§ 811. The meaning of "the date on which the cargo is to be delivered"

Article 811 of the Commercial Code provides that "the date on which the cargo shall be delivered" means the date on which the contract of carriage should be delivered if it has been implemented in accordance with its contents.

Article 811 of the Commercial Act

Co., Ltd.

Joseon Shipping Co., Ltd. (Law Firm Chungcheong, Attorneys Yellow-tae et al., Counsel for the plaintiff-appellant)

Seoul District Court Decision 97Na3049 delivered on May 29, 1997

The Plaintiff’s appeal is dismissed, and the costs of appeal are assessed against the Plaintiff. Of the judgment below, the part against the Defendant is reversed, and that part of the case is remanded to the Panel Division of Seoul District Court.

1. The plaintiff's grounds of appeal are examined.

A. On the first ground for appeal

In light of the records, as long as it cannot be deemed that the relevant protocol of examination of witness claimed in the grounds of appeal contains any content different from the actual testimony, and as long as it is deemed that there was no error in such statement, it is sufficient for a junior administrative officer, etc. to state the grounds for objection, as stated in the 108th page of the records of this case, and it is not illegal because the court did not make a separate judgment

In addition, a confession in this regard is not established because the person in charge of the defendant's business was present as a witness and testified consistent with the facts of the violation of the Customs Act, such as the plaintiff's assertion.

Therefore, the judgment of the court below did not contain any violation of the right to a trial as alleged in the grounds of appeal, or any violation of the provisions of the Civil Procedure Act concerning the method of pleading, omission of judgment, or misapprehension of the legal principles of confession.

B. On the second ground for appeal

In light of the records, the court below's finding the non-performance of obligation or tort was caused by the defendant's gross negligence, and it is just to take measures to calculate the amount of damages in consideration of the plaintiff's negligence contributed to the expansion of the damage. Unlike this, there is no illegality of offsetting the amount of damages in violation of the principle of pleading by either intentional act of the defendant or resumption of oral proceedings without the plaintiff's attendance despite the defendant's approval of the claim.

C. On the third ground for appeal

The court below's order to pay damages for delay pursuant to the interest rate under Article 3 of the Act on Special Cases concerning the Promotion, etc. of Legal Proceedings from the day after the judgment of the court below is rendered upon accepting the plaintiff's claim

2. The defendant's grounds of appeal are examined.

A. In light of the records, the court below, after compiling the evidence adopted, accepted facts as stated in its holding, and accepted the measures that recognized the non-performance of obligation or tort as due to the defendant's gross negligence, and there is no error of law by misunderstanding facts against the rules of evidence or by misapprehending the legal principles on gross negligence, as alleged in the grounds of appeal.

B. Article 811 of the Commercial Act provides, "The claims and obligations of the carrier against the charterer, consignor, or consignee shall be terminated, whatever the causes of the claims may be, if no judicial claim is made within one year from the date on which the carrier delivers or delivers the goods to the consignee." Thus, the "the date on which the goods are to be delivered" refers to the date on which the delivery should be made in accordance with the terms and conditions of the contract of carriage if the contract of carriage was performed.

However, while recognizing that the goods of this case were entirely destroyed as indicated in its holding, the court below did not determine when the date when the delivery of the goods of this case normally should take place, and then whether the exclusion period has lapsed. In this case, the defendant's assertion with the limitation period has no merit since the goods to be transported did not arrive at its purpose. Thus, the court below did not err by misapprehending the legal principles on "the date when the goods are to be delivered" and failing to exhaust all necessary deliberations, thereby affecting the conclusion of the judgment (the court below to whom the delivery of the goods of this case was delivered shall take this into account if it is proved that the delivery date or exclusion period has been extended at any time when the delivery of the goods of this case is to be made).

C. Article 17 of the Transport Clause of this case provides that "the carrier shall be exempted from all responsibilities under this Article unless a lawsuit is brought within nine months from the date when the cargo is delivered or the cargo is delivered pursuant to Article 6 (4) or the consignee has the authority to deem the cargo to be destroyed because the cargo is not delivered pursuant to Article 6 (4), and no lawsuit is brought within nine months from the date on which the consignee is entitled to deem the cargo to have been destroyed and no lawsuit is expressly agreed by any other means," and this section of this case provides that "the special clause of this case provides that "the period for the extinction of the liability of the sea carrier shall be reduced than the exclusion period under Article 811 of the Commercial Act of this case, and it shall not be effective as it reduces the exclusion period of the above Article 81 of the Commercial Act. Therefore, the reasoning of the court below

3. Therefore, the plaintiff's appeal is dismissed, and the costs of appeal are assessed against the losing plaintiff. The part of the judgment below against the defendant is reversed, and this part of the case is remanded to the court below. It is so decided as per Disposition by the assent of all participating Justices.

Justices Kim Jong-sik (Presiding Justice)