Hyundai Marine Fire Insurance Co., Ltd. (Law Firm Jung-dong International Law, Attorneys Lee Woo et al., Counsel for defendant-appellant)

Pyeongtaek Port Co., Ltd. (Attorney Lee Dong-chul, Counsel for the plaintiff-appellant)

May 21, 2015

1. The defendant shall pay to the plaintiff 109,054,656 won with 5% interest per annum from January 14, 2013 to June 18, 2015, and 20% interest per annum from the next day to the day of full payment.

2. The plaintiff's remaining claims are dismissed.

3. 9/10 of the costs of lawsuit shall be borne by the Plaintiff, and the remainder by the Defendant, respectively.

4. Paragraph 1 can be provisionally executed.

The defendant shall pay 1,021,310,782 won to the plaintiff and the amount equivalent to 6% per annum from January 14, 2013 to the date of service of a copy of the application for modification of the purport of the claim and the cause of the claim as of September 24, 2014, and 20% per annum from the following to the date of full payment.

1. Basic facts

가. 일본국 소재 회사인 히타치 리미티드(Hitachi, Ltd., 이하 ‘히타치’라 한다)는 2010. 10.경 대림산업 주식회사(이하 ‘대림산업’이라 한다)와 사이에 한국동서발전 주식회사(이하 ‘한국동서발전’이라 한다)가 발주한 당진화력발전소에 설치 예정인 보일러 장치를 공급하는 프로젝트에 관하여 컨소시엄을 구성하였다. 히타치는 증기터빈, 발전기와 보일러 설계업무를, 대림산업은 보일러 장치를 선적항에서부터 최종목적지인 당진 소재 설치현장까지 운송하는 업무를 각 담당하였고, 밥콕-히타치 가부시키가이샤(Babcock-Hitachi K.K., 이하 ‘제작회사’라 한다)는 위 컨소시엄으로부터 보일러 장치 제작 및 조달업무를 하도급받아 수행하였다.

B. The Daelim Industry entrusted the maritime freight forwarding at the port of discharge at the port of discharge at the port of loading at the port of port of discharge to the Daelim Corporation, and Daelim Corporation again entrusted the maritime freight forwarding with the above contents. Taewon Shipping Co., Ltd. concluded a charter contract with Mone Starping Co., Ltd. and FIOST terms and conditions (Free Inc., Out, Out, Streed, Stmed, Tried, Trieded, Tried, Cargo Loading, Cargo Loading, and Cargo Disposal Expenses on the ship, etc.; hereinafter the same shall apply) and PIOST terms and conditions. Mone Starping Co., Ltd. concluded a charter contract with the Defendant on the condition that Mone Starping Co., Ltd. and the ship unloading Co., Ltd. (hereinafter referred to as “SOMA”) and the ship unloading Co., Ltd. (hereinafter the “SOMMMA”).

C. On the other hand, on January 10, 2013, the Plaintiff concluded a cargo insurance contract with regard to the said boiler equipment as the insured.

D. On January 11, 2013, Escopian received 1 set of the boiler equipment from the Republic of Korea, and Jaco Mar. 1, 2013, Escopian issued a bill of lading (hereinafter “instant bill of lading”) signed on the carrier column as an agent Escopianian’s agent, and the consignee issued the bill of lading (hereinafter “instant bill of lading”). On January 11, 2013, Escopian entered the said boiler equipment into the port of Kucop on January 13, 2013. After which the instant vessel arrived at the port of Pyeongtaek of the Republic of Korea on January 14, 2013 and arrived at the anchorage No. 12.

E. The Defendant carried out the unloading work of the boiler devices at Pyeongtaek-si port, and the Defendant’s employees, using two said boiler devices at the mid-term season, Rof Wallel (hereinafter “instant cargo”). During the process of putting the slott onto the pertinent vessel, one of the boiler devices, the instant cargo was crashed and damaged to the window of the instant vessel (hereinafter “instant accident”).

F. The Korea Eastern Development and the Daelim Industry decided to entrust the repair of the instant cargo to the manufacturing company via a meeting, and returned the instant cargo to Japan on February 26, 2013. After the repair of the manufacturing company, on October 10, 2013, delivered the instant cargo to the Korea Eastern Development. During this process, KRW 199,230,212 was disbursed as repair costs, i.e., KRW 69,628,900 in Japan (hereinafter “N”), transportation costs, etc.

G. On January 14, 2014, the Plaintiff acquired the damage claim against the Defendant arising out of the instant accident from Rachi, and notified the Defendant of the assignment of the claim on behalf of Pachi on the same day.

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1 through 10 (including branch numbers for those with additional numbers; hereinafter the same shall apply), Eul evidence No. 2, the purport of the whole pleadings

2. Determination

A. Determination on the cause of the claim

In addition to the facts acknowledged earlier, the following circumstances are revealed by comprehensively considering Gap evidence 3, Nos. 8-2, 9-13, and 15's overall purport of each statement and argument as to the cargo of this case. ① Since the defendant is a port cargo supplier under the Harbor Transport Business Act who has professional knowledge and technology in relation to the unloading business, it is responsible for safely unloading the cargo of this case using unique knowledge and technology. ② When the cargo of this case is loaded at Kuee Port, the cargo of this case was carried out in the manner of placing the cargo of this case at the height of several fixed-duty stores located on the top of the cargo of this case using two mid-term seasons. At the time of loading the cargo of this case, employees belonging to Taewonwon Shipping Co., Ltd. requested the defendant's employees to work in the same manner and work in the same manner. ③ However, in light of the defendant's own judgment that the cargo of this case caused damages to the cargo of this case while carrying the cargo of this case in any other way, the defendant's employees suffered losses from the accident of this case.

Therefore, under Article 756 of the Civil Act, the defendant is liable to compensate for damages caused by the employer's liability for damages as the employer, and the defendant is liable to pay the repair cost, transportation cost, etc. to the plaintiff who has acquired the above damage claim from the contractor from the contractor.

B. Judgment on the defendant's argument

1) Judgment on the main argument

A) The defendant's argument

The boiler system supply contract, including the instant cargo, is not concluded between the tatasta and the Korea Eastern Development, but rather between the tasta and the tastasa and the tasae Industry, respectively. The ownership of the instant cargo was transferred from the tasa to the tasa to the tasa. Since the instant accident occurred thereafter, the person entitled to claim damages against the Defendant is not the tasa industry. Therefore, the Defendant, not the tasa industry, is not the tasa but the tasa industry, but the tasa bears no obligation to pay damages to the Plaintiff who acquired the damage claim from the tastasa to the Plaintiff.

B) Determination

According to each description of Gap evidence Nos. 9-12 and 42, Mayman, the producer company bears the responsibility for inland transportation, export clearance, and cargo shipment from the manufacturing company to the port of loading (FOB conditions). The Mayman industry agrees to assume the responsibility for maritime transportation, loading and unloading, import clearance, and discharge from the port of loading and unloading to the installation site, and the fact that the Mayman industry is described as the insured in the cargo insurance policy concluded with the plaintiff is recognized.

① However, evidence of the Defendant’s 12 evidence as to the existence of a boiler supply contract between the hynasty and the hynasty industry is interpreted as an agreement stipulating the range of liability for transportation between the hynasty and the hynasty industry, and does not appear to be an agreement for supply of a boiler. ② The terms and conditions of the FOB set up the limitation of liability for the fare and risk to be incurred in transportation, and are not directly related to any change in the real rights, and the above terms and conditions of the FOB are merely to stipulate that the hynasty will transfer the freight from the hynasty to the hynasty industry when the hynasty loaded the freight from the hynasty to the hynasty. In light of the fact that the hynasty and the hynasty industry constituted the hynasium, and that the hynasty system is still subject to installation of the hynasty.

Therefore, the defendant's primary argument cannot be accepted on a different premise.

2) Determination on the conjunctive assertion

A) Summary of the parties’ assertion

The defendant asserts that Article 21 of the Terms and Conditions on the back of the bill of lading of this case limits the amount of compensation for the carrier's scope of liability to each package or unit of shipment to the higher amount of 66.67SDR or 2SDR per package. Since Article 5 of the Terms and Conditions on the back of the bill of this case prescribes that the scope of the carrier's liability to the subordinate independent contractor of the carrier does not exceed the limit of liability of the carrier (hereinafter referred to as "mala Clause"), the defendant's liability as the dependent contractor of the carrier as the dependent contractor of the carrier is limited to the amount equivalent to 2SDR per package under the Terms and Conditions

As to this, the Plaintiff asserted that the instant bill of lading is so-called sirens B/L, and the terms and conditions cannot be the content of the contract of carriage, and the Defendant merely received a subcontract from three companies and Taewon Shipping Co., Ltd., and that Eston did not bear liability for damages due to the lack of any contractual relationship with the carrier, who is the issuer of the instant bill of lading, and that Eston did not bear liability for damages. Therefore, the Defendant asserted that the terms and conditions cannot be invoked.

B) Determination

(1) Whether the instant bill of lading was incorporated into a transport contract under the terms and conditions

There is no dispute between the parties that the stamp "SUREND" is affixed on the surface of the bill of lading of this case. However, in light of the overall purport of Gap evidence Nos. 9-1 and Eul evidence Nos. 2-1 and Eul evidence Nos. 2-2, it is reasonable to deem that the back clause of the bill of this case constitutes the content of the contract of carriage regardless of the stamp of "SUREREND". Accordingly, the defendant's assertion is reasonable, and the part of the plaintiff's assertion against this is without merit.

① In addition, in cases where the distance of carriage is a short distance, there is a case where the carriage goods arrive at the port of unloading prior to the original of the bill of lading, even in such a case, a consignee may deliver the carriage goods only in exchange for the original bill of lading, and thus, it is derived from the practical necessity to resolve the inconvenience that may not be promptly delivered since the original bill of lading could be delivered only in exchange for the original bill of lading. In other words, by treating the original bill of lading at the port of departure as already recovered, the bill of lading was issued for the purpose of enabling the consignee to immediately deliver the carriage goods at the port of unloading without the original bill of lading. In such cases, a siren bill of lading functions as a kind of evidentiary document proving the transportation contract and the fact of acceptance of the cargo.

② In practice, in cases where a consignor requests a carrier from the beginning to handle a siren as cargo, the carrier does not issue the original B/L and indicates that the carrier is a cargo in the form of the bill of lading without signing the original B/L and delivers it to the consignor. On the other hand, there are cases where the consignor requests the carrier after receiving the original B/L from the carrier, and the carrier collects the original B/L from the carrier to deliver the goods to the consignee without recovering the original B/L to the vessel agency, etc.

③ The instant bill of lading contains an indication of “ORGINAL” on the upper part of the surface, namely, the original bill of lading, and the face value of which issued by the Japanese government is 200 UN revenue stamps at the bottom of the left-hand (in light of the fact that the copy of the instant bill of lading is defined as non-taxable goods, this seems to refer to the original bill of lading) and the bill of lading (in light of the fact that the attested copy of the bill of lading is defined as non-taxable goods, this is deemed to refer to the original bill of lading) as a taxable object). The instant bill of lading includes a back-to-face clause as seen below (4). In light of this, the instant bill of lading is deemed to have been sealed on the original bill of lading from the place of departure to the collection at the request of the tachi at the request of the tachi.

④ In addition, under the title "Biling" on the left side of the surface of the instant bill of lading, the method of exercising the instant bill of lading, the number of originals, etc. are published, and at the end, the term "the terms and conditions of the instant bill of lading are back to the back." It is reasonable to deem that the terms and conditions of the instant bill of lading exist and it is clearly stating that the back terms and conditions are applied to the back terms and conditions, and therefore, the said back terms and conditions were incorporated into the transport contract as at the time of the issuance of the instant bill of lading.

⑤ The “SURENED” stamp affixed on the lower left-hand side of the instant bill of lading is interpreted to mean that the original of the instant bill of lading was already recovered and lost its redemption securities. It is difficult to deem that the terms and conditions of the instant bill of lading include the meaning that the terms and conditions of the instant bill of lading are already excluded from the terms and conditions of the transport contract already incorporated. If the terms and conditions of the instant bill of lading are not applicable to the transport contract, there is no agreement on the ordinary terms and conditions of the transport contract, including the handling of living, dangerous, household goods, and heavy freight, general average, carrier’s liability, etc. under the terms and conditions of the instant bill of lading. In practice, in order to lose the redemption securities, it falls under extremely different cases. Thus, it cannot be deemed that there was no agreement to exclude the application of the instant bill of lading that was already incorporated into the terms and conditions of the transport contract between E.O. and E.S. with the instant bill of lading.

(6) Meanwhile, Supreme Court Decision 2004Da27082 Decided October 26, 2006, which was based on the Plaintiff’s assertion that the terms and conditions of the instant bill of lading are not the content of the transport contract, was based on the fact that the actual carrier and the consignor agreed to handle the instant bill of lading as the cargo without issuing the bill of lading for the cargo, and accordingly, the actual carrier did not actually issue the bill of lading on the basis of the fact that the bill of lading was delivered to the consignor.

However, in the instant case, there is no evidence to deem that there was an agreement between Eston Ma and Eston, the carrier, to treat the boiler device including the instant cargo as a siren cargo. Moreover, in the instant bill of lading, it is inappropriate to employ the said judgment as it is in the instant case, since it is not only a copy of the surface, but also a different issue, such as the issuance of the original bill of lading including back terms and conditions.

(2) Whether the defendant can invoke the horses terms and conditions

As seen earlier, E.S.C. issued the instant bill of lading to Thai, the consignor, as seen earlier. In this case, E.S. was related to E.S. A. B/L concluded a charter contract under the terms of FIOST with Thai Shipping Co., Ltd. and M. M. M. L.S., and as to an accident occurred during the unloading process, E.S. Co., Ltd. is entirely responsible for risks under the charter contract, and E. B/L does not bear any responsibility for E.S.’s occurrence of the accident during the unloading. However, according to the overall purport of E.S. evidence No. 9-1 and No. 2-2, Article 6 of E. B/L of the instant bill of lading, as to the scope of liability of E.S., Article 6 of E. B/L of the instant bill of lading provides that “No liability exists for damages incurred before loading at the port of loading or unloading from the port of loading. Thus, according to the interpretation of the terms and conditions, E.S. B/L is included in the scope of unloading of E.

On the other hand, since the defendant accepted only unloading from Taewon Shipping Co., Ltd. in sequential order, there is no direct contractual relationship with Eston. However, Article 1 of the Terms and Conditions on the back of the bill of lading of this case includes the owner and charterer, (not the carrier), the shipper, the shipper, the terminal and classification business operator, their agents and agents, and all persons assisting in the performance of carriage. Under the above provisions, there is no direct contractual relationship with the carrier as the requirement of the sub-contractor. ② Eston shall perform the unloading work of the boiler system including the freight of this case as the scope of work and bear the responsibility until it reaches the conclusion, in light of the fact that the defendant is the unloading agent belonging to the scope of the work of Eston and the area of the responsibility of Eston, and ③ the defendant shall be entitled to the exemption of the terms and conditions of the bill of this case between Eston and Eston 10 as the non-existence of the terms and conditions on the part of Eston 2, which are the type 3 of Eston contract of this case.

Therefore, the defendant's assertion corresponding to this is reasonable, and the plaintiff's assertion also is without merit.

(3) The scope of the defendant's liability

The Defendant’s liability is limited to the amount calculated by the weight of 1kg of the instant bill of lading pursuant to Article 21(2) of the Hague Terms and Conditions and Article 21(2) of the back of the instant bill of lading. In full view of the entries and the purport of the entire pleadings, the weight of the instant cargo is 35,400 km, and the exchange rate of 1SDR as of May 21, 2015 is 1,540.32 as of May 21, 2015. As such, the Defendant’s liability for the instant accident is limited to 109,054,656 won (i.e., 35,400 x 2SDR x 1,540 x 322 won/SDR).

In this regard, the plaintiff asserts that he is liable for 115,128,58 won converted at the exchange rate as of January 14, 2013, which is the date of the occurrence of the accident in this case. However, there is no express provision in the Commercial Act concerning the time when the unit of account equivalent to 1SDR is converted into the domestic currency. Thus, there is no express provision in the Commercial Act as to the legislative intent that limits the carrier's liability for damages and the relevant international treaties including the 1978 Rules and the date of actual compensation or judgment in many countries such as Germany and Japan are converted into the domestic currency. In light of Article 11(2) of the Act on the Procedure for Limiting the Liability of Shipowners, etc., the time when the unit of account under the Commercial Act is converted into the domestic currency as of the date of conclusion of fact-finding proceedings near the date of actual damage compensation (see Supreme Court Decision 9Da71528, Apr. 27, 2001).

C. Sub-committee

Therefore, the Defendant is obligated to pay to the Plaintiff 109,054,656 won as damages for tort caused by the damage of the instant cargo and damages for delay at each rate of 5% per annum under the Civil Act and 20% per annum under the Act on Special Cases Concerning the Promotion, etc. of Legal Proceedings from the date of the instant judgment, which is the date of the occurrence of the instant accident, to the date of June 18, 2015, where the Defendant deems it reasonable to dispute about the existence and scope of the obligation to perform as to the Plaintiff from January 14, 2013, which is the date of the instant judgment, until June 18, 2015 (the Plaintiff claimed damages for delay at a rate of 6% per annum from the date of the instant accident, but it is apparent that the cause of the instant claim should be subject to 5% per annum, which is the statutory interest rate under the Civil Act

3. Conclusion

Therefore, the plaintiff's claim is justified within the scope of the above recognition, and the remaining claims are dismissed as it is without merit. It is so decided as per Disposition.

Judges O Young-han (Presiding Judge)