If a carrier who issued a bill of lading delivered the cargo without exchange with a bill of lading to a person other than a holder of the bill of lading, but thereafter a holder of the bill of lading acquired the possession of the cargo and exercises the right as a holder of the bill of lading, whether the loss of the cargo has occurred (negative)

Articles 129, 788, and 820 of the Commercial Act

National Bank of Korea (Law Firm, Kim & Lee, Attorneys Kang Jong-gu et al., Counsel for the defendant-appellant)

On the other hand, the Orshping Co., Ltd. (Attorneys Son Ji-yol et al., Counsel for the plaintiff-appellant)

Seoul High Court Decision 2005Na90355 decided March 16, 2007

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

The grounds of appeal are examined.

1. As to the grounds of appeal Nos. 1, 2, and 4

A carrier, who issued a bill of lading, has temporarily difficulty in exercising the right to the cargo by delivering the cargo to a person other than the holder of a bill of lading, but thereafter, when the holder of a bill of lading acquired the possession of the cargo and exercises the right as a holder of a bill of lading with respect to such cargo, he/she cannot be deemed to have suffered loss due to the loss of the cargo. Thus, he/she cannot claim

The court below is just in holding that, although crude oil, which is the freight in this case, was delivered to the partnership loan that is not the bill of lading holder, it was placed under the possession and management of the plaintiff who is the bill of lading holder without loss or damage due to the circumstances acknowledged in the court below, and as long as it was distributed at the ratio of the freight out of the total sale price to the total sale price of crude oil stored in the cargo tank in the partnership loan, the plaintiff cannot seek damages on the premise that the freight in this case was destroyed, and there is no violation of the Supreme Court precedents, misunderstanding legal principles, violation of laws or regulations, inconsistent reasoning, and omission of judgment as to the meaning of damages caused by a tort, and the scope of damages caused by a tort. The ground for appeal is without merit.

2. As to the third ground for appeal

In light of the records, if the Plaintiff’s claim of this case seeking compensation for cargo is not recognized, the purport of seeking compensation for incidental damage, such as damage incurred due to delay in the Plaintiff’s exercise of right, shall not be deemed to include the purport of seeking compensation.

Although the court below did not decide on the part of the plaintiff's selective assertion of non-performance of the contract due to the cause of the claim in this case, it cannot be recognized as compensation under the premise of loss of the cargo in this case even if the legal composition differs due to default liability. Thus, there is no error of law of omission affecting the judgment.

Therefore, this part of the grounds of appeal is without merit.

3. As to the fourth ground for appeal

In light of the records, it can be known that the whole quantity of the cargo of this case was stored in the cargo tank of the YND Co., Ltd. at the time the plaintiff acquired possession. Thus, the ground of appeal that the court below omitted judgment as to the damage liability for the part partially destroyed cargo is without merit.

4. Conclusion

Therefore, the appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park Ill-sook (Presiding Justice)