2012Da115847, damages, etc.

Korean Bank, Inc.

Pyeongtaek-jin Port Co., Ltd.

Seoul High Court Decision 2012Na21722 Decided November 8, 2012

April 23, 2015

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

The grounds of appeal are examined.

1. By citing the judgment of the court of first instance, the court below acknowledged the import and export contract between Efluor Lbryer GMH (F.J. GLH; hereinafter referred to as “the instant cargo”) and Steel Co., Ltd. (hereinafter referred to as “Efluor”) for the import of the instant cargo. The plaintiff issued a letter of credit to Efluorthian Lbryer with the beneficiary of the instant cargo at Efluor Doz; Efluor, at the time of this case’s delivery of the instant cargo; the plaintiff accepted the delivery declaration certificate from Efluor Doz; the plaintiff issued the instant cargo to Efluor Doz; and then, the plaintiff issued the instant cargo to Efluor Doz, which was in possession of the cargo to Efluor Doz; hereinafter referred to as Efluor Doz.; and the plaintiff issued the instant cargo to Efluor Dozian Doz.; hereinafter referred to as Efluor Doz.).

Furthermore, the court below, based on the adopted evidence, found that the Defendant performed loading and unloading work at the request of the owner and at the expense of the owner of the goods if transported under the condition of FO with respect to historical, steel and raw timber, etc. at Pyeongtaek Port. At Pyeongtaek Port, the Defendant: (a) stored and shipped out most of the cargo in a commercial bonded warehouse after loading and unloading a large quantity of 20 vessels up to one month on board; (b) without a bill of lading or delivery order; (c) requested the Defendant to deliver only the delivery order of the actual shipment without a bill of lading or delivery order; (d) Co., Ltd. imported by E., including the instant cargo, was transported under the condition of FO; and (e) the consignee or shipping agent under the bill of lading did not raise any objection if the Defendant did not request the delivery order of the cargo at the port of delivery; and (e) the Defendant did not request the delivery of the cargo at the port of delivery without the delivery order or delivery order, and (e) did not request the delivery order of the cargo at the port of delivery.

2. However, we cannot agree with the above determination by the court below for the following reasons.

When a bill of lading has been issued, the loading and unloading of the marine transportation freight must be conducted by the bill of lading holder or only when the bill of lading is presented. A carrier fulfills its obligations by delivering the freight in exchange for the bill of lading with the bill of lading holder. As such, the loading and unloading company requested by the notice office on the bill of lading that is not the holder of the bill of lading, and the loading and unloading company entered the freight into a commercial bonded warehouse cannot be deemed to be a shipping warehouse. In such a case, the delivery time of the freight shall be deemed to be the time when the freight was shipped out of the commercial bonded warehouse in accordance with the delivery order of the carrier, etc. (see, e.g., Supreme Court Decisions 200Da30950, Nov. 14, 200; 2012Da2320, May 16, 2014).

On the other hand, maritime transport cargo must be delivered to the holder of the bill of lading in exchange for the bill of lading, and the cargo cannot be legally taken out without the bill of lading. Thus, if a bonded warehouse operator for business delivers the cargo without the order of delivery or the consent of the carrier, it can be predicted that the cargo will not be taken out without permission and the delivery of the cargo by the holder of the bill of lading. Thus, if a bonded warehouse operator for business delivers the cargo without the order of delivery or the consent of the carrier, he/she shall be held liable for damages caused to the holder of the bill of lading (see, e.g., Supreme Court Decision 200Da30950, Nov. 14, 2000).

In addition, according to the records, it is difficult to readily conclude that there was a practice of delivery solely on the delivery order for the cargo transported under the condition of FO on the condition of FO as stated in the reasoning of the judgment below, on the ground that the Defendant, not the Defendant, but the Defendant, upon receiving a bill of lading or a delivery order for the cargo to be entered into a port area, and on the ground that when the imported cargo is shipped out of a bonded area, the Defendant notified the Defendant of the fact that the delivery order was to be submitted. Since around March 1970, the Korea Customs Service provided administrative guidance to the person who was permitted to install and operate the bonded storage area from around 1970 to obtain the consent of the owner of the cargo storage, bonded transportation, and delivery order at the time of shipping the cargo out of the bonded warehouse operator, and accordingly, the practice of receiving the delivery order was formed when the cargo was shipped out by the operator of the bonded warehouse for business use.

Therefore, in light of the legal principles as seen earlier, in the instant case where the Defendant, a bonded warehouse operator, received a notice office, not a holder of a bill of lading, and entered the instant cargo into a bonded warehouse for his own business use, even if the instant transport contract was concluded on the terms of FO, and the instant cargo was carried out on the commission of Switzerland and at the expense, it cannot be deemed that the instant cargo was in excess of the carrier’s control immediately.

Nevertheless, the court below held otherwise that the FO conditions of the contract of carriage constitute an on-board agreement, and even if the freight in this case was stored in a bonded warehouse for business use, it cannot be deemed that there was a practice in which the freight is shipped out upon delivery order, etc., and thus, the carrier, upon delivery of the freight in this case, did not constitute a tort by the defendant on the ground that the carrier, upon delivery of the freight in this case, did not constitute a tort by the carrier. Accordingly, the court below erred by misapprehending the legal principles on the delivery of marine freight under the FO conditions, which affected the conclusion of the judgment,

Supreme Court Decision 2004Da2137 Decided October 15, 2004, cited by the court below, held that in a case where the cargo was transported and transported by a shipper at the request of a de facto importer, and was stored in a self-employed bonded storage device, the ship was done in accordance with the FO conditions, and thus, it is not appropriate to invoke the instant case differently from the instant case.

3. Therefore, without further proceeding to decide on the remaining grounds of appeal, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Yong-deok

A person shall be appointed.