A. Competition between responsibility for non-performance of maritime transport contract and tort liability

B. Whether the Commercial Act applies to the tort liability of the shipowner's exemption provision or the provisions on the limitation of limited liability (negative)

(a) If a marine carrier destroys or damages cargo due to the intention or negligence of himself/herself, employees, etc. during the carriage of cargo, the owner of the cargo may claim against the carrier for damages arising from non-performance of the carriage contract and damages arising from tort.

B. The provisions on the exemption or limitation of liability of a shipowner under the Commercial Act shall not apply only to default liability under a contract of carriage unless otherwise stipulated by the bill of lading or the limitation of liability, and shall not apply to tort liability as a matter of course unless otherwise agreed between the parties to apply the tort liability.

(a) Article 788(1)(b) of the Commercial Act; Article 746(2) of the same Act; Article 747(b) of the same Act; Article 787(a) of the same Act;

Supreme Court en banc Decision 82Meu1533 Decided March 22, 1983

[Defendant-Appellee] Defendant 1 and 1 other (Law Firm Gyeongyang et al., Counsel for defendant-appellee)

[Defendant-Appellant] Samd Law Firm, Attorneys Yoon-seok et al., Counsel for defendant-appellant-appellant-appellant

Daegu High Court Decision 87Na259 delivered on March 17, 1988

The appeal is dismissed.

The costs of appeal are assessed against the defendant.

The grounds of appeal are examined (the supplementary appellate brief and supplementary supplementary appellate brief are after the expiration of the submission period, so that they supplement the grounds of appeal).

1. The issue is that the defendant, the shipowner of the instant accident, is only liable for nonperformance under the contract of carriage. Thus, the Commercial Act shall apply the provision on the shipowner's exemption from liability or the provision on limited liability.

However, in a case where a marine carrier has lost or damaged the cargo due to the carrier's intentional or negligent negligence in the course of carriage, the owner of the cargo may claim against the carrier compensation for damages caused by non-performance of the contract of carriage and damages arising from tort concurrently against the carrier. Therefore, we cannot accept the appeal to the court below that the plaintiff, the owner of the cargo, paid the insurance money to the non-party petroleum corporation, and acquired the right of subrogation for the insurer, accepted the claim for damages arising from tort against the defendant. Therefore, we cannot accept the appeal that the above Commercial Act

2. According to the reasoning of the judgment below, on December 30, 1985, the court below concluded a marine transportation contract with the non-party Kukdong Petroleum Co., Ltd. to transport oil of this case to Busan port as the actual ship owned by the defendant, and agreed to prepare the transportation contract at the beginning of January 1, 1986. The above ship's negligence on January 2, 1986, which caused the ship's employees such as the captain, etc. to leave the above Jkdong Petroleum Co., Ltd. at the beginning. The above cargo was entirely lost. On January 4, 1986, Article 11 of the oil tanker transportation contract (Evidence No. 1) concluded between the defendant and the non-party Co., Ltd. was not responsible for the operation of the above contract, and the non-party Co., Ltd. or the non-party Co., Ltd. was not liable for damages to the non-party Co. 1 or the non-party Co. 1, Ltd. to be exempted from liability under the provisions of this case No. 708 of the Commercial Act.

On the other hand, the provisions on the exemption or limitation of liability of a shipowner under the Commercial Act shall be deemed not to apply to tort liability as a matter of course unless there is a separate agreement between the parties as to the liability for nonperformance under the contract of carriage, unless the provisions on the exemption or limitation of liability are stipulated in the bill of lading, and in general, it shall be deemed that the provisions on the exemption or limitation of liability of a shipowner under the Commercial Act shall not apply to tort liability as a matter of course unless there is a separate agreement between the parties as to tort liability (see Supreme Court Decision 82Meu1533, Mar. 22, 1983).

3. Therefore, the appeal is dismissed, and all costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Yoon So-young (Presiding Justice)