[1] The probative value of appraiser's appraisal result

[2] In order to claim compensation for damage against a carrier, whether the carrier must prove the fact that the damage occurred during the carriage (affirmative), and in cases where the fact that the cargo was destroyed or damaged when the carrier delivered the cargo has already been revealed, whether the above proof is sufficient to prove that the cargo was delivered to the carrier in good condition without any defect (affirmative)

[1] Article 202 of the Civil Procedure Act / [2] Articles 795 and 854 (1) of the Commercial Act

[1] Supreme Court Decision 96Da1733 Decided February 11, 1997 (Gong1997Sang, 725), Supreme Court Decision 2009Da84608, 84615, 84622, and 84639 (Gong233) Decided January 12, 2012 / [2] Supreme Court Decision 98Da49074 Decided February 9, 2001 (Gong2001Sang, 591) Supreme Court Decision 2009Da60763 Decided February 10, 2011

E. A.L. Insurance Co., Ltd. (Attorney Han-dong et al., Counsel for the plaintiff-appellant)

United Nations Loenros Co., Ltd.

Seoul Central District Court Decision 2016Na5565 decided May 11, 2017

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

The grounds of appeal are examined.

1. Regarding ground of appeal No. 1

The appraiser's appraisal result shall be respected unless there is a significant error such as the appraisal method against the rule of experience or unreasonable (see Supreme Court Decision 96Da1733 delivered on February 11, 1997, etc.).

Based on the results of the Nonparty’s appraisal by the lower appraiser, the lower court acknowledged the facts as indicated in its reasoning, and determined that the instant accident constituted the exemption from liability, which was made prior to the commencement of the insurance as stipulated in the Institute Cargo Clause (INTSITUT CA CATRAL CAL (A) applicable to the instant insurance contract, as it was caused by the mistake that was not packed on the bottom frame designed in line with the characteristics and weights of the instant cargo, and thus, constitutes the grounds for exemption from liability, which was made prior to the commencement of the insurance.

Examining the reasoning of the judgment below in light of the above legal principles and records, it is acceptable to accept the appraiser's appraisal result and determine that the package of the freight of this case was incomplete. Contrary to the allegations in the grounds of appeal, it is not recognized that there were errors

Although the court below reached the above judgment based on the terms and conditions of 2009, which are not the Association Cargo Clause of 1982, which applies to the insurance contract of this case, the exemption clause of the contract of 1982 (4.3) also stipulates the "damage, damage, or expenses incurred due to incomplete or inappropriate packaging or preparation for the purpose of insurance" as the exemption exemption. Thus, the court below did not err by misapprehending the standard for determining the exemption exemption and the legal principles on subrogation of the insurer, which affected the conclusion of the judgment.

2. Regarding ground of appeal No. 2

The gist of this part of the ground of appeal is that the Defendant did not use appropriate loading and unloading equipment, such as steel agents, while loading and unloading, and did not properly meet the weight-oriented point, but did not make any other error in the lower court’s decision.

However, this is merely the purport of disputing the selection of evidence and fact-finding, which is a fact-finding court, and thus does not constitute a legitimate ground for appeal. Furthermore, the lower court’s judgment did not err by misapprehending the bounds of the principle of free evaluation of evidence in violation of logical and empirical rules or by failing to exhaust all necessary deliberations.

3. As to the third ground for appeal

If a carrier intends to claim compensation for damage with respect to the cargo, the carrier must prove the fact that the damage was incurred during the carriage. It is sufficient to prove by means of such proof that the carrier had already been destroyed or damaged when the cargo was delivered to the carrier in good condition. However, as stated in the bill of lading, the carrier is presumed to have received or loaded the cargo as stated in the bill of lading (Article 854(1) of the Commercial Act). Thus, in cases where a bill of lading has been issued without any description that the cargo was loaded in good condition, the carrier shall be presumed to have received or loaded the cargo in good condition unless there are special circumstances. However, “the external appearance of the cargo” as stated in the bill of lading shall be presumed to have been applied only to the external defect discovered if it was inspected with due care, and it shall not be deemed that the above presumption provision applies to the carrier with respect to the inside condition of the cargo not discovered even if it was paid due care, and therefore, it shall not be deemed that the above presumption provision is applied to the carrier with respect to the cargo under good condition 200.30 square meters 20.

The court below rejected the plaintiff's assertion as to the presumption of presumption of the bill of lading on the ground that the bill of lading in this case was proved to have been shipped in good appearance, even if there is an indication that the bill of lading was shipped in good appearance, as the bill of lading in this case contains the site wording of "SOBE", and the bill of lading holder bears the burden of proving that the shipper has delivered the cargo in good appearance to the carrier.

Examining the reasoning of the judgment below in light of the above legal principles and records, we affirm the judgment below. Contrary to the allegations in the grounds of appeal, the court below did not err by misapprehending the legal principles regarding the carrier's duty of care and validity of the bill of lading, or by exceeding

4. Conclusion

Therefore, the appeal is dismissed, and the 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 Jo Hee-de (Presiding Justice)