Cases Non-Life Insurance Co., Ltd. (Attorney Choi Young-young, Counsel for the defendant-appellant)

B. Vi. S. P. S. P. P. (Law Firm Jeong, Attorney Park Gyeong-sung, Counsel for the defendant-appellant)

April 14, 2017

Seoul Southern District Court Decision 2016Gadan209676 Decided December 1, 2016

1. The defendant's appeal is dismissed.

2. The costs of appeal shall be borne by the Defendant.

1. Purport of claim

The defendant shall pay to the plaintiff 581,639,908 won and 558,919,818 won among them, 6% per annum from September 4, 2015 to the service date of a copy of the complaint in this case from February 26, 2016 to the service date of a copy of the complaint in this case, and 15% per annum from the next day to the day of complete payment.

2. Purport of appeal

The part against the defendant in the judgment of the court of first instance is revoked. The plaintiff's claim is dismissed (in the judgment of the court of first instance, the plaintiff's application for intervention as an independent party is dismissed, and the plaintiff's claim is accepted within the appeal period and only the defendant appealed without filing an appeal. Thus, the part which dismissed the application for intervention as an independent party was already determined separately from the plaintiff's

1. Basic facts

A. On April 1, 2015, the Plaintiff entered into a marine cargo insurance contract with the ELE Co., Ltd. (hereinafter “ELE”) with the insurance coverage period from April 1, 2015 to April 1, 2016, where an insured event, such as the loss of all products transported by ELE upon entering into a contract of carriage, etc., the Plaintiff entered into a marine cargo insurance contract with the insurable interest (see evidence 6, e.g., “instant insurance contract”).

B. On April 15, 2015, LIE entered into a contract for the export and sale of 2,50 smartphones to LIE (hereinafter “instant smartphone export contract”) between LIE and LIE (the name of this company; hereinafter “cellex”) located in LIE (hereinafter “instant commercial invoice”) and LIE entered into a contract for the export and sale of 2,50 smartphones to LIE (hereinafter “instant smartphone export contract”), and the commercial invoice issued by LIE in relation to the above export contract (A evidence 1; hereinafter “instant commercial invoice”) entered into the commercial invoice with CIP (hereinafter “instant commercial invoice”).

C. On January 1, 2015, the Defendant entered into a contract of carriage of the goods designated by the ELE on consignment (hereinafter “instant contract”) with the Defendant, and on April 17, 2015, the ELE entrusted the Defendant with the transportation of 2,50 smartphones (hereinafter “instant smartphone”). On the other hand, the instant contract of carriage stipulated the following special provisions (hereinafter “the instant contract”).

Article 5

2. The Company (the Defendant) shall compensate for all personal and material damages arising in connection with the performance of the carriage service, including damages resulting from the theft, loss, damage, delay of cargo and other defects in the loading and transportation of cargo. The amount of damages shall be calculated in a reasonable manner and notified in writing to the Company, and the Company shall pay the full amount to ELD in cash within 15 days from the date of notification to the Company.

3. The Company (Defendant) shall not assert any limitation or limitation of liability under the Commercial Code or any other relevant laws and regulations, and shall waive any limitation or limitation of liability granted by the Commercial Code or any other relevant laws and regulations, whether or not it knows itself. In particular, Article 136 of the Commercial Code shall not apply to this Agreement.

D. On April 18, 2015, the instant smartphone was loaded in Asia or an aircraft (OZ268) at the Incheon State’s supply port, and the aircraft loaded in the instant smartphone on April 19, 2015, arrived at the airport of Mana, U.S. on April 19, 2015.

E. After the above aircraft arrived at the U.S. Myna Airport, the instant smartphone was stored in a warehouse under the Defendant’s management through the Asiana Airport, and the instant smartphone was released on April 20, 2015, and was loaded onto the truck. However, the instant smartphone was stolen between 15:50 on April 20, 2015 and 17:20 on April 20, 2015 (hereinafter “the instant theft accident”).

F. Of the instant smartphones, 300 units were recovered from the U.S. police and returned to ELNs, and the remaining 2,200 units were not recovered.

G. On April 23, 2015, ELI sent to the Defendant a written statement stating that “the truck carrying smartphone 2,500 units of smartphone 2,50 exported to ELIS is stolen, and the instant smartphone was also stolen, and there was no possibility of recovery,” and the Defendant received compensation around that time.

H. On May 12, 2015, LIE did not request LIE to pay the instant smartphones, but supplied 2,500 smartphones as substitute for the same scam under the instant smartphone export contract. The price of the said smartphones is US$ 234.13 per one unit.

I. According to the instant insurance contract, the Plaintiff paid 536,024.45 dollars in total as insurance proceeds by adding the desired interest of 10% from 515,086 US dollars in an amount equivalent to the pertinent smartphone value to 2,200 US$ 515,086 for the stolen 2,200 US dollars in September 3, 2015, and by evaluating that 29.81% was depreciated from the pertinent smartphone value for the recovered 300 US dollars after theft on February 25, 2016, the Plaintiff assessed that 29.81% was depreciated from the pertinent smartphone value, and paid 536,024.45 US dollars in total as insurance proceeds.

(j) On April 18, 2015, the terms and conditions of the air waybill (Evidence No. 3 (Evidence No. 1-1; hereinafter the same shall apply), No. 1-2, hereinafter referred to as the “instant air waybill”) issued by the Defendant in the course of loading the instant smartphone into Asia or aircraft with the consignor as LIE and consignee, include the following:

2.1.The carriage shall be subject to the provisions of the Warsaw Convention or the Montreal Convention, if not the international carriage provided for in other Convention.

10.1. A written objection must be raised to the carrier by a person who has the right to receive cargo when the cargo is destroyed, damaged, or delayed. These objections must be without fail:

3. If the cargo is not delivered, within 120 days from the date on which the air waybill is issued, or within 120 days from the date on which the carrier takes over the cargo for the carriage, in case where the air waybill is not issued;

10.3. If a written objection is not made within the time limit set out in paragraph 1 of Article 10, the action may not be brought against the carrier.

(k)the Montreal Convention on the Unification of Certain Rules for International Carriage by Air ( Montreal Convention);

Article 13(3): If the carrier does not arrive at the expiration of seven days from the date on which the carrier should have recognized the loss of the cargo or had the cargo arrived, the consignee shall have the right to exercise the right arising from the contract against the carrier.

Article 12(4): The right conferred upon the consignor ceases to exist when the right of the consignee arises in accordance with Article 13. Nevertheless, if the consignee refuses to receive the cargo or the consignee cannot be identified, the consignor shall recover the right of disposition (in the interests of this year, the entry is changed).

Section 22(3): In the case of damage, loss, or delay of cargo, the carrier's liability is limited to 17SDR per kilogramme unless the shipper has made a special report on the interest in delivery of the cargo to the destination when the cargo is delivered to the carrier and, where so, the additional payment required.

(l) On the other hand, the exchange rate of the U.S. dollars as of April 20, 2015 is KRW 1085.1 won per USD 1.

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1, 2, 6 through 12, Eul evidence Nos. 1, 2, 4 (including branch numbers, if any), the whole purport of the pleading

2. Determination as to the cause of action

Since the terms and conditions of the commercial invoice of this case are stipulated in the commercial invoice of this case, the exporter, as the insurer, shall be the insured at his own expense between the Plaintiff and the importer, and the smartphone of this case shall enter into an insurance contract with the insurable interest for the loss suffered by accelerator due to theft, etc. during the process of transport of accelerator after delivery to the shipping company, thereby making it possible for accelerator to claim directly to the Plaintiff in the status of the insured directly as the insured, in accordance with the CIP conditions.

However, such terms and conditions are merely set forth in the principle of cost burden or risk burden between the parties to an export contract, such as ELE and cellex, and the insurance contract can be freely concluded by the agreement between the insurer and the policyholder, insofar as there are insurable interests, so long as there are insured interests, as in the instant case, and if the instant smartphones entered into an insurance contract with the Plaintiff, the insured between the Plaintiff and the Plaintiff as the insured, and as in the instant case, the insurance contract with the insurable interests, such as theft, etc. being transported to the accelerator after the delivery to the shipping company of the instant smartphones, the instant smartphones would have economic interests including desired interests, and thus, the insurance contract will be valid, and in such case, the insurance contract may be evaluated as having the relationship with the Plaintiff to implement the terms and conditions in relation to the accelerator by receiving insurance proceeds equivalent to the above damages from the Plaintiff in the status of the insured and delivering it to the accelerator.

In addition, the Defendant, when entering into the instant transport contract with ELE, agreed to compensate for all physical damage, etc. to ELE and third parties in relation to the freight theft and other transportation business, and to pay the full amount of compensation for damage to ELE in cash. Thus, the Defendant is obliged to pay the Plaintiff, who acquired the claim for damages against ELE in accordance with the insurer subrogation legal doctrine by paying the insurance proceeds equivalent to the amount equivalent to the damage from ELE arising from the instant theft accident to ELE in cash.

Therefore, the Defendant, barring special circumstances, is liable to compensate the Plaintiff for damages due to nonperformance; 58,919,818 won equivalent to the market price (i.e., USD 234.13 per smartphone x 2,200 x 2,200 x 1085 x 1085 x 300 x 22,720,090 won calculated by multiplying the market price of fixed goods by the amount of depreciation ($ 234.13 x 300 x 29.81 x 100 x 50 x 106 x 29.10 x 30 x 100 x 5.295 x 106 x 205 x 201 x 106 5.2985 ,298 ; and 201.25 ,298 ,2981.

3. Judgment on the defendant's defense, etc.

A. As to the instant safety defense

(1) The argument

According to the terms and conditions of the air waybill of this case, where a smartphone is destroyed and delivered, the person entitled to such delivery may not file a lawsuit in writing against the defendant, who is the carrier, within 120 days from the date on which the air waybill is issued, unless the person raises an objection in writing to the defendant within 120 days from the date on which the air waybill is issued. However, since the fact that ELE has raised an objection in writing to the defendant, and no cellex has raised an objection in writing, the plaintiff, who paid insurance money to ELE, cannot file a lawsuit against the defendant, the carrier, in accordance with the non-establishment clause of the air waybill clause of this case. Accordingly,

(2) Determination

The core of the Defendant’s assertion lies in the illegality of the instant lawsuit, as an accelerator does not raise an objection in writing to the Defendant. However, in the instant insurance contract, the instant lawsuit is unlawful. However, inasmuch as the Defendant did not raise an objection to the Defendant in writing, and the amount of damages under Article 5(2) of the contract of the instant transport contract, ELE agreed to pay in cash within 15 days from the Defendant’s written notification to the Defendant, and ELE sent a written claim for damages to the Defendant on April 23, 2015, which is within 120 days from April 18, 2015 when the instant air waybill was issued, and ELE sent the written claim to the Defendant on April 23, 2015. In light of the fact that ELE is the only party with the authority to claim damages against the Defendant in a transport contract with the Defendant and receive damages therefrom, it is reasonable to interpret that the Defendant’s safety defense constitutes a person entitled to raise an objection in writing to the Defendant under the terms and conditions of the instant contract.

B. As to the assertion that there is no right to claim insurance since the ELI did not place losses caused by the theft of this case.

(1) The argument

The instant smartphone export contract is accompanied by the terms and conditions of CIP and thus, at the time of delivery of the first carrier, that is, when the cargo was delivered to the first carrier, the risk burden and ownership of the cargo was transferred to the consignee at the time when the instant smartphone was loaded, and thus, the person who suffered damage due to the instant theft accident is accelerator. Furthermore, the instant insurance contract is not a cargo package insurance contract, but a separate insurance premium and insurance money were calculated in accordance with the terms and conditions of CIP applied for the instant carriage, and it is apparent that the individual insurance contract was concluded, and the consignee is the insured under this individual insurance contract. EL electronic is not a beneficiary, and there is no right to claim compensation for damages against EL electronic since the insured who suffered damage due to the instant theft accident was not a beneficiary of EL electronic, and there is no right to claim compensation for damages against the Defendant, since the Plaintiff paid insurance money to EL branch without the Plaintiff’s liability to pay insurance money to EL electronic.

(2) Determination

The core of the above argument lies in the right to claim against cellex on the premise that cellex is the insured, and the fact that the insured of the insurance contract in this case has the right to claim against ELB and the person who has insurable interests is the insured. Therefore, the defendant's above assertion is without merit.

C. Regarding limitation of liability defense

(1) The argument

According to the Montreal Convention, the carrier’s liability for the loss of cargo is limited to 17SDR per kilogram. Thus, even if the Defendant is liable, the Defendant’s liability is limited to KRW 20,687,377 of the total amount of smartphones of this case.

(2) Determination

In full view of the purport of the argument in Gap evidence No. 2, Article 5 (3) of the contract of carriage of this case provides that "a company (the defendant) shall not assert any limitation or limitation of liability under the Commercial Act and other relevant Acts and subordinate statutes, and shall waive any limitation or limitation of liability under the Commercial Act and other relevant Acts and subordinate statutes, regardless of whether it knows it himself/herself."

According to the above facts, since the defendant agreed to waive the interest of the above limitation of liability and reduction and exemption with the ELE, it is not possible to assert the limitation of liability under the Montreal Convention against the plaintiff who subrogated ELE and ELE. The defendant's defense of limitation of liability is without merit.

4. Conclusion

Therefore, the judgment of the court of first instance is just in conclusion, and the defendant's appeal is dismissed as it is without merit. It is so decided as per Disposition.

Judges Choi Jong-chul (Presiding Judge) Kim Jong-Un