[1] In a case where a bill of lading was issued to deliver the cargo by the loading and unloading method by the loading and unloading business operator employed by the consignee, the time of completing the obligation to deliver the cargo (i.e., when the loading and unloading business operator receives the cargo), and in such a case, whether a tort against the legitimate holder of the bill of lading is established if the carrier delivered the cargo to the loading and unloading business operator at the request of the actual importer without exchange with the bill of lading,

[2] The scope of the vessel agency and the third party to whom the affairs are re-entrusted

[1] Articles 129, 750, 795, and 861 of the Commercial Act / [2] Article 87 of the Commercial Act, Articles 105 and 680 of the Civil Act

[1] Supreme Court Decision 2004Da2137 decided Oct. 15, 2004 (Gong2004Ha, 1821) / [2] Supreme Court Decision 2007Da4943 decided Apr. 27, 2007 (Gong2007Sang, 783)

Jeonbuk Bank Co., Ltd. (Law Firm Samyang, Attorneys Song-won et al., Counsel for defendant-appellant)

ASPP Shipping Co., Ltd. (Law Firm Sejong, Attorneys final et al., Counsel for the plaintiff-appellant)

Gwangju High Court Decision 2009Na2298 Decided November 26, 2010

The appeal is dismissed. The costs of appeal are assessed against the plaintiff.

The grounds of appeal are examined.

1. As to the grounds of appeal on the time of delivery of the original item of this case

A. In a case where a bill of lading has been issued in maritime transport, a carrier fulfills the contractual obligation by delivering the cargo to a consignee, i.e., a legitimate holder of a bill of lading. The methods and timing of performance of such obligation may be determined by an agreement between the parties concerned. If the consignee, at his own expense, employed the shipper and agreed to deliver the cargo in accordance with the method of unloading by receiving and unloading the cargo, the consignee’s duty of delivery shall be fulfilled. In this case, if the carrier delivered the cargo to the shipper at his own request without delivering the cargo in exchange for the bill of lading or the other consignee’s cargo delivery guarantee, etc., and let the actual importer perform the cargo to perform the cargo, then the carrier at his own request shall be deemed to have committed a tort against the legitimate holder of the bill of lading (see Supreme Court Decision 2004Da2137, Oct. 15, 2004).

B. (1) The lower court, in light of (1) the agreement between the Plaintiff and the Export Company of New Zealand to bear only the freight rates for the instant item regarding the transportation of the raw materials at the port of importation (CFR conditions), the loading and unloading of raw materials was decided to hire the shipper under the burden of the cost of the lawsuit against the consignee or the de facto importer, and (2) the shipping company of New Zealand concluded a transportation contract on the instant raw materials leased the instant vessel to the Export Company of New Zealand for delivery, and agreed that the Defendant was not in charge of the shipment of the instant raw materials at the port of destination, and that the Defendant was not in charge of the loading and unloading of the instant raw materials at the port of destination after receiving the request from the Plaintiff and the Export Company of New Zealand for the transportation of the instant raw materials at the port of destination, and that the Defendant was not in charge of the loading and unloading of the instant raw materials at the port of destination, and that the Defendant was in charge of the loading and unloading of the instant raw materials at the port of destination to the Defendant, a domestic shipping agent at the port of destination.

C. Examining the reasoning of the lower judgment in light of the evidence duly admitted, the lower court’s determination, based on the legal doctrine as seen earlier, to the effect that the instant raw timber was constituted a tort against the instant raw timber upon the Plaintiff’s receipt of the request for re-instigation of the instant lawsuit. In so doing, contrary to what is alleged in the grounds of appeal, the lower court did not err by misapprehending the legal doctrine on delivery of marine cargo beyond the bounds of the principle of free evaluation of evidence or by misapprehending the legal doctrine regarding the illegal delivery of the instant raw timber

2. As to the ground of appeal on the tort liability of ship agency

A. The vessel agency is a person who is ordinarily engaged in the business of marine transportation for a person who is engaged in the business of marine transportation and performs the business in accordance with a contract with the carrier (see Supreme Court Decision 2007Da4943, Apr. 27, 2007, etc.). The scope of the business of the third party who is re-entrusted with the business of the vessel agency is determined by the re-agent contract.

B. (1) The lower court determined that the Defendant is not liable for tort on the sole ground that the instant title was removed against the Plaintiff’s will as the holder of the bill of lading, without any specific assertion or proof as to the foregoing, on the following grounds: (a) the Defendant merely asserted that the Defendant should be held liable for tort on the ground that the Defendant merely asserted that the instant title was removed from the bill of lading, without having any specific assertion or proof as to whether it was possible to submit the original bill of lading, in addition to the report on the entry into and departure from the port of lading and the cargo-related matters; (b) the captain of the instant vessel recognized that the Defendant could not be held liable to the Defendant on the premise that the Defendant was delegated the collection of the bill of lading from the shipping company, etc., without having received delegation from the shipping company, etc.

C. Examining the reasoning of the lower judgment in light of the evidence duly admitted, even if traffic congestion, which is a shipping agency, was delegated by a shipping company, etc. with the collection of a bill of lading, such circumstance alone is insufficient to readily conclude that the collection of a bill of lading is naturally included in the collection of a bill of lading, beyond the duty of “verification and reporting as to whether it is possible to submit the original bill of lading” as seen above, on the part of the Defendant’s entry into and departure from

Therefore, the lower court’s determination that tort liability based on the premise of delegation is not recognized is based on the legal doctrine as seen earlier, and contrary to what is alleged in the grounds of appeal, there were no errors by misapprehending the legal doctrine regarding the scope of the shipping agency’s business or by exceeding the bounds of the principle of free evaluation of evidence.

The Supreme Court precedents cited in the grounds of appeal are different from the instant case, and thus are inappropriate to be invoked in the instant case.

3. Conclusion

Therefore, the appeal is dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Shin Young-chul (Presiding Justice)