[1] The legal relationship between the carrier, etc. and the cargo manager at the designated storage place where the cargo company enters the designated storage place at the request of the shipper, who is the notifying place of the bill of lading

[2] Whether a cargo manager at a designated storage is liable for damages caused by a tort in cases where the holder of a bill of lading damages as a cargo manager at the designated storage delivers the cargo without a delivery instruction or the consent of the carrier (affirmative)

[3] In a case where a loading company at the request of the shipper, who is the notifying party on the bill of lading, enters the cargo into the designated storage and the cargo manager at the designated storage without permission, whether the shipping agency entrusted with the delivery of the cargo by the carrier infringes on the ownership of the holder of the bill of lading (negative)

[4] The case holding that a cargo manager at a designated storage did not breach his duty of care as a ship agency on the ground that the shipping agency of the carrier permitted the shipment of the cargo to the designated storage and the shipment of the cargo to the owner without permission

[1] In the marine transportation of cargo for which a bill of lading has been issued, the carrier or its shipping agent performs the duty of delivery of the cargo in exchange for the bill of lading. Thus, if the loading company loaded the cargo at the request of the shipper, which is merely the notifying party on the bill of lading, and entered the cargo into the designated storage for customs clearance, the cargo cannot be deemed to have been delivered to the shipper. The carrier, etc. continues to control the cargo through the cargo manager at the designated storage, and the cargo manager at the designated storage also is deemed to have been transferred the possession from the carrier, etc. Thus, an implied contract relationship between the carrier, etc. and the cargo manager at the designated storage is established regarding the cargo, and the cargo manager at the designated storage bears the duty to deliver the deposited goods at the direction of the carrier, etc.

[2] The marine cargo shall be delivered in exchange for the bill of lading to the holder of the bill of lading, and the cargo shall not be legally taken out without the bill of lading. Thus, if a cargo manager at a designated storage delivers the cargo without the delivery order or the consent of the carrier, the cargo shall be held liable for damages suffered by the holder of the bill of lading due to a tort if the cargo manager at the designated storage delivers the cargo without the delivery order or the consent of the carrier.

[3] In case where a loading company at the request of the shipper who is merely a notification office on the bill of lading stores the cargo and enters the cargo into the designated storage for customs clearance, the shipping agency entrusted by the carrier with the delivery of the cargo shall continue to control the cargo through the cargo manager at the designated storage, and it shall not be deemed that the cargo was delivered to a person who is not the holder of the bill of lading, or that the cargo was stored in the place with a significant risk of unauthorized removal. Thus, even if the cargo manager at the designated storage loses the cargo without permission, it shall not be deemed that the ownership of the cargo by the holder of the bill of lading was infringed due to gross negligence of the shipping agency.

[4] The case holding that a cargo manager at a designated storage did not violate the duty of care as a ship agency on the ground that the shipping agency of the carrier permitted the shipment of the cargo to the designated storage and the shipment of the cargo to the owner without permission

[1] Articles 129 and 820 of the Commercial Act, Article 693 of the Civil Act / [2] Article 750 of the Civil Act, Articles 129 and 820 of the Commercial Act / [3] Article 750 of the Civil Act, Article 788 of the Commercial Act / [4] Article 750 of the Civil Act, Article 788 of the Commercial Act

[1] [2] Supreme Court Decision 2000Da63639 Decided January 27, 2004 (Gong2004Sang, 378) Supreme Court Decision 2001Da33918 Decided May 14, 2004 / [1] Supreme Court Decision 2002Da16729 Decided July 9, 2004 (Gong2004Ha, 1313) / [2] Supreme Court Decision 2000Da30950 Decided November 14, 200 (Gong2001Sang, 31) / [3] Supreme Court Decision 2004Da12394 decided Nov. 27, 2005 (Gong2005Sang, 305)

Busan Bank (Attorneys Lee Ho-chul et al., Counsel for the plaintiff-appellant)

E.S. Co., Ltd. and one other (Law Firm C.S., Attorneys Lee Do-min et al., Counsel for the plaintiff-appellant)

Korea Port Loading and Unloading Association (Attorney Cho Chang-soo, Counsel for defendant-appellant)

Busan High Court Decision 2002Na9509 delivered on August 1, 2003

The judgment below is reversed, and the case is remanded to Busan High Court.

1. As to the grounds of appeal Nos. 1 through 4 against the Defendant SP new vessel company and the Defendant Samsung Shipping Corporation

A. After compiling the adopted evidence, the court below found facts as stated in its reasoning, and found that the bill of lading issued by the Shacker Co., Ltd. (hereinafter referred to as " Shacker") which was issued by the Shacker Co., Ltd. (hereinafter referred to as " Shackerping") as a security representing the right to claim the delivery of 16,669 items totaled of 16,69 items (hereinafter referred to as "the cargo of this case") imported by Racker Co., Ltd. from the Sacker Co., Ltd. (hereinafter referred to as "MK-1, V-34/00-A, V-34/00-B, and hereinafter referred to as "the bill of this case") on August 30, 200, entered the consignor as "Tacker Sacker", "the Plaintiff bank", and the notice place as "the plaintiff bank" (hereinafter referred to as "the bill of this case"). In light of the records, the judgment below is correct in violation of the rules of evidence and legal principles.

B. Meanwhile, the court below, after compiling the adopted evidence, rejected the above defendants' assertion that Defendant SIS New Ship Co., Ltd. (hereinafter "Defendant SIS New Ship") concluded a ship agency agreement with the carrier to carry out the duties of Shshing and delivery of the goods of this case, collection of bills of lading, etc., and Defendant CIS Shipping Co., Ltd. (hereinafter "Defendant CIS Shipping") entered into a contract with Defendant CIS Shipping Co., Ltd. (hereinafter "Defendant CIS Shipping") to carry out only the duties of transporting the goods of this case at the time of entry into and departure from the port of the ship of this case, and did not have been delegated. In light of the records, it is proper to find and determine such facts of the court below in violation of the rules of evidence, and there is no error of law by misunderstanding facts or misunderstanding legal principles as to ship agency.

2. As to the Plaintiff’s grounds of appeal and the remaining grounds of appeal by Defendant 1 and Defendant 33

A. According to Articles 65, 74, 77-3, 78, and 91 of the former Customs Act (amended by Act No. 6305 of Dec. 29, 200; hereinafter the “former Customs Act”), a designated storage place is a designated bonded area designated by the head of the relevant customs office, and a bonded storage place is a designated bonded area, and a bonded storage place is incorporated into a bonded warehouse by the amendment of the former Customs Act, and its installation procedures and storage period are different from those of the customs administration. However, according to Articles 66, 73, and 88 of the former Customs Act, a designated storage place and a bonded storage place are a place where goods are stored for customs clearance, and there is no reason to view that the legal nature of a designated storage place and a bonded area are different from that of a designated bonded area under the former Customs Act in terms of the operation of a bill of lading and legal relations between a carrier and a ship's agent and a bonded transportation.

However, in the marine transportation of cargo for which a bill of lading has been issued, the carrier or its shipping agent performs the duty of care by delivering the cargo in exchange for the bill of lading. Thus, if the cargo was loaded at the request of the shipper, which is merely the notification party on the bill of lading, and entered the cargo into the designated storage for customs clearance, the cargo cannot be deemed to have been delivered to the shipper. Since the carrier continues to control the cargo through the cargo manager at the designated storage and the cargo manager at the designated storage is deemed to have been transferred the possession from the carrier to the carrier, the contractual relationship between the carrier and the cargo manager at the designated storage is established with respect to the cargo, and the cargo manager at the designated storage bears the duty to deliver the deposited goods in accordance with the instructions of the carrier, etc. (see Supreme Court Decision 2001Da33918, May 14, 2004, etc.).

In addition, maritime cargo shall be delivered to the holder of the bill of lading in exchange for the bill of lading, and the cargo shall not be legally taken out without the bill of lading. Thus, if a cargo manager at a designated storage delivers the cargo without the delivery instruction or the consent of the carrier, it can be predicted that the cargo can not be taken out without permission and the delivery of the cargo by the holder of the bill of lading. Thus, if the cargo manager at the designated storage delivers the cargo without the delivery instruction or the consent of the carrier, the cargo manager at the designated storage shall be liable for damages caused to the holder of the bill of lading (see Supreme Court Decision 200Da30950 delivered on November 14, 200, etc.).

Meanwhile, if a ship agency entrusted with the delivery of cargo by a carrier causes the loss of the cargo by delivering the cargo to a person who is not a holder of a bill of lading, it is reasonable to hold the holder of a bill of lading liable for damages due to illegal acts. However, if the cargo enters the designated storage on the grounds of the above circumstances, the ship agency continues to control the cargo through the cargo manager at the designated storage. Thus, barring special circumstances, it cannot be said that the ship agency delivers the cargo to a person who is not the holder of the bill of lading or stores the cargo at the place significantly at the risk of unauthorized removal. Thus, even if the cargo is lost by shipping the cargo under custody at the designated storage without permission, it shall not be deemed that the ownership of the cargo by the bill of lading holder was infringed due to gross negligence (see Supreme Court Decision 2004Da12394, Jan. 27, 2005, etc.).

B. According to the facts duly admitted by the court below, since the cargo of this case was unloaded by the loading company at the request of the cargo company which is the owner of the cargo, without redemption of the bill of lading, and was brought into the open port of loading and unloading (hereinafter "the designated storage of this case"), which is the cargo manager of the designated storage of this case, under the Customs Act, and the defendant Korea Port Loading and Unloading Association (hereinafter "the defendant Loading and Unloading Association") which is a cargo manager of the designated storage of this case did not notify the plaintiff who is the holder of the bill of lading or the defendant Samsung Shipping who is the shipping agent of the cargo of this case, and completed the customs procedure only for the cargo and the bill of lading was delivered to the unrecover cargo, and the cargo of this case was entirely taken out to the unrecover cargo of this case without redemption of the bill of lading. Thus, as long as the cargo of this case was brought into the designated storage, it is difficult to say that the cargo of this case was in the position of the cargo delivery association or the cargo shipping agent of this case as the cargo of this case.

Nevertheless, the court below, based on only all the provisions under the former Customs Act and the Enforcement Decree thereof, provides that the cargo manager at a designated storage place is not a person who stores the cargo for a carrier or owner, and therefore, the designated storage place is a place where the cargo can be shipped out at any time after the owner completes customs clearance. Thus, even if the defendant cargo manager at the designated storage place of this case takes the cargo out of the designated storage place since there is no authority or duty to prevent the shipment of the cargo, the cargo manager at the designated storage place of this case cannot be held liable for tort against the holder of the bill of lading. Rather, the court below erred in the misapprehension of legal principles as to the cargo manager at the designated storage place or the legal status of the cargo manager at the time of delivery, which affected the conclusion of the judgment by misapprehending the legal principles as to the cargo manager at the designated storage place.

3. Conclusion

Therefore, 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 Ji-hyung (Presiding Justice)