Hyundai Marine Fire Insurance Co., Ltd. (Attorney Han-jin, Counsel for defendant-appellant)

Han Industrial Machinery Co., Ltd. (Attorney Kim Dong-dong, Counsel for the plaintiff-appellant)

KNTC Co., Ltd. (Attorney Kim Gi-do, Counsel for the defendant-appellant)

April 18, 2018

Seoul Central District Court Decision 2015Da5359191 Decided October 19, 2017

1. Of the judgment of the court of first instance, the part against the plaintiff corresponding to the amount ordered to be additionally paid shall be revoked. The defendant shall pay to the plaintiff 14,100,000 won with 6% interest per annum from October 21, 2015 to May 16, 2018, and 15% interest per annum from the next day to the date of full payment.

2. All remaining appeals by the plaintiff and the defendant are dismissed.

3. The part arising between the Plaintiff and the Defendant out of the total costs of the lawsuit shall be borne by the Defendant, and the cost of the participation shall be borne by the Defendant.

4. The part concerning the payment of money under paragraph (1) may be provisionally executed.

1. Purport of claim

The defendant shall pay to the plaintiff 47,00,000 won with 6% interest per annum from September 2, 2015 to the service date of a copy of the complaint of this case, and 15% interest per annum from the next day to the day of complete payment.

2. Purport of appeal

A. The plaintiff

Of the judgment of the first instance, the part against the plaintiff corresponding to the amount ordered to be paid additionally shall be revoked. The defendant shall pay to the plaintiff 14,10,000 won with 6% interest per annum from October 21, 2015 to October 19, 2017, and 15% interest per annum from the next day to the date of full payment.

B. Defendant

The part against the defendant in the judgment of the first instance is revoked, and the plaintiff's claim corresponding to the revocation is dismissed.

1. Partial acceptance of the judgment of the court of first instance

Of the reasoning of the judgment of the first instance, the part concerning “1. Basic Facts” and “the parties’ assertion” shall be cited in accordance with the main sentence of Article 420 of the Civil Procedure Act. However, the five pages of the judgment of the first instance shall be modified to the amount of USD 241,578 in US dollars 241,578.

2. Whether the carrier is a carrier;

As long as the establishment of a disposal document is recognized as authentic, the court shall recognize the existence and content of the declaration of intent in accordance with the language and text stated in the disposal document, unless there is any clear and acceptable counter-proof as to the denial of the contents stated therein (see Supreme Court Decision 2014Da1976, Feb. 15, 2017).

However, the phrase “combined transport contract” (Evidence A) prepared by the Defendant and Hyundai Gomans is not only a transport contract under Item (a) but also a contract to entrust the Defendant with the “transport” of Hyundai Goman’s cargo (Article 7) but also a principle to transport the cargo by using the cream lines secured by the Defendant (Article 7). The fare rate to be paid by the Defendant shall be determined by the fare rate agreed between the Defendant and Hyundai Goman’s (Article 9); the carrier shall fulfill the duty of due care as a good manager (Article 10(2)); the carrier shall fulfill the duty of due care as a good manager (Article 12(1)); and the carrier shall compensate for all damages incurred by the loss or damage of objective cargo (Article 10(2)); and the actual vessel transport cost includes only the freight forwarding charge that the Defendant receives from Hyundai Goman’s Moman in return for performing his duties; and there is no content to interpret the Defendant as a direct payment to the carrier from Hyundai Goman’s U.S.

Meanwhile, according to the evidence No. 4, the fact that the Defendant’s Intervenor and the Defendant’s Intervenor issued the bill of lading may be recognized. However, even if the Defendant’s Intervenor issued the bill of lading after re-issuance of the bill of lading from the Defendant, the Defendant’s obligations and responsibilities to be borne by the Hyundai Lane based on the said multimodal

Ultimately, the defendant is in the position of a contracting carrier who takes over the freight of this case in accordance with the above "combined Transport Contract" in relation to Hyundai Glos. Therefore, the defendant's assertion that is different from this is rejected.

3. Whether the exclusion period has expired;

A. Relevant statutes

(3) In cases falling under paragraph (2), if a carrier who has received a judicial claim has given notice of a lawsuit against a third party within three months from the date on which the carrier has delivered the cargo to the consignee or has given notice of the lawsuit to the third party, the period of this time may be extended by agreement between the parties. (2) If the carrier and the consignee have agreed to the compensation with the carrier or made a judicial claim against the carrier within the period of paragraph (1), the claim and the obligation of the carrier against the third party shall not be terminated, notwithstanding paragraph (1) until three months have passed from the date on which such agreement or claim was made.

B. Determination

On the other hand, the defendant asserts that the phrase "within the period of Paragraph (1)" in Article 814(2) of the Commercial Act (hereinafter "the phrase of this case") is an expression "within the period of Paragraph (1)" in Article 814(2) of the Commercial Act is an expression "within the period of Paragraph (1)." Thus, the issue is whether the phrase of this case includes the period of proviso (one year) only within the period of Paragraph (1) (one year) or the period of proviso (the extended period by agreement between the carrier, consignor, or consignee).

The purpose of statutory construction ought to be to find a concrete feasibility within the extent that does not undermine legal stability. To do so, the interpretation ought to take precedence over, as far as possible, the ordinary meaning of the language and text used in the law. However, to the extent that it does not go beyond ordinary meaning of the language and text, a systematic and logical interpretation method that takes into account the legislative intent and purpose, history of enactment and amendment, harmony with the entire legal order, relationship with other Acts and subordinate statutes may be used additionally (see Supreme Court Decision 2014Da223025, Dec. 22, 2017).

On the other hand, examining the ordinary meaning of the phrase of this case, the term “period under Paragraph (1)” was simply used without distinguishing the main text and proviso or restricting the scope of application. In particular, unlike the term of this case under the proviso of Paragraph (2), comparing the term “agreement under the proviso of Paragraph (1)” with the term “the scope of application” explicitly excluded the main text from the scope of application, deeming the term “period under Paragraph (1)” of the phrase of this case to include both the main text and proviso as a method of interpretation under the language law.

Of course, it may be possible to reasonably understand the true meaning of the provision through systematic and logical interpretation in the event that the provision is obviously contrary to the purpose of legislation introduced or a logical inconsistency occurs with the contents of another provision.

However, Article 814(2) of the Commercial Act is without any difference between the main text and the proviso of Article 814(1) in that a carrier, who has re-entrusted a transport business to a third party, actually committed a liability for damages to a consignor or consignee on the date of the performance of the business by a third party, while preventing a third party from exercising a claim for compensation due to the lapse of the exclusion period under paragraph (1), may have difficulty in exercising a claim for compensation due to the carrier’s failure to know whether or not the carrier is liable for compensation to the consignor or consignee. In other words, if the phrase of this case does not include the proviso of paragraph (1), even if the carrier pays damages to the consignor or consignee one year after the date of the transport, it may result in an unreasonable result that cannot be claimed to the third party in charge of the actual transport, and it is difficult to deem that it conforms with the legislative intent of the above provision.

From the third party’s standpoint, the legal position becomes somewhat unstable in that the limitation period is extended by agreement between the carrier and the consignor or the consignee regardless of his/her own will. However, since the commercial extinctive prescription is applied to the third party’s obligation to the carrier, it is not necessary to make the negotiations with the carrier and the consignor unlimitedly, and even before the introduction of Paragraph 2 by the amendment of the Commercial Act on August 3, 2007, the limitation period under Article 811(1) of the former Commercial Act (see Supreme Court Decision 2000Da62490, Oct. 30, 201) was not applied to the carrier and the third party (see Supreme Court Decision 2000Da62490, Oct. 30, 201). In light of the above, it is reasonable to deem that this degree of instability was scheduled to have been set forth in the above provision.

If so, after the carrier's Hyundai Glosovis agreed with the consignor's Hyundai item and extended the period of compensation for damages until February 20, 2016, the carrier agreed on September 11, 2015, which is within that period, and filed the instant lawsuit seeking damages against the defendant on November 13, 2015, which is apparent that it is within three months from that period, and thus, the instant lawsuit was filed within the exclusion period stipulated in Article 814 (2) of the Commercial Act. The other defendant's assertion is rejected.

4. Formation and scope of liability for damages; and

Pursuant to Article 135 of the Commercial Act, a carrier shall be liable for damages arising from the loss of, damage to, or delay in arrival of the cargo unless he/she proves that he/she, forwarding agents, employees, or other persons employed for the carriage have not neglected due care in connection with the receipt, delivery, custody, and carriage of the cargo. Since the instant accident occurred with the care of a shipper used in the course of carriage through the intervenor assisting the Defendant, the Defendant shall be liable for damages arising from the instant accident to the Plaintiff who acquired by subrogation the consignor’s rights.

The Defendant asserts that, rather than directly transporting the instant cargo, the Defendant re-entrusted the Defendant’s assistant participant with the carriage of cargo. The instant accident occurred during the loading and unloading process in India, and the Defendant was difficult to manage and control the loading and unloading company in India, and thus, his liability for damages should be limited to a considerable portion.

However, all of the above circumstances are nothing more than the internal circumstances of the defendant who was rarely related to the plaintiff, and there is no reason to take into account the plaintiff's negligence or to limit the defendant's liability (Article 137 (3) of the Commercial Act provides that "if the loss of, damage to, or delay in arrival of the cargo was caused by the carrier's intentional or gross negligence, the carrier shall compensate for all the damages," but this provision provides exceptions to the provisions of paragraphs 1 and 2 that make the goods compensate for at the place of destination and does not constitute a ground to limit the carrier's liability generally). As seen above, in light of the fact that the defendant agreed to compensate for all the damages caused by the damage of the cargo under Article 12 (1) of the contract entered into with the Hyundai Lane, the circumstance alleged by the defendant is difficult to be deemed as a justifiable ground to limit the liability for damages. Other defendant's assertion

5. Conclusion

Therefore, with respect to the Plaintiff’s indemnity amounting to KRW 47,00,000 and KRW 32,900,000,00 which the first instance court already recognized the obligation to pay to the Plaintiff, the Defendant is obligated to pay damages for delay calculated at each annual rate of 15% per annum as provided by the Act on Special Cases Concerning the Promotion, etc. of Legal Proceedings, which is the date following the date of subrogation, as of October 21, 2015, which is deemed reasonable for the Defendant to dispute the existence and scope of the obligation to pay from October 19, 2017, and the remainder of KRW 14,100,00 from October 21, 2015, which is the date of the first instance court’s ruling that it is reasonable for the Defendant to dispute the existence and scope of the obligation to pay to the Plaintiff, from May 16, 2018 to the date of full payment.

The plaintiff's claim shall be accepted within the scope of the above recognition, and the remainder of the claim shall be dismissed due to the lack of reason. Since the judgment of the court of first instance is partially unfair, the plaintiff's appeal is accepted, and the part against the plaintiff corresponding to the amount ordered to be paid in the trial is revoked, and the defendant is ordered to pay the same amount, and the remainder of the plaintiff's appeal (the part on which the plaintiff's claim for payment of damages for delay exceeds 6% per annum from October 21, 2017 to May 16, 2018) and the defendant's appeal is all dismissed. It

Judge Song Jae-young (Presiding Judge)