[1] Standard of determining who is a carrier in a contract of carriage of goods, and the method of determining whether a freight forwarder is requested only as to whether the freight forwarder was requested by the client

[2] The carrier's duty of care as to the legality of the cargo under the ocean transportation contract

[1] Articles 114, 125, and 791 of the Commercial Act / [2] Article 795 (1) of the Commercial Act

[1] Supreme Court Decision 2007Da4943 decided Apr. 27, 2007 (Gong2007Sang, 783) / [2] Supreme Court Decision 2000Da70064 decided Jan. 10, 2003 (Gong2003Sang, 588)

State Fire & Marine Insurance Co., Ltd. (Attorney Han-jin et al., Counsel for the plaintiff-appellant)

Youngcot Co., Ltd. and one other (Attorneys Yang Sung-won et al., Counsel for the plaintiff-appellant)

Senior Logistics Co., Ltd. and one other

Seoul Central District Court Decision 2015Na22358 Decided January 19, 2016

The judgment below is reversed, and the case is remanded to the Seoul Central District Court.

The grounds of appeal are examined.

1. As to the ground of appeal No. 1 as to the misapprehension of the legal principle as to the marine carrier's liability

A. The contract of carriage of goods is established when one of the parties promises to move goods from one place to another and the other party promises to pay a certain amount of remuneration therefor. The identity of the carrier who bears the rights and obligations under the contract of carriage is determined depending on who takes over the carriage in relation to the client. Even if the freight forwarder received the request from the client for the carriage, if it is unclear whether the freight forwarder was requested, or if only the freight forwarder was requested, the intention of the party should be examined to determine whether the freight forwarder acquired the status of the carrier. However, if the intention is not clear, it should be determined in accordance with logical and empirical rules, comprehensively taking into account all the circumstances such as the name of the issuer of the cargo bill of lading and the form of payment of the freight, etc. (see Supreme Court Decision 2007Da4943, Apr. 27, 2007).

Upon the formation of a transport contract, a carrier is obligated to receive the cargo at a certain place, transport the cargo to a destination, and deliver the cargo to a consignee at the agreed time. With respect to the legality of the cargo for the transport, a carrier is obligated to take appropriate measures to ensure that the loading of the cargo does not face or combine the cargo with each other, and does not cause damage to the ship's winter, etc., and to place the cargo in a hold or container appropriately. Even if the legality is performed by an independent shipper or a consignor's instructions, a carrier is obliged to take proper preventive measures to prevent damage by examining whether such legality is suitable for transport, identifying the nature of the cargo delivered for transport as required by the nature of the cargo (see Supreme Court Decision 200Da70064, Jan. 10, 200, etc.).

B. The evidence duly admitted by the court below reveals the following.

(1) 주식회사 선경스틸(이하 회사 이름 중 ‘주식회사’는 모두 생략한다)은 중국의 수조우 롱펭 메탈 인더스트리(Suzhou Longfeng Metal Industry Co. Ltd. 이하 ‘수조우메탈’이라고 한다)에 갈바륨 강판코일 42개 302,882kg(이하 ‘이 사건 화물’이라고 한다)을 관세미지급인도조건(Delivered Duty Unpaid)으로 미화 319,627.9달러에 수출하기로 하고, 수출입 화물 운송주선업 등을 목적사업으로 하는 피고 영코트란스에 이 사건 화물의 운송 관련 업무를 의뢰하였다. 그런데 선경스틸이 피고 영코트란스에 이 사건 화물의 운송을 의뢰하는 것인지 운송주선을 의뢰하는 것인지에 관하여 구체적인 내용이 기재된 계약서 등은 작성하지 않았다.

(2) On November 6, 2012, the Defendant’s Intervenor’s Intervenor’s Sponsor Line (hereinafter “Franchisor Line”) received the instant cargo from light logistics in the Pyeongtaek-si Port operated by the Defendant’s Intervenor’s Intervenor’s Intervenor, the subsidiary company, through light logistics, and loaded it on the container. The Defendant’s bellor’s receipt of the instant cargo from light logistics in the Pyeongtaek-si Port operated by the Defendant’s Intervenor’s Intervenor’s Intervenor’s ordinary logistics (hereinafter “GH”) and carried out the instant container. The Defendant’s bellor’s process was carried out to fix the instant cargo inside the container using the same day.

(3) On November 8, 2012, a container at which the instant cargo was anchored was shipped under the SINK YOHMA (SINK YOHMA). Defendant Youngcopt issued three copies of a bill of lading (1 to 3 omitted) with respect to the instant cargo on the same day. According to the HOE B/L, the consignor is the exporter, the exporter, and ② the consignee is the consignee, but the consignee is the consignee, the consignee, and the consignee is, under the name of the carrier, the consignee, stating that the consignee would actually have signed the bill of lading, and the bill of lading, stating that the consignee would have signed the bill of lading, and the bill of lading, the consignee is the consignee, the consignee, the consignee, the consignee, and the consignee, the consignee, the consignee, and the consignee, the consignee, the consignee, and the consignee, the consignee, the consignee, and the consignee, the consignee, the consignee, and the consignee, the consignee, the consignee, and the consignee, the consignee, the consignee, and the consignee, the consignee, the consignee.

The freight of this case was transported from Pyeongtaek to China (the port of discharge and delivery on the cargo bill of lading referred to as "China's upper limit") on November 8, 2012, according to the Manoco Ho-Ma, the cargo of this case was transported to the port of discharge and delivery on the cargo bill of lading.

(4) On November 9, 2012, the gold set line issued three copies of a master bill of lading with respect to the freight of this case (bill of lading No. 4 through 6 omitted) to the Defendant Young Unit, and ① in the consignor column, the consignor column states “YOOGKCOSCO, LTDOO/BOTR Co., Ltd., Ltd,” and ② the consignee and the receiving party are the “fluorial fluorial fluorial fluor.”

(5) On November 12, 2012, the instant cargo arrived at the lower port of China and was handed over to the water tank plant around the middle of the same month. As a result of opening the instant cargo, it was found that the instant cargo was loaded inside the container and was partially damaged (hereinafter “instant accident”).

C. We examine these facts in light of the legal principles as seen earlier.

(1) Although it is not clear whether Defendant Young Tran was requested to transport the instant cargo from Gyeongethyl or not, or the intent of the parties was not clear, it is reasonable to view that the said Defendant acquired the instant cargo from Gyeongethyl when considering the situation in which the said Defendant issued the lux B/L as the carrier himself/herself, using the lux as the consignor. The Defendant Young Tran, as a carrier, requested the lux vessel to transport the instant cargo from lux port, including the carriage of container at lux port, among the transportation of the instant cargo, the ocean transportation at lux port, including the carriage of container at lux port (the lux line appears to be entrusted to lux cargo, which is its subsidiary, the container at lux port). However, it appears that the lux of the instant cargo was requested to Defendant luxn.

(2) It can be deemed that a transport contract has been concluded between the lux and the Defendant Young Tran. As such, in the loading of the instant cargo for transport, the Defendant Young Tran, the carrier, is obliged to take proper preventive measures to prevent damage to the instant cargo by having the shipper take appropriate measures to ensure that the cargo does not go against each other or damage due to the condition of the ship’s her condition, etc., and even if the legality was performed by an independent shipper (in this case), or a consignor (in this case), he is obliged to take proper preventive measures to prevent damage to the instant cargo by examining whether the cargo was loaded or her lux, and by identifying the nature of the instant cargo as appropriate and at the time of the request. The Defendant Young Tran constitutes an agent performing the Defendant Young Tran, the carrier, and thus, falls under an agent performing the instant cargo, and the Defendant Young Tran shall not be held liable for damage to the instant cargo by failing to prove that Defendant Young Tran did not neglect his care in relation to the landing of the instant cargo (see Article 75 of the Commercial Act).

D. Nevertheless, the court below did not have any evidence to acknowledge that the instant cargo had been entered into with the Defendant Young Tran, and held that Defendant Young Tran was not liable for the damages even if the instant accident occurred due to the defect in the instant cargo, as alleged by the plaintiff, even if Defendant Young Tran was deemed to be a carrier by preparing a bill of lading and deemed to be a carrier of the instant cargo, as well as for the business not included in the actual carriage section of the carrier, and thus, Defendant Young Tran was not liable for the instant damage.

In so determining, the court below erred by misapprehending the legal principles on the carrier's duty of care in determining whether the freight forwarder has accepted the carriage from the client and in determining the legality of the freight under the maritime shipping contract, thereby adversely affecting the conclusion of the judgment. The ground of appeal assigning this error is with merit.

2. Regarding ground of appeal No. 4

A. The lower court, based on its adopted evidence, found the following facts and determined that the instant accident occurred due to the continuous use of the instant cargo with the same support ties without improvement despite the demand for improvement of the problems related to the support trees of Defendant Berne, even though the demand for improvement was made.

(1) The strong clock, such as the instant cargo, can be prevented from spreading the bottom in the form of an empty clocks, which is located in the form of an empty clocks. The clocks were blocked to support clocks, and the Defendant clocks, as it is, have been blocked inside the container as it is.

(2) On the steel panel which delivered lux, there is a problem that the size of the support item does not meet the size of the co-days or is not installed to prevent luxation of support items. Accordingly, on September 15, 2012, Defendant Bluxan requested that the correction thereof be made on a multiple occasions, such as pointing out such problems to the employee in charge of luxan, but the luxin did not supplement it until the delivery of the instant cargo.

(3) Defendant Berne continued to park in a container with lusical ethyl lusical lusical lusical lusical lusical lusical lusical lusical lusical lusical lusical lusical lusical lusical lusical lusical lusical lusical lusical

B. However, it is difficult to accept the fact-finding and judgment of the court below for the following reasons.

(1) In examining the record, there is no evidence to establish the fact that Defendant Berne pointed out the problems, such as support trees on the part of ethyl on September 15, 2012, and requested correction thereof. The lower court appears to have acknowledged the said facts by means of a public letter that contains the content of requesting the modification of the support item on the part of ethyl (Article 119, 311 of the record; hereinafter the same shall apply) with respect to ethyl (Article 119, 31 of the record). However, the said public letter was written on November 15, 2012 after the instant accident occurred.

(2) In addition, there is no evidence to prove the fact that Defendant Berne requested correction of the problems, such as support timber, etc., several times from the time of delivery of the instant cargo. An accident-related written by Defendant Berne is a document representing the above Defendant’s position concerning the instant accident, and sent it to the Plaintiff’s legal representative on June 17, 2013. Thus, if there was such fact, the content of the above document is naturally included in the above document. However, the above fact was not indicated in the above document. In introducing the process of storage of the instant cargo from November 201, 2012, to the present time, the fact was not stated in the above document. In examining the general cargo storage status and packing condition of the instant cargo, the cargo was inspected before the container, and the cargo was stored after photographing, and if so, the report was made by ethyl 2,000, the report was made by ethyl 9, but there was no change in the content of the instant document.

(3) In light of such circumstances, the lower court’s determination that it is difficult to accept the lower court’s finding that “the instant accident was caused by the continuous use of the instant cargo as supported by Defendant Berne, without making improvements, despite the demand to improve the problems related to the support status of Defendant Berne,” that “the instant accident was caused by the use of the instant cargo as supported by the same support status,” which is also difficult to accept as a basis of such fact-finding, that “the Defendant required correction on September 15, 2012 by Malaysia to point out the problems, such as support trees on the part of Defendant Berne, and not until the delivery of the instant cargo.”

(4) Furthermore, if there was a problem in the support stand for the instant cargo, it is difficult to see that Defendant be aware of the duty of due care for the instant cargo, as it was used as it was, while taking safety measures, such as replacing and supplementing support trees, which ought to be taken as Defendant be, or taking measures to take the space between the cargo and the container by using burners, etc., as it was, while using the pertinent support trees as it was, without taking any particular safety measures. As such, Defendant beeas did not have fulfilled its duty of care for gambling.

C. Nevertheless, as seen earlier, the lower court concluded that the instant accident occurred due to support by the luxian. In so doing, the lower court erred by exceeding the bounds of the principle of free evaluation of evidence in violation of logical and empirical rules, or by misapprehending the legal doctrine on the duty of care in the loading of cargo under the maritime shipping contract, thereby failing to exhaust all necessary deliberations, which affected the conclusion of the judgment. The allegation contained in the grounds of appeal on this point has merit

3. Conclusion

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 Jae-hyung (Presiding Justice)