the bill of lading, and the method and time of delivery can be determined by an agreement between the parties concerned. If the consignee has agreed to deliver the cargo at his own expense and by receiving and unloading the cargo in accordance with the method of loading and unloading (hereinafter referred to as "on-board limit"), the consignee's request shall fulfill the obligation of delivery at the time of receiving the cargo. In this case, if the carrier delivered the cargo to the shipper requested by the de facto importer, who is only the notification place on the bill of lading (hereinafter referred to as "bill of lading, etc.") without delivering the cargo with the bill of lading or other equivalent consignee's letter of guarantee, etc. (hereinafter referred to as "bill of lading, etc.") and the shipper requested by the de facto importer, who is only the notification place on the bill of lading, barring any special circumstance, it is already established as tort against the legitimate holder of the bill of lading, and even if the above shipper or his employee becomes an assistant or his employee, or the carrier did not separately commit a tort with the bill of bill of lading.

As legally determined by the court below, if the shipping contract of this case was concluded under the so-called "C&F," the consignee's duty to load and unload the cargo, rather than the carrier's duty to load and unload the cargo. If one of the investment companies of the defendant, under the bonded transportation contract with the actual importer, was made to load and unload the cargo of this case, and the other investment company, an investment company, was made to load and unload the cargo of this case, and the other investment company, to load and unload the cargo of this case at the time of delivery, the defendant cannot be viewed as an agent to receive the cargo of this case from the plaintiff at the time of delivery, and the costs of loading and unloading, the consignee's duty to load and unload the cargo of this case, but the consignee's duty to load and unload the cargo of this case is not a carrier's duty to do so. If the defendant did not separately receive the cargo of this case from the bill of lading to the actual importer's right to discharge the cargo of this case from the bill of lading holder, it cannot be viewed as an agent or employee of this case's duty.

Nevertheless, the judgment of the court below which recognized the responsibility for compensation in relation to the plaintiff on the premise that the defendant bears the responsibility for tort, was erroneous in the misapprehension of legal principles as to the time of delivery of the cargo in the shipping contract at sea, which affected the conclusion of the judgment. Therefore, the ground of appeal pointing this out is with merit.

4. Therefore, the part of the lower judgment against the Defendant is reversed, and that part of the case is remanded to the lower court for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Jack-dam (Presiding Justice)