[1] In the case of maritime cargo transport for which a bill of lading has been issued, where the domestic shipping agent of the carrier stored the cargo in a commercial bonded warehouse designated by the de facto importer at the request of the de facto importer and where the commercial bonded warehouse operator for business removes the cargo without permission in collusion with the de facto importer, whether the ownership of the bill of lading holder's bill of lading holder's bill of lading's bill of lading's bill of lading's

[2] Whether the carrier and its domestic shipping agent can be deemed to be in the position of employer under the Civil Act against the commercial bonded warehouse operator (negative with qualification)

[1] When a bill of lading was issued for maritime cargo transportation, the cargo must be delivered to the bill of lading holder in exchange for the bill of lading, so if the carrier or its domestic shipping agent destroys the cargo by delivering it to a person other than the bill of lading holder, the carrier shall be liable for damages against the bill of lading holder for tort. However, if the domestic shipping agent of the carrier enters the cargo to a commercial bonded warehouse designated by him at the actual importer's request, it shall be deemed that the carrier continues to control the cargo through the bonded warehouse operator. Thus, it shall not be deemed that the domestic shipping agent of the carrier delivers the cargo to a person other than the bill of lading holder or stored the cargo at a place with a significant risk of unauthorized removal. Thus, even if a commercial bonded warehouse operator without permission in collusion with the de facto importer and thereby caused the loss of the cargo, it shall not be deemed that the ownership of the cargo by the bill of lading holder is infringed by the ship agency's gross negligence.

[2] In a case where a commercial bonded warehouse operator stores imported cargo under a deposit contract with a de facto importer of imported cargo, from the standpoint of a carrier or its domestic shipping agent, it can be deemed that the imported cargo is not delivered to the consignee regardless of its control, and that the carrier or its domestic shipping agent continues to control the imported cargo through a bonded warehouse operator. Thus, a bonded bonded warehouse operator is in the position of assisting the carrier or its domestic shipping agent to keep the imported cargo and deliver the imported cargo to the legitimate receiver until the customs clearance procedure for the imported cargo is completed. However, a commercial bonded warehouse operator is an independent business operator, who generally performs the business of storing and delivering the cargo in accordance with his responsibility and judgment, and cannot be deemed to perform the business of storing and delivering the imported cargo under the direction and supervision of a carrier or its domestic shipping agent, barring special circumstances, it cannot be deemed that a carrier or its domestic shipping agent is an employer under the Civil Act against a commercial bonded warehouse operator.

[1] Article 788 of the Commercial Act, Article 750 of the Civil Act / [2] Article 756 of the Civil Act

Korean Bank (Law Firm Geosung, Attorneys Kang Sung-sung et al., Counsel for the defendant-appellant)

2. The term “public interest” means the public interest in private interest and the public interest in private interest.

Seoul High Court Decision 2003Na31079 delivered on January 20, 2004

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

1. As to the assertion of misapprehension of legal principles as to tort liability

A. The court below determined that in this case, the defendants, a shipping agent, entered the instant cargo into a bonded warehouse operated by Geumcheon Co., Ltd., Ltd. (hereinafter referred to as "Yone Star") at the request of the de facto importer, as a result, the cargo was not delivered to a carrier or shipping agent without exchange of the bill of lading, and the delivery of the cargo to a person who is not the holder of the bill of lading without exchange of the bill of lading is presumed to be premised on the damages arising therefrom under their own risk burden and thus, inasmuch as the defendants, as the shipping agent, entered the instant cargo into the bonded warehouse operated by the de facto importer, Inc., Ltd. (hereinafter referred to as "Yone Star"), and the cargo was destroyed by unauthorized removal from the said bonded warehouse without permission, it constitutes a tort against the bill of lading holder due to the defendants' gross negligence.

B. However, we cannot accept the above judgment of the court below.

If a bill of lading has been issued for maritime cargo transport, the cargo must be delivered to the bill of lading holder in exchange for the bill of lading, so if the carrier or its domestic shipping agent destroys the cargo by delivering it to a person other than the bill of lading holder, the carrier shall be liable for damages against the bill of lading holder for tort. However, if the carrier's domestic shipping agent enters the cargo to a commercial bonded warehouse designated by him at the actual importer's request, it shall be deemed that the carrier's domestic shipping agent continues to control the cargo through the bonded warehouse operator. Thus, it shall not be deemed that the carrier's domestic shipping agent delivers the cargo to a person other than the bill of lading holder, or stored the cargo at a place with a significant risk of unauthorized removal. Thus, even if the cargo was lost by a commercial bonded warehouse operator in collusion with the de facto importer, it shall not be deemed that the ownership of the cargo was infringed upon by the bill of lading holder's gross negligence.

Nevertheless, if the Defendants, a shipping agent, stored the freight in a bonded warehouse at the request of the de facto importer, and the de facto importer was destroyed by the removal of the freight without permission, the judgment of the court below which held that the Defendants’ gross negligence infringed on the ownership of the freight by the bill of lading holder and thereby constitutes a tort, which affected the conclusion of the judgment. The ground of appeal assigning this error is with merit.

2. As to the assertion of misapprehension of the legal principle as to employer liability

A. The court below held that the defendants, a shipping agent entrusted with the business of storing and delivering imported cargo at the port of arrival by the carrier, shall be deemed to possess the freight of this case through Geumcheon, a bonded warehouse operator, which can be deemed to be his performance assistant, and the defendant two-friendly Shipping Co., Ltd., around April 27, 1998, and around September 3, 1999, the defendant China Shipping Co., Ltd. received each letter from Geumcheon, stating that the defendants will not deliver the freight without the delivery instruction issued by the defendants in order to prevent the unauthorized Shipping from carrying out the freight of this case. The goldcheon, a bonded warehouse operator, has the duty to keep the freight of this case and deliver the freight to the defendants or their designated persons according to the defendants' instructions. The keeping and delivering the freight of this case shall be deemed to be an assistant or employee of the defendants, who is the shipping agent of the carrier, in relation to the consignee. Thus, even if Geumcheon, a customs bonded warehouse operator, bears the duty of keeping and delivering the freight of this case without the defendants's legitimate instructions.

B. However, we cannot agree with the above judgment of the court below.

In cases where a commercial bonded warehouse operator stores imported cargo under a deposit contract with a de facto importer of imported cargo, from the standpoint of a carrier or its domestic shipping agent, it can be deemed that the imported cargo is not delivered to a consignee regardless of its control, and that the control over the imported cargo is continuing through a bonded warehouse operator. Thus, a bonded warehouse operator is in the position of assisting the carrier or its domestic shipping agent to keep the imported cargo and deliver it to a legitimate receiver until the customs clearance procedure for the imported cargo is completed. However, a commercial bonded warehouse operator is in the position of assisting the carrier or its domestic shipping agent to perform his/her duties until the customs clearance procedure for the imported cargo is completed. However, in general, it cannot be deemed that a carrier or its domestic shipping agent performs the duties of storing and delivering the cargo in accordance with his/her responsibility and judgment, and it cannot be deemed that the carrier or its domestic shipping agent performs the duties of storing and delivering imported cargo under the direction and supervision of a carrier or its domestic shipping agent, barring special

The fact-finding by the court below, even though the defendants received a letter from Geumcheon that the defendants will not deliver the cargo without the order for delivery of the cargo issued by the defendants in order to prevent the unauthorized removal of the cargo, it is merely merely a demand that Geumcheon, a bonded warehouse operator, who is a bonded warehouse operator, pay attention to the fact that the bill of lading was illegal to the bill holder as a custodian of the cargo for which the bill of lading was issued, and thus, it cannot be said that Geumcheon, under the direction and supervision of the defendants, had the status of carrying out the duties, such as storage and delivery of the cargo.

Nevertheless, the judgment of the court below which held that in the case where goldcheon delivered freight to a person who is not the holder of a bill of lading on the premise that the Defendants were in the employer's position of goldcheon, the Defendants are liable for tort, is erroneous in the misapprehension of legal principles as to the relation of use in the employer's liability, which affected the conclusion of the judgment, and the allegation in the grounds of appeal pointing

3. Conclusion

Therefore, the judgment of the court below is reversed, and the case is 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 on the bench.

Justices Yoon Jae-sik (Presiding Justice)