Amera Home Incandus Sapba (Attorneys Park Sung-won et al., Counsel for the defendant-appellant)

[Defendant-Appellant] Thempick (Law Firm Construction, Attorneys Song Woo et al., Counsel for defendant-appellant-appellant)

December 6, 2011

Seoul Central District Court Decision 2009Da331555 Decided December 15, 2010

1. All appeals filed by the plaintiff and the defendant are dismissed.

2. The costs of appeal shall be borne by each party.

1. Purport of claim

The defendant shall pay to the plaintiff 35,490,580 won with 6% interest per annum from June 10, 2009 to the service date of a copy of the complaint of this case, and 20% interest per annum from the next day to the day of complete payment.

2. Purport of appeal

A. The part against the plaintiff in the judgment of the court of first instance shall be revoked. The defendant shall pay to the plaintiff additional KRW 17,745,290 with 5% interest per annum from June 10, 2009 to the judgment of the appellate court, and 20% interest per annum from the next day to the day of full payment.

B. Defendant: The part against the Defendant in the judgment of the first instance shall be revoked. The Plaintiff’s claim corresponding to the above revocation portion shall be dismissed.

1. Quotation of judgment of the first instance;

The reasoning for this Court's explanation concerning this case is that "3.347 of the judgment of the court of first instance" shall be read as "3,347" and "payment" shall be added to "the plaintiff's insurance money of the court of first instance" of 5 17 , and "(c)" of 6 to 7 , as stated in the reasoning for the judgment of the court of first instance except for the following re-written part, this Court shall accept it as it is in accordance with the main sentence of Article 420 of the Civil Procedure Act.

Determination as to the application of the limitation of liability clause.

1) The defendant's assertion

According to the Defendant’s standard air transport terms and conditions and the Montreal Convention, which takes precedence over the Civil Act and the Commercial Act (the Convention in the position of the Civil Act and the Commercial Act, Korea subscribed to the said Convention on October 30, 2007; hereinafter “instant Convention”), Article 22(3) of the said Convention provides that “in the event of damage, such as the destruction, loss, or damage of cargo in the carriage of cargo, the carrier’s liability shall be limited to 17SDR per kilogram.” Thus, the Defendant’s responsibility is limited to the above limit.

2) Determination

A) Relevant provisions of the instant agreement

○ Article 18 – Damage to Cargo

1. A carrier shall be liable only when an accident which causes damage to a carrier due to the destruction, loss or damage of the cargo takes place during carriage by air;

3.For the purposes of paragraph 1 of this Article, carriage by air includes the period during which the cargo is under the control of the carrier.

4. The periods of carriage by air shall not include carriage by land, by sea, or by inland waterway performed outside the airport. However, when such carriage was performed for the purpose of loading, delivering, or transshipment of cargo in the performance of an air transport contract, any damage shall be presumed to be the result of an accident which occurred during carriage by air, unless there is any counter-proof.

○ Article 22 – Limit of liability for delay, cargo and cargo

3. In the event of the destruction, loss, damage, or delay of cargo in the carriage of cargo, the liability of the carrier shall be limited to 17SDR per kilogramg: Provided, That this shall not apply in cases where the consignor has made a special report on the benefit at the time of delivery at the place of destination and has paid additional charges as necessary, when he delivers the cargo to the carrier;

○ Article 29 – The basis for the claim

In the carriage of passengers, cargo and cargo, without prejudice to any action concerning damage, whether or not it is based on this Convention, a contract, tort or any other matter, the person entitled to bring the action may only be brought in accordance with the terms and limits of liability set out in this Convention and the respective rights thereof. In any action, punitive damages or non-compensation damages shall not be recovered.

Article 38 - Multimodal Transport

1.In the case of a multimodal transport the carriage of which is partially undertaken in accordance with the different mode of carriage from that of the air, the provisions of this Convention shall apply only to carriage by air subject to paragraph 4 of Article 18.

B) Determination

As seen earlier, Non-Creamn entered into a contract with the Defendant requesting the Defendant to carry out land and air transport (hereinafter “instant transport”) at the Non-Cocka factory located in Modle, Modle, Modle, China, to the Non-Cockel office located in the Seoul, and the above contract of carriage constitutes an international air transport contract that is applied in preference to the Defendant’s terms and conditions or the Civil Act and the Commercial Act. In addition, this case of carriage is a multimodal transport combined with air transport and land transport. Thus, it is presumed that the air transport contract was an accident occurred during air transport unless there is any counter-proof if it was performed for the purpose of loading, delivering, or transshipment of the freight.

However, in light of the following circumstances that can be acknowledged by comprehensively taking account of the above facts, the aforementioned facts, the evidence as mentioned above, and the purport of the entire pleadings, namely, at the time of the Defendant’s delivery of the instant cargo from Non-Dak Dok-ri to both end of the paper box at the time of the Defendant’s delivery of the instant cargo, it seems impossible to bring release on bail on the instant cargo in the iron box, which is double packed by the iron box, without being damaged by cutting it in light of the material quality and strength of the Dok-dong, etc., and there seems to be impossible. At the departure or destination of the instant cargo at the time of the customs inspection at the time of the departure or destination of the instant cargo, there was no express opening at the time of the customs inspection at the time of the Incheon Airport customs clearance, and the instant theft accident was still committed in the part of the land transport, which was delivered to Non-Dak-ri, the consignee, after the Incheon Airport customs clearance, so there was no evidence to acknowledge it otherwise.

Therefore, the defendant's above assertion on the premise that the theft accident of this case occurred during carriage by air is without merit.

2. Conclusion

Therefore, the judgment of the court of first instance is just, and the appeal by the plaintiff and the defendant are dismissed.

Judges Shin Jae-ho (Presiding Judge)