[1] The scope of damages suffered by a holder of a bill of lading where a carrier delivered the cargo to another person without repayment of the bill of lading

[2] In a case where a credit applicant’s obligation to the issuing bank in the transaction of the credit has ceased to exist due to partial repayment, etc., whether it should be deducted from the claim for damages on the bill of lading against the carrier (negative), and whether the carrier’s liability for damages against the holder of the bill of lading is limited to the scope of the credit applicant’s obligation to the issuing bank

[3] The scope of the court's ex officio examination of evidence as to whether the filing period under Article 811 of the Commercial Code is complied with

[4] The case affirming the judgment of the court below which did not recognize that the importer's first shipping of the cargo without a bill of lading was a practice in the transaction of an extended credit

[1] The damage suffered by a holder of a bill of lading by delivering the cargo to another person without exchanging it with the bill of lading is the value of the cargo at the time of delivery and the amount equivalent to the delay damages.

[2] Since the damage claim for a bill of lading which the L/C issuing bank holds against the carrier as the holder of the bill of lading and the claim for the transaction in the L/C against the L/C applicant as the L/C issuing bank are legally separate rights, even if the obligation for the transaction in the L/C against the L/C opening bank is extinguished due to partial payment, etc., it shall not be allowed to deduct the carrier from the damage claim against the L/C opening bank. The right of the carrier as the holder of the bill of lading is to guarantee the right of the L/C opening bank as the L/C opening bank, the carrier's damage liability against the holder of the bill of lading cannot be limited

[3] The claims and obligations of a carrier against a charterer, consignor, or consignee shall cease to exist if no judicial claim is made within one year from the date when the carrier delivers or delivers the cargo to a consignee (Article 811 of the Commercial Code), and the above period as the period for filing a lawsuit is an ex officio investigation as to whether the period is complied with. Thus, if there is doubt as to whether the period is complied with, the court may ex officio conduct an ex officio examination of evidence according to the necessary extent. However, even if there is no reason to suspect that the period has lapsed when examining all the litigation materials presented at the court, the court does not have the obligation to ex officio conduct an additional examination of evidence to confirm whether the period has been observed.

[4] The case affirming the judgment of the court below which did not recognize that the importer's first shipping of the cargo without a bill of lading was a practice in the transaction of an extended credit.

[1] Articles 393, 763 of the Civil Act, Articles 129, 132, 133, and 820 of the Commercial Act / [2] Articles 393, 763 of the Civil Act, Articles 129, 132, 133, and 820 of the Commercial Act / [3] Article 81 of the Commercial Act, Article 292 of the Civil Procedure Act / [4] Articles 129, 132, 133, and 820 of the Commercial Act

[1] Supreme Court Decision 92Da12674 delivered on October 8, 1993 (Gong1993Ha, 3042) / [2] Supreme Court Decision 90Meu8098 delivered on April 26, 1991 (Gong1991, 1484 delivered on March 25, 2004) / [3] Supreme Court Decision 2001Da73138, 73145 delivered on July 26, 2002 (Gong2004Da71201 delivered on April 28, 2005)

Korea Asset Management Corporation (Law Firm Pok, Attorneys Jeong-sil et al., Counsel for the plaintiff-appellant)

Defendant (Law Firm Sejong, Attorneys Kim Chang-chul et al., Counsel for the defendant-appellant)

Busan High Court Decision 2006Na11999 Decided January 26, 2007

The part of the judgment below against the plaintiff is reversed, and that part of the case is remanded to Busan High Court. The defendant's appeal is dismissed.

1. As to the Plaintiff’s appeal

A. The judgment of the court below

After finding the facts as stated in its reasoning based on the admitted evidence, the court below determined that since the Busan Bank issued the letter of credit of this case at the request of Austria Co., Ltd. (hereinafter "Austria"), and the letter of credit of this case was concerning the cargo of this case imported and transported by Austria, and it was the consignee of the bill of this case concerning the cargo of this case. In this case, the right held by the Busan Bank as the holder of the bill of this case as the holder of the bill of this case is to secure the claim for compensation against Austria by paying for the letter of credit of this case as the issuing bank of this case. Thus, the defendant's delivery of the cargo of this case to Austria without redemption of the bill of this case to 30 billion won and infringed the right of the Busan Bank's freight of this case and bears damages liability for tort against Austria, the amount of damages that the defendant is liable to pay shall be equivalent to the amount equivalent to 370 billion won and damages damages damages damages claim of this case to 300 billion won and damages claim of this case from 3500 billion won and damages claim of this case.3939.7 billion won.

B. The judgment of this Court

However, this decision of the court below is not acceptable for the following reasons.

The damage suffered by a carrier by the holder of a bill of lading by delivering the cargo to another person without exchanging the cargo with the bill of lading is the value of the cargo as at the time of delivery and the amount equivalent to the delay damages (see Supreme Court Decision 92Da12674, Oct. 8, 1993, etc.). Since the damage claim on the bill of lading held by the issuing bank as the holder of the bill of lading against the carrier and the claim on the L/C transaction against the L/C applicant as the issuing bank are legally separate rights, even if the obligation on the L/C applicant's L/C applicant's L/C transaction against the issuing bank is extinguished due to partial repayment, etc., it shall not be deducted from the claim on the bill of lading against the carrier (see Supreme Court Decisions 90Da8098, Apr. 26, 1991; 2001Da5349, Mar. 25, 2004).

In light of the above legal principles and the records, the damages suffered by the Busan Bank by preventing the Defendant from committing an illegal act to deliver the freight of this case without exchange with the bill of lading of this case shall be equivalent to KRW 389,09,238, which is the market price at the time the freight of this case was delivered to Austria. Thus, the Defendant is obligated to pay the amount equivalent to the damages for delay from December 31, 2003, which is the delivery date of the freight of this case, to the Plaintiff who received the claim for damages from the Busan Bank due to the acquisition of the bill of this case from the Busan Bank, and the damages for delay from the payment date of the letter of credit of this case, on the ground that the amount of the claim for compensation pursuant to the payment on the letter of credit of the Busan Bank should be limited to the extent of the above claim amount, or it cannot be asserted that the amount should be deducted on the ground that some damages for delay was paid.

Nevertheless, the court below held that the Plaintiff’s damage claim against the Defendant should be limited to the amount of the claim for reimbursement against the Asia of the Busan Bank, and that the amount equivalent to the interest paid should be deducted from the damage claim of this case since some interest on the above claim for reimbursement was paid. Such judgment of the court below is erroneous in the misapprehension of legal principles as to the scope of the carrier’s damage liability against the holder of bill of lading, and it has affected the conclusion of the judgment.

2. As to the defendant's appeal

A. Whether the period for filing a lawsuit is observed

The claims and obligations of a carrier against a charterer, consignor, or consignee shall, whatever the cause of the claims may be, cease to exist if no judicial claim has been made within one year from the date when the carrier delivers or delivers the cargo to a consignee (Article 811 of the Commercial Act); and the above period as the period for filing an action shall ex officio investigate whether or not the period has been observed; and where there is doubt as to whether or not the period has been observed, the court may ex officio conduct an ex officio an examination of evidence according to the necessary extent; however, even if there is no circumstance to suspect that the period has lapsed when examining all the litigation materials presented to the court, the court does not ex officio conduct an additional examination of evidence to confirm whether or not the period has been observed (see Supreme Court Decision 2004Da71201, Apr. 28, 2005)

In light of the records, while filing the suit of this case on September 23, 2004, the plaintiff asserted that the plaintiff claimed damages against the defendant who is the consignee of the freight of this case against Busan Bank, the consignee of the freight of this case, as the cause of the claim that the plaintiff acquired the freight of this case from Busan Bank on June 29, 2004, and the complaint submitted a copy of the bill of this case as evidentiary documents. On the other hand, according to Gap evidence No. 14 (Notice), according to the notice that the defendant sent to the defendant on July 5, 2004, the Busan Bank's bill of lading was stated as " how the original bill of this case can be taken out of the goods in the situation where the original bill of lading is kept on the road, and it was merely a fact that the Busan Bank possessed the original bill of this case at the time of carrying out the freight of this case from Busan Bank on July 5, 2004, and it cannot be concluded that the plaintiff did not take over the freight of this case from Busan Bank.

Therefore, even if the court below did not ex officio examine the evidence to determine whether the period of filing an action under Article 811 of the Commercial Act has lapsed, the court below did not err by violating the rules of evidence or by misapprehending the legal principles as to ex officio matters, as alleged in the grounds of appeal.

B. Whether the defendant is exempted from liability

The court below rejected the defendant's assertion that there is no evidence to prove that the importer would have had the importer carry the cargo first out of the bill of lading in the transaction of extended credit with due date or that the Busan Bank ordered the importer to receive and dispose of the cargo without a bill of lading in this case, or that the Busan Bank failed to prove the defendant's assertion that the transaction practices of extended credit or the direction and implied of the Busan Bank had been issued without a bill of lading.

In light of the records, the court below's measure is just and acceptable, and there is no error of law such as violation of the rules of evidence or misunderstanding of legal principles as to an extended credit.

C. Whether to recognize comparative negligence

In light of the records, there is no evidence suggesting that the Busan Bank, as alleged by the defendant, predicted the shipment of the freight of this case without a bill of lading, but rather failed to take measures to prevent it, and rather failed to cause the Austria to remove the freight.

Although the reasoning of the judgment of the court below is somewhat inappropriate, the conclusion that rejected the defendant's assertion of comparative negligence is just, and there is no violation of the rules of evidence or misapprehension of the legal principles as to comparative negligence, as alleged in the grounds of appeal.

3. Conclusion

Therefore, the part of the lower judgment against the Plaintiff is reversed, and that part of the case is remanded to the lower court for further proceedings consistent with this Opinion. The Defendant’s appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices.

Justices Kim Ji-hyung (Presiding Justice)