[1] The time of delivery of the cargo (=the time when the cargo was shipped out of the bonded warehouse for business use in accordance with the delivery order of the carrier, etc.) in a case where the loading company requested by the notice office on the bill of lading, which is not the holder of the bill of lading, completed the loading work and

[2] In a case where a holder of a bill of lading suffers loss as a result of delivering cargo by a commercial bonded warehouse operator without a cargo delivery instruction or a carrier's consent, whether the operator is liable to compensate for damage arising from a

[3] Whether “employee or agent” under Article 798(2) of the Commercial Act includes an independent contractor who runs his own business (negative)

[1] Articles 129 and 861 of the Commercial Act / [2] Article 750 of the Civil Act, Articles 129 and 861 of the Commercial Act / [3] Article 798 (2) of the Commercial Act

[1] [2] Supreme Court Decision 2000Da30950 decided Nov. 14, 2000 (Gong2001Sang, 31) / [3] Supreme Court Decision 2001Da75318 decided Feb. 13, 2004 (Gong2004Sang, 460)

Korea High Court Decision 200Na17777 decided May 1, 200

Ship Enterprise Co., Ltd. (Law Firm LLC, Attorneys Nase-san et al., Counsel for the defendant-appellant)

Seoul High Court Decision 2011Na20623 decided December 29, 2011

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

The grounds of appeal are examined.

1. As to the grounds of appeal Nos. 1 and 3

When a bill of lading has been issued, the loading and unloading of the marine transportation freight must be conducted by the bill of lading holder or only when the bill of lading was presented, but not the unloading work is performed. Since a carrier fulfills its obligations by delivering the freight in exchange for the bill of lading to a bill of lading holder, the loading and unloading company requested by the notice office on the bill of lading, which is not the holder of the bill of lading, completed the unloading work and stored the freight in a commercial bonded warehouse, cannot be deemed to have left the control of the carrier. In such a case, the delivery time of the freight is the time when the freight was shipped out of the commercial bonded warehouse in accordance with the delivery order of the carrier, etc.

On the other hand, 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 commercial bonded warehouse operator delivers the cargo without the order of delivery or the consent of the carrier, it can be predicted that the cargo may not be taken out without permission and the delivery by the holder of the bill of lading can be prevented. Thus, if a commercial bonded warehouse operator delivers the cargo without the order of delivery or the consent of the carrier, he shall be liable to compensate for damages suffered by the holder of the bill of lading due to tort (see Supreme Court Decision 200Da30950, Nov. 14, 200).

According to the method of payment under each sales contract of this case, the court below determined that the Gangwon Global Corporation, the actual importer, at the time the ship arrives at the port of Incheon, could not present the original bill of lading related to the steel of this case, and accordingly, the steel of this case had the carrier transported and keep the steel of this case to a commercial bonded warehouse for which the delivery of the steel of this case can be controlled in accordance with the delivery order, although the contract of this case was made under the terms of "CFR FO", it is difficult to view that the steel of this case was delivered at the request of the actual importer at the time of receiving the cargo from the carrier, and determined that the steel of this case was the time when the freight of this case was delivered at the time of delivery by the actual importer at the time of delivery of the freight of the carrier, etc. Furthermore, the court below held that the bill of this case was liable for damages incurred by the plaintiff, the owner of the bill of lading of this case, without receiving the freight of this case from the carrier or shipping agency.

In light of the above legal principles and records, the above determination by the court below is just, and contrary to the allegations in the grounds of appeal, there were no errors in the misapprehension of legal principles as to delivery time of marine transportation freight, delivery order, the status of a bonded warehouse operator, and implied expression of intent.

The ground of appeal by the Defendant, while making a decision contrary to the Supreme Court Decision 2004Da2137 Decided October 15, 2004, which the judgment of the court below cited in the ground of appeal by the Defendant, determined that the cargo was carried out on board in accordance with the "FO conditions" in the case where the cargo was transported and transported by a shipper at the request of the actual importer, and was stored in a private bonded warehouse. This is because the judgment of the court below differs from the case in which the cargo was stored in a commercial bonded warehouse after the cargo delivery order by a commercial bonded warehouse operator, in both cases where there is a practice of delivering the cargo in accordance with the delivery order by the cargo delivery order, and thus, the judgment of the court below did

2. Regarding ground of appeal No. 2

The court below acknowledged that the plaintiff from 2005 to 2005 opened a sales contract in lieu of a letter of credit with Chinese steel company's beneficiary at the time of importing steel products from Chinese steel company, and then prepared a sales contract to sell steel products at the price of USD 1 to 3 per ton per to the Western Global, and that the Western Global has traded by issuing a letter of credit with the plaintiff's beneficiary at the price of the above import contract. The purport of the judgment of the court below is to consider the substance of transactions between the plaintiff and the Western Global as a kind of credit extension by the method of issuing a letter of credit instead of the letter of credit as alleged in the ground of appeal. Accordingly, the court below did not err by violating the experience and logic law and exceeding the bounds of the principle of free evaluation of evidence.

3. Regarding ground of appeal No. 4

In light of the circumstances stated in its holding, the lower court determined that it was insufficient to recognize that the Plaintiff, without redeeming the instant bill of lading, consented to the Plaintiff’s transfer of the instant steel materials to the Western Global or renounced the right under the instant bill of lading.

In light of the relevant legal principles and records, the above fact-finding and determination by the court below are acceptable. Contrary to the allegations in the grounds of appeal, there were no errors by misapprehending the legal principles on implied acceptance, or by misapprehending the legal principles on experience and logic or by failing to exhaust all necessary deliberations.

4. Regarding ground of appeal No. 5

The term "employee or agent" under Article 798 (2) of the Commercial Act refers to a person who performs his/her duties under the direction and supervision of a carrier under an employment contract or a delegation contract, etc., and does not include an independent contractor, regardless of such direction and supervision, who engages in his/her own business (see Supreme Court Decision 2001Da75318, Feb. 13, 2004, etc.).

The court below's decision that the defendant is only an independent contractor operating the warehouse business, and that the defendant is not an employee or an agent of the carrier who carries out the freight in this case under the direction and supervision of the carrier, and thus cannot invoke the carrier's defense. It is just in accordance with the above legal principles and there is no error of law by misunderstanding the legal principles as to Article 798 of the Commercial Act or by

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 Lee In-bok (Presiding Justice)