[1] The validity of a bill of lading issued without receiving or loading the cargo (negative)

[2] Meaning of “Swch B/L” and the reason for its issuance / A person authorized to issue a Swch B/L / The effect of a SB B/L issued by an unauthorized person / / Whether only the delivery of the original B/L issued by the carrier without any reason by a third party is effective as the possession of the cargo is transferred to a third party or it is possible to issue a S B/L in lieu of the original B/L by accepting a new carriage by a third party (negative) / In a case where a third party, who is not a carrier, issued a SB/L that is invalid because it does not meet the requirements for issuance, whether the said securities are held liable as the issuer by a person who acquired the said securities in good faith (negative)

[1] Articles 852, 853, and 854 of the Commercial Act / [2] Articles 852, 853, and 854 of the Commercial Act

[1] Supreme Court Decision 80Da1325 delivered on September 14, 1982 (Gong1982, 927) Supreme Court Decision 2006Da47585 Delivered on February 14, 2008 (Gong2008Sang, 567)

Hyundai Marine Fire Insurance Co., Ltd. (Attorney Han-jin et al., Counsel for the defendant-appellant)

Boone Star LS Co., Ltd. (Attorneys Kim Hong-Gyeong et al., Counsel for the defendant-appellant)

Seoul Central District Court Decision 2017Na41605 Decided June 21, 2018

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

The grounds of appeal are examined.

1. A. A. A. A. A. A. B/L is an inducement document prepared on the basis of a transport contract with securities representing the right to claim the delivery of the cargo. The Commercial Act provides that a carrier shall actually receive or load the cargo from a consignor on the premise of the establishment of a valid bill of lading. As such, a bill of lading issued even though the carrier did not receive or load the cargo, is null and void as it does not satisfy the cause and requirements (see, e.g., Supreme Court Decisions 80Da1325, Sept. 14, 1982; 2006Da47585, Feb. 14, 2008).

B. The so-called Swch B/L is to be issued as a substitute for the first bill of lading issued by a carrier (hereinafter “original bill of lading”), and is to be issued for a special purpose that can not be achieved by the original bill of lading, including a case where the contents of the export and import contract, such as the consignee, quantity, etc., are primarily to be modified after shipment, or where it is necessary to divide one bill of lading or consolidate several recommendations against the other party, etc. In order to function as a valid bill of lading, the requirements for issuance of the bill of lading must be satisfied. In other words, since Swch B/L is also received and issued as a party to the contract of carriage, the issuing authority shall, in principle, be the person entrusted with the issuance of the bill of lading by a carrier, such as a carrier, a ship owner, or shipping agent, etc. who has issued the original bill of lading as a party to the contract of carriage, and if issued by an unauthorized person, it cannot be deemed a legitimate bill of lading (see Articles 852 and 855 of the Commercial Act). Therefore, it cannot be newly issued a bill of lading.

C. Furthermore, inasmuch as the Swiss position of a bill of lading issued without meeting the requirements for the issuance of a bill of lading is invalid, it cannot be deemed that a person, other than a carrier, is liable to a person who has acquired a S/L in good faith as the issuer in accordance with its language and securities.

2. Review of the reasoning of the first instance judgment cited by the lower court and the record reveals the following facts.

A. The Colum Global Global Co., Ltd. (hereinafter referred to as “Columin”) concluded a trade contract by selling 153,775 kilograms (hereinafter referred to as “the instant cargo”) on the condition of “delivery including freight, insurance premium, cot Works Lited (hereinafter referred to as “Colum”)” on the condition of selling 153,775 kilograms (hereinafter referred to as “Cloring, Inc.”) from the Hauang Strip Co. Lt. (hereinafter referred to as “IF”) at the aftermah of China.

나. 후앙시는 하이슌 오버시스 코퍼레이션(Hai Shun Overseas Corporation, 이하 ‘하이슌’이라고 한다)에 운송을 의뢰하였고, 하이슌은 아래와 같이 이 사건 화물을 선적한 후 송하인(shipper)을 후앙시, 수하인(consignee)을 우리은행의 지시인, 통지처(notify address)를 코오롱으로 하는 선하증권(이하 ‘이 사건 제1선하증권’이라고 한다)을 발행하였다.

C. Coar requested the Defendant to issue a bill of lading replacing the instant No. 1 bill of lading in order to collect the sale price from the bank Krung Krung Krung Krung Krung Ltd (hereinafter “Trung”), which Crhung, established the letter of credit. Accordingly, the Defendant issued a bill of lading (hereinafter “instant No. 2 bill of lading”) to the consignor, who is the direction of another bank, and the consignee was paid USD 240 in the form of document cost.

D. Meanwhile, the instant cargo was loaded at the upper port of China on May 28, 2015, and arrived on June 8, 2015, and was stored for 8 days at the cock port of the cock, and was transported as a co-factory on June 16, 2015. The 18 cocks out of 21 packages were discovered. Coco received 30,000 of the instant cargo as normal goods.

E. The Plaintiff is the insurer who entered into the cargo insurance contract to secure the risk during the transport of the instant cargo with the Coul., Ltd. The Plaintiff had an objection against 18 Cococos to inspect the instant cargo. As a result of the inspection, the Plaintiff determined that the freight was flooded due to the cost of temporary storage in Cockcocks, and the Plaintiff paid the remainder non-life insurance premium excluding the sales price of the remainder in Cocos.

3. We examine these facts in light of the legal principles as seen earlier.

A. The instant second bill of lading issued and delivered by the Defendant at the request of a relay trader, is a representative bill of lading issued in order to substitute for the need to modify the contents of the original bill of lading in the transaction structure of relay trade.

나. 그런데 피고는 위 중계무역에서 최종 수입업자인 코트코와의 관계에서 송하인의 지위에 있는 코오롱과 운송계약을 체결한 적이 없고, 이 사건 화물의 운송인으로서 원선하증권인 이 사건 제1선하증권을 발행한 하이슌으로부터 원선하증권을 대체하는 스위치 선하증권의 발행에 관하여 권한을 위임받은 적도 없다. 따라서 운송인이 아닌 자가 발행한 이 사건 제2선하증권은 선하증권으로서 발행요건을 제대로 갖추지 못하여 적법한 선하증권으로 볼 수 없다. 또한 앞서 본 바와 같이 코오롱 또는 피고가 이 사건 화물을 실제로 수령하지 않고 이 사건 제1선하증권만을 교부받았다고 하여 이 사건 화물을 인도받았다고 볼 수 없고, 운송인의 지위에 있지 아니한 피고가 이 사건 제2선하증권을 발행하였다고 하여 새롭게 이 사건 화물에 대한 운송을 인수하였다고 볼 수 있는 것도 아니다. 그렇다면 피고는 이 사건 화물에 대한 운송계약을 체결한 운송인이 아니므로 이 사건 화물을 운송하는 과정에서 발생한 손해에 대하여 책임을 지지 아니한다.

C. Furthermore, unless the second bill of lading of this case issued by a person who is not a carrier is not a legitimate bill of lading and has no effect as a securities, it cannot be deemed that a person who acquired it in good faith bears the responsibility as a drawer.

4. Nevertheless, the court below acknowledged the Defendant’s liability for damages on the ground that the Defendant issued the instant B/L in lieu of the instant 1 bill of lading, and even if not, as a carrier, as the issuer of the instant 2 bill of lading, it is deemed that the Defendant was liable for damages on the CoCo acquired in good faith as a carrier. In so determining, the court below erred by misapprehending the concept of a carrier capable of issuing a bill of lading and the legal principles on bona fide acquisition of a bill of lading, thereby adversely affecting the conclusion of the judgment. The Defendant’s ground of appeal

5. Therefore, without further proceeding to decide on the remainder of the grounds of appeal, the part against the defendant among the judgment below is reversed, and that part of the case is 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 Park Sang-ok (Presiding Justice)