In cases where a person in charge of the business of preparing and issuing an air waybill concerning the transportation of exported goods in a trade for which a letter of credit has been issued prepares and issues an air waybill in a different manner from the originals of each air waybill so that a domestic bank that trusted the entries of the air waybill, which is the original for consignor, purchases export bills and air waybills, etc. and is unable to exercise the right to transfer a security for export goods when it refuses to pay export bills by the issuing bank of the letter of credit, whether the person

In light of Articles 6(1) and (2), 11, 12(1) and (4), and 13(1) of the Convention on the Unification of Certain Rules for International Carriage by Air amended at Hague in 1955, if an exporter issues an export draft accompanied by an air waybill and requests a domestic bank to negotiate it, and the domestic bank that purchased it collects the amount from the issuing bank, makes the consignee of the air waybill as the issuing bank of the letter of credit in a trade where the export amount is settled by the method of collecting the export amount from the issuing bank to the issuing bank of the letter of credit, the issuing bank has the right to claim the delivery of the cargo at the place of destination, thereby securing the right to claim the export amount.

In addition, if a domestic bank which purchased an export bill agrees with an exporter to transfer the cargo accompanying the purchase of the export bill as a security for the payment of the debt owed by the exporter to the domestic bank in connection with the transaction, the domestic bank acquires the right of security for the cargo. Thus, in the above method of trade, if the L/C issuing bank which is the consignee of the air waybill refuses the payment of the export bill and refuses the receipt of the air waybill or the cargo, the consignee of the air waybill refuses to accept the air waybill or the cargo, the right of disposal for the cargo shall be restored to the exporter who is the consignor and the domestic bank can exercise the right of security for the cargo. The domestic bank

Therefore, a person in charge of the business of preparing and issuing an air waybill with respect to the carriage of exported goods subject to transactions in a trade for which a letter of credit has been issued is obligated to ensure that the contents of each original of the air waybill are not inconsistent. If, in violation of such duty, a domestic bank, which trusted the entries of each original air waybill for consignor, purchases documents such as an export bill and an air waybill from an exporter, and is unable to exercise its right to transfer a security on export goods when it refuses to pay export bills by the issuing bank of the letter of credit, he/she is liable to compensate for losses suffered by the domestic bank.

Article 750 of the Civil Act, Articles 6(1) and (2), 11, 12(1) and (4), and 13(1) of the Convention on the Unification of Certain Rules for International Carriage by Air (the Warsaw Convention amended in 1955)

Han Bank Co., Ltd. (Law Firm Democratic, Attorney Kim Sung-sung, Counsel for defendant-appellant)

UPS SS Korea Co., Ltd. (Attorneys Jeong Byung-hee et al., Counsel for the defendant-appellant)

Supreme Court Decision 2011Da72264 Decided July 26, 2013

Seoul High Court Decision 2013Na52273 decided May 22, 2014

The judgment below is reversed and the case is remanded to Seoul High Court.

The grounds of appeal are examined.

1. The Convention on the Unification of Certain Rules for International Carriage by Air amended at Hague in 1955 (hereinafter “Convention”) provides that an air waybill shall be a document evidencing the conclusion of a contract of carriage, the receipt of cargo, and the terms and conditions of carriage, and shall be prepared in three originals, including the first original carrier, the second original consignee, the third original consignor, and the third original consignor. The original for the carrier shall be signed by the consignor, and the original for the consignee shall be sent along with the cargo signed by the consignor and the carrier, and the original for the consignor shall be delivered to the consignor upon signing by the carrier (Articles 6(1) and (2) and 11).

Therefore, three originals of air waybills, such as carrier, consignees, and consignors, are all the originals with the same evidentiary capacity as the originals, and the content of each signature should be prepared in the same way except each signature.

In addition, the Convention provides that the consignor has the right to dispose of the cargo by withdrawing the cargo at the airport of departure or in the air of destination, by attracting the cargo at the time of landing during the course of carriage, by delivering the cargo to a person other than the consignee stated on the air waybill or by demanding the return of the cargo to the airport of destination or in the course of carriage, and the right to dispose of the cargo is extinguished by the consignee being entitled to claim the delivery of the air waybill and the delivery of the cargo to the carrier at the time of arrival of the cargo at the place of destination. However, if the consignee refuses to accept the air waybill or the delivery of the cargo, or if the consignee is unknown, the consignor is entitled to recover the right to dispose of the cargo (Article 12(1) and (4) and

In light of the above provisions, in a trade where the exporter issues an export draft accompanied by the air waybill and requests a domestic bank to negotiate it and the domestic bank that purchased the bill is settled by means of collecting the export price from the issuing bank, the consignee of the air waybill is designated as the issuing bank of the letter of credit, and the issuing bank has the right to claim the delivery of the cargo at the place of destination and has the right to claim the delivery of the cargo guaranteed the export price.

In addition, in cases where a domestic bank which purchased an export bill of exchange agrees with an exporter to transfer the cargo accompanying the purchase of the export bill of exchange as a security for the payment of the obligation owed by the exporter to the domestic bank in connection with the transaction, the domestic bank acquires the right to collateral security for the cargo. Thus, in the above method of trade, in cases where the L/C issuing bank which is the consignee of the air waybill refuses the payment of the export bill of exchange and refuses the receipt of the air waybill or the cargo, when the L/C issuing bank which is the consignee of the air waybill refuses the payment of the export bill of exchange, the consignor has the right to dispose of the cargo, and the domestic bank can exercise

Therefore, a person in charge of the business of preparing and issuing an air waybill concerning the carriage of export goods in a trade for which a letter of credit has been issued is obligated to ensure that the contents of each original of the air waybill are not inconsistent. If, in violation of such obligation, a domestic bank, which trusted the entries of each original air waybill for consignor, purchases documents such as an export bill and an air waybill from an exporter, and is unable to exercise the right to transfer a security for the export goods when it refuses to pay the export bill of the letter of credit bank, even if it purchases the documents such as the export bill and the air waybill, the person is liable to compensate for damages suffered by the domestic bank.

2. According to the reasoning of the judgment below and the evidence duly admitted by the court below, ① the non-party 2's order to issue the air waybill with the non-party 1 to the non-party 2's agent for the delivery of the cargo, and the non-party 2's order to issue the air waybill with the non-party 1 to the non-party 2's purchase of the cargo and the non-party 2's order to deliver the cargo to the non-party 1 to the non-party 2's non-party 2's agent on behalf of the non-party 2's consignee, and the non-party 1'the non-party 2's order to issue the air waybill to the non-party 2's agent for the delivery of the cargo of this case and the non-party 1's order to issue the non-party 2's air waybill to the non-party 2's agent for the delivery of the cargo of this case.

3. Examining the above facts in light of the legal principles as seen earlier, as long as the Defendant, prior to the issuance of an air waybill, was unable to exercise the right to transfer the instant cargo even after the Plaintiff, who had been aware that the carriage of the instant cargo was related to the transaction for which the letter of credit was issued, prepared and issued differently from the content of each original air waybill in violation of the duty to prevent any inconsistency between the content of each original air waybill and the content of the instant air waybill 1 and 2, thereby failing to comply with the duty to ensure that the content of each original air waybill is not inconsistent, and thus, the Defendant’s act constitutes a tort against the Plaintiff, and the Defendant is liable to compensate the Plaintiff for damages incurred by the Plaintiff.

Nevertheless, the lower court denied the Defendant’s tort liability on the ground that, insofar as the instant cargo was shipped out under the air waybill No. 1 issued pursuant to UPS chain and AB instruction, it cannot be deemed to be an unauthorized removal, and even if the Defendant erred by issuing the air waybill No. 2 different from the air waybill No. 1, insofar as the instant cargo was not taken out without permission, it is difficult to deem that there is a proximate causal relation between the Plaintiff’s damage. In so determining, the lower court erred by misapprehending the legal doctrine on the duty of care of the person who prepares and issues the air waybill or the air waybill, thereby adversely affecting the conclusion of the judgment. The allegation contained in the grounds of appeal

4. Therefore, without further proceeding to decide on the remaining grounds of appeal, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim So-young (Presiding Justice)