A. The meaning of "the place where the cause of the claim occurred" due to the tort stipulated in Article 13(1) of the Conflict of Laws Act.

B. In the case of a claim for damages caused by a tort under the Civil Act, whether the application of Article 13 of the Conflict of Laws Act is excluded by Article 44 subparagraph 5 of the same Act (negative)

C. Whether the governing law provisions stipulated in the terms and conditions of a bill of lading also apply to claims for damages caused by tort (negative)

(d) Recognition of the fault of ship employees and carrier's force majeure defense;

(e) Relationship between liability for non-performance of obligations under maritime transport contracts and liability for illegal acts;

F. Whether the exemption clause as stated in a bill of lading applies to tort liability (affirmative)

(g) limitation on the application of tort liability of the terms of exemption stated in a bill of lading;

(h) the scope of Article 790 of the Commercial Code with respect to the indemnity clause;

A. According to Article 13(1) of the Conflict of Laws, the establishment and effect of a claim arising from a tort shall be deemed to be governed by the law of the place where the cause occurred. Here, the place where the cause occurred includes not only the act of the tort but also the result of the damage. Thus, it is reasonable to regard that the damage occurred until the ship transporting the cargo arrives in the territory of the Republic of Korea as included in the result of the damage if the damage occurred. In this case, it is reasonable to regard that the damage occurred before the arrival in the territory of the Republic of Korea and the damage that occurred after the arrival in that territory is included in the result of the damage. It is difficult to clearly distinguish the damage that occurred before the arrival in the territory of the Republic of Korea

B. Article 44 Subparag. 5 of the Conflict of Laws does not purport to exclude Article 13 of the Conflict of Laws and the law of the country of registry as the governing law even in the case of a claim for damages on the grounds of tort under the Civil Act, not the nonperformance of obligations under the contract of carriage.

C. Although the provisions of the terms and conditions of a bill of lading provide for the applicable law to a contract established by a bill of lading, this provision does not be construed as having the exclusive meaning of the applicable law to claims for damages arising out of tort, not to default on a contract of carriage.

D. Inasmuch as a fixed device was carried out at the time of the loading of the cargo in the maritime transport, but it was not strong, if the cargo was removed and damaged by being loaded with a fixed device during navigation, barring special circumstances, it can be recognized that the employee’s fault, which is the conditions of liability for the tort, can be recognized unless there are special circumstances, and in order for the carrier to be exempted from liability for the tort on the ground that it was an accident by force majeure, the wind belongs to a natural disaster unforeseeable at the time of loading and it was not possible to take preventive measures against the occurrence of damage.

E. If a marine carrier damages the cargo in the course of carriage by intention or negligence of a carrier or its employees, etc., the holder of a bill of lading may acquire the carrier the right to claim damages due to non-performance of obligation in a contract of carriage and the right to claim damages due to tort of ownership against the carrier, and may exercise the right to claim damages from either of them.

F. Even if there is a special rule of statutory immunity concerning the non-performance of obligation under a contract of carriage, or the special rule or special agreement generally does not apply to tort liability unless there is an express or implied agreement to apply it to tort liability. However, in light of the fact that the person who received a bill of lading by transfer of the right of the cargo acquires the right of the cargo and at the same time acquires the right of the cargo and acquires the ownership of the cargo and at the same time acquires the ownership of the cargo, thereby holding the carrier liable for the non-performance of obligation and the tort liability against the carrier, the terms and conditions of the discharge stipulated in the bill of lading are limited to the non-performance of obligation, and it cannot be deemed that the parties had the intention to assume the liability for tort, and thus, it is also applicable to tort liability. Even if there is no implied agreement, this effect extends to the tort liability.

(g) Even if the terms and conditions of immunity stated in a bill of lading do not apply to tort liability against infringement of property rights by intention or gross negligence, nor does it apply to tort liability if they conflict with the provisions of Articles 787 through 789 of the Commercial Act.

H. Article 790 of the Commercial Act applies to the so-called exclusion clause that excludes general responsibilities among the terms and conditions of exemption, or excludes liability for specific damage, or to the so-called exclusion clause that alters the burden of proof or imposes conditions on the claim, and the limitation clause that reduces part of the result of liability does not conflict with this.

[Binding Force Judgment: Judgment on Nov. 11, 1980; 80Da1812 decided Nov. 1, 1980]

(a)b.(c)Article 13(1)(b) of the Conflict of Laws, Article 44(5)(f)(h) Article 814(d) of the Commercial Code, Article 789(2)2(f) of the Commercial Code, Article 788(f) of the Act, Article 788(f) of the Act. Article 789(f) of the Act, Article 790(g) Article 787 of the Civil Code;

Supreme Court Decision 62Da102 Delivered on June 21, 1962, 75Da107 Delivered on December 13, 197, and 80Da1812 Delivered on November 11, 1980

Korea Fire & Marine Insurance Corporation and 9 others

Attorneys Kim Young-ju et al., Counsel for the plaintiff-appellant-appellee et al., Counsel for the plaintiff-appellant-appellee et al.

Seoul High Court Decision 82Na404 delivered on August 9, 1982

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

1. We examine the grounds of appeal No. 1 of the defendant Kim Young-ju, and the grounds of appeal No. 2 of Han-han, Attorneys Han Han-chul, and 2 of the same attorney.

According to Article 13(1) of the Conflict of Laws Act, the establishment and effect of a claim arising from a tort shall be determined by the law of the place where the cause occurred. In this context, the place where the cause occurred is the place where the cause occurred as well as the place where the tort was committed.

The court below, based on its macroficial evidence, found that the defendant company entered into a marine transportation contract with the non-party Bagel, the consignor, for the cargo of this case and entered into a marine transportation contract with the ship chartered by the defendant company on July 16, 1979, and the crew and other employees of the above ship did not perform their duty of care, such as strengthening strawling and settlement apparatus so as not to drive the cargo on the east of the ship at the time of loading of the cargo, but neglected such duty of care, and it was hard to see the court below's decision that the above ship passed through the Scot Island Island of 31 July 1979 at the time of loading the cargo of this case with typhoon, and it was difficult to see that the above ship did not go through the above 20 port of loading until the arrival of the cargo of this case after typhoon and destroyed part of the cargo of this case, and it was hard to see the facts that the cargo of this case was destroyed by the plaintiff's failure to do so at the time of loading the cargo of this case.

As such, it is reasonable to consider that the damage occurred if the damage occurred until the arrival in the territory of the Republic of Korea, the Republic of Korea shall be included in the result of the damage. In such a case, the damage occurred before the arrival in the territory of the Republic of Korea and the damage that occurred after the arrival in the territory of the Republic of Korea shall be clearly divided due to a series of continuous act of negligence, and therefore, it is difficult to distinguish them clearly, and therefore, the Korean law shall be determined as the applicable

According to Article 44 subparagraph 5 of the Conflict of Laws, the scope of the shipowner's liability for the actions of the captain and crew is stipulated by the law of the country of registry. Thus, the governing law of this case shall be the Denmark law of the country of registry. However, even in the case of the claim for damages caused by tort under the Civil Act, the purport of the above provision shall not be construed as excluding Article 13 of the Conflict of Laws and the law of the country of registry shall be the governing law of the country of registry.

In addition, in the case of Article 32 of the Clause of Bill of Lading which is created with respect to the Cargo of this case, the governing law of this case shall be the English law, so the governing law of this case shall be the English law. However, the purport of the above provision shall not be construed as having the English law applied exclusively to the claim for damages arising out of tort, not the non-performance of contractual obligation under the contract of carriage.

In addition, the law applicable to illegal acts in a ship navigating the high seas is the law of the country of registry. Since the ship of this case was sailing the high seas at the time of the occurrence of the above damage, the law of Denmark is the law applicable to the country of registry, but even if part of the damage occurred during navigation, the law of the Republic of Korea included in the place where the damage of this case occurred shall not be excluded from the law applicable to the ship. Ultimately, the argument is groundless.

2. We examine the grounds of appeal No. 2 by the defendant Kim Young-ju and the grounds of appeal No. 2 by the same attorney Han-chul and Han-tae et al.

In the maritime transport, the fixed-age and the fixed-age system was operated at the time of the suitability of the cargo in the vessel, but it was not strong, and if the cargo was loaded and damaged by being loaded along the sea, barring special circumstances, the negligence regarding the handling of the cargo by the ship's employees, which is the conditions of liability for the tort, can be recognized unless there are special circumstances to the contrary. Thus, the court below was justified in determining that the defendant is liable for damages due to the tort committed by the ship's employees, including the crew, as stated in the above paragraph (1) after determining the facts of the damages as stated in the above paragraph (1).

The issue is that the high-speed and high-speed system of the cargo of this case was released due to typhoons, and this is an accident caused by force majeure. However, in order for a carrier to be exempted from liability for tort on the ground that the tort was an accident caused by force majeure, it should be recognized that the wind falls under an unforeseeable natural disaster at the time of loading the cargo and that measures to prevent damage was not possible in advance. Thus, the court below did not err by misapprehending the legal principles on the grounds that the court below erred by misapprehending the rule of experience and logic, as it did not err in the misapprehension of legal principles on the ground that the court below rejected the Defendant’s assertion that force majeure of this case was damaged at the time of loading the cargo of this case.

3. We examine the same attorney Han-chul and Han-han's grounds of appeal Nos. 3 through 5 as well.

(1) According to the records, the plaintiffs are insurers who entered into a maritime cargo insurance contract with the non-party Posting General Posting Co., Ltd. (hereinafter the "Posting Co., Ltd.") for factory construction machinery and materials introduced by the company from the old region. The defendant, the carrier, for the reason that part of the cargo was damaged due to the negligence of his employee and paid insurance money to the above Posting Co., Ltd., the consignee of the above cargo and the bill of lading holder, in subrogation of the above Posting Co., Ltd. (the plaintiff expressed that he sought damages due to the tort and sought damages due to non-performance of the transportation obligation. However, the court below accepted the above two claims for damages due to the tort, and according to the terms and conditions of the discharge of the bill of lading of this case, the carrier is not liable for damages equivalent to or more than 100 U.K. per package Co., Ltd. (hereinafter the above Posting Co., Ltd.). Thus, the defendant's defense that the above claim for damages due to the above tort is not applicable.

(2) Therefore, with respect to the relationship between the non-performance of obligations and the tort liability under the general contract of carriage, in cases where a marine carrier destroys or damages the cargo due to the intention or negligence of a carrier or its employees during carriage, a bill of lading holder holding the right to request the delivery of the cargo under the contract of carriage and the ownership of the cargo shall acquire the right to claim damages due to a non-performance of obligations under the contract of carriage and the right to claim damages due to a tort against a carrier. These two claims concurrently exist, and the special terms and conditions of exemption under the contract of carriage or exemption under the Commercial Act are only applicable to the liability for non-performance of obligations under the contract of carriage, and it does not affect the liability for damages due to the tort unless there is any express or implied agreement between the parties, it is the case of party members (see Supreme Court Decisions 62Da102 delivered on June 21, 1962; 75Da107 delivered on December 13, 197 and 80Da1812 delivered on November 11, 1980).

The argument argues that the liability of tort should be excluded as long as the contract liability is established in accordance with the opinion of the so-called theory of the concurrence of claims. The theoretical basis mainly lies in the compensation-related party arising between the parties having the special relationship of the claim and the contractual liability, while the liability of tort is a compensation-related relation that may arise between the parties having the special relationship of the claim and the contractual liability, so long as the liability of the special relationship is established, tort liability of the general relation should be excluded. The actual ground is that the liability of tort of the general relation should be excluded. Even if there is a special provision or special agreement on the exemption of liability or the limitation of liability or special agreement on the liability of the contract liability, if it is impossible to exempt the tort liability in accordance with the opinion of the theory of the concurrence of claims, the above special provision or special agreement on the liability of contract as mentioned above

However, even though tort liability may arise between a general social life, the specific compensation relationship is a living relationship between a certain party and a victim, and the contractual liability arises between a creditor and an obligor as a specific party, and there is no difference between the contractual liability and the contractual liability for the illegal acts stipulated in the law, not a breach of contractual duty. Therefore, it cannot be readily concluded that the legal relationship of breach of contractual duty is a special and general relationship with respect to the legal relationship of an illegal act. Moreover, the argument that the legal relationship of breach of contractual duty is not applied to the legal relationship of the illegal act, which is the real basis for the argument, and thus, it is nothing more than a attacking the protection of the right holder, and thus, it is difficult to accept the view of the theory of concurrence of laws.

Ultimately, the liability for damages caused by nonperformance of obligation of a carrier and the liability for damages caused by tort concurrently exist and the right holder may exercise the right to claim damages by either party. Thus, even if there exists a special provision of statutory immunity concerning the liability for nonperformance of obligation in a contract of carriage or there is such special provision of immunity or special agreement of indemnity in a contract of carriage, it shall be deemed that such special provision or special agreement is not applicable as a matter of course unless there is a separate agreement to apply the liability for tort.

(2) However, unlike the above general terms and conditions of exemption stipulated in a bill of lading issued by a marine carrier, it is reasonable to view that the terms and conditions of exemption include not only the non-performance of obligations under the contract but also the hidden agreement between the parties to apply them to tort liability caused by the infringement of ownership of the cargo. Thus, even if there is no evidence to acknowledge that the parties separately agreed to apply the above terms and conditions of exemption to tort liability, the terms and conditions of exemption naturally affect the carrier's tort liability. The reasons are as follows.

A bill of lading is a securities in which a marine carrier proves the receipt of the cargo and bears the obligation to deliver the cargo to a legitimate holder at the designated port of unloading. A claim relationship between a carrier and its holder under a contract of carriage takes effect according to the description of securities (Articles 820 and 131 of the Commercial Act). A disposition on the cargo between the parties who dispose of the cargo must be made as a securities, and when a certificate is delivered to a person who is entitled to receive the cargo, the same effect of a real right as the delivery on the cargo takes effect (Articles 820, 132, and 133 of the Commercial Act).

Therefore, a consignee who has taken over the right of the cargo or a person thereafter acquires the right in the contract of carriage by the in personam effect of the delivery of the bill of lading and at the same time takes over the possession of the object of transfer by the in personam effect, thereby acquiring the ownership of the cargo, and thereafter making the carrier liable not only the contractual liability in the contract of carriage but also the liability for tort on the ground of infringement of ownership.

In light of the fact that a person who received a bill of lading by transfer of the right of the cargo and who became the holder of the bill of lading can also pursue not only the liability for nonperformance of the contract of carriage but also the liability for tort caused by the infringement of the ownership of the cargo against the carrier, it is reasonable to say that the carrier stated the terms of the bill of lading not only the liability for nonperformance of the contract of carriage to be asserted by the holder of the security, but also the liability for tort on the ground of infringement of the ownership of the cargo, barring special circumstances, it is consistent with the intention of the parties concerned. On the contrary, the above terms of the terms of the exemption are merely the liability for breach of the contract, and it is difficult to view that the carrier

Thus, between the holder of a bill of lading and the carrier who received the bill of lading stating the above exemption clause, it seems that not only the non-performance of the contract of carriage but also the tort liability caused by the infringement of the ownership of the cargo was covered by the above exemption clause. Therefore, it should be viewed that the exemption clause has the effect of tort liability as a matter of course, even though there was no separate or implied agreement between the holder and the carrier to apply the exemption clause to tort liability.

From the above opinion of the Supreme Court Decision 80Da1812 Decided November 11, 1980, a party member expressed that the terms and conditions of exemption stipulated in a bill of lading, unlike the above opinion, are only applicable to the non-performance of obligation under the contract of carriage, and the liability of tort is not applicable separately between the parties to the contract of carriage. However, this part is to be discarded.

(3) However, it is necessary to note that, even if it is the exemption clause stated in a bill of lading, it is not an unlimited application of tort liability.

First, in light of the fact that the agreement between the perpetrator and the victim to exempt or limit liability for tort against infringement of property rights due to intentional or gross negligence constitutes an act of anti-social order and thus null and void, it should be deemed that the terms and conditions of the bill of lading do not apply to tort liability due to intentional or gross negligence, unless there are special circumstances.

Second, Article 790 of the Commercial Act provides that no special agreement between the parties to reduce the shipowner's obligations or responsibilities in violation of the provisions of Articles 787 through 789 of the same Act shall be effective, so the clause of immunity inconsistent with this provision shall not apply to the liability of tort.

However, Article 790 of the Commercial Act applies to the so-called exclusion clause among the indemnity clause, which excludes liability for specific damage, or to the so-called "liability change clause" which alters the burden of proof or submits the condition for a claim, and the so-called "liability limitation clause which reduces part of the compensation result like this case" is reasonable, barring special circumstances. In original, the prohibition clause of exemption clause under Article 790 of the Commercial Act is based on the trend of international maritime transport in order for a marine transport company to prevent the consequences of undermining the interests of the owner of goods by abusing the indemnity clause and making it clear that the marine transport company has the responsibility for the carrier. However, if the strict interpretation of the limitation clause is invalid because it goes against the prohibition of reduction of liability under Article 790 of the Commercial Act, the maritime transport company, which uses the freight income as the profits of the owner of the goods at a low cost, has a significant risk of incurring the freight exceeding the freight amount, and thus, it is reasonable to interpret it within the scope of the scope of liability as a freight in light of the interests of the owner.

(4) Thus, the court below should have examined and determined the validity of the exemption clause as described above if the bill of lading of this case contains the contents of such exemption clause as alleged by the defendant, and even if it should have examined and determined the relation of the application of the tort liability of this case, it should be determined as mentioned above on the ground that the bill of lading of this case is applied only to the non-performance of liability under the general contract of carriage, and that it does not apply to the tort liability without any name. The court below erred by misapprehending the legal principles on the exemption clause of the bill of this case and failing to exhaust all necessary deliberations, which constitutes the ground for reversal of Article 12 (2) of the Act on Special Cases Concerning Promotion, etc. of Legal Proceedings

4. Therefore, the lower judgment is reversed, and the case is remanded to the Seoul High Court. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park So-young (Presiding Justice) Lee So-young (Presiding Justice) Lee So-young, Kim So-young, Lee So-young, Lee So-young, Lee So-young, Lee So-young, Lee So-young, Lee So-young