[1] In a case where a marine carrier, according to the terms and conditions on the back of a bill of lading, provides that the carrier shall assume the liability as a carrier from the time when the carrier receives the cargo from the port of loading to the port of loading and independently manages the cargo, whether it is null and void in violation

[2] Whether a carrier’s “employee or agent” under Article 789-3(2) of the former Commercial Act includes an independent contractor who runs his own business (negative), and whether such independent contractor may invoke the carrier’s liability limitation defense under Article 789-2 of the former Commercial Act (negative)

[3] The case holding that in case where the cargo was damaged in the course of maritime transport while the cargo was being loaded on a container, the person who installed the cargo collection station in the harbor and performed the container loading work is not the performance assistant who can invoke the carrier's exemption defense

[1] Even if a marine carrier stipulates that the carrier shall assume the responsibility as the carrier from the time when the carrier receives the cargo from the port of loading to the port of loading to the port of loading, it cannot be deemed as an invalid terms and conditions contrary to Article 790 of the former Commercial Act. In this case, the liability of the carrier shall commence from the time when the carrier independently manages the cargo from the

[2] Under Article 789-3 (2) of the former Commercial Act (amended by Act No. 8581 of Aug. 3, 2007), "employee or agent" who may invoke the defenses and the limitation of liability that a carrier may claim means a person who conducts the business under the direction and supervision of a carrier pursuant to an employment contract or a delegation contract, etc. and includes an independent contractor who conducts his own business regardless of such direction and supervision. Thus, such independent contractor cannot invoke the defenses on the limitation of liability of a carrier under Article 789-2 of the said Act.

[3] The case holding that in case where the cargo was damaged in the course of maritime transport while the cargo was being loaded on a container, the person who installed the cargo collection station in the harbor and performed the container loading work is not the performance assistant who can invoke the carrier's exemption defense

[1] Articles 788(1) (see current Article 795(1) and 790 (see current Article 799) of the former Commercial Act (amended by Act No. 8581 of Aug. 3, 2007) / [2] Articles 789-2 (see current Article 797), 789-3(2) (see current Article 798(2)) of the former Commercial Act (amended by Act No. 8581 of Aug. 3, 2007) / [3] Articles 789-2 (see current Article 797), 789-3(2) (see current Article 798(2)) of the former Commercial Act (amended by Act No. 8581 of Aug. 3, 2007)

[2] Supreme Court Decision 2001Da75318 decided Feb. 13, 2004 (Gong2004Sang, 460) Supreme Court Decision 2007Da4943 decided Apr. 27, 2007 (Gong2007Sang, 783)

[Defendant-Appellant] Plaintiff 1 and 2 others

Defendant (Law Firm Sejong, Attorneys Kim Chang-chul et al., Counsel for the defendant-appellant)

Seoul High Court Decision 2007Na28941 decided Oct. 11, 2007

The appeal is dismissed. The costs of appeal are assessed against the defendant.

The grounds of appeal are examined.

1. As to the grounds of appeal Nos. 1 and 3

Article 788(1) of the former Commercial Act (amended by Act No. 8581 of Aug. 3, 2007; hereinafter “former Commercial Act”) provides that “A carrier shall be liable for damages arising from the loss of, damage to, or delay in delivery of the cargo unless it proves that himself/herself, the crew, or other employees of the ship have not neglected to exercise due care in connection with the receipt, loading, suitability, carriage, storage, unloading, and delivery of the cargo.” Such maritime carrier’s duty of care in relation to the cargo shall not be construed as the provision of the maritime carrier’s duty of care in relation to the scope of liability in accordance with the contract in cases where the marine carrier acquires the status of the carrier after receiving the cargo in accordance with the maritime transport contract with the consignor. Thus, the maritime carrier’s duty of care in relation to the cargo shall not be construed as the carrier’s duty of care in relation to the receipt and delivery of the cargo. Therefore, even if the marine carrier stipulates that the carrier shall solely take charge of the cargo from the port of loading to the port of loading, the carrier’s obligation shall be void.

According to the reasoning of the judgment below, the non-party 1 corporation, who was requested to transport the cargo of this case by sea from the import of the cargo of this case, requested the non-party 2 corporation, Esrael, to actually conduct maritime transportation. The non-party 3 corporation entered into a service contract with the non-party 3 corporation operating the loading house of the container at Busan port, which is the port of loading the cargo of this case, to provide the service such as container loading work for loading the cargo. The non-party 3 corporation again requested ○○ Logistics, and accordingly, the non-party 4, who is the driver of the ○○ Logistics, requested the cargo of this case, was not issued a bill of lading as to the cargo of this case at the time of the accident of this case, and the non-party 2 corporation is liable for the remaining cargo of this case to the port of loading the cargo of this case until the port of loading the cargo of this case, and the non-party 2 corporation bears the responsibility for the cargo of this case to the non-party 2 corporation for the delivery of the cargo of this case.

Thus, at the time of the accident of this case, the non-party 3 corporation was engaged in the storage of container in accordance with the service contract with the non-party 1 corporation, and there are no other circumstances to deem that the non-party 3 corporation received and started the management of the cargo on behalf of the non-party 2 corporation. Thus, it cannot be viewed that the non-party 2 corporation received and independently managed the cargo as stipulated in the back of the bill of lading, and the consignor, etc. cannot assert the liability against the non-party 2 with respect to the accident in the course of the container loading work, as stated in the back of the bill of lading, and as long as it is not recognized that the non-party 2 corporation is responsible for the accident of this case as the carrier, the non-party 3 corporation that provided the service, such as container loading work, cannot invoke the defense or the limitation of liability as the carrier of the non-party 2 corporation by applying the clause at the

Therefore, the court below's determination that the Clause cannot be applied to the non-party 3 corporation in charge of the loading of container on the premise that the non-party 2 company did not assume the responsibility for the instant accident as a marine carrier is just in accordance with the above legal principles. It did not err in the misapprehension of legal principles as to the scope of the carrier's liability, which is alleged in the ground of appeal by the defendant, which affected the conclusion on the application of the Clause.

2. Regarding ground of appeal No. 2

In Article 789-3 (2) of the former Commercial Act, "employee or agent" who may invoke the defenses and the limitation of liability that a carrier may claim means a person who performs his/her duties under the direction and supervision of a carrier pursuant to an employment contract or delegation contract, etc., and does not include an independent contractor who conducts his/her own business according to his/her own decision regardless of such direction and supervision. Thus, such independent contractor cannot invoke a carrier's defense of limitation of liability pursuant to Article 789-2 of the former Commercial Act (see Supreme Court Decision 2007Da4943, Apr. 27, 2007).

The court below held that the cargo collection office of the non-party 3 corporation is a place where the non-party 3 corporation manages and operates the cargo collection office of the non-party 3 corporation in order to carry out its own business, and the work at the cargo collection office of the non-party 3 corporation, including container storage work for the cargo of this case, was only one-time payment for the entire work, under the service supply contract between the non-party 1 corporation and the non-party 3 corporation, and there was no employment contract or delegation contract between them. Thus, the non-party 3 corporation is an independent contractor who is in a position to complete the work requested from the non-party 1 corporation according to his own decision under the above legal principles and cannot be viewed as an employee of the non-party 1 corporation. In addition, as seen above at the time of the accident of this case, the non-party 3 corporation cannot be viewed as an employee of the non-party 2 corporation. Therefore, the court below did not err in the misapprehension of legal principles as to the carrier's employees.

3. Conclusion

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

Justices Kim Nung-hwan (Presiding Justice)