[1] The applicant for permission to use harbor facilities under Article 7 (1) of the former Rules on Use of Harbor Facilities

[2] The purpose of Article 16(1) of the former Rules on the Use of Harbor Facilities

[3] Whether an agent of an individual owner is liable to pay fees for harbor facilities to a harbor loading and unloading business operator

[1] A person who intends to obtain permission to use harbor facilities under the main sentence of Article 27 (1) of the former Harbor Act (amended by Act No. 4574 of Aug. 5, 1993) shall file an application for permission to use harbor facilities with the Minister of Maritime Affairs and Fisheries in attached Form 1. In this case, an application for permission to use the facilities subject to the collection of cargo handling shall be deemed to be a provision that Article 7 (1) of the former Rules on Use of Harbor Facilities (amended by Ordinance of the Ministry of Transport and Fisheries No. 1017 of Dec. 4, 1993) provides that "a harbor stevedoring operator under the Harbor Transport Business Act may file an application for permission to use harbor facilities on behalf of the owner of the goods in question on behalf of the owner of the goods in question."

[2] As long as Article 27 of the former Harbor Act provides that the user fee shall be collected from the person who uses the harbor facilities, Article 16 (1) of the former Rules on Use of Harbor Facilities that provides that "if a harbor loading and unloading business operator has submitted an application for permission to use the facility subject to the collection of cargo storage charge under the latter part of Article 7 (1), the relevant harbor loading and unloading business operator shall pay the relevant cargo storage charge on behalf of the owner of the goods, he/she shall pay the relevant cargo storage charge on behalf of the owner of the goods for the convenience of the owner of the goods."

[3] The user of a harbor facility subject to the collection of a cargo terminal treatment is each of the owners of the harbor facilities, and even if the harbor shipper, in response to the demand of each owner of the cargo who actually disposes of the cargo, obtains profits by receiving the fees and fees on behalf of the owner of the cargo, the convenience arising from the use of the harbor facilities is the owner of the cargo, who is the disposal authority of the cargo. Therefore, the user fee should be borne by him.

[1] Article 27(1) of the former Harbor Act (amended by Act No. 4574 of Aug. 5, 1993), Article 7(1) of the former Rules on the Use of Harbor Facilities (amended by Ordinance of the Ministry of Transport and 1017 of Dec. 4, 1993) / [2] Article 27 of the former Harbor Act (amended by Act No. 4574 of Aug. 5, 1993), Article 16(1) of the former Rules on the Use of Harbor Facilities (amended by Ordinance of the Ministry of Transport and 975 of Apr. 27, 1992) / [3] Article 27 of the former Harbor Act (amended by Act No. 4574 of Aug. 5, 1993), Article 7(1) and Article 16(1) of the former Rules on the Use of Harbor Facilities (amended by Ordinance of the Ministry of Transport and Transportation of Dec. 4, 1993)

[3] Supreme Court Decision 95Nu6786 delivered on January 23, 1996

Korea Korea Venture Co., Ltd. and four others (Attorneys Kim Shin-chul et al., Counsel for the plaintiff-appellant)

Busan Maritime Affairs and Fisheries

Busan High Court Decision 93Gu5895 delivered on December 22, 1994

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

The grounds of appeal and the supplemental appellate brief submitted after the lapse of the period are examined together as supplementation in the grounds of appeal.

1. According to the reasoning of the judgment below, the court below held that the plaintiffs, who are engaged in harbor loading and unloading business after obtaining a harbor transport business license under the provisions of Article 4 of the Harbor Transport Business Act (amended by Act No. 4573 of Aug. 5, 1993), did not submit an application for permission to use the harbor facilities under the provisions of Article 7 (1) of the Rules of the Use of Harbor Facilities (amended by Ordinance of the Ministry of Transport and Transportation No. 975 of Apr. 27, 1992, which was amended by Ordinance of the Ministry of Transport and Transportation No. 1017 of Dec. 4, 1993; hereinafter referred to as the "harbor Rules") and who did not receive the above cargo from the defendant for the purpose of using the harbor facilities under the name of the owner of the goods, for the purpose of placing the imported cargo which was requested by the defendant to be unloaded from each owner of the goods in the name of the above article 7 (1) of the Rules of the Harbor Facilities Act, and the plaintiffs received the above permit to use permit No.

2. However, Article 27 (1) of the Harbor Act provides that "the person who intends to use the harbor facilities shall obtain permission from the management agency," and Article 27 (3) of the Harbor Act provides that "the management agency may collect fees from the users of the harbor facilities under paragraph (1) under the conditions as prescribed by the Ordinance of the Ministry of Construction and Transportation." Thus, the person liable to pay the fees shall be the person who uses the harbor facilities after obtaining permission from the management agency after obtaining the permission for the use of the harbor facilities.

In addition, Article 7 (1) of the Harbor Rules provides that "a person who intends to obtain permission to use harbor facilities under the provisions of the main sentence of Article 27 (1) of the Harbor Act shall submit an application for permission to use harbor facilities to the Minister of Maritime Affairs and Fisheries. In this case, an application for permission to use facilities subject to treatment of cargo shall be filed with the competent Minister of Maritime Affairs and Fisheries." The above provision provides that "a harbor loading and unloading business operator under the Harbor Transport Business Act may file an application for permission to use harbor facilities on behalf of the owner of the cargo in question on behalf of the owner of the cargo in principle." In addition, Article 16 (1) of the Harbor Rules provides that "a harbor loading and unloading business operator shall pay the relevant cargo storage fees on behalf of the owner of the cargo where the harbor loading and unloading business operator has submitted an application for permission to use the facilities subject to treatment of cargo in accordance with the provisions of the latter part of Article 7 (1)." However, as long as Article 27 of the Harbor Act provides that the owner of the cargo shall pay the fees on behalf of the owner.

3. The facts acknowledged by the record, namely, the plaintiffs, who are port cargo operators, are merely using wharf facilities in the process of transporting imported cargo to the facilities subject to treatment of cargo (storage and treatment facilities) on the ship according to the terms of the loading and unloading contract, and once the cargo is shipped into the facilities subject to treatment of cargo, the owner of the cargo can carry them out the customs clearance procedures. As such, since the owner of the imported cargo can not take any measures with respect to the cargo in a bonded area subject to the import license, unless the owner takes such procedures, the plaintiffs can file an application for permission for the use of the harbor facilities on behalf of the owner of the cargo. Article 7 (1) of the former Rules provides that the plaintiffs can file an application for permission for the use of the facilities subject to treatment of the cargo on behalf of the owner of the cargo under the name of the owner of the cargo. Since the form of the above application for permission for the use of the harbor facilities is not separately determined by the owner of the cargo owner, the plaintiffs' application for permission for the use of the facilities under the name of the owner of the above 90-1.

4. Nevertheless, the judgment of the court below which held that the disposition of this case was lawful solely for the reasons stated in its reasoning is erroneous, and there is an error of law in the misapprehension of legal principles as to the obligation to pay harbor facility charges under Article 27 (1) and (3) of the Harbor Act and the omission of judgment as to the interpretation of Article 16 (1) of the Rules of the Harbor Act, and it is obvious that such an error affected the conclusion of the judgment.

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

Justices Ahn Yong-sik (Presiding Justice)