Jeju Special Self-Governing Province Development Corporation (Attorney Kang Sung-sung, Counsel for defendant-appellant)

Dong Bank Co., Ltd. and seven others (Law Firm Gyeongpyeong et al., Counsel for the defendant-appellant)

January 18, 2018

1. The instant lawsuit shall be dismissed.

2. The costs of lawsuit shall be borne by the Plaintiff.

The judgment of the court below is delivered with 435,896,096 won jointly and severally, and 6% per annum from July 1, 2014 to the date of this judgment, and 15% per annum from the next day to the date of full payment (hereinafter “Defendant 1”) to the Plaintiff, Defendant Dongba Bank Co., Ltd. (hereinafter “Defendant Dongba Bank”), Jeju Free Fuel Logistics Co., Ltd. (hereinafter “Defendant Jeju Free Logistics”), Jeju Free Trade Co., Ltd. (hereinafter “Defendant Jeju Free Trade”), Korea Maritime Logistics Logistics Co., Ltd. (hereinafter “Defendant 3”), Korea Special Transport Co., Ltd. (hereinafter “Defendant 1”) to the date of 435,896,096 won, and the amount calculated with 15% per annum from the next day to the date of this judgment, to the date of full payment (hereinafter “Defendant 1”) to the date of this judgment, each of which is paid with 58,571% per annum and 15% per annum from the next day to the day of this judgment.

1. Basic facts

A. The Plaintiff is a local public corporation established for the purpose of promoting the welfare of residents and developing local communities, etc., and produces “ Jeju Dak Water,” which is a drinking spring water.

B. On September 6, 2011, the Plaintiff: (a) divided the sales zone, such as “Seoul Metropolitan Area,” etc. into A (19 places in total in Gangwon-do and part of the Seoul Metropolitan Area); (b) B zone (13 places in Yong-Nam Nam); and (c) C zone (13 places in Chungcheongnam-do; and (b) issued a public notice of recruitment of business operators regarding the transportation of logistics by each sales zone.

C. On December 9, 2011, the Plaintiff entered into a logistics operation service agreement with Defendant Dongba, Jeju Free Logistics, Postal Logistics, Postal Goods Distribution, Postal Goods Distribution, Postal Goods Distribution, Postal Goods Distribution, and Postal Goods Distribution, referring to the Defendant Dongba, Jeju Free Trade, Postal Logistics, and Postal Goods Distribution, and Postal Goods Distribution Operation Services Agreement with respect to the A region (hereinafter referred to as “Dongbagbagbagbags”). The main contents of the logistics operation service agreement entered into between each consortium and the Plaintiff are as follows.

The term of the attached table ○ contract contained in the main sentence: the contract amount - From January 1, 2012 to December 31, 2014 - From 1, 2014 : 33.55 won per kilogram: Han-jin consortium: 46 won per kg. - Hyundai consortium: 41.9 won per kilogram.

D. A logistics operation service agreement signed by the Plaintiff with each consortium is accompanied by the special terms and conditions of the contract. The main contents are as follows.

Article 2 (Scope of Contracts) ① (1) of the table contained in the main text (Scope of Contracts) the goods produced by the plaintiff (main dynasium, crusium, walsium, salvine concentration and extract, salvine V-Wast + etc.) shall be taken over in the plaintiff's production factory and shall be transferred to the plaintiff's sales agent or to the place separately designated by the plaintiff. ② All the logistics-related business related to the goods to be procured by the plaintiff, taken over from the factory of the goods to be procured by the plaintiff, or the goods storage place to be procured by the plaintiff, and shall be transported to the plaintiff's production factory.

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1, 2 and 3 (including branch numbers, if any; hereinafter the same shall apply), the purport of the whole pleadings

2. Determination on the legality of a lawsuit

In addition, the court can investigate and determine ex officio whether the plaintiff's claim is legitimate, and the judgment of the court is excessive in the period of filing a lawsuit against the modern consortium.

A. Relevant legal principles

The claims and obligations of a marine carrier against a consignor or consignee shall be terminated, whatever the causes for the claims may be, if no judicial claim is made within one year from the date when the carrier delivers or will deliver the cargo to the consignee (Article 814(1) of the Commercial Act). The term "the date on which the carrier will deliver the cargo to the consignee" in this context refers to the date on which the delivery should be made if the contract of carriage has been performed in accordance with the terms and conditions of the contract (see Supreme Court Decision 97Da28490 delivered on November 28, 1997). In cases where the cargo has not been delivered due to such reasons as the loss of the cargo or the refusal of the carrier to deliver the cargo, the determination of whether the above period for filing a lawsuit has lapsed shall be made on the basis of "the date on which the cargo will be delivered to the consignee" (see Supreme Court Decision 2005Da5058 delivered on April 2

B. Determination on the legality of the litigation against the Dongbaconium

The Plaintiff transported the logistics from Paragraph 1 to Incheon through the Dongbaconsium, Inc. (hereinafter “Cheongban Shipping”), and the Plaintiff failed to properly carry the logistics from January 2014 to June 201 of the same year due to the issue of negotiations on the increase of freight between the Dongbaconsium and the Cheongba Shipping, the repair of vessels affiliated with the Cheongban Shipping, etc., and thereby, sought compensation for damages equivalent to the substitute transport cost against the Dongbaconsium on the ground that the Plaintiff spent the substitute transport cost.

In addition to the carriage by sea from the State of Jeju to the port of Incheon, a multimodal transport operator can be deemed to be a multimodal transport operator because the multimodal transport operator is responsible for the carriage by land from the plaintiff's production factory to the port of port of port of port and the logistics center.

Even according to the Plaintiff’s assertion, the Plaintiff’s damage appears to have occurred due to the Dong bank consortium’s failure to properly transport the sea to Incheon port from the Jeju port. In accordance with Article 816(1) of the Commercial Act, the provisions on maritime transport under the Commercial Act shall apply with respect to compensation for the damage. Therefore, the Plaintiff shall seek damages through a judicial claim within one year from the date on which the Dong bank consortium could have received the damage if it had transported the goods normally.

In light of the statement in Gap evidence No. 6, it appears that the plaintiff and Dong bank consortium were likely to have formulated a transportation plan on a monthly basis and transported logistics. It appears that transportation will be completed within one month at the latest from the time of shipping the plaintiff's production factory to the plaintiff's sales agent or the place designated by the plaintiff. Thus, even if the damage was incurred due to delay in marine transportation at the end of June 2014 which occurred most recently, the plaintiff's sales agent or the place designated by the plaintiff could receive logistics at the end of July 2014. Thus, the plaintiff's lawsuit in this case shall be deemed to have already been filed at the end of July 2015. However, since the plaintiff filed the lawsuit in this case only on December 12, 2016, about two years and five months after the end of July 2014.

In regard to this, the Plaintiff asserts that the logistics operation service agreement entered into between the Plaintiff and the Dong bank consortium constitutes a general service agreement including logistics management and inventory management in addition to simple logistics transportation, and thus, such agreement cannot be deemed as a marine carrier. However, the logistics operation service agreement entered into between the Plaintiff and the Dong bank consortium with the Plaintiff is the main contents of transporting logistics at the Plaintiff’s production plant to the place designated by the Plaintiff, and thus, it should be deemed as a transport contract in essence, and in that process, it does not change on the ground that the said agreement partially performs logistics storage, inventory management, and other affairs incidental to logistics transportation.

C. Determination on the legality of the lawsuit against the modern consortium

The Plaintiff, from January 2014 to June 201 of the same year, reduced the volume of shipment of modern consortiums on the grounds that the Plaintiff spent substitute transport expenses. The Plaintiff sought compensation against modern consortiums on the grounds that the Plaintiff spent substitute transport expenses.

This part of the damages of the Plaintiff also seems to have occurred due to the failure of Hyundai Consortium to properly transport the sea at the port of Seopo Port and Embric Port, etc., and as seen earlier, the provision on maritime transport should be applied to the compensation for the damages.

Modern consortiums also seem to have established a logistics transport plan on a monthly basis and carried the plan accordingly. Even if the damage was caused by the marine transportation around the end of June 2014 which occurred most recently, it should be deemed that the period of filing the lawsuit has already expired around July 2015, as seen earlier. Therefore, the lawsuit against the Plaintiff’s modern consortiums is unlawful even if the period of filing the lawsuit is expired.

3. Conclusion

If so, the lawsuit of this case is unlawful and dismissed, and it is so decided as per Disposition.

Judges Seo-dae (Presiding Judge)