(a) The case holding that the terms and conditions of a bill of lading shall not be deemed to have reached an agreement with the execution assistant of the carrier on the ground that the terms and conditions of the bill of lading shall also be applied to an executory assistant to the extent that it is equitable for the carrier to grant immunity

B. Whether a clause of immunity stipulated in a bill of lading applies to cases where a clause of immunity is to enforce tort liability due to intentional or gross negligence (negative)

(c) The time of delivery of the cargo where the cargo was shipped out of the bonded storage place of the loading company by the loading company at the request of the loading company on the bill of lading, which is not the holder of the bill of lading, after completing the unloading work, after entering the general bonded warehouse of the loading company; and

D. Whether a letter of credit has not been issued until the cargo arrives at the port of unloading, and the credit was a condition for acceptance of the "Steth Bill", and the exporter was holding the bill of lading until the time of unloading and the designation of the loading company was made by the exporter's agent, whether the exporter instructed the exporter to deliver the cargo without exchange for the bill of lading or to have approved it (negative)

E. In a case where a carrier, etc. delivers the cargo to a person who is not a legitimate holder of a bill of lading without exchanging it with a bill of lading, thereby infringing on the right of a holder of a bill of lading, whether the act was committed intentionally or by gross negligence (affirmative)

(f) Purport of Articles 820 and 129 of the Commercial Act;

G. Whether a claim for damages arising from a tort is also transferred to a holder of a bill of lading as a result of the transfer of a bill of lading by being incorporated into a bill of lading (affirmative)

(h) the meaning of offsetting negligence and the meaning of negligence in offsetting negligence;

(i) The case holding that in the case of the ship agency's liability to compensate for the damage of the ship agency which delivered the cargo by a forged letter of credit, negligence must be offset due to the failure to perform its duty of care as the issuing bank of the cargo shipping;

A. In the case of a bill of lading, "the sewage and the agency of the carrier shall not be liable to the shipper in any case against the loss or damage caused directly or indirectly by the carrier's act, negligence or loss during the employment-related action." However, in the latter part of the bill of lading, the latter part of the bill of lading provides that "the exemption, defense and exemption may be applied and expanded in order to protect the sewage or agency of the carrier." In the last part of the bill of lading, "in case the shipper or any other person has the right to receive compensation from the agent of the carrier, if the shipper or any other person has received compensation for the loss caused by the loss or damage or delay of the cargo, the carrier shall be entitled to reimburse the owner of the cargo." In light of the so-called circular compensation clause, the above provision is intended to extend the carrier's exemption or reduction of the carrier's liability to the person who provided assistance in the performance of the contract of carriage, and the existence of the above provision alone does not have the nature of exemption from the terms and conditions.

B. The terms and conditions of immunity stated in a bill of lading do not apply in cases where they constitute tort liability on purpose or by gross negligence.

C. If a bill of lading is issued, the loading and unloading work of the marine cargo is not necessarily required by the bill of lading holder, but is performed only when the bill of lading is presented. Thus, since the carrier performs its duty by delivering the cargo in exchange for the bill of lading to the bill holder, the loading and unloading company requested by the notice office on the bill of lading is not the holder of the bill of lading, and the loading and unloading company entered the cargo into the general bonded warehouse of the loading and unloading company cannot be viewed as the loading and unloading company's control. In such a case, the delivery time of the cargo shall be deemed as the time when the cargo was delivered from the bonded warehouse of the loading company in accordance with the delivery order of the carrier

D. Even if a letter of credit has not been issued until the cargo arrives at the port of unloading, the letter of credit was a condition for acceptance of the "stey bill" and the exporter was holding the bill of lading at the time of unloading and the designation of the loading company was made by an agent of the exporter, as long as the bill of lading was issued with respect to the above cargo, such circumstance alone cannot be deemed as the exporter instructed the exporter to deliver the cargo without exchange for the bill of lading or approved it.

E. The common customs of the so-called “guarantee” is not aimed at exempting a carrier or a consignee from liability to a legitimate holder of a bill of lading, but rather, on the premise that the carrier or the consignee compensates for the damage in a case where the holder of a bill of lading suffers from the damage due to the “Guarantee Limit,” and thus, when the carrier or the consignee infringes on the right of the bill of lading holder to the cargo by “Guarantee Limit,” the tort by intention or gross negligence is established.

F. The provisions of Articles 820 and 129 of the Commercial Act shall be interpreted to the effect that the carrier is obliged to refuse delivery of cargo with the right to refuse a request for delivery of cargo without a presentation of a bill of lading.

G. In the event of the loss of the cargo due to “guarantee”, not only the right to claim damages due to nonperformance but also the right to claim damages due to tort is also transferred to a bill of lading holder as a result of the transfer of a bill of lading. Therefore, even if a bill of lading was acquired after the cargo was removed, the holder of the bill of lading can exercise the right to claim damages and the separate notice of transfer is unnecessary.

H. The comparative negligence in default or tort takes into account the fault of the injured party in determining the amount of compensation in accordance with the principle of equity or good faith. In its application, the scope of compensation should be determined by taking into account all the circumstances such as the perpetrator, the degree of the injured party's intentional or negligent act, the occurrence of the illegal act and the expansion of damages. The fault in offsetting negligence is a strong fault that the tortfeasor's negligence in the tort is a violation of the duty, and it refers to a weak care required for the principle of trust and good faith and common life.

(i) The case holding that in the case of the ship agency's liability to compensate for the damage of the shipping agency's shipping agent's delivery of cargo by a forged letter of credit, the victim, as the issuing bank of the letter of credit and the letter of credit for cargo shipping, opened the letter of credit for not less than 180 days from the shipping date without proper review of the importer's credit standing, and added the conditions for acceptance of the bill of credit, and later, the bill of credit issued prior to the date of issuance should also be accepted by changing the conditions to make it possible to accept the bill of credit, thereby delaying the acquisition of the bill of credit and the settlement of the import price so that the bill of credit can be used in the same way as the letter of credit or the letter of credit for sight, and at least 150 days from the shipping date without due review of the importer's credit standing, etc., the court erred by failing to pay due attention to the fact that the bill of credit can be used in the same way as the bill of credit or the letter of credit for delivery of the bill of credit for cargo shipping.

(a)Article 814(a) of the Commercial Code: Article 226(d)(f) of the Civil Procedure Act; Article 820(g) of the Commercial Code; Article 129(e) of the Commercial Code; Article 750(g) of the Civil Code; Articles 132 and 133(h) of the Commercial Code; Article 763(3) of the Civil Code;

A. H. H. Supreme Court en banc Decision 91Da992 Decided February 14, 1992 (Gong191Da14123 Decided March 22, 1983) (Gong1983,735), Supreme Court Decision 87Meu124 Decided February 14, 1989 (Gong1989,400), Supreme Court Decision 91Da8012 Decided August 27, 1991 (Gong1991,2420). Ma.M.M. (Supreme Court Decision 91Da14123 Decided December 10, 1991 (Gong192,475), Supreme Court Decision 91Da14989 Decided 1984 Decided 1989 Decided 1984 Decided 1984 Decided 196.

[Defendant-Appellee] Korea Industrial Bank of Korea

Orart Shipping Co., Ltd., Counsel for the defendant-appellant and two others

Seoul High Court Decision 90Na11679 delivered on December 14, 1990

The part of the judgment below against the defendant is reversed, and that part of the case is remanded to Seoul High Court.

The defendant's attorney's grounds of appeal are examined.

1. The primary point shall be considered;

In light of the records, "the sewage and the agent of the carrier shall not be liable to the shipper in any case against the loss or damage caused directly or indirectly by his act, negligence or loss in the course of employment or during the conduct related to employment." However, the latter part of the above terms and conditions provide that "the exemption, defense and exemption may be applied and extended to protect the sewage or the agent of the carrier from all the rights and obligations applicable to the carrier" in the latter part of the above terms and conditions, and in the last part of the above terms and conditions, "the shipper or any other person has the authority to receive compensation from the agent of the carrier if the shipper or any other person is compensated for the loss or damage caused by the loss or delay of the cargo, the carrier shall be entitled to receive compensation from the shipper" and in light of the so-called circular compensation terms and conditions, the above terms and conditions are intended to extend equity by applying the carrier's exemption or reduction of liability to the performance assistant of the carrier under the transport contract to the person who performed the above terms and conditions, and it shall not be deemed that the tort liability of the assistant cannot be applied to the above terms and conditions.

The judgment of the court below to the same purport is just and there is no error in the misapprehension of legal principles as to the non-committee agreement, such as the theory of lawsuit.

2. The second point shall be considered as a mark;

If a bill of lading is issued, the loading and unloading work of the marine cargo is not necessarily required by the bill of lading holder, but is done only with the presentation of the bill of lading, and therefore, the carrier performs its duty by delivering the cargo in exchange for the bill of lading to the bill holder. Thus, the loading and unloading company requested by the notice office on the bill of lading, which is not the holder of the bill of lading, is not the holder of the bill of lading, and takes the cargo into the general bonded warehouse of the loading and unloading company cannot be viewed as the loading and unloading of

According to the reasoning of the judgment below, the court below recognized the fact that the defendant, as the domestic shipping agent of Lone Star Co., Ltd., which is the cargo of this case, entered Incheon port on September 19, 1987 when the cargo of this case enters the port of Incheon, and the Korea Cargo Co., Ltd., which was requested by the non-party Hyundai Master Ship Co., Ltd. on the bill of lading, received the cargo of this case. On September 29 of the same year, the court below acknowledged the fact that the defendant requested delivery of the cargo of this case from the cargo of this case to the above mobilization unemployment without redemption of bill of lading by presenting the cargo delivery guarantee certificate under the name of the plaintiff who was forged for the employees of the non-party mobilization, and issued the cargo delivery order to the above mobilization unemployment by November 1, 1987. The court below's findings of fact is just and there is no error of law by misconceptioning the facts in violation of the rules of evidence, such as theory in the process of delivery of the cargo of this case, and there is no reason to discuss the issue of loading and discharge of this case.

3. The third point shall be considered; and

Even if a letter of credit has not been issued until the cargo arrives at the port of unloading, the letter of credit was conditional upon the acceptance of the "Stote Bill", and the exporter was holding the bill of lading at the time of unloading and the designation of the loading company was made by the agent of the exporting company, as long as the bill of lading was issued with respect to the above cargo, such circumstance alone cannot be said to have ordered the exporter to deliver the cargo without exchange for the bill of lading or approved it.

The judgment below to the same purport is just and there is no error in the misapprehension of legal principles or the rules of evidence against the rules of evidence.

4. The fourth point shall be considered.

Recognizing the existence of the so-called guarantee customs, the commercial customs does not aim at exempting a carrier or a transporter from the liability to a legitimate holder of a bill of lading, but rather, at the same time, where a legitimate holder of a bill of lading suffers damage due to the guarantee road, the carrier or the transporter assumes the compensation for the damage. Therefore, if the carrier or the transporter infringes on the right of the holder of the bill of lading by delivering the cargo to a person other than the holder of the bill of lading without in exchange for the bill of lading, the tort by intention or gross negligence is established (see, e.g., Supreme Court Decision 91Da14123, Dec. 10, 191; 91Da14994, Jan. 21, 1992).

In addition, Articles 820 and 129 of the Commercial Act of the novel provide that the carrier shall refuse to deliver the cargo with the right to refuse a request for delivery of the cargo without a presentation of a bill of lading (see Supreme Court Decision 91Da14123, Dec. 10, 1991). It cannot be said that only the above right has been stipulated, such as the debate.

According to the reasoning of the judgment below, the court below found that the issuing bank of the letter of credit of Aluminum imported by the plaintiff, which was the issuing bank of the above mobilization, paid the letter of credit required by the exporter of the above goods through the advising bank, and held a bill of lading, and that the defendant issued a letter of credit to deliver the above cargo without discovering the forged fact, and then delivered it to the mobilization unemployment, and then the defendant did not pay the bill of lading with the bill of lading and delivered the cargo to the mobilization unemployment. The court below held that the defendant's act of delivering the cargo to the mobilization unemployment without paying it to the bill of lading constitutes a tort against the holder of the bill of lading. Although the reasoning of the court below is somewhat insufficient, it is just and there is no error of law by misunderstanding the legal principles as to delivery of the cargo by the letter of credit, such as the theory

5. The fifth point shall be considered.

Where cargo has been lost due to the degree of guarantee, the right to claim damages due to default as well as the right to claim damages due to tort is transferred to the holder of a bill of lading as a result of the transfer of the bill of lading to the holder of the bill of lading. Thus, even if a bill of lading was acquired after the cargo has been lost, the holder of the bill of lading can exercise the right to claim damages and it is not necessary to give separate notice of transfer (see, e.g., Supreme Court Decision 90Meu8098, Apr. 26, 1991; Supreme Court Decision 91Da14123, Dec. 10, 1991). The same purport of the judgment below is just and it is not erroneous in the misapprehension of legal principles as the theory

6. The sixth point shall be considered.

According to the reasoning of the judgment below, the court below rejected the defendant's assertion of comparative negligence on the ground that the plaintiff bank did not pay for the letter of credit with knowledge that the freight on the bill of lading was already disposed of in other place, but did not pay for the letter of credit, and that the plaintiff opened a letter of credit for 180 days or more as of the effective date allowing the acceptance of the "Stoy bill of lading" and relaxed the condition that the bill of lading issued earlier than the date of its issuance can be accepted. Even if the plaintiff paid a revised bill of lading, the payment request date is within the effective date of the letter of credit and the shipping documents received by the plaintiff cannot be deemed as having been erroneous in light of the same fact as the conditions of the letter of credit, except for the change in the notice column in the bill of lading, and even if the plaintiff's above act was erroneous, it cannot be deemed that the plaintiff caused the tort in this case or contributed to

Contributory negligence in non-performance or tort takes into account the fault of the victim in determining the amount of compensation in accordance with the principle of fairness or good faith. The scope of compensation is set in consideration of all circumstances such as the perpetrator, the degree of intentional negligence of the victim, the occurrence of the illegal act, and the expansion of damages. The fault in offsetting negligence is a strong fault that the tortfeasor's negligence in the illegal act is a breach of duty, and it refers to a weak care required under the social norms, the principle of good faith, and the principle of common life.

According to the records, the plaintiff's issuance of a letter of credit in sight does not allow 180 days or more from the date of shipment without any proper review of the credit standing, etc. of the above mobilization unemployment, and added the conditions of acceptance of the "Stoy bill of lading" and subsequently changed the conditions to the effect that the bill of lading issued prior to the date of issuance of the letter of credit is acceptable, thereby delaying the acquisition of the bill of lading and the settlement of the import price so that it can be used in the same manner as the letter of credit or the documentary credit, and even if it does not pay attention to the arrival and whereabouts of the cargo, it cannot be deemed that the plaintiff erred in providing time and possession of the cargo. Further, when it delivers a letter of credit in the external document of the bank, the plaintiff's act of forging the guarantee letter of credit can be easily caused by neglecting the management of the cargo collection guarantee paper, which is the external document of the bank, without any prior investigation or confirmation, so that anyone can freely bring about the above paper, and the plaintiff's negligence can be seen as an unlawful act.

6. Therefore, the part of the judgment of the court below against the defendant is reversed, and this part of the case is remanded to the court below. It is so decided as per Disposition by the assent of

Justices Park Jong-ho (Presiding Justice)