[1] When a bill of lading is issued, the shipping agent's duty of care

[2] Status and responsibility of cargo manager of a designated storage place

[1] When a bill of lading has been issued, a shipping agent who is in charge of the affairs such as delivery of the ship's cargo and collection of the bill of lading shall deliver the transport cargo to the bill of lading holder in exchange for the bill of lading bill of lading holder, and until delivery, the carrier shall be bound to preserve and manage the cargo with the due care as a good manager. In this case, delivery refers to the transfer of the carrier's actual control over the cargo

[2] In order to secure the collection of customs duties, a cargo manager is merely a person who manages goods into and out of a designated storage place in lieu of the head of a customs office. Since a cargo manager is not in the position of keeping the goods shipped into the designated storage for a carrier or owner, there is no right or duty to prevent an importer who filed a report on the shipment of goods after paying taxes necessary for customs clearance from shipping the goods, on the ground that he did not present a bill of lading

[1] Articles 129 and 820 of the Commercial Act, Articles 195, 197, and 374 of the Civil Act / [2] Article 77 of the former Customs Act (amended by Act No. 6305 of Dec. 29, 2000), Article 76-2 of the Enforcement Decree of the Customs Act (amended by Presidential Decree No. 17048 of Dec. 29, 200)

[1] Supreme Court Decision 91Da14123 decided Dec. 10, 1991 (Gong1992, 475), Supreme Court Decision 91Da1494 decided Jan. 21, 1992 (Gong1992, 878), Supreme Court Decision 91Da4249 decided Feb. 14, 1992 (Gong1992, 107, 107) 91Da3026 decided Feb. 25, 192 (Gong1992, 192, 194, 209Da14979 decided Feb. 14, 1992 (Gong1992, 107, 107) (Gong1992, 1136), Supreme Court Decision 200Da298149 decided Apr. 23, 199 (Gong199, 209)

Busan Bank Co., Ltd. (Law Firm Dongdong, Attorney Choi Woo-woo, Counsel for defendant-appellant)

E. S.S. Co., Ltd. and three others (Law Firm C.S., Attorneys Lee Jae-min et al., Counsel for the plaintiff-appellant)

Busan District Court Decision 2001Gahap9383 delivered on July 12, 2002

may 2, 2003

1. The judgment of the court of first instance is modified as follows.

A. Defendant SPP Co., Ltd and Samsung Shipping Co., Ltd shall pay to each of the Plaintiff 192,271,590 won with 5% interest per annum from November 28, 2000 to August 1, 2003 and 20% interest per annum from the following day to the full payment date.

B. The Plaintiff’s claim against the Korea Port Loading and Unloading Association, which is the Defendant, and the remainder of the claim against the Defendant SPP Co., Ltd. and Samsung Shipping is dismissed in entirety.

2. The costs of the lawsuit shall be borne jointly by the Plaintiff, Defendant SPP Co., Ltd., and Samsung Shipping Co., Ltd., and the part arising between the Plaintiff and the Defendant Korea Port Loading and Unloading Association shall be borne by the Plaintiff.

3. The portion of money under paragraph (1) above may be provisionally executed.

1. Purport of claim

The defendants pay to each plaintiff 206,454,681 won with 5% interest per annum from November 28, 200 to the delivery date of the complaint, and 25% interest per annum from the next day to the full payment date.

2. Purport of appeal

The part against the defendants in the judgment of the first instance is revoked in its entirety, and all of the plaintiff's claims against the defendants are dismissed.

1. Facts of recognition;

A. The U.S. Forest Co., Ltd. (hereinafter referred to as the "TSUEN SHECO" COD) filed an application with the Plaintiff for the issuance of an irrevocable documentary credit with the aim of importing the source of the Russia from the TSUN SHEN CO. (hereinafter referred to as the "satator of the Suss") in Japan, and on August 4, 2000, the Plaintiff would be provided with the above imported trees as a security for transfer, and on August 4, 200, the Plaintiff would be provided with the above imported trees as a security for transfer. The number of the L/C 328308 NUU. 1320, ② the beneficiary: the applicant: the cator, the applicant: the cator, September 30, 200; the amount of the L/C 136,000 U.S. dollars; and the amount of the final L/C 80,300.

(1) The cargo of this case was transported to 16,69 (hereinafter referred to as "the cargo of this case") by the holder of the bill of lading of this case from 0 YHR SPING MPY, 200 to 30. 4: the shipper of this case from 0. 1: the shipper of this case, 200 to 30. 1: the shipper of the bill of lading of this case, 30 U.S. 5 to 3: the shipper of the bill of lading of this case, 30 U.S. 5 to 3: the shipper of the bill of lading of this case, 200 to 30 U.S. 1: the shipper of the bill of lading of this case, 30 U.S. 5 to 6: the shipper of the bill of lading of this case, 30 U.S. 5 to 30. 1: the shipper of the bill of lading of this case to 4: the shipper of the bill of lading of this case

[This case's bill of lading is a bill of lading issued by the consignee as "cator" on the ground that the paper of this case's bill of lading is different from that of the master's signature and that of this case's bill of lading is forged. However, in light of the fact that the plaintiff is the issuing bank of the letter of credit, the bill of lading related to the settlement of the import price and delivery should be issued by the consignee as the plaintiff, not the cator, and in light of the plaintiff's acquisition route, it is insufficient to recognize that the bill of this case's bill of this case's bill of lading was forged against the ship's intention. Thus, it is not acceptable to accept the above defendants' assertion as to the above Article since the bill of this case's bill of this case's bill of lading is not a defect.

C. At the time of loading the cargo of this case, the Roz vessel entered the port of M. M. M. M. on September 6, 200. Prior to that conclusion, the defendant new vessel entered the vessel agency contract with Sh. M. M. M. M. M.M. to carry out the delivery of the cargo of this case and collection of bills of lading within the Republic of Korea (the defendant new vessel entered the port of M. M. M.S. contract with the port of M. M.M. to carry out the service of transporting the cargo of this case at the port of M. M.S. and to carry out the service of transporting the cargo of this case at the port of M. M.S. and to carry out the service of transporting the cargo of this case at the port of M. M.S. at the port of M.S. on the port of M.M. within the port of M. 200, M.M. 200, M.O.O.'s port of M. M.M. 3200.).

D. After the import declaration on September 22, 200 on the quantity 7866 of the instant cargo (those indicated in V-34/00-A among the instant bill of lading): the Republic of Korea accepted the import declaration on September 22, 200 on the same day; the volume 3696 of the instant cargo (those indicated in VMK-1 among the instant bill of lading) was accepted on October 13, 200 after the import declaration on October 13, 200 on the same day; the volume 5107 of the instant bill of lading (those indicated in V-34/00-B in the instant bill of lading): the import declaration on November 11, 200 and the same day was accepted; the friendship paid the instant cargo as the owner of the instant cargo and completed the customs clearance procedure; the Republic of Korea notified the Defendant Association managing the instant cargo of the completion of the import clearance procedure, and notified the Plaintiff of the shipment of the instant cargo from 200 to 300-B.

E. On the other hand, the port area where the cargo of this case is installed is the port area owned by the State of the Masan-si Masan-si Masan-si Masan-si 56,57,71,72 times, which is managed by the Administrator of the Masan-si Masan-si Masan-si Masan-si Masan-si Masan-si Masan-si Masan-si. The customs collector designated the proprietor as the Masan-si Maritime Affairs and Fisheries Office in accordance with the Customs Act and subordinate statutes on August 31, 1994, and the defendant

[Ground] Facts without dispute; Gap evidence 1 through 7; Gap evidence 8; Eul evidence 9; 10-1, 2, 3; Gap evidence 12-2, 4, 5 through 7; 8, 9; 11, 12, 23, 24, 25, 27, 30, 31; Eul evidence 4-1, 2, 3, 6, 10, 11, 12; the fact-finding results with respect to the chief of the Korean Association of International Shipping Agencies, an incorporated association for the trial; and the purport of the whole pleadings]

2. Determination as to the cause of action

A. As to the Defendant New Ships and Tropic Shipping

(1) Grounds for damages liability

In the event that a bill of lading is issued, the shipping agent responsible for the delivery of the cargo and collection of the bill of lading shall deliver the cargo to the bill of lading holder in exchange for the bill of lading, and until delivery shall bear the duty to preserve and manage the cargo with the due care as a good manager. In this case, delivery means a concept under the private law, which is the transfer of de facto control over the cargo to the carrier. As seen earlier, the above Defendants are obliged to keep and manage the cargo in good faith until delivery of the cargo of this case is completed. However, as seen in Paragraph (2) below, since the above Defendants were to perform the above duties as a domestic shipping agent of Shamashing, they shall be held liable for the cargo of this case without due care as a good manager until delivery of the cargo of this case. However, as seen in Paragraph (2) below, the above Defendants shall be held liable for the cargo of this case to prevent the delivery of the cargo of this case to the above bill of lading holder by neglecting management of the cargo of this case, thereby infringing the Plaintiff's ownership of the cargo of this case.

(2) Scope of damages

According to the above review, the point at which the cargo of this case was actually controlled by the cargo of this case and the ownership of the plaintiff is infringed shall be the point at which the cargo of this case was shipped into the above designated storage place at the latest or at the latest. The market price of the cargo of this case at that time shall be at least the import price at the time of customs clearance. Thus, the damages suffered by the plaintiff due to the infringement of the ownership of the cargo of this case shall be the equivalent of the amount. The import price of the cargo of this case (the dutiable value) at 218,248,173 won (69,124,440 + 73,497,731 + 75,626,002) can be recognized as 20.5% per annum from the following day to 205.25% per annum, the plaintiff shall not claim for damages of this case as part of the total 192,547 U.S. dollars, 2015.36% per annum 2197.36.25% per annum

B. As to the defendant Loading Association

(1) The plaintiff's assertion

The freight of this case, which was kept at a designated storage having the same character as a bonded warehouse, is not delivered in exchange for a bill of lading, is still under the control of the shower who is a carrier, the ship agent, and the Defendant New Shipping, the cargo manager of this case. The Defendant Loading and Unloading Association, the cargo manager of this case, is in the position of a bonded warehouse operator or a transporter who keeps the freight for showering, etc., and without in exchange for a bill of lading or delivery order, violates the Plaintiff’s ownership of the freight of this case as a holder of bill of lading by delivering the freight of this case to a bonded warehouse. Thus, the Defendant Loading and Unloading Association is liable to compensate the Plaintiff for damages arising from the unauthorized removal of the freight of this case.

(2) Determination

In order to determine the legitimacy of the plaintiff's assertion, the nature of the designated storage place and the status of the defendant cargo discharging association are examined.

First of all, according to the relevant provisions of the Customs Act, which is the law of the designated storage place, the designated storage place and the designated bonded area are classified into a designated bonded area, a licensed bonded area and a general bonded area. A designated bonded area has a designated storage place and the customs inspection place (Article 65); a designated storage place and the designated bonded area are an area designated by the head of the relevant customs office to temporarily store goods intended for customs clearance (Article 73); a designated storage place and the storage period for goods are determined by the Commissioner of the Korea Customs Service within the limit of six months (Article 74); an owner is liable for storage of goods shipped into a designated storage place (Article 77(1)); a sale of goods shipped into a designated storage place and goods for the expiration of the storage period; a sale of goods to the State and a disposal thereof are notified to the owner or the shipper (Articles 123 through 127). In light of the aforementioned provisions and the purpose of the Customs Act (Article 1). The reason for establishing a designated storage place as a customs office is, in principle, to secure ownership of the owner of imported goods.

Next, according to Article 77 of the Customs Act and Article 76-2 of the Enforcement Decree of the Customs Act as to the cargo manager of the designated storage place at the time of the instant case, the cargo manager, such as the Defendant Loading and Unloading Association, shall be designated by the customs collector from among the government agencies that directly manage goods, the customs administration or the non-profit corporation related to the management of goods, and the owner or manager of the relevant facilities, and the cargo manager so designated is responsible for the liability for the payment of customs duties on the goods destroyed or lost under Article 70(2) of the Customs Act and for the loading, unloading, packing, and expenses related to the storage of the relevant goods. The cargo manager may collect the cost of the goods management (including the fees for the use of customs office) from the owner to fulfill such liability, and the amount equivalent to the fees for the use

In full view of the above nature of the designated storage place and the status of and responsibility for the cargo manager at the designated storage place, the State established and operated the designated storage place for the administrative purpose of securing customs claims and establishing order in customs clearance, but the State has the responsibility for the storage of the goods instead of collecting the storage fees. In the case of designating a cargo manager responsible for the storage of the goods in lieu of the owner for maintaining the order of the designated storage place and safety control of the goods, the cargo manager is not responsible for the payment of customs duties on the goods destroyed or destroyed or lost and the storage of the goods in question, but does not carry out the storage of the goods themselves. Therefore, even if the cargo manager collects the expenses for the management of the goods in order to fulfill such responsibility, the cargo manager is merely the person who manages the shipment of the designated storage place and takes them out in lieu of the head of customs office to secure the collection of customs duties, and the cargo manager is not in the position of keeping the goods in custody for the carrier or owner.

Thus, the customs collector or the defendant cargo loading and unloading association, who is not in charge of the storage of the cargo of this case, does not have the authority to prevent such release, unless there are special circumstances, with respect to the well-known goods on which the shipment of this case was reported after paying the tax necessary for customs clearance. Rather, the defendant cargo loading and unloading association should comply with the report of the shipment of the well-known goods, which was the owner who carried the cargo of this case into the designated storage place. Thus, the plaintiff's claim against the defendant of this case on the premise that the defendant cargo loading and unloading association, who did not present the bill of lading or the order of delivery as a custodian,

3. Conclusion

Therefore, the plaintiff's claims against the defendant new vessels and tri-Korean shipping shall be accepted within the scope of the above recognition, and the claims against the defendant cargo loading and unloading association and the remaining claims against the defendant new vessels and tri-Korean shipping shall be dismissed, as they are without merit. Since the judgment of the court of first instance is partially unfair, the appeal against the defendant cargo loading and unloading association and part of the appeal by the other defendants shall be accepted, and the judgment of the court of first instance shall be modified as per Disposition 1.

Judges Choi Jin-gu (Presiding Judge)