[1] In a case where the so-called "Himday Clause" that a sub-contractor, etc. may invoke a carrier's defense, such as the limitation of liability, is indicated on the back of a bill of lading, whether a shipper, a sub-contractor, may invoke the limitation of liability that a carrier may claim in accordance with the terms and conditions of the bill of lading (affirmative in principle) / Whether the "any person who assists in the performance of carriage" stipulated in the above terms and conditions includes a part of the work that falls under the scope of the carrier's business and the scope of responsibility on behalf of the shipper, without a direct contractual relationship with the carrier (affirmative in principle)

[2] In the case of the so-called “Slren B/L” which enables a consignee to deliver the goods immediately from the port of discharge to the port of discharge by treating the original B/L as already recovered from the port of departure, whether the responsibility for transportation pursuant to the contents of the B/L is valid (affirmative in principle)

[1] Where a claim for damages against the cargo was filed against the carrier's performance assistant, agent or sub-contractor, he/she may invoke defenses, such as limitation of liability, which he/she may claim against the carrier. The sub-contractor protected as such includes the carrier's and the charterer, the shipper, the terminal operator and classification business operator, the performance assistant for the cargo, and the person who assists in the performance of the carriage, as well as the agent and the person who assist in the carriage of the cargo, unless the damage was indicated in the back of the bill of lading, the sub-contractor is entitled to invoke the limitation of liability in accordance with the terms and conditions of the bill of lading, and the sub-contractor is also entitled to invoke the carrier's liability in relation to the carriage of the cargo stated in the bill of lading, unless the damage was caused by intentional act or omission of the cargo, and the sub-contractor is also entitled to invoke the carrier's liability in accordance with the terms and conditions of the bill of lading.

[2] If the distance is a short distance, there is a case where a consignee terminates the nature of the original bill of lading at the port of discharge to deliver the goods immediately without the original bill of lading by treating it as already recovered at the port of discharge, according to the trade practice in order to resolve the inconvenience that the consignee would not receive the goods promptly if the original bill of lading arrives later than the goods of carriage. In this case, the consignor requests the carrier to waive the claim for reimbursement by the bill of lading (hereinafter referred to as “surver” in English) after receiving the original bill of lading from the carrier, and the carrier collects the original bill of lading and then send a siren notice to the shipping agency, etc. to deliver the goods to the consignee without collecting the original bill of lading.

The so-called “hrener B/L” functions as a kind of evidentiary document proving a contract of carriage and delivery of cargo, without the nature of the securities. This effect is based on a mutual agreement between the consignor and the carrier to extinguish the redemption securities of the bill of lading. Thus, unless the parties express their intent otherwise, the liability for carriage according to the contents of the bill of lading still remains effective in addition to the extinguishment of the redemption securities.

[1] Article 105 of the Civil Act, Articles 798(2) and 841 of the Commercial Act / [2] Article 105 of the Civil Act, Articles 129, 854, 855(2) and (3), and 861 of the Commercial Act

[1] Supreme Court Decision 95Da25237 delivered on January 24, 1997 (Gong1997Sang, 621) Supreme Court Decision 2007Da4943 delivered on April 27, 2007 (Gong2007Sang, 783)

Hyundai Marine Fire Insurance Co., Ltd. (Law Firm Jeongdong International Law, Attorney Seo Dong-hee, Counsel for the defendant-appellant)

Pyeongtaek Port Co., Ltd. (Attorney Yang Sung-won et al., Counsel for the plaintiff-appellant)

Seoul High Court Decision 2015Na2036769 decided February 5, 2016

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

The grounds of appeal are examined.

1. A. Where a claim for damages is filed against a carrier’s performance assistant, agent, or sub-contractor (hereinafter “transport-related person”), any person may invoke defenses, such as limitation of liability, which the carrier may claim, such as limitation of liability, which may be asserted by the carrier, and where such sub-contractor protected as such, the so-called “the carrier includes the shipowner and charterer, the shipper, the shipper who is not the carrier, the terminal operator, the terminal operator and classification business operator, the performance assistant for them, and any person who assists in the performance of the carriage, as well as the agent and the person who assist the carriage” is stated on the back of the bill of lading, the so-called “Himday Clause” includes part of the contractual relationship between the carrier and the sub-contractor as stated in the bill of lading (see, e.g., Supreme Court Decision 205Da27479, Apr. 29, 207).

B. Meanwhile, in a case where the distance is a short distance, there is a case where a consignee terminates the nature of the original B/L at the port of discharge to deliver immediately the goods at the port of discharge by treating the original B/L as already recovered. In such a case, the consignor requests the carrier to waive the claim for reimbursement by the B/L against the carrier after receiving the original B/L from the carrier, and the carrier collects the original B/L and affixes stamp to the above “SURENNNDDD” and then send a siren notice to the shipping agency, etc. to deliver the goods to the consignee without collecting the original B/L without collecting the original.

The so-called “hrener B/L” functions as a kind of evidentiary document proving a contract of carriage and delivery of cargo, without the nature of the securities. This effect is based on a mutual agreement between the consignor and the carrier to extinguish the redemption securities of the bill of lading. Thus, unless the parties express their intent otherwise, the liability for carriage according to the contents of the bill of lading still remains effective in addition to the extinguishment of the redemption securities.

2. The reasoning of the lower judgment and the evidence duly admitted reveal the following.

A. As to the boiler equipment supply project ordered by the Korea Eastern Power Generation Co., Ltd. (hereinafter “Korea Eastern Power Development”), the Daelim Industrial Co., Ltd. (hereinafter “Molim Industry”) that constitutes a consortium with the hitachi, Ltd. (hereinafter “hitch”) entrusted the maritime freight forwarding to the Daelim Corporation (hereinafter “Mocco Ltd.”) for the transportation of boiler equipment (hereinafter “instant cargo”).

B. The Afforestation entered into a charter contract for cargo transport (hereinafter “re-charter contract of this case”) on three occasions with Taewon Shipping Co., Ltd. (hereinafter “ Taewon Shipping”) for the transportation of the cargo of this case. The sub-charter contract of this case clearly stated the terms and conditions (Fulth Tm, FBT) on which the shipowner bears all costs and responsibilities at the time of loading, loading, loading, and unloading.

C. Taewon Shipping entered into a charter agreement with Mone Starping Co., Ltd. (hereinafter “Mone Starping”), and Mone Starping entered into a charter agreement (hereinafter “the main charter agreement of this case”) with the condition that the charterer bears the cost of loading, unloading, loading, loading, loading and unloading (FIOST) with respect to the instant vessel and the condition that the charterer bears the cost of loading, unloading, loading, and paying the cost of the instant vessel (hereinafter “the instant charter agreement”).

D. On January 11, 2013, Eston issued a bill of lading (hereinafter “instant bill of lading”) that received the instant cargo from Stachi and that received from Stachi, as the consignor, as the development of the Republic of Korea, the consignee as the consignee, and as the forest industry, as the notify party (hereinafter “instant bill of lading”).

E. Article 6 (Period of Liability of Carriers) of the instant bill of lading provides that “No carrier shall be liable for any damage incurred before loading at the port of loading or after unloading at the port of unloading,” and Article 5 (Limitation of Liability) provides that “if a lawsuit is brought against a carrier’s performance assistant, agent, or sub-contractor, he/she may invoke the defenses and the limitation of liability that may be asserted by the instant bill of lading by the carrier.” Article 1 (Definition Provisions) provides that “a sub-contractor includes a shipowner and charterer, and any vessel provider, a shipper, a shipper, a terminal classification provider, an agent and a performance assistant who is not a carrier, and any other person who assists in the performance of carriage” (hereinafter collectively referred to as “the instant clause”).

F. The instant bill of lading, at the request of Statata, was returned by E.S. E. S. S.ton again and stamped a siren stamp on the relevant surface, and had the consignee deliver the transport goods without recovering the original bill of lading to the consignee, so-called S. S. B/L became the so-called S. B/L.

G. Meanwhile, Taewon vessel was awarded a contract for unloading at the port of discharge in accordance with the terms and conditions of the instant charter contract, and was awarded a subcontract again by the Defendant. However, in the course of the Defendant’s employee’s performing the unloading work of the instant cargo, the instant cargo was crashed or damaged, and the consignor’s tachi incurred damages.

3. Examining these facts in light of the legal principles as seen earlier and the evidence duly admitted, the following is determined:

A. The main charter contract between the shipowner and the charterer and the sub-charter contract between the charterer and the sub-charter are independent contracts respectively, and there is no direct relationship between the shipowner and the sub-charter, and the status of the carrier is not naturally acknowledged solely on the issuance of the bill of lading (see Supreme Court Decision 2004Da7040, Oct. 27, 2004, etc.).

The Taewon Shipping entered into a sub-charter contract of this case with the Daelima and entered into the sub-charter contract of this case. The terms and conditions, such as the terms and conditions of transportation different from those of the main charter contract of this case, were clearly stated and agreed not to be a commission. In addition, if Taewon Shipping is a purely meaningful shipping agent, it is not necessary to have an assistant engaged in the performance of transportation as it did not take over transportation services in relation to the owner of the goods. Thus, it was ordered

In light of these circumstances, the sub-charter of this case, which was entered into by Taewon Shipping, may be deemed as a transport contract separate from the main charter contract of this case. It is difficult to readily conclude that a direct transport contract was entered into between tatachi and Eston, the actual carrier, solely based on the circumstances indicated as tachi on the bill of lading of this case.

B. However, if there is an actual carrier who performed the whole or a part of the carriage with the delegation of the contracting carrier who entered into the contract of carriage, the actual carrier who issued the bill of lading and the bill of lading holder enter into the contract of carriage according to the terms and conditions of the bill of lading (see Supreme Court Decision 2000Da70064, Jan. 10, 203, etc.). If the bill of lading of this case is interpreted as an interpretation of the terms and conditions, the period during which Eston is responsible for transportation with respect to Eston as the actual carrier is the consignor. Thus, the unloading at the port prior to the unloading is included in the scope of Eston's transportation liability. Although Taewon Line took over the direct unloading under the terms and conditions of the charter contract of this case, it is reasonable to view that Eston is liable for the transportation with the Defendant and Eston as the carrier's agent under the terms and conditions of the bill of this case, even if there is no direct contractual relationship between Eston and Eston.

In addition, although the bill of lading of this case was recovered in Eston, which is a carrier, after its issuance, and the bill of this case was made, barring any special circumstance that there was any other agreement, the content of the terms and conditions on the transportation liability that was effective at the time of the issuance of the bill of this case still remains valid. Thus, the defendant may claim against Eston, the consignor, the limitation of liability under the terms and conditions of the bill of this case.

4. The part of the court below's determination that the back terms and conditions of the instant bill of lading were incorporated into the terms and conditions of the transport contract between Eston and Eston, on the premise that the contract was concluded directly between Eston and Eston, is erroneous. However, the conclusion that the defendant, as a subordinate contractor who vicariously performed the discharge work of Eston Marine's Estonn under the bill of lading, could make a defense of limitation of liability by using the horse terms and conditions of the instant bill of lading, is acceptable. Therefore, contrary to what is alleged in the grounds of appeal, the court below did not err in the misapprehension of legal principles as to the transport contract, Eston bill of lading

5. 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 So-young (Presiding Justice)