Jeju Special Self-Governing Province Development Corporation (Law Firm Driyang, Attorneys Choi Do-ho, Counsel for defendant-appellant)

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

December 19, 2018

Jeju District Court Decision 2016Gahap12478 Decided February 8, 2018

1. In the judgment of the court of first instance, the part of the judgment on Defendant lot global shipping companies, Samjin Shipping companies, such green shipping companies, and Jeju Central Transport Co., Ltd. shall be revoked;

2. Defendant Barun Global Global Transport Co., Ltd., Samjin Shipping Co., Ltd., Green Shipping Co., Ltd., and Jeju Central Transport Co., Ltd. shall jointly and severally pay to the Plaintiff the amount of KRW 58,270,512 per annum from July 1, 2014 to January 9, 2019, and the amount of KRW 15 per annum from the next day to the date of full payment.

3. The plaintiff's appeal against the defendant Dongba, Jeju Free Logistics, limited liability company's postal logistics, and Korean special transport company is dismissed;

4. The costs of appeal arising between the Plaintiff and Defendant Dongba, Jeju Free Logistics, Limited Postal Logistics, and Korea Special Transport Co., Ltd. shall be borne by the Plaintiff. The total costs of appeal arising between the Plaintiff and Defendant Jindo Global Co., Ltd., Samjin Shipping Co., Ltd., Green Shipping Co., Ltd., Green Shipping Co., Ltd., and Jeju

5. Paragraph 2 can be provisionally executed.

The judgment of the court of first instance shall be revoked. The judgment of the court of first instance shall be revoked. Paragraph 2 of this Disposition and the plaintiff shall be paid the amount calculated by jointly and severally applying the above four companies to the defendant Dong Bank, Jeju Free Trade Corporation, Dagn Goods Distribution, Postal Goods Distribution, Postal Goods Distribution, Postal Goods Distribution, and Korea Special Transport Corporation (hereinafter referred to as "the defendant Dong Bank, etc.") with 435,896,096 won and the amount calculated by the ratio of 6% per annum from July 1, 2014 to the date of full payment and 15% per annum

1. Basic facts

The reasoning for this Court’s explanation is as stated in Paragraph 1 of Article 420 of the Civil Procedure Act, inasmuch as the reasoning for this Court’s judgment is identical to that of Paragraph 1 of the same Article, except for the dismissal of the facts based on Paragraph 1 (d) at the bottom of No. 4 of the judgment of the court of first instance from No. 5 to No. 5 (the part of Paragraph 1).

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

Article 2 (Scope of Contracts) ① (1) of the table included in the main text (Scope of Contracts) the products produced by the plaintiff (including Jeju, Dazine crusium, wrusium, sitrusium and extract, fluium, etc.) shall be taken over from the plaintiff's production factory to the plaintiff's sales agent or the place separately designated by the plaintiff. ② All kinds of logistics-related activities for transporting all the procured goods required by the plaintiff to the plaintiff's production factory. ② All kinds of logistics-related activities for transporting the plaintiff's production factory.

2. Summary of the plaintiff's assertion

The Plaintiff entered into a logistics operation service agreement with the Dong bank consortium and the Hyundai Consium (hereinafter “instant agreement”). Each of the above consortiums has a duty to transport Jeju and Jeju. However, during the period from January 2014 to June 201, the Plaintiff did not properly transport the volume ordered by the Plaintiff. As such, the Defendants, a member of each consortium, are jointly and severally liable to compensate the Plaintiff for damages equivalent to the above additional cost incurred due to the negligence of transportation by the respective consortiums.

3. Determination on the defense prior to the merits

A. Summary of the defense prior to the merits

The East Consortium and the Hyundai Consortium comprised of the Defendants constitute a maritime carrier which transports the Plaintiff’s products produced in Jeju-do to inland waters. However, Article 814(1) of the Commercial Act provides that the carrier’s claims and obligations against the consignor or consignee shall be extinguished, whatever the cause of the claim may be, without a judicial claim within one year from the date when the carrier delivers or delivers the goods to the consignee. Thus, the Plaintiff’s lawsuit in this case was filed on December 12, 2016, which clearly has been one year since each of the above Consortium delivered the goods to the consignee. Accordingly, the lawsuit in this case is unlawful even with the limitation period.

B. Legal nature of the instant contract

1) The Defendants have the aforementioned defense on the premise that they are to be a marine carrier. However, the Plaintiff asserted that the instant contract between the Plaintiff and each consortium is not a simple transport contract, but a so-called logistics operation contract with all logistics activities including inventory management, recovery, logistics, marketing operation, accounting, performance management, etc., and thus, the provisions concerning maritime carriers under the Commercial Act cannot be applied. Accordingly, the Plaintiff’s legal nature of the instant contract is examined.

2) In full view of the following circumstances revealed by comprehensively taking into account the respective descriptions of Gap evidence Nos. 1 through 3 and 10 (including the number of branch numbers; hereinafter the same shall apply), it is reasonable to view the instant contract as a multimodal transport contract consisting of ① land transport from the plaintiff’s factory to the port in Jeju-do, ② maritime transport from the port in Jeju-do to the port in Jeju-do, ③ land transport from the port in Jeju-do to the port in Jeju-do, and ③ land transport from the port in Jeju-do to the port in Jeju-do

A) In light of the specific contents of the above contract terms, such as the contents of Article 2 of the Special Conditions in the instant contract, and the relationship, status, reasons and circumstances for concluding the contract, etc., the instant contract mainly provides that the Defendants shall receive the products from the Plaintiff’s factory and transport them to the Plaintiff’s sales agent or to the place separately designated by the Plaintiff.

B) According to the instant contract, all the logistics-related business after acquiring the Plaintiff’s product is included in the terms of the contract. At this time, all the logistics-related business is defined as “all logistics-related activities, such as port volume, load, storage, mobility, etc.,” but it is difficult to view that all the logistics-related business incidental to transportation is the essential contents of the contract.

C) Meanwhile, according to the Plaintiff’s proposal of the recruitment notice for the “Operation of Logistics by Area for Sale of Jeju Special Self-Governing Province Development Corporation” presented on September 6, 201, which was prior to the conclusion of the instant contract, the area of the said business is determined by the Plaintiff’s factory to be the final arrival from the Plaintiff’s factory through the main claim (However, in the case of the C region in which the Hyundai Consortium participated in the tender, the use of the main claim and the scar) and the inland port, and accordingly, the business operator is allowed to participate in the land transport or maritime transport. In light of the contents and scope of the project area, the reasons why the Plaintiff proposed the said project, and the reasons why the project was proposed, it appears that the said project was recruited on the condition that the transport was mainly made from the Plaintiff’

C. Provisions applicable to the instant contract

1) Under Article 816(1) of the Commercial Act, in cases where a transport section other than the sea has been included in the transport section accepted by a carrier, the carrier shall be liable in accordance with the law applicable to the transport section in which the damage has occurred. Paragraph (2) of this Article provides that in cases where it is unclear in which transport section the damage has occurred, or where the occurrence of the damage is not limited to any particular area in its nature, the carrier shall be held liable in accordance with the law applicable to the transport section, the distance of which is the longest, but where it is impossible to determine the transport section the same or the longest distance, the carrier shall be held liable in accordance with the law applicable to the section

2) The Defendants asserted that the applicable law should apply to the maritime transport section under Article 816(1) of the Commercial Act on the premise that the damages alleged by the Plaintiff were incurred in the maritime transport section. However, in light of the fact that the damages claimed by the Plaintiff were incurred by having the Defendants substitute transport (including marine and land transport) on behalf of the Defendants, rather than claiming compensation for damages incurred in the maritime transport section, it is difficult to deem that the damages claimed by the Plaintiff were incurred in the maritime transport section. Therefore, it is reasonable to deem that the damages claimed by the Plaintiff in this case constituted “where it is unclear whether a certain transport section occurred or where the occurrence of damages is not limited to a specific area by nature” under Article 816(2) of the Commercial Act.

3) As such, as long as Article 816(2) of the Commercial Act applies, the carrier shall be liable in accordance with the law applicable to the transport section, the distance of which is the longest. In doing so, the carrier shall examine the transportation distance between the Dongbaconium and the Hyundai Consium.

A) In full view of the purport of the entire pleadings in the statement No. 18, the following facts and circumstances are recognized.

① With respect to the total quantity of three-dimensional products shipped in 2014, Dongbaconium mainly transported products in the area of Gangwon-do and part of the Seoul Metropolitan Area through the Incheon Port or Pyeongtaek Port, and the Hyundai Consorium is confirmed to have transported the total quantity of the three-dimensional products to the area of Honam-do and some of the Seoul Metropolitan Area through the Jeondo and Green Port.

② The distance from the Plaintiff’s production plant that is required to transport land to the port in Jeju-do (main port, port of return, and mountain port) is about 20km to 30km. Meanwhile, the distance from Incheon to the Plaintiff’s logistics center that needs to transport land to the Plaintiff’s logistics center is about 23.43km (on the other hand), about 23.43km (on the other hand), to 256.64km (on the other hand), about 32.28km (on the other), to 264.54km (on the other hand), 173.06km (on the other hand) to 43.58km (on the other hand), and from the same paragraph, the distance from the Plaintiff’s distribution center to the Plaintiff’s logistics center is about 146.7 km (on the other hand, 173.7 km) to 38.37 km (on the other hand center) to the Plaintiff’s logistics center.

B) Meanwhile, according to the distance chart published by the National Maritime Survey Board, the distance between ports in Jeju-do and the above ports located inside and outside Jeju-do is generally indicated as follows.

14.9km port from the port of arrival at the port of port of port of port of port of port of port of port of port of port of port of port of port of port of port of port of port of port of port of port of port of Incheon, 488 km, 137 km from the port of port of port of port of port of port of port of port of port of port of port of port of port of port of port of port of port of port of port of port of port of port of port of port of

C) In comparison between the above maritime transport distance and the land transport distance, in the case of the section in which the air transport distance is in charge of the Dong bank consortium, it is confirmed that the maritime transport distance under Paragraph (1) through Incheon or Pyeongtaek-si considerably exceeds the land transport distance, while in the case of the section in charge of the modern consortium, it is confirmed that the land transport distance mainly exceeds the sea transport distance. Ultimately, in accordance with Article 816(2) of the Commercial Act, in the case of the Dong bank consortium, it shall be determined in accordance with the law applicable to the sea transport section, and in the case of the modern consortium, in accordance with the law applicable to the land transport section.

D. Determination

1) As to the Dongbaconium

Therefore, pursuant to Article 814(1) of the Commercial Act, the Plaintiff shall seek compensation for damages through a judicial claim within one year from the date on which the consortium could have received the goods if the goods had been transported normally.

However, 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. The plaintiff's lawsuit against the plaintiff's Dong bank consortium was filed only on December 12, 2016 after the lapse of one year from the time of shipping from the plaintiff's production factory, and it appears that the transportation will be completed within one month from the late date of shipping from 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 the recent late June 2014, it seems that the plaintiff could have received logistics from the plaintiff's sales agent or the place designated by the plaintiff at the latest end of July 2014. However, since the plaintiff filed the lawsuit in this case only after the lapse of one year from the end of July 2014 to December 12, 2016, the plaintiff's lawsuit against the plaintiff's Dong bank consortium is unlawful as the plaintiff's lawsuit against the defendant bank's defense, etc.

2) As to the modern consortium

Since modern consortiums should be governed by the provisions applicable to the land transport section, the prior defense of the main text of the defendant Barun Global Co., Ltd., Samjin Shipping Co., Ltd., Samjin Shipping Co., Ltd., Green Shipping Co., Ltd., and Jeju Central Transport Co., Ltd., Ltd., which is premised on the application of Article 814(1) of the Commercial Act (hereinafter the above four companies collectively referred to as “Defendant Barun Global Land, etc.”), is groundless.

4. Determination as to the cause of claim against the modern consortium

(a) Occurrence of liability for damages;

1) In full view of the overall purport of the pleadings in the testimony by Non-Party 1, the evidence Nos. 5 and 6, and Non-Party 1, the witness of the first instance trial, it is recognized that, as the modern consortium failed to properly transport the freight in the C region from January 2014 to June, the Plaintiff’s inventory of the Plaintiff’s products was accumulated, the Plaintiff’s products accumulated as a substitute transport by requesting the Plaintiff to transport the said volume. Thus, the Plaintiff is jointly and severally liable to compensate the Plaintiff for the damages incurred by the Plaintiff due to the said substitute transport.

2) Determination on the assertion of modern consortiums

A) From January 2014 to February 2, 2014, Hyundai Consortium argues that the volume of shipment was reduced by the centralized shipment of local harbors in Jeju-do, and accordingly, it is not a transport for the reason of modern Consortium’s responsibility. However, it is insufficient to recognize that the entries of subparagraphs B and B in subparagraphs 1 to 4 alone did not require the Plaintiff’s products to be transported during the above period, and there is no other evidence to recognize otherwise. Even if the volume of shipment was reduced by the intensive shipment of the products at the same period, since it appears that the modern Consortium could have been sufficiently expected to do so, it cannot be said that the modern Consortium was not responsible for failing to transport the products.

B) The modern consortium asserts to the effect that, from January 2014 to June 2014, the Plaintiff was not responsible for causing damage to the Plaintiff, since the volume of over-flows, such as citrusation in Jeju region, was significantly reduced in the shipping volume of over-flows from February 2014 to June 3, 2014, the modern consortium asserts to the effect that the Plaintiff was not responsible for causing damage to the Plaintiff, since the Plaintiff was unable to carry out marine transportation by reducing the shipping volume of over-flows, such as citrus in Jeju region, but the Plaintiff did not have any other evidence to acknowledge it. However, each entry in the evidence Nos. 1 to 4 of the judgment below, and some testimony made by Nonparty 2 of the witness of the court below is insufficient to acknowledge it.

C) Therefore, this part of the allegation by Defendant Barun Globals, etc. is without merit.

B. Scope of liability for damages

1) The damages suffered by the Plaintiff due to the Plaintiff’s failure to transport the quantity determined from January to June 2014 by the Hyundai Consortium to transport alternative transport is the difference between the transport cost and the margin that the Plaintiff should have paid if the Hyundai Consortium properly transported.

2) In full view of the purport of the entire arguments in Gap evidence Nos. 5 and 6 and non-party 1's testimony of the court below, the plaintiff allowed the plaintiff to substitute transport a total of 14,212,320 kilograms through Hanjin during the above period. The transportation cost under the contract of this case is recognized as the fact that the transport cost of this case was 41.90 won per kilogramme in the case of Hyundai Consium, and the transport cost for Han Jin who substituted transportation was 46.00 won per kilogramme.

3) If so, the damages incurred by the Plaintiff from the Plaintiff’s substitute transport of 14,212,230 kilograms from January to June 2014 shall be deemed to be KRW 58,270,512 [=14,212,320 kilograms x (46 won - 41.90 won)].

C. Sub-committee

Therefore, as the Plaintiff seeks to pay jointly to the Plaintiff KRW 58,270,512 as well as damages for delay calculated by the rate of 6% per annum under the Commercial Act from July 1, 2014 to January 9, 2019, which is the date of the final substitute transport to the date of the instant judgment, and 15% per annum under the Act on Special Cases Concerning the Promotion, etc. of Legal Proceedings from the next day to the date of full payment.

5. Conclusion

Therefore, the plaintiff's lawsuit against the defendant Dongdong, etc. is dismissed as it is unlawful and it is justified to accept the claim against the defendant Lee Dong-dong, and since the part concerning the defendant Dong-dong, etc. among the judgment of the court of first instance as to this part is just, the plaintiff's appeal against this part is dismissed as it is without merit, and since it is unfair to conclude that the part concerning the defendant Dong-dong, etc. as to this part is unfair, the plaintiff's appeal is accepted and this part is revoked, but this part is deliberated to the extent that the court of first instance can render a judgment on the merits, pursuant to the proviso of Article 418 of the Civil Procedure Act, and this court decides to order the payment of the above money to the defendant Dong-dong Global branch, etc.

Judges Lee Jae-hoon (Presiding Judge) and Lee Jin-hun