(a) Legal relations where a maritime carrier, etc. has not exchanged the cargo with a bill of lading and has not delivered it to a bill of lading holder;

B. Whether the so-called guarantee limit's commercial customs is a ground for exempting marine carriers from the duty of care (negative)

A. If a marine carrier or a transporter is unable to deliver the cargo to a person other than the holder of the bill of lading due to the delivery of the cargo in exchange for the cargo with the bill of lading, the act of such carrier or transporter constitutes a tort as an unlawful infringement of the right of the holder of the bill of lading, and barring special circumstances, the carrier or transporter shall be deemed to have recognized the result of the infringement, and if the result was not known, the carrier or transporter shall be deemed to have been grossly negligent in lack of the duty of care as a carrier or transporter.

B. The commercial customs of the so-called guarantee limit is not aimed at exempting a carrier or a consignee from the liability to a legitimate holder of a bill of lading, but rather, it is premised on the carrier or a consignee to compensate for the damage in a case where a legitimate holder of a bill of lading incurs a loss due to the guarantee road, and thus, it cannot be said that the act of infringing the right of a holder of a bill of lading to the cargo without redemption of the bill of lading constitutes a justifiable act without illegality, or that the carrier or the consignee’s duty of care is mitigated or exempted.

Article 750 of the Civil Act, Articles 820 and 129 of the Commercial Act

[Defendant-Appellee] Plaintiff 1 and 3 others

Attorney Lee Jong-woo et al., Counsel for the defendant-appellant and one other, Counsel for the plaintiff-appellant)

Seoul High Court Decision 86Na234 delivered on June 8, 1987

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

We examine the grounds of appeal.

1. According to the reasoning of the lower judgment, the lower court dismissed the Plaintiff’s claim for cargo delivery under the name of the non-party 1 who is a non-party 1 company, and issued the bill of lading at the original time. The Plaintiff received the cargo and holds the above bill of lading after being transferred from the lawful holder of the above bill of lading. The Defendant Ssung Shipping Co., Ltd., which is the domestic agent of the above No.S. EL, issued the bill of lading to the non-party 1 company and the non-party 1 company's delivery of the cargo under the name of the non-party 1 company's bill of lading and the non-party 1 company's delivery of the cargo under the non-party 1 company's bill of lading bill of lading, which is the non-party 1 company's shipping company's delivery of the cargo under the name of the non-party 1 company's bill of lading and the non-party 1 company's non-party 1 company's delivery of the cargo in exchange with the bill of lading bill of lading bill of lading's.

2. However, if a marine carrier or a consignee fails to deliver the cargo to a person who is not a holder of a bill of lading without exchange with the bill of lading, the act of delivering the cargo to another person without exchange with the bill of lading by the carrier or the consignee is an unlawful infringement of the right of the holder of the bill of lading to the cargo.

In addition, in this case, unless there are special circumstances, if a carrier or a transporter delivers the cargo to a person other than a bill of lading holder, it shall be deemed that the carrier or the transporter could have been aware of the occurrence of an infringement on the rights of the bill of lading holder. If the occurrence of the result was not known, it shall be deemed that there was gross negligence, which lacks the duty of care as the carrier or the transporter, as the carrier or the transporter, as the carrier.

The commercial customs of the so-called guarantee limit decided by the court below is not directly aimed at exempting a carrier or a consignee from the liability to a legitimate holder of a bill of lading, but rather on the premise that the carrier or the consignee compensates for the damage in a case where the holder of a bill of lading suffers the damage due to the guarantee road. Therefore, it cannot be said that the act of infringing the right of the holder of the bill of lading due to the delivery of the cargo without redemption with the bill of lading conducted by the carrier or the consignee constitutes a legitimate act without illegality, or that the duty of care of the carrier or the consignee who delivers the cargo to a person other than the bill of lading holder is mitigated or exempted.

Therefore, if the right of the holder of a bill of lading is infringed due to the delivery of the cargo to a person other than the holder of the bill of lading according to the commercial customs of the so-called guarantee limit, the carrier or the transporter shall be liable for the tort caused by intention or gross negligence to the holder of the bill of lading.

Although the court below acknowledged the fact that the defendant, who is a transportation broker, delivered the cargo to a person who is not the bill of lading holder without redeeming the bill of lading, it does not constitute a tort, and even if it is a tort, it is erroneous in the misapprehension of legal principles as to the liability of quasi-transport broker by delivering the cargo to a person who is not the bill of lading holder, and it is obvious that the defendant, etc. had no intentional or gross negligence and affected the conclusion of the judgment rejecting the plaintiff's claim, it is reasonable to discuss this issue.

Therefore, the judgment of the court below is reversed and the case is remanded to the court below. It is so decided as per Disposition by the assent of all participating Justices.

Justices Song Man-Ba (Presiding Justice)