[1] The party to the contract of carriage in case where the export and import sales contract was entered into with the terms of freight content

[2] The party to the contract of carriage in case where, under the terms and conditions of delivery on board (F.O.B.), the buyer agrees to pay the freight when the goods are received after the issuance of the bill of lading which is later in payment of the freight.

[3] Whether a consignee or a holder of a bill of lading has a duty to pay freight in cases where a consignee or a holder of a bill of lading has not received the cargo (negative)

[1] As to the export and import sales contract entered into with the freight content condition, the seller is obligated to secure a uniform and enter into the contract of carriage with the carrier and to bear the freight, and the buyer is not obligated to secure a uniform. Thus, the party to the contract of carriage is the seller.

[2] The terms and conditions of the letter of credit, such as the terms and conditions of delivery on board (F.O.B.), are basically agreed on the cost and risk burden between the parties to the export and import contract, but in the export and import sales contract concluded on the terms and conditions of delivery on board, unless otherwise agreed by the parties, the buyer has a duty to conclude the charter contract or to secure other uniforms and notify the seller of the ship to load the cargo, and the seller has no duty to load the cargo by securing the ship itself. Thus, if the seller and the buyer, while entering into the export and import sales contract under the terms and conditions of delivery on board, but the buyer, while the buyer did not secure the uniforms at the export site, agrees to enter into the transportation contract by securing the uniforms at the export site and pay the freight to the carrier when the buyer receives the cargo as the consignee or the holder of the bill of lading, it shall be deemed that the buyer bears the freight in the internal relationship with the consignee, and in the relationship with the carrier, the seller is not the seller's agent, but the seller has the authority to enter into the transportation contract on behalf of the seller.

[3] Article 799 of the former Commercial Act (amended by Act No. 4470 of Dec. 31, 1991) provides that "if the carriage of a single article is for the purpose of a contract, the consignee shall, without delay, rear the cargo according to the direction of the master." However, Article 800 (1) of the Commercial Act provides that "if the consignee receives the cargo, the consignee shall pay the freight, incidental expenses, substitute payments, anchorage fees, general average in proportion to the value of the cargo, or charges due to salvage according to the purport of the contract of carriage or of the bill of lading." Thus, the consignee or the holder of the bill of lading does not have the obligation to pay the freight, etc. unless the consignee receives the cargo, and therefore, it shall not be treated as the consignee who received the cargo without delay, and there is no obligation to pay the freight, etc. as provided in Article 800 (1) of the Commercial Act.

[1] Article 780 of the Commercial Act / [2] Articles 48 and 780 of the Commercial Act / [3] Article 799 of the former Commercial Act (amended by Act No. 4470 of Dec. 31, 1991), Article 800 (1) of the Commercial Act

[3] Supreme Court Decision 76Da2914 delivered on July 26, 197 (Gong1977, 10239)

C-R Services Co., Ltd. (Attorney Kim Hung-jin et al., Counsel for the plaintiff-appellant)

3. The term “the term “the term” means “the term” means “the term “the term” means “the term” means “the term” means “the term.

Seoul High Court Decision 92Na60491 delivered on April 19, 1994

Of the judgment of the court below, the part of the freight charges, entry fees, physical freight charges, and destruction and removal expenses incurred by the transportation contract based on the bill of lading Nos. 735, 1148, and 1153 as stated in the judgment of the court below are reversed, and this part of the case is remanded to the Seoul High Court. The

We examine the grounds of appeal.

1. On the first ground for appeal

가. 원심판결 이유에 의하면, 원심은 거시 증거에 의하여, 피고는 1991. 3.경 소외 1과 사이에 판시와 같은 수입대행계약을 체결하고, 이에 따라 소외 주식회사 서울신탁은행에 수익자를 필리핀국 소재 카나츄 퍼스트 인터내셔널 코퍼레이션(KANATUS FIRST INT'L CORP., 이하 '카나츄 회사'라고 함)으로 하여 판시와 같은 내용의 취소불능 화환신용장 4장을 개설 의뢰한 사실, 해상운송업자인 원고는 위 은행 발행의 신용장 조건에 따라 피고 앞으로 생파인애플을 수출하는 카나츄 회사와 사이에 운송계약을 체결하고, 카나츄 회사의 의뢰에 따라 307,021kg의 생파인애플(이하 '이 사건 화물'이라고 함)을 원고 소유의 17개 냉동컨테이너에 적재하여 1991. 4. 27.부터 같은 해 5. 18. 판시 선박에 선적한 후 송하인 및 수출자(SHIPPER/EXPORTER)는 카나츄 회사, 수하인(CONSIGNEE)은 서울신탁은행이 지시한 자(TO ORDER OF BANK OF SEOUL), 통지선(NOTIFY PARTY)은 피고로 하여 판시와 같은 내용의 선하증권 6장을 카나츄 회사에 발행하여 준 사실(위와 같은 경위로 체결된 운송계약을 이하 '이 사건 운송계약'이라고 함), 위 각 선하증권의 이면 약관 제13조에는 "… 송하인, 수하인, 선하증권 소지인 및 화물의 소유자는 모든 운임, 체선료, 공동해손 및 운송인에게 지급될 금액을 회수함에 있어 발생하는 … 비용의 지급에 있어 운송인에게 연대하여 책임을 진다.", "운송인에게 지급될 모든 금액은 손해를 입었을 때에 지급되며 미화로 전액 지급되거나 운송인의 선택에 따라, 이에 상응하는 선적항 또는 양하항의 통화 또는 요금표나 합의양해서에 명시된 대로 전액 지급되어야 한다."고 기재되어 있고, 같은 약관 제11조에는 "… 운송인이 화물을 수하인에게 인도하는 항구에서는, 화물이 인도준비가 되었는데도 수하인이 화물을 즉시 인수하지 아니한 경우 그 이후의 화물은 수하인 자신의 위험과 비용으로 된다."고 기재되어 있는 사실을 인정한 다음, 카나츄 회사가 이 사건 화물의 매수인인 피고를 명시적 혹은 묵시적으로 대리하여 원고와 사이에 이 사건 화물에 대한 운송계약을 체결하고 원고로부터 위 선하증권들을 교부받은 것이므로, 이 사건 운송계약의 당사자로서 위 선하증권들상의 약관에 따라 판시 735호, 1148호, 1153호 각 선하증권상의 화물에 대한 운임 합계 미화 30,420불을 1991. 5. 27. 현재 대고객 전신환매도율로 환산한 금 22,145,760원, 판시 735호, 551호, 1148호, 1153호 각 선하증권상의 화물에 대한 입항료 합계 금 51,782원, 이 사건 화물이 부산항에 도착한 즉시 피고가 이를 인수하지 않음으로써 발생한 체화료 합계 미화 136,557.77불을 한화로 환산한 금 99,269,033원, 원고가 이 사건 화물이 부산항에 도착한 후 수차례에 걸쳐 피고에게 이를 인수하여 가도록 통고하였음에도 불구하고 피고가 이를 인수하지 아니하여 원고가 이를 멸각하는 데 소요된 비용 금 29,832,438원, 합계 금 151,299,013원의 지급을 구한다는 원고의 주장에 대하여, 카나츄 회사가 피고를 대리하여 이 사건 운송계약을 체결한 것이라는 점에 부합하는 제1심 증인 소외 2, 원심 증인 소외 3의 각 증언은 믿지 않고, 피고가 이 사건 4장의 신용장 중 판시 580호와 57호 신용장을 개설함에 있어 운송조건을 본선인도조건(F.O.B.)으로 하였고, 첨부서류로 운임후불(FREIGHT COLLECT)이라고 표시된 선하증권을 요구하였으며, 이에 따라 원고가 이 사건 6장의 선하증권 중 판시 735호, 1148호, 1153호 각 선하증권을 발행함에 있어 운임지급 방법을 후불(FREIGHT COLLECT)로 표시하게 되었으나, 본선인도조건(F.O.B.)과 같은 신용장상의 운송조건은 기본적으로 수출입계약 당사자 사이의 비용 및 위험부담에 관한 약정에 지나지 않는 것이므로, 수입업자인 매수인과 수출업자인 매도인 사이에 운송조건을 본선인도조건(F.O.B.)으로 정한 약정이 있었다고 하여 매수인이 매도인으로 하여금 매수인을 대리하여 운송회사와 사이에 물품운송계약을 체결할 대리권을 명시적으로나 묵시적으로 수여하였다고 보기 어려우며, 달리 이를 인정할 증거가 없다면서 위 주장을 모두 배척하였다.

B. First, we examine the transportation contract based on each bill of lading Nos. 294, 314, and 551 as stated in the judgment of the court below.

In the export and import sales contract concluded under the terms and conditions including freight (C&F), it is clear that the party to the contract of carriage based on the bill of lading of No. 294, No. 314, 551 of the judgment of the court below, which was concluded for the carriage of freight under the letter of credit No. 370 and No. 705 of the export and import sales contract of this case between the defendant and Accenture company, is the seller, and therefore, it is clear that the party to the contract of carriage based on the bill of lading of No. 294, No. 314, and No. 551 of the bill of lading of this case is the seller, and therefore, the part arising from the contract of carriage based on the bill of lading of the above No. 294, No. 314, and No. 551 of the purchase and import contract of this case between the defendant and Accenture company is the seller.

In addition, the author argues that the shipping contract based on each bill of lading of 294, 314, and 551 as mentioned above is concluded on behalf of the defendant by the above Canada Accent Company, on the ground that the above special condition in the letter of credit of 705 and 57 as stated in the holding of the court below is that not only the bill of lading (ordinary Master B/L) issued by the ocean carrier, but also the cargo to be exported pursuant to the above letter of credit can be settled with the non-party 1's warehouse of this article as non-party 1's house non-party 1' and the bill of lading of 294, 314, and 551, which is a special condition in the letter of credit of 705 and 57.

Therefore, the court below is just in holding that the defendant is not a party to a contract of carriage based on each of the above bill of lading Nos. 294, 314, and 551, and there is no reason to discuss the above contract of carriage.

C. Next, we examine the transportation contract based on each bill of lading Nos. 735, 1148, and 1153 as stated in the judgment below.

The terms and conditions of the letter of credit, such as the terms and conditions of delivery (F.O.B.), are basically agreed on the cost and risk burden between the parties to the export and import contract, but in the export and import contract entered into under the terms and conditions of delivery (F.O.B.), unless otherwise agreed by the parties, the buyer and the seller have the obligation to conclude the charter contract or to secure other uniforms and notify the seller of the ship to load the goods by securing their uniforms and to load the goods. Thus, the seller and the buyer, while entering into the export and import sales contract under the terms and conditions of delivery (F.O.B.), while the buyer and the buyer do not have the obligation to purchase the goods by securing their uniforms, they enter into the contract of carriage by securing their uniforms at the place of export and import without the buyer's uniform, and if the buyer, as the consignee or the holder of the bill of lading, has agreed to pay the freight at the time of receipt of the goods as the consignee or the bill of lading, it is reasonable to view the seller and the seller's agent, not the buyer's agent, as the contract of carriage.

Therefore, in the case of the export and import sales contract of this case entered into between the Defendant and Accent Company, which is a condition of delivery (F.O.B) and the bill of lading (FREGHHT) stated in the credit of 580 and 57 of the original judgment, the above sales contract was a condition of delivery (F.O.B.) but the Carccent Company and Accenture Company were secured by and entered into such contract. In light of the fact that the above sales contract was a condition of delivery (F.O.B............, at the time of the conclusion of the above sales contract, the Defendant and Accent Company agreed to secure the above contract as a condition of delivery (F.O.B................) and that the bill of lading Company and Accent Company were required to conclude the bill of lading bill of lading on behalf of the Plaintiff and Accent Company 150 and 1550 shares the bill of lading bill of lading.

Therefore, the defendant is a party to a contract of carriage based on each bill of lading of the above 735, 1148, and 1153, and is responsible for the freight under the above contract of carriage, the plaintiff's allegation, the entry fee of the plaintiff's allegation, the cost of physicalization, and the cost of scrapping of destruction as to each bill of lading of the above 735, 1148, and 1153. However, the court below erred in the misapprehension of legal principles as to the party to the contract of carriage and the party to the contract of carriage, since the contract of carriage based on the above bill of lading of the above 735, 1148, and 1153 is merely a party to the contract of carriage and the defendant rejected the plaintiff's claim on the part of the party to the contract of carriage, and there is a ground to point this out.

2. On the second and fifth grounds for appeal (as to the contract of carriage based on the bill of lading No. 735, 1148, 1153 as in the original judgment, the defendant bears the responsibility as the party to the contract of carriage, and as to the contract of carriage based on the bill of lading No. 294, 314, 551 as in the judgment of the court below, it is judged only as to

Article 799 of the Commercial Act (amended by Act No. 4470 of Dec. 31, 1991) which applies to transport based on a bill of lading No. 294, 314, and 551 of the original judgment provides that "if a consignee aims at a contract for the carriage of a single article, the consignee shall, without delay, rear the article in accordance with the master's instructions." However, Article 800 (1) of the Commercial Act provides that "when a consignee receives the article, the consignee shall pay the freight, etc. according to the purport of the contract of carriage or bill of lading." Thus, the consignee or holder of the bill of lading does not have the obligation to pay the freight, etc. unless the consignee receives the article, and only without receiving it, the consignee cannot be deemed to have the same obligation as the consignee under Article 800 (1) of the Commercial Act.

In the same purport, the decision of the court below that the defendant who did not receive the cargo of the shipping contract according to the bill of lading Nos. 294, 314, 551 was not obligated to pay the expenses, etc. under Article 800 (1) of the Commercial Act is justified.

In addition, examining the record, the court below's measure is also justified in holding that there is no evidence to prove that the defendant, in the above transport contract, had a special contract to assume the liability for the transport contract or the bill of lading even without receiving the cargo.

Therefore, the judgment of the court below does not contain any error such as the theory of lawsuit, and all arguments are without merit.

3. On the sixth ground of appeal (this ground of appeal is examined only on the shipping contract based on the bill of lading Nos. 294, 314, and 551).

Inasmuch as a consignee or a holder of a bill of lading is not obligated to receive the cargo solely on the ground that the consignee or a holder of a bill of lading is not obligated to receive the cargo, but is merely obligated to pay the fare, etc. according to the purport of the contract of carriage or the bill of lading only when the cargo was received, the consignee or the holder of a bill of lading cannot be deemed as a creditor's body merely putting on the fact that the consignee or the holder of a bill of lading did not receive the cargo. Thus, even if there was a deviation of judgment,

4. Conclusion

Therefore, the part of the judgment of the court below regarding freight charges and arrival charges, physical cremation charges, and destruction and removal expenses incurred by a transportation contract based on a bill of lading Nos. 735, 1148, and 1153 are reversed, and this part of the case is remanded to the court below. The remaining appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee Yong-hun (Presiding Justice)