[1] Whether a ship agency performing part of the transportation service to be borne by the carrier at the request of the marine carrier is an assistant to the carrier under the contract of carriage (affirmative)

[2] In a case where the so-called “Slren B/L” was issued so that the consignee may deliver the goods immediately from the port of discharge to the port of discharge by extinguishing the redemption securities of the bill of lading by treating the original bill of lading as already recovered from the place of departure, whether the vessel agent at the place of destination may issue the cargo delivery order to the consignee according to the carrier’s instructions without recovering the original bill of lading (affirmative in principle)

[1] A vessel agency is a person who acts as an agent for a person engaged in marine transportation business on behalf of the person engaged in such business and performs all the duties related to the delivery of cargo under a contract with the carrier. Therefore, a vessel agency, which performs part of the transportation duties to be borne by the carrier at the request of the carrier, may be deemed as a carrier’s agent under the contract of carriage

[2] The vessel agency at the place of destination under a transport contract, as an assistant to the carrier, shall keep the imported cargo until the completion of the customs clearance procedure for the imported cargo, and bear the duty to deliver the cargo to the consignee or the person designated by the consignee who is the legitimate recipient of the marine transport. The marine transport cargo must be delivered to the holder in exchange for the bill of lading. Thus, if the vessel agency delivers the cargo to a person who is not the holder of the bill of lading and prevents the delivery of the cargo to the bill of lading holder, it shall be deemed an unlawful infringement of the rights

However, there are cases where a consignee may immediately deliver a bill of lading at the port of discharge by treating the original bill of lading as having already been recovered from the place of departure as required in the trade practice. In such cases, the consignor, after being issued the original bill of lading from the carrier, requests the carrier to waive the claim for reimbursement (hereinafter referred to as “surren” in English) pursuant to the bill of lading, and the carrier collects the original bill of lading and then send a siren notice to the consignee to the vessel agency, etc., to deliver the original bill of lading to the consignee without recovering the original bill of lading. As such, if a siren B/L is issued, the vessel agent may issue a delivery order to the consignee under the contract of carriage without recovering the original bill of lading, barring any special circumstances.

[1] Article 798 (2) of the Commercial Act / [2] Articles 105 and 750 of the Civil Act, Articles 129, 798 (2), 852, and 861 of the Commercial Act

[1] Supreme Court Decision 2007Da4943 Decided April 27, 2007 (Gong2007Sang, 783) / [2] Supreme Court Decision 98Da13211 Decided April 23, 199 (Gong199Sang, 989Sang, 989) Supreme Court Decision 2004Da12394 Decided January 27, 2005 (Gong2005Sang, 305Sang, 2016Da213237 Decided September 28, 2016 (Gong2016Ha, 1592)

Han Bank Co., Ltd. (Law Firm Yang & Yang LLC, Attorneys Park Jong-soo et al., Counsel for the defendant-appellant)

Rof Shipping Co., Ltd.

Seoul High Court Decision 2016Na2016441 decided October 28, 2016

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

The grounds of appeal are examined.

1. (a) A. Ship agency is a person acting as an agent for a person operating a maritime transportation business on behalf of the person operating such business and performs all business related to the delivery of cargo under a contract with the carrier (see Supreme Court Decision 2007Da4943, Apr. 27, 2007, etc.). Accordingly, ship agency performing part of the transportation business to be borne by the carrier at the request of the carrier as its assistant can be deemed to be a carrier’s performance assistant under the contract of carriage.

B. The vessel agency of the place of destination according to a transport contract is an assistant to the carrier's performance and has the duty to keep the imported cargo and deliver the cargo to the consignee or the person designated by the consignee who is the legitimate recipient of the marine transport until the customs clearance procedure for the imported cargo is completed. Since the marine transport cargo must be delivered to the holder in exchange for the bill of lading, if the vessel agency is unable to deliver the cargo to the holder of the bill of lading after delivering the cargo to a person who is not the holder of the bill of lading, it constitutes an unlawful infringement of the right of the holder of the bill of lading (see, e.g., Supreme Court Decisions 98Da13211, Apr. 23, 199; 2004Da12394, Jan. 27, 2005).

C. However, there are cases where a consignee may immediately deliver a bill of lading at the port of discharge by treating the original bill of lading as having already been recovered at the port of discharge according to trade practice. In such cases, after a carrier issued the original bill of lading from the carrier, the consignor requested the carrier to waive the claim for reimbursement (hereinafter “surren” in English) by the bill of lading. The carrier collected the original bill of lading and then sent a siren notice to the vessel agency, etc. to deliver the original bill of lading to the consignee without recovering the original bill of lading (see Supreme Court Decision 2016Da213237, Sept. 28, 2016), barring any special circumstance, the consignee may issue a cargo delivery order to the consignee under the direction of the carrier to deliver the original bill of lading to the consignee (see Supreme Court Decision 2016Da213237, Sept. 28, 2016).

2. The court below rejected the plaintiff's assertion that the act of the defendant's act of making the freight shipped out by issuing a cargo delivery instruction without being presented the original bill of lading by neglecting his/her duty of care even though he/she could have known that the payment method was forged and was the transaction of credit, constitutes a tort against the plaintiff who is the holder of the bill of lading.

A. The Defendant is a performance assistant entrusted with domestic delivery agent business of YINKUINT INT. FREIGHT CO. (hereinafter “Ecow”).

B. The payment method of a sales contract for the import of the domestic freezing of Korea (hereinafter “instant cargo”) between the Korea-Japan Agriculture Co., Ltd. (hereinafter “Japan”) and the Korea-China Food Co., Ltd. (hereinafter “instant sales contract”) which is an importer, and the Chinese exporter, is a telegraph transfer method.

C. A bill of lading issued by the carrier by exercising the right of intervention at the time of the carriage of the cargo of this case and notified it to the shipping company, the principal shipping company, the merchant shipping company, and the Defendant, the domestic shipping agent of the carrier, as the carrier, is a siren bill of lading (hereinafter “instant siren bill of lading”).

D. The bill of lading opened a letter of credit and received and held the L/C payment to the L/C negotiating bank after the release of the instant cargo seems to be a bill of lading that the Plaintiff did not issue two copies and notify the shipping company or the Defendant.

E. As long as it cannot be readily concluded that the bill of lading owned by the Plaintiff was an original bill of lading concerning the instant cargo, the Defendant cannot be deemed to have a duty of care to verify whether there was an original bill of lading issued twice other than the copy of the instant siren at the time when the Defendant issued a cargo delivery order to Taesan, a consignee.

F. Among the copies of the instant sirens, the number of the letters of credit, which was not originally stated in the bill of lading, was written as the Plaintiff and changed to the Daesan. However, the number of the letters of credit is not an essential entry of the bill of lading under the Commercial Act, but a bill of lading recognized by the parties concerned at the time of the carriage of the freight was a bill of lading in this case. The Defendant confirmed whether the bill of credit was a direct transfer remittance transaction and whether the bill of lading was issued to the employees in charge of the carrier, who are the issuer of the bill of lading. Accordingly, the Defendant issued the cargo delivery order to the Daesan who is the consignee, and the Defendant fulfilled the duty of care required by the social norms as the shipping agent of the carrier, and further, it cannot be deemed that the carrier was obligated to investigate whether the method of the instant sales contract was forged or falsely notified.

3. Examining the reasoning of the lower judgment in light of the aforementioned legal principles and records, the lower court did not err in its judgment by misapprehending the legal doctrine on the carrier’s duty of care as to the domestic shipping agent, in violation of the precedent, or by exceeding the bounds of the principle of free evaluation of evidence

4. 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 on the bench.

Justices Kim Jong-hee (Presiding Justice)