[1] Whether the short-term exclusion period under Article 811 of the Commercial Act applies to a case where the raw carrier compensates for the damage to the holder of the bill of lading and then claims the amount of the compensation to the re-transporter as the goods were lost due to the intention or negligence of the re-transporter in a contract of carriage of marine goods which was concluded

[2] The case reversing the judgment of the court below which dismissed the lawsuit on the ground of the lapse of the filing period under Article 811 of the Commercial Act, on the ground that the cause of the claim includes not only the purpose of seeking liability for damages due to tort but also the purpose of exercising the right of indemnity as to the amount of compensation to the holder of the bill of lading, in case where the raw carrier, as the goods have been lost due to the intention or negligence of the sub-transport

[1] In case where multiple parties are jointly and severally liable for damages due to the loss of or damage to the cargo in a contract of carriage of marine goods with the contracting carrier, such as the relation between the contracting carrier and the actual carrier, in case where either party first compensates the holder of the bill of lading for the amount of damages and then claims the amount of compensation against the other party, the provisions concerning the period of short-term exclusion under Article 811 of the Commercial Act stipulating the extinction of the carrier's claim and obligation

[2] The case reversing the judgment of the court below which dismissed the lawsuit on the ground of the lapse of the filing period under Article 811 of the Commercial Act, on the ground that the cause of the claim includes not only the purport of seeking liability for damages due to tort but also the purport of exercising the right of indemnity as to the amount of compensation to the holder of the bill of lading, in case where the raw carrier claimed damages against the holder of the bill of lading after the cargo was lost due to the intentional or negligent loss

[1] Article 811 of the Commercial Act / [2] Article 811 of the Commercial Act

1. A person who is a party to a contract;

Egyping Co., Ltd. (Law Firm Kim & Shind Co., Ltd., Attorneys Ba-sung et al., Counsel for the plaintiff-appellant)

Seoul High Court Decision 2000Na11975 delivered on October 24, 2000

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

The grounds of appeal are examined.

1. Summary of the judgment below

The lower court: (a) premised on the premise that the Plaintiff, a consignor or consignee, sought damages for tort against the Defendant, a carrier’s domestic agent, the Plaintiff’s lawsuit of this case; and (b) determined ex officio whether the Plaintiff complied with the period of filing the lawsuit as follows.

In other words, Article 789-3 (2) of the Commercial Act shall be interpreted as including the period of filing a lawsuit under Article 811 of the Commercial Act. Even if it is not so, it shall be interpreted as including the "employee or agent of the carrier" in Article 789-3 (2) and (4) of the Commercial Act in the interpretation of the "transporter" under Article 811 of the Commercial Act. In addition, it is unreasonable that the carrier's employee or agent bears more responsibilities than the carrier. Thus, the one-year period of filing a lawsuit under Article 811 of the Commercial Act shall be interpreted as not only the "debt of the carrier", but also the "debt of the carrier's employee or agent" under Article 811 of the Commercial Act. In this case, the date when the cargo was delivered or should be delivered in this case shall be the date when the cargo was stored in the warehouse of the warehouse of this case, and it is obvious that the period of filing a lawsuit of this case shall be from June 25, 1997.

2. As to the grounds of appeal Nos. 1 and 2

A. However, according to the lower judgment and the record, the facts alleged by the Plaintiff as the cause of the instant claim are as follows.

(1) On June 20, 1997, the Plaintiff: (a) requested from Weihai Jiatthing Co. LTD. to transport the instant cargo from China to Busan port; (b) entered into a transport contract with the above exporter; and (c) issued and delivered the instant cargo to the first bill of lading (house B/L). On June 20, 1997, the Plaintiff again requested Non-party 1, the actual carrier, to transport the instant cargo to Non-Party 1, the actual carrier, and received the instant cargo from the carrier; and (d) issued and delivered the instant cargo to the carrier’s vessel, and (e) received the instant bill of lading from the carrier.

(2) However, the defendant, a domestic agent of the carrier of this case, stored the goods of this case in the warehouse of the warehouse operator on June 25, 1997, following the arrival at the port of Busan. However, the warehouse operator arbitrarily destroyed them by delivering the goods of this case to the importer without in exchange for the bill of lading No. 1 on June 26, 1997 or the order for delivery of the goods issued by the defendant.

(3) The L/C issuing bank of this case, which paid the purchase price of the L/C of this case and possessed No. 1 bill of lading, filed a lawsuit against the plaintiff, who is the issuer of the 1 bill of lading, claiming that the plaintiff suffered losses due to impossibility of the plaintiff's duty to deliver the goods of this case. On February 5, 199, the Seoul District Court rendered a judgment that "the plaintiff's duty to deliver the goods to the Cho Il Ho Bank, the issuer of the 1 bill of lading, was caused by the plaintiff's intentional or negligent act of the warehouse operator of this case, the plaintiff's agent (or the defendant) and the second performance assistant, and thereby, caused damages that the Cho Byung Bank could not receive the goods of this case." On the ground that the plaintiff's judgment that the plaintiff received the above 95,879,760 won from June 26, 199 to February 25, 199, and that the plaintiff continued to receive the above 9% annual interest rate from the next day of this case's lawsuit to 19%.

(4) After the above judgment was rendered, the Plaintiff paid the amount of KRW 95,879,760, the principal of which was the judgment, and agreed that the amount of KRW 95,879,760, which was the principal, to waive the remainder of the judgment. The Plaintiff asserted that the Defendant is liable to pay the amount of KRW 95,879,760 to the Plaintiff.

B. On the other hand, it is reasonable to view that the plaintiff's assertion of the cause of the above claim includes not only the purport of seeking liability for damages due to tort on the ground of the loss of the cargo in the capacity of the consignor who was issued the bill of lading of this case to the defendant as the agent of the carrier, but also the purport of claiming the above amount of compensation against the defendant, who is the agent of the carrier, who is the holder of the bill of this case, as the issuer of the bill of this case.

In addition, if multiple parties are jointly liable for damages due to the loss of or damage to the cargo with the contractual carrier, such as the relation between the contractual carrier and the actual carrier, if either party compensates for the amount of damages first to the holder of the bill of lading and then claims the amount of compensation against the other party, the provision on the short-term limitation period under Article 811 of the Commercial Act stipulating the extinction of the carrier's claim and obligation shall not apply.

C. Nevertheless, the court below erred by misapprehending the legal principles as to the scope of application of Article 811 of the Commercial Act and thereby adversely affecting the conclusion of the judgment, since the plaintiff, who is a consignor under the contract of carriage of marine goods, sought damages by tort against the defendant, who is a domestic agent of the carrier, the period of one year under Article 811 of the Commercial Act, has expired.

3. Therefore, without examining the remaining grounds of appeal, the judgment of the court below shall be reversed, and the case shall be remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices.

Justices Lee Yong-woo (Presiding Justice)