[1] Whether an air carrier's delivery of imported air freight to a customs bonded warehouse operator can be deemed to have been delivered to a consignee (negative)

[2] The meaning of "a copy of an air waybill" as a document to submit an import declaration for air freight

[3] In a case where a domestic agent of a forwarding agent voluntarily delivers transport documents, such as an air waybill, to a third party, other than the consignee or the notifying party, whether a tort against the consignee is established (affirmative)

[4] The case holding that in a case where a third party under the above / [3] takes out goods using an air waybill, etc. that forged import approval certificate, etc. and inter-Korean agent's issuance of air waybill, etc. and proximate causal relation exists between the consignee's act of delivery

[1] It cannot be deemed that an air freight has been delivered to an air carrier or an air freight forwarder regardless of the control of an air carrier or an air freight forwarder, only by delivering the imported air freight which arrived at the airport to a customs bonded warehouse designated by the customs office for customs clearance.

[2] A copy of an air waybill necessary for completing the customs procedure for imported air freight refers to a copy certified as having the same effect as the original when the original air waybill for consignee is lost or it is impossible to submit the original due to any other reason.

[3] In a case where a transportation agent, who is a domestic agent of a transportation broker, voluntarily delivers a transportation document, including an air waybill for a consignee, to a third party, other than a consignee or a notifying party (actual importer), the transportation agent who is obligated to deliver the transportation note, etc. to the consignee and deliver the imported goods to a third party, may be aware that the delivery of the imported goods could result in infringing upon the consignee's right to claim the delivery of the imported goods held by the consignee by taking it out from the bonded warehouse without the consignee's consent, after completing customs clearance procedures for the imported goods, and deducting it from the bonded warehouse without the consignee's consent. If the result of such procedures is not known, the transportation agent was negligent in failing to perform his/her duty of care as the transportation agent. If the transportation agent takes the imported goods out of the bonded warehouse after completing customs clearance procedures through the transportation note, etc. delivered by the third party, and whether the delivery of the imported goods takes effect to the third party, such negligent act by the transportation agent, regardless of whether the legal effect of the delivery of the imported goods, constitutes a tort against the consignee's's right to claim for delivery.

[4] The case holding that there is a proximate causal relation between the act of delivery by the transporter and the consignee, in case where the third party in the above [3] completed customs clearance using an air waybill, etc. issued by the transporter and the letter of import approval and the goods imported from the bonded warehouse are taken out from the bonded warehouse, and the act of delivery, etc. by the consignee

[1] Articles 124 and 140 of the Commercial Act, Article 13(1) and (2) of the Convention on the Unification of Certain Rules Relating to International Carriage / [2] Article 139 of the Customs Act, Article 123-2 of the Enforcement Decree of the Customs Act / [3] Article 750 of the Civil Act, Articles 5 and 13(1) and (2) of the Convention on the Unification of Certain Rules Relating to International Carriage by Air / [4] Article 750 of the Civil Act, Articles 5 and 13(1) and (2) of the Convention on the Unification of Certain Rules Relating to International Carriage by Air

Sejong Trade Co., Ltd. (Law Firm Hun-Ba, Attorneys Lee Dong-soo et al., Counsel for the plaintiff-appellant)

Dong-ri International Co., Ltd. (Law Firm Han-dong Law Office, Attorneys Yu-hee et al., Counsel for the defendant-appellant)

Seoul High Court Decision 93Na19018 delivered on August 24, 1994

The appeal is dismissed. The costs of appeal are assessed against the defendant.

The grounds of appeal are examined.

1. On the first ground for appeal

In the case of air freight transported into the Republic of Korea from a foreign country, it shall be deemed that air freight has been delivered to a consignee at the time of delivery to a customs bonded warehouse operator designated by the customs office for customs clearance, and thereby, it shall be deemed that an air freight has been delivered to a consignee at the time of delivery to an air carrier or an air freight forwarder. Thus, since the domestic agent of an air freight forwarder delivers an air waybill to a person other than a consignee, it shall not be deemed that an infringement on a consignee's right to claim for delivery of air freight on the ground that the domestic agent of an air freight forwarder delivers an air waybill to a person other than a consignee, but only delivery to a customs bonded warehouse operator designated by the customs office for customs clearance of air freight arriving at an airport cannot be deemed to have been delivered to a consignee from the control of an air carrier or air freight forwarder

2. On the second ground for appeal

In light of the relationship between the evidence presented by the judgment below, the judgment of the court below as to the fact that the copy of an air waybill necessary to complete customs procedures in the customs office refers to a copy certified as having the same effect as the original when it is impossible to submit the original copy of the air waybill for consignee or for any other reason, and the judgment of the court below as to the fact that there is no error of law by misconception of facts against the rules of evidence, such as the theory of

In addition, if the facts are duly determined by the court below, it is reasonable to view that, in the case of air freight transport, the cargo is delivered to ordinary bonded warehouse without a separate order for delivery, in addition to customs clearance, the act of delivering the cargo. The defendant, as a domestic agent of the freight forwarder of this case, who is in the position of a carrier in relation to the shipper or consignee of each of the goods imported air freight, did not notify the plaintiff, the actual importer, of the arrival of each of the above goods, and delivered the original or certified copy of each of the above carriage, which is a document necessary for customs clearance of each of the above goods, to the non-party who is an importer, without notifying the arrival of each of the above goods to the issuer of the letter of credit or the consignee, and as such, the delivery of each of the above goods to the above non-party as a certified copy of each of the above goods could not be deemed to have infringed upon the non-party's right to claim the delivery of each of the above goods, and as a result, the court below did not accept each of the above non-party's right to claim the delivery of each of each of the above goods.

3. On the third ground for appeal

In theory, the air waybill necessary for the completion of customs clearance for air freight is sufficient to be easily claimed at other places, and the above customs clearance procedure requires import approval as well as air waybills. Since the above non-party forged an import approval and completed the customs clearance procedure for each of the goods of this case and carried it out from bonded warehouse, the defendant's delivery to the above non-party as the consignee and the damage of each of the above banks is not a causal relationship. However, the air waybill necessary for the completion of customs clearance for air freight is the original or certified copy of the carriage of this case, and it cannot be easily claimed at other places than the defendant who is the consignee. Thus, the above non-party can not easily seek the original or certified copy of each of the carriage of this case's goods of this case as seen above, and the act of delivering each of the above goods to the non-party, not the above original or certified copy of the carriage of each of the above goods, and the act of delivering each of the above goods to the non-party as a result of the infringement of each of the above claims for damages.

4. On the fourth ground for appeal

The judgment of the court below that the issuance of an air waybill to a consignee or an actual importer, other than the consignee stated in the air waybill, does not have any evidence to prove the defendant's assertion that the air waybill is a practice in the air freight transport industry, is justifiable, and there is no error of law by misconceptioning the facts against the rules of evidence, such as the theory of lawsuit

Even if the air waybill is delivered to the actual importer who is not the consignee or the notifying party in practice in the sense of the family cargo transport industry, it should be recognized that each of the above banks, the consignee of each of the goods of this case, have impliedly approved the execution of the business in order to justify the defendant's act in accordance with the business practice. However, it is difficult for the defendant to accept the air waybill only with the evidence that the defendant is insufficient to acknowledge it, and it is difficult to find any other material to acknowledge it.

Therefore, there is no reason to the effect that the defendant's business process is justifiable or the defendant's liability for damages is against the good faith on the premise that such business process has been committed or such practice has been implicitly approved by each of the above banks.

5. Therefore, the appeal is dismissed, and all costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Ahn Yong-sik (Presiding Justice)