[1] In the case of international carriage by air where a carrier issues an air waybill to a third party without the consignee's instructions and delivers cargo, whether a tort against a consignee is established (affirmative), and whether the third party is also included in the notification place (affirmative)

[2] Whether a special contract for exemption under a contract of carriage applies to tort liability (affirmative with qualification)

[1] Except as otherwise stipulated in Article 13(1) and (2) of the Convention on the Unification of Certain Rules Relating to International Carriage by Air, a consignee in the international carriage by air has the right to be notified of the arrival of the cargo and to request the delivery of the air waybill for the consignee and the delivery of the cargo. Thus, where a carrier, etc. delivers an air waybill for the consignee to a third party without the consignee’s instruction, and delivers the cargo, it constitutes a tort against the consignee as it infringes upon the consignee’s right to request the delivery of the cargo, and the notifying party has the right to receive the delivery of the cargo on behalf of the consignee and has the right to receive the delivery of the air waybill or the delivery of the cargo, and therefore, the same shall apply to the case where the third party as mentioned above is the notifying

[2] Liability for nonperformance or tort liability under a contract of carriage shall exist concurrently, and the special term of exemption under a contract of carriage shall not apply to tort liability as a matter of course unless there is an express or implied agreement that generally applies this to tort liability.

[1] Article 750 of the Civil Act, Article 13(1) and (2) of the Convention on the Unification of Certain Rules Relating to International Carriage / [2] Article 750 of the Civil Act, Article 135 of the Commercial Act, Article 13(1) and (2) of the Convention on the Unification of Certain Rules Relating to International Carriage by Air

[1] Supreme Court Decision 82Da1372 delivered on July 2, 1986 (Gong1986, 1085), Supreme Court Decision 94Da46404 delivered on September 6, 1996 (Gong1996Ha, 2957) / [2] Supreme Court Decision 75Da107 delivered on December 13, 197 (Gong1978, 10549), Supreme Court Decision 80Da1812 delivered on November 11, 1980 (Gong1981, 13401), Supreme Court en banc Decision 82Da1533 delivered on March 22, 1983 (Gong1983, 734) (Gong1983, 734), Supreme Court Decision 80Da197374 delivered on June 9, 1987)

National Bank of Korea (Attorney Byung-jin et al., Counsel for the defendant-appellant)

Korea Transportation International Logistics Co., Ltd. (Attorney Park Chang-chul, Counsel for the defendant-appellant)

Asian Civil Aviation Corporation

Seoul High Court Decision 96Na44398 delivered on December 29, 1998

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

We examine the grounds of appeal together with the supplementary statement.

1. On the third ground for appeal

In accordance with Article 13(1) and (2) of the Convention on the Unification of Certain Rules Relating to International Carriage by Air (hereinafter referred to as the "Sasaw Convention"), a consignee in international carriage by air has the right to receive notification of the arrival of the cargo and to request the delivery of the cargo and the delivery of the cargo to a third party without the consignee's instruction, except as otherwise stipulated in the contrary, the consignee in international carriage by air shall also have the right to receive notification of the arrival of the cargo and to request the delivery of the cargo to the consignee. If the consignee delivers the cargo to a third party without the consignee's instruction, it shall constitute a tort against the consignee as it infringes upon the consignee's right to request delivery of the cargo, and the notifying party shall have the right to receive notification of the arrival of the cargo on behalf of the consignee, and shall not have the right to receive the issuance of the air waybill

The court below, based on macroscopic evidence, found that the defendant, who is a domestic agent of the non-party 1 corporation (hereinafter referred to as "non-party 1 corporation") of the U.S. traffic presses (PACIFIC EXRES INC) delivered the air waybill for consignee to the non-party 1 corporation (hereinafter referred to as "non-party 1 corporation") without the plaintiff's instructions when each of the cargo of this case arrives at the Kimpo Airport, and delivered the air waybill for consignee to the non-party 1 corporation (hereinafter referred to as "non-party 1 corporation") without the plaintiff's instructions. The non-party 1 corporation changed the approval certificate for import for the non-party 1 corporation's previous business operator's own business operator's own business operator's business operator's business operator's business operator's business operator's business operator's business operator's business operator's business operator's business operator's business operator's business operator's business operator's business operator's business operator's business and completed the customs procedure, and completed all imported goods from customs.

2. On the first ground for appeal

In light of the records, the court below's decision that the delivery of an air waybill for consignee to the notice office cannot be deemed as a result of the practice of the air freight industry and the implied agreement between the parties concerned is just, and there is no violation of the rules of evidence or any violation of the precedents. The judgment of the party members citing the theory of lawsuit is different from the fact-finding, and it cannot be a precedent as to this point. The argument is without merit.

3. On the second ground for appeal

The court below determined that there is a proximate causal relation between the defendant's act of delivering the air waybill and the damage caused by the loss of the goods taken out, if the air waybill, which is required to be submitted in the procedure of customs clearance, is a copy of the air waybill, and the copy of the air waybill is a necessary document in the procedure of customs clearance even if it can be easily obtained not only from the defendant but also from the defendant. The defendant, who knows that the non-party 1 corporation used the above document in the procedure of customs clearance, issued it to the non-party 1 corporation in violation of his duty, and actually received the cargo through the procedure of customs clearance using the original air waybill delivered by the non-party 1 corporation, and if the cargo was taken out to the above import site, the non-party 1 corporation did not have any error in the judgment of the court below. In addition, the court below did not err by misapprehending the legal principles as to the consignee's right to demand compensation against the consignee or his/her designated person. In addition, in general, the bonded warehouse operator has a duty to deliver the goods to the consignee or his/her designated person.

4. On the fourth ground for appeal

Liability for nonperformance or tort liability under a contract of carriage shall exist concurrently, and exemption special agreement under a contract of carriage shall generally apply to tort liability unless there is an express or implied agreement to apply it to tort liability (see, e.g., Supreme Court Decision 87Da34, Jun. 9, 1987).

Therefore, even if the court below requires an air carrier to notify in writing the air carrier of the fact that the cargo is not delivered or lost within 120 days from the issuance date of the air waybill of this case, the court below is just in holding that the above terms and conditions provisions apply only to claims due to non-performance of obligation under the contract of carriage, and that they are not naturally applied to claims due to tort, and that the defendant cannot be exempted from liability under the above terms and conditions provisions, and there is no error of law in interpreting the terms and conditions.

5. On the fifth ground for appeal

According to the reasoning of the judgment below and the records, the non-party 1 corporation modified the letter of import approval for a business operator who received from the plaintiff for customs clearance and completed customs clearance procedures, and the plaintiff, a foreign exchange bank, must issue a letter of import approval at the time of applying for issuance of the letter of credit to the non-party 1 corporation, so the plaintiff's issuance of the letter of import approval for a business operator to the non-party 1 corporation is not a fault that should be taken into account in determining the amount of the defendant's liability. Therefore, it is just to reject the defendant's argument that the court below's erroneous management of the letter of import approval should be taken into account, and there is no violation of the rules of evidence or

6. Therefore, the appeal is dismissed and all costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee Jae-soo (Presiding Justice)