ASEAN Co., Ltd. (Law Firm Han-ice, Attorneys Cho Min-sik et al., Counsel for the plaintiff-appellant)

Chingping Co., Ltd. (Attorneys Go Young-il et al., Counsel for the defendant-appellant)

Orion Shipping Co., Ltd. (Law Firm Sejong, Attorneys Kim Chang-joon et al., Counsel for the plaintiff-appellant)

October 19, 2010

Seoul Central District Court Decision 2009Gahap48706, 2009Gahap6309, 2009 (Counterclaim), 2009Gahap72891 (Counterclaim) Decided January 15, 2010

1. Of the judgment of the first instance court, the part against the Defendant (Counterclaim Plaintiff Co., Ltd.) and Defendant Orion Shipping Co., Ltd. shall be modified as follows:

A. The Plaintiff (Counterclaim Defendant)’s claim on the principal lawsuit against the Defendant (Counterclaim Plaintiff Co., Ltd.) and the Plaintiff’s claim against the Defendant Orion Shipping Co., Ltd. are all dismissed.

B. As to USD 103,604.96 and USD 41,113.27 among them, the Plaintiff (Counterclaim Defendant) shall pay to the Defendant (Counterclaim Plaintiff) Co., Ltd. the amount of 6% per annum from February 7, 2009 to June 12, 2009, 20% per annum from February 8, 2009 to June 12, 2009, and 20% per annum from the next day to the date of full payment.

2. The total cost of the lawsuit shall be borne by the plaintiff (Counterclaim defendant) through the principal lawsuit and counterclaim.

3. Paragraph 1-b. above may be provisionally executed.

1. Purport of claim

A. Purport of the principal claim against Defendant Chalping and the purport of the claim against Defendant Orion Shipping

The plaintiff (Counterclaim defendant, hereinafter "the plaintiff") shall pay 373,205.15 US dollars jointly and severally to the defendant (Counterclaim plaintiff, hereinafter "the defendant"), the defendant Orion Shipping Co., Ltd., and the defendant Orion Shipping Co., Ltd. shall pay 6% per annum from February 26, 2009 to the delivery date of a duplicate of the complaint of this case, and 20% per annum from the next day to the day of complete payment.

B. Claim of the counterclaim by Defendant Chalthing Co., Ltd.

The same shall apply to the order No. 1-b.

2. Purport of appeal

A. The purport of appeal by Defendant Crhing Co., Ltd.

The main lawsuit and counterclaim of the judgment of the first instance shall be modified as follows:

The plaintiff's claim against the defendant Chingping Co., Ltd. is dismissed. The plaintiff shall pay the above defendant the amount of money as set forth in Section 1-B of the Disposition.

B. Purport of appeal by Defendant Orion Shipping Corporation

The part of the judgment of the first instance court against Defendant Orion Shipping Co., Ltd. shall be modified as follows:

The plaintiff's claim against the above defendant is dismissed in entirety.

Ⅰ. Basic facts

The following facts are recognized if there is no dispute between the parties, or if the purport of the entire pleadings is added to the statements in Gap evidence 1 to 5, 9 (including the number), Eul evidence 1 to 8.

[1]

On September 15, 2008, the Plaintiff, a Korean legal entity that aims to carry out a steel pipe manufacturing business, entered into a contract with the “catherum partner” (hereinafter “cather”) located in the California Poling Game located in the California (hereinafter “KUTRT OTRB PAN PANS, LLC”) to export ethyl pipes 59,785 feet (hereinafter “instant export contract”).

In the instant export contract, the Plaintiff agreed to receive the price of the above ethyl pipeline by the credit, and the Plaintiff requested the issuance of the credit to the “BC TRADK, N.A.,” located in the California sandfranco of the United States of California (WELS TRS TRC TRCR TRCRGGGG, hereinafter referred to as the “SG”).

○ on February 13, 2009, the L/C bank issued an impossible L/C number (credit number omitted) with the Plaintiff as the beneficiary and issued the instant L/C number (hereinafter “instant L/C”).

▷ 40E 적용규칙 : 신용장통일규칙 주1) 최신판

▷ 31D 유효기간 및 장소 : 2009. 3. 27., 당행 창구

▷ 32B 통화종류, 금액 : 미화 459,351.54달러

▷ 42C 지급일 : 송장금액 전부에 대하여 일람출급

▷ 43P 분할선적 : 허용됨

▷ 44C 최종 선적기일 : 2009. 3. 7.

▷ 46A 요구서류 :

4- Traditionality of the bill of lading signed by the carrier for non-accidented shipment, signed by the carrier, consisting of the prepayment of the freight and the notice office, and issued in the direction of the Cube

[2]

○ Meanwhile, Defendant Orion Shipping Co., Ltd. (hereinafter “Defendant Orion”) is a Korean corporation for the purpose of freight forwarding business, etc., and Defendant Orion Shipping Co., Ltd. (hereinafter “Defendant Orion Shipping”) is a Korean corporation for the purpose of shipping agency business, etc., which is a domestic agent of “SAGAFS CARIS INTS A/S” L/S (hereinafter “S”) as a Korean corporation for the purpose of shipping agency business.

○ On February 2, 2009, the Plaintiff requested the Defendant Chingingingping of the contract to transport the character of 377.142 metr tons (hereinafter “instant cargo”) from the port of U.S. U.S. U.S. U.S. Ulsan Port to the California Angeles or U.S. D. D. D. Washington.

○ Accordingly, Defendant Churping demanded the above transportation to Shurgs.

○ On February 23, 2009, Defendant Orion Shipping issued four copies of the bill of lading (number of the bill of lading: 1 omitted), (number 2 omitted), (number 3 omitted), (number 4 omitted), (number 4 omitted), (number 4 omitted), and (number 4 omitted; hereinafter “instant bill of lading”) to the effect that the instant cargo was loaded as a representative of Orion Shipping, and delivered them to Defendant Orion Shipping, and Defendant Chionping delivered them to the Plaintiff.

○○ The instant bill of lading, as shown in the attached Form, is printed on the top left side and entered in the name of SIGND FOTR THE CARIE on the lower right side, contains the trade name of Defendant Orion Shipping, stating “ORIN SHIP PING CO.”, LTD ASS ASS AS (75-9191), and the signature of Orion Shipping was followed by Defendant Orion Shipping.

[3]

○ Meanwhile, the Plaintiff exported ethyl pipes, etc. over several occasions between June 2008 and February 2009, the date of the export contract transfer of this case, and received the payment pursuant to the L/C. On the other hand, the Plaintiff opened a L/C with regard to the export of this case, which is the beneficiary of the Plaintiff on several occasions, and Defendant Orion Shipping issued 76 copies of the B/L to the Plaintiff on several occasions.

○ As seen earlier, in the export of the instant cargo, the L/C, signed by 'B/L' by 'B/L issued by 'B/L' by 'B/L' by 'B/L, as the L/C conditions were met. However, as at the time when the Plaintiff exported the instant L/C to C/L over several occasions prior to the instant export contract, the L/C was not opened by Hasong High Bank, which was signed by 'B/L by 'B/L by 'B/L' by 'B/L' by 'B/L by 'B/L

When Defendant Orion Shipping issued 76 copies of the bill of lading to the Plaintiff on several occasions before the export contract of this case, it issued the bill of lading signed by a carrier’s agent as stated in the bill of this case, and upon which the bill of this case, it paid all the letter of credit to the Plaintiff without any objection.

[4]

○ On February 26, 2009, the Plaintiff requested the prior branch of the Korea Exchange Bank (hereinafter “Korea Exchange Bank”) to purchase shipping documents, such as the instant bill of lading. On March 6, 2009, the foreign Exchange Bank paid and purchased USD 373,205.15 (hereinafter “US”) to the Plaintiff on March 6, 2009.

○ After that, on March 6, 2009, the foreign exchange bank presented the above shipping documents, such as the bill of lading, to the L/C of this case, and requested payment of USD 373,205.15.

○, however, on March 9, 2009, the L/C of this case rejected payment of the L/C of this case on the ground of the inconsistency between “(3) the B/L of this case was not signed by the carrier and the carrier’s name was not expressed.”

○○ Exchange Bank was unable to receive a letter of credit from the well-known High Bank, and requested the Plaintiff to return the said purchase price, and on April 15, 2009, the Plaintiff returned USD 373,205.15 to the foreign exchange bank.

[5]

○ The instant cargo arrived at the port of unloading, but was not delivered to Coot, due to the refusal to pay the letter of credit by the well-dying High Bank.

○ Accordingly, the Plaintiff received notice from the U.S. customs office that the instant cargo can be disposed of by public auction, and had a local corporation of the United States of America (HYD AI CORP. USA. hereinafter “U.S. General Corporation”) of Hyundai General Commercial Corporation act as an agent for customs clearance procedures, etc.

○ Then, the Plaintiff requested Defendant Orion Shipping to change the consignee and the place of notification of the instant bill of lading to the modern comprehensive commercial company. Defendant Orion Shipping recovered the instant bill of lading, and Defendant Orion Shipping re-issued the bill of lading to the Plaintiff after changing the consignee and the place of notification to the modern comprehensive commercial company.

○ Hyundai General Company has received delivery of the instant cargo in exchange for the re-issued bill of lading as above and proceeds with customs clearance on behalf of the Plaintiff, and then keeps the instant cargo in the company warehouse of the company called ATM EXRES.

Ⅱ Plaintiff’s principal claim against the Defendants

1. The plaintiff's assertion

Defendant Orion as the freight forwarder of this case, and Defendant Orion Shipping as the issuer of this case’s bill of lading. Defendant Orion Shipping, upon the Plaintiff’s request, had a carrier, master, or other agent issue a bill of lading in accordance with Article 852 of the Commercial Act so that it does not interfere with the Plaintiff’s receipt of payment for the goods. However, in issuing each of the bill of this case’s bill of lading, Defendant Orion Shipping did not indicate who is a carrier, but violated the obligations under the freight forwarding contract and Article 852 of the Commercial Act by allowing a person who is not authorized to issue the bill of this case to issue the bill of this case

Therefore, the defendants are jointly and severally liable to pay to the plaintiff the amount of the credit price of this case and the amount equivalent to customs clearance, transportation, warehouse expenses, etc. of the freight of this case due to default or tort caused by the freight forwarding contract.

2. Relevant provisions;

/ Commercial Act

Article 852 (Issuance of Bill of Lading)

(1) A carrier shall deliver, at the request of a consignor, a bill of lading in one or more copies after the receipt of the cargo.

(2) A carrier shall deliver, at the request of a consignor, a shipped bill of lading in one or more copies after loading the cargo, or shall indicate such loading on a bill of lading referred to in paragraph (1).

(3) A carrier may authorize a shipmaster or other agent to deliver a bill of lading or to make indication referred to in paragraph (2).

Article 853 (Matters to be Stated in Bill of Lading)

(1) A bill of lading shall state the following matters and shall write the name and seal or sign of the carrier:

…6th Amendment of the Uniform Customs and Practice for Documentary Credits

(1) The Uniform Credit Rules (hereinafter referred to as the “Rules of the Unification of Credit”) shall be 200, 207, ICC No. 600, hereinafter referred to as the “Rules of the Unification of Credit”).

Article 14 Standards for Document Inspection

l. Unless the transport document satisfies the requirements of Articles 19, 20, 21, 22, 23, and 24 of the Uniform Customs and Practice for Documentary Credits, the transport document may be issued by any party other than the carrier, shipowner, master, or charterer.

Article 20. Bill of Lading

a. A bill of lading, however named, must appear to:

i. indicate the name of the carrier and signed by:

· the carrier or the designated agent acting for or on behalf of the carrier; or

· the master or a designated agent acting for or on behalf of the master;

Any signature by the carrier, master, or agent must indicate that it is the signature of the carrier, master, or agent.

Any signature by the agent must indicate whether it was signed on behalf of or on behalf of the carrier or whether it was signed on behalf of or on behalf of the master. 5)

【International Standard Bank Practice

(International Standardling Pactactic Docu Docu Doctrine Doctrine Doctrine 600)

Article 94 of the original bill of lading shall be signed in the form described in Article 20(a)(i) of the Uniform Customs and Practice for Documentary Credits, and the carrier shall specify and indicate its name.

a) If the agent signs a bill of lading on behalf of the carrier, the agent must be identified as the agent, and if the carrier is not identified in a separate place of the bill of lading, the agent must specify the carrier signing on behalf of the carrier.

Article 95 If the Credit has used the word "for acceptance of a bill of lading of a forwarding agent" or similar words, the bill of lading may be signed by the forwarding agent as the qualification of the forwarding agent without the need to specify himself as the carrier, the named carrier or the named carrier, and in such cases, the name of the carrier is not required to be indicated.

3. Determination

A. (1) Articles 852 and 853 of the Commercial Act provide for the obligation of a carrier to deliver a bill of lading to a consignor as seen earlier and legal matters to be entered in a bill of lading. A bill of lading is issued based on a contract of carriage between a consignor and a carrier, and it is a security representing the right to a cargo in transit.

(2) On the other hand, a credit is a promise by the issuing bank to pay a price for the presentation of documents that comply with certain conditions. The applicant, the buyer, the issuing bank, and the beneficiary, the issuing bank, are parties to the L/C transaction. Such L/C transaction is not a goods but a transaction by documents, and is a separate legal relationship between the seller and the buyer or between the consignor and the carrier.

The Uniform Customs and Practice for Documentary Credits stipulates the requirements for the acceptance of documents by the bank, along with the interpretation of documents and the examination standards of documents in credit transaction mentioned above, and Article 20 of the Uniform Customs and Practice for Documentary Credits stipulates the requirements for acceptance of bills of lading signed by the carrier, the master or the agent of the carrier, which is a transport document, by the bank that is a party to the credit transaction.

In addition, Article 14 (1) of the Uniform Customs and Practice for Documentary Credits provides that, as long as the transport document satisfies the requirements of Article 20 of the Uniform Customs and Practice for Documentary Credits, the transport document may be issued by all the parties other than the carrier, shipowner, master, or charterer, which provides that if the transport document satisfies certain requirements, the transport document issued by the forwarding agent or non-ship carrier (NVCC; NVOCC) may be accepted by the bank that is the party to the credit transaction.

In addition, Articles 94 and 95 of the International Standard Bank Practice provide that the carrier may accept a bill of lading signed by a specific bill of lading and a forwarding agent as mentioned above, as a transport document, a bill of lading, which is a transport document, by the bank that is a party to the credit transaction.

Accordingly, the bill of lading signed by the carrier, the master or the agent of the carrier, and, in certain cases, the bill of lading signed by the forwarding agent may be accepted by the bank as a party to the credit transaction as stipulated in the respective terms and conditions of the letter of credit.

(3) As above, L/C transactions are separate legal relations from the carriage contract. A bill of lading signed by the carrier, a bill of lading signed by the master or the agent of the carrier in the L/C transaction, and a bill of lading signed by the transportation broker in certain cases may be accepted by the bank that is a party to the L/C transaction in accordance with the terms and conditions of each L/C. As such, the consignor did not inform or require the carrier of the terms and conditions of the L/C in claiming for the issuance of the bill of lading based on the carriage contract and did not inform or require the carrier or his/her agent or the forwarding agent of the terms and conditions of the L/C to issue the bill of lading in compliance with the terms and conditions of the L/C. If he/she did not know or

B. (1) In light of the above facts, the Plaintiff issued the bill of lading of this case signed by the consignor, the Defendant Chinginging Shipping, the carrier, and the Defendant Orion Shipping as the agent of the carrier with respect to the instant cargo. The Plaintiff, while exporting the instant cargo to Ching, issued the bill of lading of this case, was paid the price in accordance with the letter of credit, and the “bill of lading signed by the carrier” was required as the letter of credit. On the other hand, the Plaintiff exported the instant cargo to Ching on several occasions before exporting to Ching, and the Plaintiff was paid the price in accordance with the letter of credit, and the Plaintiff did not issue the bill of lading of this case as the document required by the bill of lading of this case, and the Plaintiff signed the bill of this case with respect to the export of the instant cargo of this case as the agent of the carrier without the bill of this case.

(2) However, there is no evidence to prove that, at the time of the issuance of the instant bill of lading, the Plaintiff knew of the terms and conditions of the letter of credit that “the bill of lading signed by the carrier was issued as a required document and notified or requested that the bill of lading was issued in compliance with such conditions, and Defendant Orion Shipping or Forwarding Agent, the carrier, was aware or could have been aware of such terms and conditions of the letter of credit.

(3) Thus, in claiming the issuance of a bill of lading, the plaintiff as the consignor did not inform the terms and conditions of the letter of credit that "the bill of lading signed by the carrier" was required, and the defendant Orion Shipping, as the agent of the carrier, was issued the bill of this case signed by the agent of the carrier, such as the previous case where there was no problem as to the payment of the letter of credit, and even though the defendant Orion Shipping knew or could have known the above terms and conditions of the letter of credit, it cannot be deemed that the above bill of this case was issued. Accordingly, even if the defendant Orion Shipping did not sign the bill of this case by Orion Shipping as the carrier's agent and issued the bill of this case signed by the defendant Orion Shipping as its agent, it cannot be deemed as the non-performance of the obligation or tort of the defendant Orion Shipping as the carrier's agent.

C. (1) In addition, according to Articles 852 and 853 of the Commercial Act as seen earlier, the carrier must issue the bill of lading at the request of the consignor, and the carrier must enter the name or trade name of the carrier in the bill of lading and sign and seal or sign the bill of lading. The carrier may delegate the issuance of the bill of lading to the master or any other agent.

Therefore, the carrier's agent can effectively issue a bill of lading signed by the agent with the above agency stated the above agency's intent.

On the other hand, since a bill of lading is not a strictly required bill, it is not invalid even if some of the legal particulars of Article 853 of the Commercial Code is omitted, but a bill of lading is valid if the cargo, the carrier, the port of unloading, etc. are specified and the fact that the cargo has been received or loaded is recognized.

(2) According to the above facts, the bill of lading of this case is printed on the top left-hand side as shown in the attached Form and contains the letters "carriers", and the bill of this case contains the letters "carriers", and the bill of this case contains the trade name of the carrier. The bill of this case includes the signature for "SIGND FESTR TR CARRIE" on the lower-hand side of the bill of this case, and the signature "ORIO SHPIN CO." The bill of this case contains the purport that the defendant Orion Shipping will issue a bill of lading on behalf of the carrier.

(3) Thus, the bill of lading in this case cannot be deemed null and void because it does not state the name or trade name of the carrier, or it does not meet the requirements when it is issued by the agent of the carrier. Therefore, the issuance of the bill of this case cannot be deemed as the non-performance of the defendant Orion Shipping or the agent of the carrier, which is the agent of the carrier, or the defendant Chishing Shipping or the agent of the carrier.

D. Accordingly, the Plaintiff’s principal claim against Defendant Orion Shipping and Defendant Orion Shipping and the Plaintiff’s claim against Defendant Orion Shipping, claiming that the issuance of the bill of lading of this case constitutes nonperformance or tort, are without merit.

Ⅲ Defendant Chingingping’s counterclaim

1. Facts of recognition;

The following facts are recognized when there is no dispute between the parties or when Eul added the purport of the entire pleadings to each entry in the evidence Nos. 1 to 6.

○ On September 15, 2008, the Plaintiff entered into a contract with Cubher to export 59,785 feet, as seen earlier, and requested the Defendant Cubingping to arrange for a contract to transport the instant cargo 377.142 metric tons from among the aforesaid ethyl pipes around February 2009.

○ Meanwhile, around January 2009, the Plaintiff: (a) requested, among the ethyl pipes 59,785 feet that were to be exported to Cuart, the Defendant Crptingping to arrange for a contract for transporting the instant ethyl pipes other than the instant cargo to USD 41,113.27 on freight; (b) requested the Defendant Crptingping to pay the fare of USD 62,491.69 on freight; and (c) agreed to pay the freight after one month from the date of shipment.

Based on the above, Defendant Chalping requested the carriage of “NYD AI MERCHN MAE CO.” On January 6, 2009, △△△△△△△ 399.158 MT metric tons, and the carriage was completed on January 7, 2009 by shipping the ethyl pipeline pipe 734.079 MT metric tons.

2. The legality of the counterclaim;

Defendant Chingingping sought the payment of each of the above fares against the Plaintiff as the counterclaim of this case. Accordingly, the Plaintiff asserts that the above counterclaim of Defendant Chinginging is unlawful as it is not related to the Plaintiff’s principal lawsuit of this case.

As seen earlier, the Plaintiff’s main action against Defendant Chingingingping concluded a contract with Chingte to export ethyl pipes, and requested Defendant Chingingteping to Defendant Chingte, which was the agent of Defendant Chingte Co., Ltd. requesting the transportation of the instant cargo, but Defendant Chingteping jointly and severally sought compensation for damages to the Plaintiff on the ground that Defendant Chingte Shipping, the agent of Defendant Chingteping, caused damages by an erroneous issuance of a bill of lading.

However, as seen earlier, Defendant Chinginginging Co., Ltd. entered into a contract with Chingte to export ethyl pipes, and sought the payment of the fare against the Plaintiff on the ground that the main line of the contract to transport ethyl pipes other than the instant cargo, among the ethyl pipes, was requested to Defendant Chinginging. As such, such counterclaim is related to the means of claim or defense in the principal lawsuit. Therefore, the Plaintiff’s allegation is without merit.

3. Determination as to the claim

According to the above facts, with respect to USD 103,604.96 ($41,113.27 + USD 62,491.69) and USD 41,113.27 among them, the Plaintiff is obligated to pay damages for delay at each rate of USD 20% per annum under the Commercial Act from February 7, 2009, the following day of the due date for payment, and from February 8, 2009, for USD 62,491.69, the remainder of USD 62,491.69, the next day of the due date for payment, until June 12, 2009, the delivery date of a copy of the counterclaim of this case from February 8, 2009, and from the next day to the date of full payment.

Therefore, the defendant's counterclaim is justified.

IV. Conclusion

Therefore, the plaintiff's principal claim against the defendant Orion Shipping and the plaintiff's claim against the defendant Orion Shipping are dismissed as it is without merit, and the defendant Orion Shipping's counterclaim claim is accepted as reasonable. Since the judgment of the court of first instance is unfair differently from this conclusion, it is so decided as per Disposition by the court of first instance by accepting the appeal against the defendant Orion Shipping and the defendant Orion Shipping and changing the judgment as above.

[Attachment]

Judges intentionally (Presiding Judge) Kim Yong-ho

1) UCP LTSS VERSON

2) FUL SAL SIGN OLD OLD OBE POR-OTR BUTRS OLD POL LAD OL CAE CAE CARRR TRG MUE BY, TOOORRR COME COME TRUR COME OLUTRUG COME OLUTRUG COME COMEN OLUTRUTRUG COMEN OLGGGHPPPY REC

3) ALBL LIS OF LADING NAG NED BY CAE CARD DES DES CATRS CARRIER NAE

4) The 14th Standard Exmination of the public notice of Articles 14, 1. A 24, 23, 24, 24, 24, e.g., e., the e. e., the e.b. 19, 20, 21, 22, and 23.

5) The 20th of the public notice of the public notice of the penalty: 1. 1. 1. 1. 1. 20th of the public notice of the public notice of the public notice of the case, to 1. 1. 1. 1. 1. 1. 1. 2nd of the public notice of the public notice of the case. 20th of the public notice of the public notice of the case: 1. 1. 1. 1. 2nd of the public notice of the public notice of the case, 1. 1. 1. 2nd of the public notice of the public notice of the case, 1. 1. 3rd of the public notice of the public notice of the case, 1. 1. 2nd of the public notice of the public notice of the case, 1. 1. 1. 2nd of the public notice of the public notice of the case, 1. 1. 1. 2nd of the public notice of the public notice of the case.

6) Original mal plus beng Doging M&C (UCP 600 (a) and 20 (a)(i) and (d) of UCP 600(a). Any stringer as required for ever An Anagrings (a) fife Anagrings, string and M&C, as required for me to do so.) The laging and M&C 300(a) of UCP 60(i). Any laging that is required to be included in the M&C 30(a).

주7) If a credit states ”Freight Forwarder's Bill of Lading is acceptable“ or uses a similar phrase, then the bill of lading may be signed by a freight forwarder in capacity of a freight forwarder, without the need to identify itself as carrier or agent for the named carrier. In this event, it is not necessary to show the name of the carrier.