Plaintiff (Attorney Han-soo, Counsel for defendant-appellant)

Defendant (Law Firm Sejong, Attorneys Yoon Nam-ho et al., Counsel for defendant-appellant)

September 6, 2007

Seoul Central District Court Decision 2006Gadan191374 Delivered on December 6, 2006

1. Of the judgment of the first instance court, the part against the plaintiff corresponding to the money ordered to be paid additionally shall be revoked.

The defendant shall pay to the plaintiff 72,482,386 won with 6% interest per annum from September 1, 2005 to October 11, 2007, and 20% interest per annum from October 12, 2007 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 monetary payment portion under paragraph (1) may be provisionally executed.

1. Purport of claim

The defendant shall pay to the plaintiff 73,182,40 won with 6% interest per annum from September 1, 2005 to the service date of a copy of the complaint of this case, and 20% interest per annum from the next day to the day of complete payment.

2. Purport of appeal

The same shall apply to the order.

1. Basic facts

A. Status of the parties

On June 7, 2005, the Plaintiff, a company engaged in marine insurance business, etc., is an insurer that entered into a marine cargo insurance contract with Nonparty 5 in order to secure risks related to marine transportation of the cargo mentioned in the following Paragraph. The Defendant is an insurer that entered into a marine cargo comprehensive liability insurance contract with Nonparty 3 corporation.

B. Conclusion of export contracts

On October 22, 2004, Nonparty 5 concluded a contract with Nonparty 6, located at Malaysia, to export the 5t/h Scrap and Bathing system (hereinafter “instant cargo”) to US$ 2,475,340.00, Nonparty 5 agreed to deliver the instant cargo to Nonparty 7, located at Malaysia, the actual employee of the instant cargo, on condition that the customs duty is unpaid (DU: Devered Duty Unpaid).

(c) Request for cargo transport;

(1) On April 22, 2005, Nonparty 5 Co., Ltd. requested Nonparty 6 to transport the instant cargo to Nonparty 1 Co., Ltd.: ① the land transport to Busan port at the factory located in Ansan-si, Busan-si, Busan-si, ② the maritime transport from the port of Busan, ③ the land transport to Nonparty 7, the final destination of which is final destination, and Nonparty 6 again requested Nonparty 1 Co., Ltd. to transport the instant cargo.

B. In order to carry out the loading of containers at the port of registry port, the non-party 3 corporation operating CFS in Busan, and entered into a service contract with the non-party 3 corporation operating the CFS in Busan, on condition that the non-party 3 corporation receives KRW 6,012,149 from the non-party 1 corporation, to take charge of the loading of the instant cargo (the non-party 3 corporation entered into a contract with the non-party 2 corporation for the supply of services related to the anchorage, loading and unloading of the instant cargo, loading and unloading of the container storage and the work in the CFS).

(d)the occurrence of container loading operations and accidents;

(1) After that, the instant cargo was packed in 55 wooden boxes, and was transported to the CFS of the non-party 3 corporation within Busan Port on June 7, 2005, at the non-party 5 corporation located in the said (detailed address omitted). The instant cargo was transported to the CFS on the part of the non-party 3 corporation within Busan Port.

B. On the other hand, Non-Party 3 Co., Ltd. requested ○○ Logistics Co., Ltd. to carry out the container loading work of the instant cargo, which was requested by Non-Party 1 Co., Ltd., again, and accordingly, Non-Party 4, a driver of ○○ Logistics Co., Ltd., on June 8, 2005, using a vehicle for (vehicle number omitted) around 08:20 on June 8, 2005 (hereinafter “the instant vehicle for carrying”) to carry out the container loading work of the instant cargo, and caused an accident that caused damage to the said server (hereinafter “the instant accident”).

(e) Payment of insurance money and partial redemption;

On August 31, 2005, the Plaintiff paid 173,182,400 won as insurance money to Nonparty 5 Co., Ltd. for insurance money. Nonparty 9, the insurer of Nonparty 9, paid 100,000 won to Nonparty 10 Co., Ltd. on November 29, 2005 and recovered part of the above payment amount.

【In the absence of a dispute over a part of the grounds for recognition, Gap evidence 1 through Gap evidence, Gap evidence 9 through Gap evidence 12, Eul evidence 3, the purport of the whole pleadings.

2. The party's assertion and judgment

(a) Occurrence of liability for damages;

According to the above facts, the accident in this case occurred due to the negligence on the part of the non-party 4, who is the employee of the non-party 9, who is actually under the direction and supervision of the non-party 3 corporation, and therefore, the non-party 3 corporation is liable to compensate for the damages suffered by the non-party 5 corporation due to the damage of the server of this case as the above non-party 4's employer. Thus, the defendant is liable to pay the insurance money to the non-party 5 corporation to the non-party 73,182,40 won (the non-party 173,182,400 won -100,000 won) out of the above insurance money to the plaintiff who acquired by subrogation the right to claim damages against the non-party 5 corporation as the insurer of the non-party 3 corporation, barring special circumstances

B. Issues and the determination thereof

(i)The party's assertion on the issue;

㈎ 피고의 항변

The defendant asserts that, for the following reasons, the non-party 3 corporation should be exempted from liability for damages caused by the instant accident or limited liability for damages.

1) The non-party 3 corporation is the non-party 2 corporation’s performance assistant who is the carrier. The performance assistant of the carrier pursuant to the so-called weekend clause under Article 4(4) of the Clause on the back of the bill of lading issued by the non-party 2 corporation is not liable for damages against the owner of the cargo. Thus, the non-party 3 corporation should be exempted from liability for damages

2) Since the instant accident occurred during the course of marine transportation, the provisions on the limitation of liability per package of the maritime carrier stipulated in Article 789-2 of the Commercial Act apply to the sea carrier. Since the aforementioned server's packaging unit is one tree box, the liability of the non-party 3 corporation is limited to 500 SDR.

㈏ 원고의 주장

The plaintiff asserts that the defendant's above defense should be rejected for the following reasons.

1) A person who requested Nonparty 3 to load containers of the instant cargo to Nonparty 3 is not only Nonparty 2 but also Nonparty 1 corporation, and at the time of the instant accident, the bill of lading was not issued by Nonparty 2 at the time of the instant accident. Therefore, the allegation of exemption from liability under the back of the terms and conditions of the bill of lading issued by Nonparty 2 is without merit.

2) The freight transport of this case is the so-called multimodal transport which leads to the land transport, maritime transport and land transport. Since the Korean Commercial Act does not regulate multimodal transport, Article 789-2 of the Commercial Act concerning maritime transport cannot be applied. In this case, the non-party 3 corporation constitutes an independent contractor, and thus does not constitute an "employee or agent of the carrier" under Article 789-3 (2) of the Commercial Act.

【Judgment on the issue

㈎ 히말라야약관의 적용 여부

According to the evidence evidence No. 8, the non-party 2, who is in charge of the actual marine transportation of the cargo of this case, and who is in charge of the marine transportation of the cargo of this case, may recognize that Article 4 (4) of the terms and conditions of the back of the bill of lading issued by the non-party 2, after the accident of this case, does not provide that the carrier's agent or agent (including the shipper, terminal operator, re-transporter, or independent contractor employed by the carrier) shall not be liable for any loss, damage, or delay caused directly or indirectly by his act, negligence, or negligence among the acts of performance or acts related thereto (hereinafter referred to as "the above terms and conditions").

However, at the time of the accident, the bill of lading was not issued as to the cargo of this case including the server of this case. After that, the fact that the non-party 2 issued the bill of lading only with respect to the cargo of this case except for the server of this case among the cargo of this case does not conflict between the parties. According to the evidence No. 8, even according to Article 4 (1) of the Terms and Conditions on the back of the bill of lading of this case issued by the non-party 2, the non-party 2 is liable for the cargo of this case only during the time when the non-party 2 received the cargo and managed it solely. Thus, as in this case, the non-party 2 is not liable for the cargo of this case from the non-party 1 corporation to the port of delivery, the non-party 2 corporation is not liable for the cargo of this case with respect to the non-party 3 corporation's cargo of this case after being requested to transport the cargo of this case from the non-party 2 corporation to the port of delivery (the non-party 1 corporation is also liable for the cargo of this case.).

Therefore, the first defendant's defense on a different premise is without merit.

㈏ 상법 제789조의2 , 제789조의3 의 각 적용 여부

1) As to the application of the provisions on the limitation of liability of the maritime carrier under Article 789-2 of the Commercial Act, it is reasonable to view that this provision is applicable not only to the case where the damage, etc. to the cargo occurred during the marine transportation but also to the case where the marine transportation occurred within the section assessed as a part of the marine transportation. However, it is reasonable to view that the marine transportation of the cargo requested by the plaintiff to the non-party 6 constitutes a multimodal transport which leads to the land transportation, marine transportation, and land transportation. However, in the location and circumstance of the accident, the accident occurred during the maritime transportation of the cargo of this case in the non-party 3 Co., Ltd. within the Busan Port, which is closely related to the marine transportation of the cargo of this case, and it is also reasonable to interpret that the provision on the maritime transportation of this case does not apply to the maritime transportation of this case to the non-party 6 Co. 3's maritime cargo of this case, which is closely related to the marine transportation of this case.

2) Furthermore, as to whether Nonparty 3 corporation constitutes “employee or agent of the carrier” under Article 789-3(2) of the Commercial Act, the employees or agent of the above provision refers to the person who performs the work under the command and supervision of the carrier pursuant to the employment contract or delegation contract, etc., and regardless of such direction and supervision, it does not include an independent contractor who directly carries out his own business (see Supreme Court Decision 2001Da75318, Feb. 13, 2004, etc.). ① Work in the instant CFS, including container carrying out of the instant cargo, is hard to view that Nonparty 3 corporation and Nonparty 3 corporation received one kind of remuneration for the entire work, and it is hard to view that Nonparty 1 corporation and Nonparty 3 corporation were responsible for carrying out its own work on behalf of Nonparty 1 corporation in accordance with its own contract with Nonparty 3, who did not carry out its own work on behalf of Nonparty 1 corporation in accordance with its own contract with Nonparty 1 corporation.

3) Therefore, even if the instant accident constitutes an accident governed by Article 789-2 of the Commercial Act concerning maritime transport, it constitutes a contractor who is in an independent position from a carrier and thus, the non-party 3 corporation constitutes an employee or agent of the carrier under Article 789-3(2) of the Commercial Act. Accordingly, the defendant's defense, which is based on the premise that the non-party 3 corporation constitutes an employee or agent of the carrier

3. Conclusion

If so, the defendant is obligated to pay to the plaintiff 73,182,400 won and its late payment damages with 700,014 won from September 1, 2005 to December 6, 2006, the remainder of 72,482,386 won from the court of first instance which the defendant did not appeal as the payment date of insurance money, and with respect to the remaining 72,482,386 won, it is reasonable to dispute about the existence and scope of the defendant's duty of performance, until October 11, 2007, and with 20% interest per annum as stipulated in the Commercial Act, from the following day to the day of full payment. Since the judgment of the court of first instance is unfair with some different conclusions, the court below accepted part of the plaintiff's appeal and revoked the plaintiff's loss to the defendant, and with respect to the remaining 72,482,386% interest per annum from 206 to 205.26% interest per annum, respectively.

Judges Choi Jae-in (Presiding Judge) Kim Dong-dong,

Note 1) However, according to the Transport Agreement (Evidence A10), the final destination (FINAL DES ESINAION) consists of MYCRN SETEBEHAD, SHAHAHAHAM, and MALAYAYA.

2) The original text is as follows: 4. RESIBLY : Ⅳ. Do governor Do governor Do governor Do governor Do governor Do governor Do governor Do governor Do governor Do governor Do governor Do governor Do governor Do governor Do governor Do governor Do governor Do governor Do governor Do governor Do governor Do governor Do governor Do governor Do governor Do governor Do governor Do governor Do governor Do governor Do governor Do governor Do governor Do governor Do governor Do governor Do governor Do governor Do governor Do governor Do governor Do governor Do governor Do governor Do governor Do governor Do governor Do governor Do governor Do governor Do governor Do governor Do governor Do governor Do governor Do governor Do governor Do governor Do governor Do governor Do governor Do governor Do governor Do governor Do governor Do governor Do governor Do governor Do, Do governor Do governor , Do governor Do governor Do.

3) The original text of the report is as follows. 4. RESIBLY : 1. The report on the operation of the National Assembly from the National Assembly : 1. The report on the operation of the National Assembly, 1. 1. 1. 3. 1. 1. 1. 1. 1. 1. 1. 1. 1. 1. 1. 1. 1. 1. 1. 1. 1. 1. 1. 2. 1. 2. 2. 2. 3. 1. 1. 1. 1. 1. 1. 1. 1. 1. 1. 1. 3. 1. 4. 1. 4. 1. 1. 1. 4. 1. 1. 1. 1. 4. 1. 1. 1. 1. 1. 1. 1. 1. 1. 1. . . 1. 1. 1. 1. . . 1. . . . . . .. . .. . . .. .. . . . . . . .. .. . ... ...... ...... . ... .... . . .... . ................ .........