[1] The purport of Article 129 of the Commercial Act regarding the redemption securities of a bill of lading

[2] Whether a bank purchasing shipping documents which received a bill of lading as a result of the consignee's refusal to accept the bill of lading constitutes a legitimate holder of the bill of lading (affirmative)

[3] Whether a marine carrier's tort liability against a holder of a bill of lading who delivered a cargo to a third party without redemption with a bill of lading is established (affirmative)

[4] In the case of paragraph (3) above, the case holding that considering 20% of the negligence of the purchasing bank, a bill of lading holder, when considering the amount of damages of the marine carrier as the market price at the time of loss of the cargo

[1] Article 129 of the Commercial Act, which applies mutatis mutandis to a bill of lading pursuant to Article 820 of the same Act, provides that "where a bill of lading is prepared, it shall not be allowed to request delivery of the cargo unless it is redeemed." The provision provides that the carrier shall be permitted to refuse a request for delivery of the cargo without presentation of the bill of lading with the right to refuse a request for delivery of the cargo. Thus, a marine carrier shall fulfill its obligation by delivering the freight in exchange for the bill of lading to the bill of lading

[2] In light of the fact that Article 2 (1) of the Bills of Exchange and Promissory Notes Act does not apply to a bill of lading as well as the fact that the same provision does not apply to a bill of lading as a bill of lading, and that if the bill of lading becomes null and void by strictly interpreting the nature of the essential securities of the bill of lading, it would result in impairing the safety of transaction if the bill of lading becomes null and void, it is reasonable to interpret that a bill of lading has a clear description of what kind of transportation goods are shipped by a vessel or a marine carrier and delivery at any port, and that it is only sufficient if other matters are defective, and that the effect as a bill of lading is not denied even if other matters are defective. Thus, if a person stated as a consignee of a bill of lading refuses to accept a bill of lading, the consignee's entry on the bill of lading has become void by acquiring his right, while a consignor and a marine carrier are bound to change the consignee's entry on the bill of lading at the request of the consignee, the person who acquired the bill of lading shall be deemed a legitimate holder even before the bill of lading change.

[3] In cases where a bank which purchased a credit and a bill of lading from a consignor sent a bill of lading to the L/C issuing bank and received it by rejection of acceptance, the negotiating bank, as a legitimate holder of the bill of lading, obtained a security right on the cargo as well as has all the rights on the bill of lading, and thus, in cases where a marine carrier loses the cargo by delivering the cargo to a third party without exchange with the bill of lading, such act constitutes a tort as an unlawful infringement of the right to the cargo of the negotiating bank, which is a holder of the bill of lading, and the marine carrier knew that the result of such infringement could have been caused, barring special circumstances. If the result was not known, the marine carrier is liable for compensation for the damage suffered by the bank holder of the bill of lading due to the tort.

[4] In the case of paragraph (3) above, the case holding that in consideration of the negligence of the negotiating bank 20%, since the freight is illegally delivered within the scope of the amount of the secured debt of the negotiating bank, which is the secured debt of the negotiating bank that the marine carrier is the holder of a bill of lading, and the amount equivalent to the market price as at the

[1] Articles 129, 820, 820, / [2] Articles 130, 820, and 820 of the Commercial Act / [3] Article 750, / [4] Articles 393, 396, and 763 of the Civil Act

[1] [1]

[Plaintiff-Appellant] Plaintiff 1 and 1 other (Law Firm Gyeong, Attorneys Park Jae-soo et al., Counsel for plaintiff-appellant)

[1] [3] Supreme Court Decision 91Da4249 delivered on February 14, 1992 (Gong1992, 1007)

[1] Supreme Court Decision 91Da30026 delivered on February 25, 1992 (Gong1992, 1136)

[2] Supreme Court Decision 91Da14123 delivered on December 10, 1991 (Gong1992, 475)

[Plaintiff-Appellant] Plaintiff 1 and 1 other (Law Firm Gyeong, Attorneys Park Jae-soo et al., Counsel for plaintiff-appellant)

[3] Supreme Court Decision 87Meu1791 delivered on March 14, 1989 (Gong1989, 593)

[Plaintiff-Appellant] Plaintiff 1 and 1 other (Law Firm Gyeong, Attorneys Park Jae-soo et al., Counsel for plaintiff-appellant)

/ [4] Supreme Court Decision 94Da34 delivered on September 15, 1995

National Bank Co., Ltd. (Dongyang Law Firm, Attorneys Seo Seo-woo et al., Counsel for the defendant-appellant)

Administrator of Daii Shipping Corporation (Attorney Jeong Byung-hee et al., Counsel for the defendant-appellant)

Seoul District Court Decision 93Gahap95480 delivered on January 12, 1995

1. The part of the lower judgment against the Plaintiff corresponding to the amount ordered to pay is revoked.

The defendant shall pay to the plaintiff the amount of 54,115,449 won and the amount of 5% per annum from March 9, 1994 to December 12, 1995, and 25% per annum from the next day to the date of full payment.

2. The plaintiff's remaining appeal is dismissed.

3. All costs of the lawsuit shall be borne by the defendant.

4. The portion ordering the payment of the amount under paragraph (1) may be provisionally executed.

The judgment of the court below is revoked. The defendant shall pay to the plaintiff the amount of 54,115,449 won and the amount of 6% per annum from March 9, 1994 to the delivery date of a copy of the complaint of this case, and 25% per annum from the next day to the full payment date (the claim of this case was reduced at the court below).

1. Occurrence of liability for damages;

(a) Facts of recognition;

The following facts are either in dispute between the parties or in full view of Gap evidence 1 to 12, Gap evidence 13 and 14-1, 2, Gap evidence 15, Gap evidence 16-1 to 4-4, and the opinions of the court below in the whole purport of the testimony of the witness in the court below, the opinion of the court below, Park Jong-man, and the testimony and arguments, and there are no objections otherwise.

(1) On August 13, 1992, the Plaintiff bank concluded a bill trading agreement, credit limit trading agreement, and export transaction agreement with the effect that the Plaintiff bank will repay the above purchase fund by repurchaseing the credit where the credit, etc. is not settled, between the Nonparty 115,00,000 won and the Nonparty 1, who operates the trading company, within the lending limit limit of 115,00,000 won.

(2) 소외 곽명근은 같은 해 12.경 싱가포르에 소재한 소외 텔레소닉 싱가포르 피티이 리미티드(Telesonic Singapore Pte. Ltd. 이하 텔레소닉이라고만 한다)와 사이에, 여성용 재킷 4,501벌(이하 이 사건 화물이라고 한다)을 대금 미화 115,470＄에 일본 요코하마로 수출하기로 하는 내용의 수출입계약을 체결하면서 수출대금은 신용장에 의해 결제하기로 약정하였다. 위 텔레소닉은 위 수출입계약의 대금결제를 위하여 싱가포르 소재 소외 오버시 챠이니즈 뱅킹 코포레이션(Oversea Chinese Banking Corporation, 이하 소외 은행이라고 한다)에 신용장 개설을 의뢰하였고, 이에 따라 소외 은행은 수익자를 위 태진무역으로 한 취소불능화환신용장을 개설하였다.

(3) In accordance with the above export and import contract, the above peripheral area entered into a maritime transport contract with the Daii Shipping Co., Ltd. (hereinafter referred to as the "Defendant Co., Ltd.") to transport the freight of this case from the port of Busan to the port of the Republic of Korea. On December 8 of the same year, the defendant Co., Ltd. loaded the freight of this case to the "Nova" to the "Nova", and the consignor issued the bill of lading (hereinafter referred to as the " bill of lading of this case") to the above order, the consignee was the order of the non-party Co., Ltd., and the consignee issued the bill of lading of this case to the above order.

(4) 원고 은행은 같은 해 12. 11. 위 곽명근의 요청에 따라 위 신용장을 하환어음(소외 곽명근이 원고 은행 또는 그 지시인을 위 수출대금 미화 115,470＄의 지급을 받을 자로, 위 텔레소닉을 지급인으로 기재하여 발행한 환어음이다) 및 이 사건 선하증권 등 선적서류와 함께 매입하고, 위 곽명근에게 이 사건 화물의 수출대금 미화 115,470＄를 당시의 전신환매입률로 환산한 금 90,782,514원을 지급하였는데, 매입한 선적서류에는 분할선적, 검사증명서의 확인을 위한 보충텔렉스의 미제시, 수익자의 선적계획통보서의 미제시 등으로 위 신용장의 조건과 불일치하는 사유가 있었고, 이에 원고 은행은 위와 같은 불일치로 인하여 신용장대금의 지급이 거절되는 경우에 대비하여 위 매입대금의 상환을 약속하는 각서(갑 제5호증)를 위 곽명근으로부터 제출받았다.

However, while sending the above letter of credit to the non-party bank along with shipping documents such as the bill of lading of this case, the non-party bank requested payment of the letter of credit. The non-party bank notified the plaintiff bank of the refusal to pay the letter of credit on the ground that the documents presented on December 23 of the same year are inconsistent with the terms and conditions of the letter of credit. On January 16, 1993, the bank returned the above bill of lading of this case to the plaintiff bank, and pressures the name of the non-party bank on the face of the bill of lading of this case, and otherwise did not sign or affix its name

(5) Meanwhile, on December 12, 1992, the defendant transported the freight of this case at sea and unloaded after arrival at the port of Hosima in Japan, and the defendant's shipping agent in Busan, which is the defendant's shipping agent in Japan, stored the freight in custody. However, since the freight of this case is exported to the non-party Young-gu who is the head of the business division of the defendant company via Singapore, the freight of this case was sent through the bank to Singapore, and the bill of lading was sent to Singapore through the bank, and the actual importer was requested to deliver the freight to the non-party 2-3 months in Japan, the actual importer, and the defendant was instructed to deliver the freight to the above Mana, and the defendant received the bill of this case to deliver the freight of this case at later time on January 8, 1993, and then received the bill of this case to the above Maho-Sa (hereinafter referred to as the "Maho-Saman").

(6) On January 14, 1985, the defendant company was appointed as the administrator after the decision to commence the company reorganization procedure was made by the Busan District Court.

B. Establishment of tort

(1) The obligation to deliver the cargo to the holder of the bill of lading of the sea carrier

In the case of a trade in which the exporter of this case issues a bill of exchange accompanied by a bill of lading and receives a discount from, or delegates for collection from, the domestic bank, and the domestic bank pays the export price by means of collection to the issuing bank of the letter of credit, barring any special circumstance, the export goods represented by the bill of lading will be secured by the said bill of exchange until the importer pays the price for the export goods. Meanwhile, Article 129 of the Commercial Act, which applies mutatis mutandis to a bill of lading pursuant to Article 820 of the Commercial Act, provides that "if a bill of lading is prepared, no delivery of the goods shall be requested unless the bill of lading is redeemed," and the above provisions are interpreted to the purport that the carrier has the obligation to refuse to deliver the goods with the right to refuse a request for delivery without a bill of lading. Thus, the marine carrier shall fulfill its obligation by delivering the freight in exchange for the bill of lading to the bill of lading holder.

(2) Whether the Plaintiff bank constitutes a legitimate holder of the instant bill of lading

The plaintiff requested the non-party bank to pay the letter of credit when sending the bill of lading purchased by the plaintiff bank in accordance with the export transaction agreement with the non-party bank, but the non-party bank refused to pay the letter of credit and returned the bill to the plaintiff bank. Thus, the plaintiff asserted that the plaintiff is a legitimate holder of the bill of lading of this case. On the ground that the bill of lading needs endorsement for the transfer of the bill of this case as a instrument, the plaintiff bank cannot be a legitimate holder of the bill of this case since the bill of this case was not endorsed by the non-party bank, the consignee.

Therefore, in light of the fact that "the bill of lading may be transferred by endorsement even if it is a registered person" in Article 130 of the Commercial Act, which applies mutatis mutandis to a bill of lading pursuant to Article 820 of the Commercial Act, is stipulated as "the bill of lading may be transferred by endorsement." Therefore, where a person who is stated as a consignee has accepted a bill of lading, a legitimate holder of the bill of lading is naturally a person who is stated as a consignee or a person who has the series of endorsement started from it.

However, in light of the fact that Article 2 (1) of the Bills of Exchange and Promissory Notes Act does not apply to the delivery securities such as a bill of lading, and that in the event of a defect in the description of a bill of lading, it would result in undermining the safety of transaction if the securities are invalidated by strictly interpreting the nature of a bill of lading, it is reasonable to interpret that a bill of lading has a clear description of what kind of carriage is shipped by a vessel or a marine carrier and delivery at any port, and that it does not deny the validity of a bill of lading even if other matters are not recorded therein.

Furthermore, in light of the above legal principles, if a person stated as a consignee of a bill of lading refuses to accept a bill of lading, the entry of the consignee on the bill of lading becomes null and void, and accordingly the person who has received the above rejected bill of lading legally returned or received it, and the consignor and the marine carrier have the duty to change the consignee's entry on the bill of lading at the request of the above holder. Accordingly, the person who acquired the bill of lading as mentioned above shall be deemed as the legitimate holder of the bill of lading even before the change in the consignee's entry.

Thus, the plaintiff bank sent the bill of lading of this case to the non-party bank, which was originally purchased from the above third party, the consignor, but was lawfully returned due to the non-party bank's rejection of acceptance. Thus, the plaintiff bank is the legitimate holder of the bill of lading of this case.

(3) The defendant's liability

According to the above facts and the legal principles as seen earlier, the plaintiff as a legitimate holder of the bill of lading of this case shall be deemed to have the security right on the cargo of this case as well as all rights on the bill of lading with respect to the obligation to repay the purchase price of the letter of credit against the plaintiff in the outer reputation. The defendant, as a marine carrier, was unable to deliver the cargo to the plaintiff as a holder of the bill of lading by delivering the above cargo to the above ambamers without redemption with the bill of lading. In such a case, the defendant company's act as a carrier, as an unlawful infringement of the plaintiff's right to the cargo of this case, is deemed to have committed a tort. If the defendant company did not recognize the result, it shall be deemed that there was a gross negligence that could have caused the result of such infringement. Thus, the defendant is liable for compensation for damages suffered by the plaintiff due to the above tort.

2. Scope of liability for damages

A. Calculation of damages

피고 회사가 선하증권의 소지인인 원고에게 배상해야 할 손해액은 원고의 앞서 본 피담보채권인 신용장 매입대금 상환채권액의 범위 내에서 이 사건 화물이 불법인도 되어 멸실될 당시의 시가 상당액이라고 할 것이고 그 시가는 특별한 사정이 없는 한 소외 곽명근이 소외 텔레소닉에게 수출하기로 한 이 사건 화물의 대금 미화 115,470＄ 상당이라고 할 것인바, 미달러화로 표시된 위 시가를 멸실 당시의 외국환시세 중 기준환율에 의하여 우리 나라 통화로 환산한 금액이 그 멸실 당시의 가액이 되는 것이고, 갑 제17호증의 2의 기재에 의하면 이 사건 화물이 멸실된 당시인 1993. 1. 8. 현재 기준환율은 1$당 791.90원인 사실을 인정할 수 있으며, 한편 원고는 이 사건 선하증권 등 선적서류를 매입함에 있어, 위 곽명근에게 이 사건 화물의 수출대금 미화 115,470＄를 당시의 전신환매입률로 환산한 금 90,782,514원을 지급한 사실은 앞서 본 바와 같고, 앞에 든 갑 제2, 3호증의 각 기재에 의하면 소외 곽명근이 위 선적서류를 환매함에 있어서는 위 금액 및 이에 대한 연 21%의 지연손해금과 수수료, 비용 등을 가산하여 상환할 의무가 있는 사실을 인정할 수 있다.

Therefore, the Defendant is obligated to pay the Plaintiff the amount of KRW 91,440,693 (791.90 won x 115,470), which is equivalent to the market price at the time the freight of this case was destroyed or lost, as damages (the total amount of the L/C purchase price and the damages for delay exceeds the market price at the time the freight was destroyed or lost). (In addition, it is clear that the total amount of the above L/C purchase price and the damages for delay exceeds the market price at the time the freight was destroyed or lost).

(b) Set-off of negligence;

In negotiating shipping documents, including the letter of credit, from the third party, the bank was aware of the existence of a cause inconsistent with the terms and conditions of the letter of credit, and it was anticipated that it may refuse to pay the price of the letter of credit due to the disagreements with the above terms and conditions of the letter of credit at that time. The bank notified the plaintiff that it would refuse to pay the price of the letter of credit on the ground that the documents presented on December 23, 1992 are inconsistent with the terms and conditions of the letter of credit. On December 12, 1993, the cargo of this case was delivered to the above 4th party without redemption of the bill of credit of this case on January 8, 1993, after arrival of the bill of lading of this case, and the delivery to the above 4th party 5th party 1. The court below's witness's whereabouts, and the defendant's testimony is not enough to inform the defendant of the above 9th party 2's failure to pay the price of the above letter of credit of this case without reasonable consideration for the above defendant's failure to pay.

C. Judgment as to the defendant's assertion of deduction

The defendant asserts that since the plaintiff has reserved the execution of collateral by receiving repayment of a considerable portion of the obligation to repay the letter of credit or by delaying a request for auction of the physical collateral from the above counter party or his guarantor, the plaintiff's above repayment amount and the collateral value in possession should be deducted from the above amount of damage.

However, even if the Plaintiff’s damage claim on the bill of lading held by the Plaintiff against the Defendant company as the carrier holder and the claim on the L/C transaction pursuant to the export transaction agreement between the non-party, as the negotiating bank of the L/C, are legally separate rights, and the above claim on the L/C reimbursement between the non-party, etc. shall be extinguished due to the repayment of the above claim on the L/C, this does not interfere with the Plaintiff’s seeking the performance of the damage claim on the bill of lading in the position of the transferee

D. Partial repayment of the obligation to repay the letter of credit

Meanwhile, it is evident that the Plaintiff receives KRW 13,852,454 in total with the repayment of part of the obligation for the payment on the letter of credit from Nonparty 1, the Plaintiff sought payment of KRW 54,115,449, which is a part of the damages recognized as above, on the ground that the amount received from the guarantor in the auction procedure for the secured real estate offered by him, was appropriated for the payment of damages for the above repayment on the letter of credit and for the payment of part of the principal obligation.

3. Conclusion

Therefore, the defendant is obligated to pay to the plaintiff the amount of 54,115,49 won and damages for delay at the rate of 55% per annum from March 9, 1994 to December 12, 1995, which is the date of the decision of the court of first instance, which is deemed reasonable for the defendant to dispute since March 9, 1994, as the plaintiff's claim for damages within the scope of the defendant's above damages liability. Thus, the plaintiff's claim of this case is accepted within the scope of the above recognition, and the remaining claims are dismissed as there is no reason. Since the judgment of the court below is partially unfair, part of the plaintiff's appeal against the plaintiff is accepted and part of the judgment of the court below against the plaintiff is revoked, and the remaining appeal of the plaintiff is dismissed as it is without merit. It is so decided as per Disposition.

Judges Kim Yong-dam (Presiding Judge)