The scope of application of the provisions of Articles 746 and 747 of the Commercial Act on the limit of limited liability of a shipowner

The provisions of Articles 746 and 747 of the Commercial Act on the limit of liability of the shipowner shall only apply to the claim for damages caused by non-performance of the contract of carriage, and it shall not apply to the claim for damages caused by general illegal acts of the shipowner.

Articles 746 and 747 of the Commercial Act

Supreme Court Decision 75Da107 Decided December 13, 197, Supreme Court Decision 87Da35,36 Decided June 9, 1987 (dong)

[Plaintiff-Appellant] Han Fire & Marine Insurance Co., Ltd. and one other, plaintiffs et al., Counsel for plaintiff-appellant

Samsung Shipping Co., Ltd., Counsel for the plaintiff-appellant

Seoul High Court Decision 86Na1727 delivered on December 12, 1986

Of the judgment of the court below, the part of the court below's dismissal of the plaintiffs' respective appeals against the plaintiff Cho Il Fire & Marine Insurance Co., Ltd., and against the plaintiff Hyundai Marine Fire & Marine Insurance Co., Ltd., this part of the case is reversed, and remanded to the Seoul High Court.

As to the Plaintiffs’ grounds of appeal:

The court below held that as to the claim for damages caused by the non-party's non-performance of the contract of carriage, the defendant constitutes so-called navigational negligence under Article 788 (2) of the Commercial Act, and the defendant is exempted for the non-party's non-party's non-performance of the contract of carriage and tort liability for damages caused by the non-party's failure to perform the contract of carriage and the non-party's negligence, the accident of this case is a separate legal relationship that differs from the requirements and effects of the contract of carriage. Thus, the defendant should be held liable for damages caused by the non-party's negligence in the course of carriage and the non-party's negligence in the course of carriage. The court below held that the non-party's employer shall be liable for damages caused by the non-party's negligence in the course of carriage and the non-party's negligence in the course of carriage and thus, the defendant shall be held liable for damages in proportion to the amount of damages caused by the non-party's tort under Article 746 and Article 747 (157 of the current Commercial Act.

However, if the court below recognizes the defendant's liability for damages caused by tort and calculates the amount of compensation according to the limit of limited liability of the shipowner under the provisions of the above Commercial Act, the above provisions on the limit of limited liability of the shipowner apply only to the claim for damages caused by non-performance of the contract of carriage and the claim for damages caused by general tort of the shipowner, it cannot be ruled that it is unlawful as a judgment contrary to the Supreme Court Decision 75Da107 Decided December 13, 197. The argument is reasonable in this respect

Therefore, within the scope of dissatisfaction by the plaintiffs, the part of the judgment below on dismissal of the plaintiffs' respective appeals against the plaintiff Cho Il Fire Marine Insurance Co., Ltd. and against the plaintiff Hyundai Marine Fire Insurance Co., Ltd. about the amount of two million won is reversed and the part is remanded to the court below. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Jong-chul (Presiding Justice)