[1] Whether a holder of a bill of lading can claim damages due to a tort against a carrier who issued a bill of lading without receiving the cargo (affirmative)

[2] Where a bill of lading purchased by a bank with an export bill is invalid as it was issued without receiving the cargo, the cause of damage suffered by the bank as a holder of the bill of lading

[1] A bill of lading is a security representing the right to claim the delivery of the cargo. This is an incentive document prepared according to a contract of carriage. Since the Commercial Act takes the premise of the establishment of a bill of lading in which a carrier actually receives or loads the cargo from a consignor, it is reasonable to deem that the bill of lading issued even though the carrier did not receive or load the cargo is null and void because it does not meet the cause and requirements. In such a case, a holder of a bill of lading may claim damages for tort against a carrier who issued the bill of lading without receiving the cargo.

[2] Where a bank purchases a bill of lading with an export bill but the bill of lading becomes null and void with a bill of lading issued without receiving the cargo, the damage suffered by the bank as a holder of the bill of lading is not necessarily caused by the refusal to pay the bill of lading, but may be caused by the non-value of the bill of lading as security.

[1] Articles 814 and 814-2 of the Commercial Act; Article 750 of the Civil Act / [2] Articles 814 and 814-2 of the Commercial Act; Article 750 of the Civil Act

The Korea Export Insurance Corporation (Law Firm Square, Attorneys Yoon Yong-seok et al., Counsel for the plaintiff-appellant)

Dae Il Shipping Aviation Co., Ltd. (Law Firm Kim Shin & World, Attorneys Yu-soo et al., Counsel for the plaintiff-appellant)

Seoul High Court Decision 2002Na25053 delivered on December 13, 2002

The judgment below is reversed and the case is remanded to Seoul High Court.

We examine the grounds of appeal.

The court below maintained the first instance court which dismissed the plaintiff's claim of this case on the ground that the defendant did not have any negligence in issuing the bill of this case, and that the plaintiff's damage was caused by the rejection of payment of export bill on the ground that there was no contractual relationship, and that there was no causation between the date of shipment and the name of the ship of this case on the ground that

However, we cannot accept the judgment of the court below for the following reasons.

A bill of lading is a securities representing the right to claim the delivery of the cargo. This is an incentive document prepared according to a contract of carriage, and the Commercial Act takes the premise of the establishment of a bill of lading in which the carrier actually receives or loads the cargo from the consignor. Therefore, even if the carrier did not receive or load the cargo, it is reasonable to deem that the bill of lading issued is null and void because it does not meet the cause and requirements. In such a case, the holder of the bill of lading can claim compensation for tort against the carrier who issued the bill of lading without receiving the

In light of the records, although the bill of lading of this case was issued on June 9, 200, but the actual date of shipment was no dispute between the parties, and the fact that the actual date of shipment was June 24, 200, and the certificate No. 9-1 (written confirmation) adopted by the court of first instance as cited by the court of first instance that was accepted by the court below is stated that the bill of this case was delivered on June 14, 200 at the non-party's factory, and there is room to deem that the bill of this case was issued without receiving the cargo. Thus, the court below judged that the defendant was not negligent in issuing the bill of this case without examining whether the defendant was delivered the container of this case, which is the cargo at the time of issuing the bill of lading, although it was necessary to examine and determine whether it was delivered the bill of this case at the time of issuing the bill of this case, and

In addition, even if the non-party bank purchased the bill of lading in this case with the export bill, if the bill of lading in this case becomes null and void with the bill of lading issued without receiving the cargo, the damage suffered by the non-party bank as the holder of the bill of lading is not necessarily caused by the rejection of payment of the export bill, but can be caused by the non-party bank's non-party bank's failure to receive the cargo, and the damage caused by the bill of lading in this case may be caused by the non-party bank's non-party bank's failure to purchase with the export bill of exchange. If the bill of lading was issued without receiving the cargo, the non-party bank's failure to purchase it with the export bill of exchange, and therefore it is argued that it is equivalent to the purchase price. Therefore, the court below should further deliberate and determine the damage suffered by the non-party bank without examining and judging it, and the damage suffered by the non-party bank is the damage caused by the non-party bank's non-party bank's non-party bank's refusal of payment.

Therefore, the judgment of the court below pointing this out shall be reversed, and the case shall be remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices.

Justices Shin Shin-chul (Presiding Justice)