(영문) 서울중앙지방법원 2014.10.21.선고 2014나14527 판결

1. The part of the judgment of the court of first instance against the Plaintiff corresponding to the money ordered to be paid below shall be revoked. The Defendant shall pay to the Plaintiff 27,257,120 won with 6% interest per annum from October 21, 2012 to October 21, 2014, and 20% interest per annum from the following day to the date of full payment.

2. The plaintiff's remaining appeal is dismissed.

3. The total costs of the lawsuit are borne by the Plaintiff, 20% of the portion arising between the Plaintiff and the Defendant, and the remainder are borne by the Defendant, 20% of the portion arising from the participation in the lawsuit is borne by the Plaintiff, and the remainder is borne by the Intervenor

4. The part concerning the payment of money under paragraph (1) may be provisionally executed.

Purport of claim and appeal

The judgment of the first instance is revoked. The defendant shall pay to the plaintiff 27,257,120 won with 20% interest per annum from the day following the delivery of a copy of the complaint of this case to the day of complete payment.

Reasons

1. Basic facts

A. The plaintiff is a company running the transportation business. The defendant is a corporation established pursuant to the Korea Railroad Corporation Act to carry on the transportation business of railroad, and the defendant's intervenor is a company that carries on an agency business related to the transportation of railroad freight.

B. On October 6, 2011, the Plaintiff entered into a contract of carriage of one container (container No. KTU7328421, hereinafter referred to as the “instant container”) in Busan New Port (hereinafter referred to as the “instant contract of carriage”) which arrives at the terminal of Busan New Port from the Defendant, and distributed the train No. 3034 (hereinafter referred to as the “the instant train”) No. 763278 (hereinafter referred to as the “the instant train”). The instant container was a cargo for which the Plaintiff was commissioned to transport from the integrated transportation of Han-gu Co., Ltd. from the Plaintiff on October 18, 2011 to the Busan New Port Co., Ltd. (hereinafter referred to as the “the instant train”). On October 18, 2011, the instant container was a cargo for which the Plaintiff was commissioned to transport from the Plaintiff to the Busan New Port Co., Ltd., Ltd. (hereinafter referred to as the “Defendant No. 2”).

D. On October 7, 2011, around 20:40 on June 201, the instant train started from the Busan New Port, and was carried out a subordinate work on a four-line line after arriving in the wing Station around 11:35 on October 7, 201. However, it was found that part of the bean, the content of which was the instant container, was accumulated in the instant chemical.

E. Meanwhile, the relevant provisions in the terms and conditions of railroad freight transportation are as follows.

Article 3 (Definitions) ① The definitions of the terms used in this Terms and Conditions are as follows: <27. The term "container" means the cargo transported by container. The term Article 57 (Exemption) Railroad Corporation shall not be liable in any of the following cases:

5. Damage caused by incomplete packing by a customer;

6. Loss caused by the contents of container, cargo, etc. sealed at the time of receipt: Provided, That this shall not apply to the damage caused by clear cause of railroad construction. Article 59 (Indemnification) (1) of this Act shall apply to the liability for damage caused by the loss, damage, or delay in delivery of cargo.

(4) The Railroad Corporation and its customers shall terminate a claim for damages one year after the date of the occurrence of the accident.

[Reasons for Recognition] Facts without dispute, Gap evidence 1 through 8, Gap evidence 11-1 and 2, the purport of the whole pleadings

2. Determination

A. Determination on the cause of the claim

If a carrier does not prove that he/she, a forwarding agent, an employee, or any other person employed for the carriage did not neglect his/her care in connection with the receipt, delivery, custody, and carriage of the cargo, he/she is liable to compensate for the damage caused by the loss of, damage to, or delay in arrival of the cargo (Article 135 of the Commercial Act). According to the above basic facts, the Defendant is a carrier who has entered into the instant transport contract with the Plaintiff, and barring any special circumstance, the Plaintiff is liable to compensate the Plaintiff

A person shall be liable for damage resulting from the loss of part of the bean as cargo.

B. Determination as to the assertion by the Defendant and the Intervenor joining the Defendant

1) Summary of the assertion

A) The Defendant and the Defendant’s Intervenor fulfilled their duty of care in relation to the receipt, delivery, storage, and transportation of the instant cargo.

B) The Defendant is exempted from liability pursuant to Article 57 (5) or (6) of the Railroad Freight Transport Clause.

C) The Plaintiff filed the instant lawsuit on October 16, 201, from October 7, 201, which was the date of the instant accident, to October 16, 201, and thus, the Plaintiff’s damage claim under Article 59(4) of the Terms and Conditions of Railroad Cargo Transport expired by prescription.

D) Even if the Defendant’s liability for damages is recognized, since the Plaintiff and the Defendant are successive carriers, and the carrier cannot be identified who committed the act causing the instant damages, the Defendant bears only the liability for compensation in proportion to the rate of the fare pursuant to Article 138 of the Commercial Act regarding the scope of damages, and the Defendant’s liability for damages is merely 10km of the destroyed be limited to this part.

2) Determination on the assertion of performance of duty of care

A) In the instant case, the Defendant’s Intervenor constitutes a person employed by the Defendant for the implementation of the instant transport contract, and there is insufficient evidence to acknowledge that the Defendant or the Intervenor’s Intervenor fulfilled his duty of care in relation to the receipt, delivery, custody, and transport of the instant cargo by itself on the sole basis of the entries or images of the evidence No. 1-6, Eul’s evidence No. 2-1-2, Eul’s evidence No. 2-13, Eul’s evidence No. 1-2, and witness B of the first instance trial, and there is no other evidence to prove this.

B) Rather, the following circumstances can be acknowledged by adding the argument of the whole evidence, i.e., (1) part of beer, the cargo of this case, was washeded through a hole in rectangular shape (hereinafter “instant hole”), which is about 10 meters from the outer shock of the container surface of this case. If the Defendant’s Intervenor had been using the container of this case before receiving the container of this case, it can be easily discovered that there was no error in the Defendant’s inspection of the container of this case at the time when the Defendant’s inspection was conducted on the container of this case. In light of the above facts, it is highly probable that the Defendant’s failure to receive the container of this case at the point of this case after receiving the container of this case, was likely to occur in the Defendant’s transportation section of this case, and there was no possibility of spreading the container of this case to the extent that it was installed on the container of this case at least 8 meters high from the surface of the container of this case and the container of this case.

3) Determination on the assertion of exemption clause

The defendant must prove that the damage of this case occurred due to the plaintiff's incomplete packaging under Article 57 subparagraph 5 of the Terms and Conditions for Railroad Cargo Transport, and the defendant must prove that the damage of this case occurred due to the plaintiff's incomplete packaging, and the video of the evidence Nos. 8 through 10 of the evidence No. 2, and No. 1 of the evidence No. 1 of this case is insufficient to recognize this fact, and there is no other evidence to prove this fact. Rather, the defendant's allegation that the defendant's defendant's defendant had no anything at the time when he inspected the container of this case is found as above.

Next, Article 57 subparagraph 6 of the Korean Railroad Cargo Transport Clause provides that the defendant shall not be held liable for damages arising from the loss of, damage to, etc. the content of the article, since the defendant shall not be held liable for the damage of the article, if the article is already sealed when the defendant receives the cargo, the quantity of the article, the condition of the storage, etc. of the article, and the defendant shall not be held liable for the damage. In order to be governed by this article, it is reasonable to view that the article should be premised on the fact that the defendant could not change the content of the article because the article was sealed until the transport is completed. Therefore, in this case, if the article, which is the same as the article, is damaged and the part of the bees, which is the content, was destroyed and damaged, the article shall not be deemed to apply. Thus,

4) Determination on the assertion of extinctive prescription

According to Gap evidence No. 9-4, the plaintiff sent to the defendant a content-certified mail demanding compensation on August 14, 201, which was within one year from October 7, 2011, the date of the accident of this case, to the defendant, and the defendant received it. Since the fact that the plaintiff filed the lawsuit of this case on October 16, 2012, which was within six months from the date of occurrence of the accident of this case, is apparent in the record, the extinctive prescription of the damage claim of this case was suspended on August 14, 2012 pursuant to Article 174 of the Civil Act, and this part of the defendant's assertion is without merit.

5) Determination on the scope of damages

Article 138(1) of the Commercial Act provides, "If several carriers successively transport the same cargo, each carrier shall be jointly and severally liable for damage resulting from the loss of, damage to, and delay in arrival of the cargo." This provision provides that, in order to enhance the protection of the consignor and the consignee, several carriers shall be jointly and severally liable for the same cargo, regardless of the place in which the damage occurred, in order to strengthen the protection of the consignor and the consignee, "in which several persons successively transport the same cargo" means a case where several carriers share the carriage section with the consignor, and the consignor is scheduled to simultaneously use the carriage with another carrier who has a relation to the carriage by entrusting the first carrier with the carriage, and as in this case, this provision applies to the so-called sewage carriage to which the plaintiff entered into a transport contract again with the defendant on his own name and on his account with respect to the cargo which the plaintiff was requested from the permanent comprehensive transport company, and therefore, this part of the defendant's assertion on

Meanwhile, the Defendant’s assertion that a large quantity of bean flows out of the train of this case is insufficient in light of the empirical rule to the effect that it was lost during the Defendant’s transport route, and that the bean has been destroyed separately in the course other than transport. Therefore, the Defendant’s assertion that the destroyed bean remains 10 km on the train of this case is without merit.

C. Sub-decision

Therefore, the Defendant is liable for compensating the Plaintiff for damages due to the partial loss of the Congo, which is the cargo of this case. The amount of compensation for damages in the event of partial loss or damage of the cargo of this case shall be based on the price at the destination of destination (Article 137(2) of the Commercial Act), Gap evidence 3, Gap evidence 11-1 and 2, comprehensively taking account of the overall purport of arguments and arguments in this case, the facts of being destroyed and lost 7,949km, and the defendant delivered the cargo to the Plaintiff on October 7, 201, the price at the Congo is 3,429 kg. Thus, it is reasonable for the Defendant to pay 27,257,120 won to the Plaintiff at the rate of KRW 7,949km x 3,429 K x 3,429 K x 3,429 won, and 20% annual interest rate from the date the complaint of this case was served to the Defendant as sought by the Plaintiff to the extent of 120% or 14.

3. Conclusion

Therefore, the plaintiff's claim of this case is reasonable within the above scope of recognition, and the remaining claim is dismissed as it is without merit. Since the judgment of the court of first instance is unfair with a different conclusion, part of the plaintiff's appeal is accepted, and the part against the plaintiff corresponding to the above recognition amount is revoked, and the payment of this money is ordered to be made to the defendant, and the remaining appeal of the plaintiff is dismissed as it is without merit.