National Bank of Korea (Law Firm Daeil, Attorneys Kim U-U.S. et al., Counsel for the defendant-appellant)

Defendant 1 Co., Ltd. (Law Firm Taesung, Attorney Lee Hong-woo, Counsel for defendant-appellant)

Defendant 2 Co., Ltd. (Attorney Kim Sung-hoon et al., Counsel for the defendant-appellant)

April 22, 2005

Seoul Central District Court Decision 2003Gahap79746 Delivered on September 16, 2004

1. The plaintiff's appeal against defendant 1 corporation and all appeals against defendant 2 corporation are dismissed.

2. The costs of appeal arising between the plaintiff and defendant 1 are assessed against the plaintiff, and the costs of appeal arising between the plaintiff and defendant 2 are assessed against the defendant 2 corporation.

1. Purport of claim

The Defendants jointly and severally pay to the Plaintiff 151,089,979 won with 5% interest per annum from May 13, 2003 to the delivery date of a copy of the complaint of this case, and 20% interest per annum from the next day to the day of full payment.

2. Purport of appeal

The plaintiff: The decision of the court of first instance that lost against the defendant 1 corporation shall be revoked, and the defendant 1 corporation shall pay to the plaintiff 151,089,979 and the amount calculated by applying 5% per annum from May 13, 2003 to the delivery date of a copy of the complaint, and 20% per annum from the next day to the day of full payment.

Defendant 2: The part against Defendant 2 in the judgment of the first instance against Defendant 2 is revoked, and the Plaintiff’s claim is dismissed.

1. Basic facts

The following facts may be acknowledged by taking into account the following facts: Gap evidence 1 through 7; Eul evidence 1 through 9; Eul evidence 10, 11, 13, and 14; Eul evidence 1, 2; Eul evidence 12; Eul evidence 1, 13, and 14; new evidence 1, 3, and 12 of Eul evidence ; new evidence 1, 1, and 3 of the court of first instance; and all the testimony and arguments of the court of first instance.

A. On May 9, 2003, the Plaintiff opened a letter of credit for the payment of the amount of USD 125,960 of the L/C price with the beneficiary as the exporter of this case. The Plaintiff was requested to issue a letter of credit for the import of Malaysia 2.0 1,897 (hereinafter “the instant cargo”) from LTD Co., Ltd. DES (DREM MDA MDA MDA MDA MDDS COS CO, LTD; hereinafter “the importer of this case”). The Plaintiff issued a letter of credit for the payment of the amount of USD 125,960 with the beneficiary as the exporter of this case.

B. Defendant 2 Co., Ltd. (hereinafter “Defendant 2 Co., Ltd.”) entered into a contract with the importer of this case on February 17, 2003 on the carriage by air of the goods imported by the importer of this case from Singapore and Hong Kong, and entrusted the importer of this case with the carriage of the goods of this case from the importer of this case to the Incheon Airport, and again entrusted the importer of this case with the carriage of the goods of this case from the importer of this case to the Incheon Airport, which is the mixed air freight forwarding agent of Washington, to LTD (hereinafter “KORCHAS PETD”); and entrusted the transportation of the goods of this case to LTD (hereinafter “Cona”) by delivery from the importer of this case to the Incheon Airport.

C. Coina entered into a transportation contract with the exporter of this case with respect to the cargo of this case, 11 individual cargo, such as NTICO (NEM ACT ACT PACITR PA CEDDD.), 11 carriages, including the integrated circuits, entrusted the transportation of this case to the Korean Air on May 10, 2003, 180IN394781, 180, 200, 30 CP2, 10, 201, 30, 30, 10, 201, 30, 10,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,00,000,00,000,00,00,00,00,00.

D. The cargo list attached to the air waybill of this case includes the 12 cargo, including the cargo of this case, which is stated by the Cornain and the air waybill number, the number of packages, the name and address of the consignor and the consignee (the actual importer in the business sector) and the domestic agency (the carrier in the case of the cargo of this case) regarding the 12 cargo collected as above. However, among the 12 cargo listed in the above cargo list, the transportation manager of the cargo of this case was the defendant 2 corporation, and the transportation manager in the 10 cargo was the defendant corporation, and the transportation manager in the 10 cargo was the defendant corporation. The transportation manager in the 12 cargo was the Korean corporation.

E. After entering into the above carriage contract with the Korea Air, Defendant 1 corporation notified Defendant 2 corporation of the delivery of the instant consignee air waybill for the consignee (the second copy) attached to the instant master air waybill to Defendant 2 corporation, and notified Defendant 2 corporation of the fact that the instant cargo is mixed with the freight which was used as a domestic transporter for tea or as a domestic transporter.

F. On May 11, 2003, the Korea Air Transport Co., Ltd. transported the mixed cargo containing the instant cargo to the Incheon Airport from the Port of Singapore to the Incheon Airport, and entered it in the bonded warehouse for business use of the Korea Air for customs clearance, and then delivered the instant master air transport note and its cargo list attached thereto, and the bags sealed by the 12 master air transport note to Defendant 1 Co., Ltd.

G. Defendant 1 Co., Ltd. opened the above envelope and delivered it to Defendant 2 Co., Ltd. immediately as to the instant cargo that was not indicated as Defendant 1 Co., Ltd. on the cargo manifest by the consignee, and Defendant 2 Co., Ltd notified the consignee of the arrival of the instant cargo to the instant importer, who is the notification address of the air waybill transport port for consignee of this case. Defendant 2 Co., Ltd received the freight charge from Co., Ltd., and claimed freight charges and other costs from the importer of this case.

H. However, on May 12, 2003, the importer of this case requested the head of Incheon Customs Office to return the cargo of this case on the grounds that the cargo of this case is different from the goods under the contract entered into with the exporter of this case, and requested Defendant 2 Co., Ltd. to return the cargo of this case and transport it.

I. On May 13, 2003, Defendant 2: (a) without the Plaintiff’s consent, the consignee of the instant air waybill for consignee; (b) by using the original copy of the air waybill for consignee of this case, Defendant 1 Co., Ltd., the Plaintiff reported the return of the instant cargo to the head of Incheon Customs Office using the original copy of the air waybill for consignee of this case; and (c) obtained a return declaration certificate from the head of Incheon Customs Office, which was in custody of the instant cargo in the import warehouse; and (d) carried the instant cargo as the export warehouse by presenting the said return declaration certificate and the original copy of the instant cargo transport certificate for consignee of this case; and (e) concluded a transport contract with the content of transporting the instant cargo and the instant cargo to the phish airport from the Incheon Port; and (e) transported the cargo of this case to ph355 copies on the same day

(j) On the other hand, on May 26, 2003, the Plaintiff paid KRW 151,493,054 to the negotiating bank of the instant credit.

C. The importer of the instant case currently goes bankrupt and did not refund the letter of credit to the Plaintiff.

2. Determination as to the claim against Defendant 1 Company

A. The plaintiff's assertion

Defendant 1 Co., Ltd. is in the position of a transporter as a local agent with respect to the instant cargo, and thus, is naturally obligated to deliver the instant cargo to the Plaintiff or to a third party with the Plaintiff’s consent, the consignee, the consignee of the instant cargo transport port, but in violation of this duty, Defendant 1 Co., Ltd., without the Plaintiff’s consent, has a duty to compensate the Plaintiff for the damages by illegally delivering the instant cargo to the instant importer, who is merely a notification station of the instant cargo transport

B. Determination

First, as to whether Defendant 1 corporation has the status of a transporter as a carrier or a domestic agent with respect to the instant cargo, it was acknowledged that Defendant 1 corporation received 12 cargo, including the instant cargo, from the Korean Civil Aviation to Incheon Airport in accordance with the carriage contract entered as consignee of the instant posters air transport port or concluded with the Defendant 1 corporation. However, according to the above facts, it is difficult to conclude that Defendant 1 corporation is a carrier of the instant cargo as a large number of carriers or domestic agents with respect to the instant cargo, and it is difficult to conclude that Defendant 1 corporation is a shipping agent of the instant cargo as a delivery agent of the instant cargo, and it is also difficult to recognize that Defendant 1 corporation is a domestic shipping agent of the instant cargo delivery market using a large quantity of 12 cargo including the instant cargo, and that Defendant 1 corporation is a domestic shipping agent of the instant cargo delivery market as well as the instant cargo transportation agent of the instant cargo, and Defendant 2, as Defendant 11, a domestic shipping agent of the instant cargo delivery market, as Defendant 11, a domestic shipping agent of the instant cargo delivery market.

In light of these facts, Defendant 1 Co., Ltd. is merely a domestic carriage of the cargo of this case, which is limited to 10 cargo listed in the 10 cargo list attached to the air waybill of this case as the transporter or a third party designated by Defendant 1 Co., Ltd., and is not a domestic carriage agent with respect to the cargo of this case. However, as long as the Defendant 1 Co., Ltd. was carried out, it is obligated to deliver the air waybill of this case attached to the air waybill of this case to Defendant 2 Co., Ltd., which is the domestic carriage agent for the cargo of this case according to the car or instruction, and as long as it was carried out, there is no responsibility with respect to the illegal removal of the cargo of this case.

Therefore, the plaintiff's above assertion based on the premise that the defendant 1 corporation is a farmer or a domestic transportation broker with respect to the freight of this case is without merit.

3. Determination as to the claim against Defendant 2 Company

(a) Occurrence of liability for damages;

(1) Under 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 to a third party without the consignee's instruction. Thus, where a carrier, etc. delivers and delivers the cargo to a third party without the consignee's instruction, it constitutes a tort against the consignee as it infringes on the consignee's right to request delivery of the cargo. The notifying party has the right to receive notification of the arrival of the cargo on behalf of the consignee, and the third party is not entitled to receive the issuance of the air waybill or the delivery of the cargo, and the above third party is also subject to notification (see, e.g., Supreme Court Decisions 9Da8711, Jul. 13, 199; 94Da46404, Sept. 6, 196).

Therefore, Defendant 2 Co., Ltd., as a domestic consignee of the instant cargo transport contract, has a duty to deliver the instant cargo to the Plaintiff or to a third party designated by the Plaintiff, the consignee, the consignee, despite the fact that the Plaintiff had a duty to deliver the instant cargo and the instant cargo, upon the request of the importer, who was merely the notifying party without the Plaintiff’s consent, filed a return report on the instant cargo with the head of Incheon Customs Office, and upon the request of the importer of this case, filed a return report on the instant cargo for customs clearance, and the Korea Civil Aviation, who was in custody of the instant cargo, presented the original air waybill for the consignee and the return declaration certificate to the consignee, and returned the instant cargo from the import warehouse to the export warehouse, thereby infringing the Plaintiff’s right to claim delivery of the instant cargo. Accordingly, Defendant 2 Co

(b) Scope of damages;

The damages suffered by the plaintiff, who is the consignee due to the above tort of the defendant 2 corporation, are the amount of the plaintiff's claim for the payment of the letter of credit against the importer of this case which is secured within the limit of the price at the time of shipping the cargo of this case. The price at the time of shipping the cargo of this case is the amount converted according to the exchange rate at the time of shipping the cargo of this case.

The facts that the import price of the freight of this case is US$ 125,960.80 are acknowledged as above. According to the evidence No. 4, the basic exchange at the time of the release of the freight of this case can be acknowledged as the facts which constitute 1,199.5. Thus, if the import price of the freight of this case is converted into Korean won according to the basic exchange at the time of release, it is obvious that the amount is 151,089,979 won ($ 125,960.8 x 1,199.5 won, and less than won) when it is converted into Korean won according to the basic exchange rate at the time of release. The above amount is less than 151,493,054 won for the letter of credit payment against the importer of this case recognized as above.

Therefore, Defendant 2 Co., Ltd is obligated to pay to the Plaintiff KRW 151,089,979 and damages for delay.

C. Determination as to Defendant 2’s assertion

(1) As the instant cargo was returned again after it was put into the bonded warehouse of the Korea Air, Defendant 2 corporation is not subject to the Warsaw Convention, and therefore, it is necessary to apply the provisions concerning other carriage under the Commercial Act to the extent not contrary to its nature, taking into account the unique characteristics of air transportation. The Plaintiff, the consignee, after the instant cargo arrived at the Incheon Airport, at the destination of destination, returned the instant cargo under the direction of the importer, the consignor of the instant carriage contract, before requesting delivery. Thus, Defendant 2 asserted that the return of the instant cargo was not unlawful.

Therefore, according to Article 18(1) of the Warsaw Convention, the carrier is liable when the accident which caused the damage occurred during the carriage by air, and according to Article 18(2) of the Warsaw Convention, the carriage by air refers to the period under which the carrier takes charge of the carriage by air is under the control of the carrier on the airfield or the aircraft. However, if the carrier who entered into the carriage by air, including the carriage by air, causes the damage in the course of delivering the cargo after the carriage by air, the occurrence of the damage is caused after the carriage by air, so it can be interpreted that there is no room to apply the limitation clause of liability under the Warsaw Convention (see Supreme Court Decision 2000Da31045, Jan. 10, 200). Thus, the above defendant's assertion is without merit.

(2) In addition, Defendant 2 Co., Ltd. is in the position of the consignor as the party who entered into a transport contract with Defendant 2 Co., Ltd. on the instant cargo. Although the Plaintiff entered as the consignee of the instant cargo air transport contract, the Plaintiff is not obligated to deliver the instant cargo to the Plaintiff unless the Plaintiff is transferred the right under the transport contract from the importer of the instant cargo. Defendant 2 Co., Ltd. is obligated to comply with the orders of the importer, the consignor, pursuant to Article 12 of the Warsaw Convention. The act of the Plaintiff, who returned the instant cargo to the Republic of Korea under the direction of the importer of this case, is not unlawful, and even if the importer of this case is not the consignor, and even if the exporter of this case is the consignor, it shall be deemed that the instant cargo was returned to the exporter of this case, and thus, the act of returning the instant cargo is lawful.

Therefore, under Article 13 (1) of the Warsaw Convention, unless the consignor does not give the carrier an instruction on the disposal of the cargo before the cargo arrives at the place of destination, the consignee shall obtain the right to claim delivery of the cargo finally against the carrier (see Supreme Court Decision 98Do2526, Nov. 10, 1998). Further, Article 12 (3) of the Warsaw Convention provides that the carrier shall be liable for damages that can be inflicted upon the legitimate holder of the relevant air transport certificate if the carrier does not seek the carriage of the cargo delivered to the consignor and follow the consignor's instruction on the disposal of the cargo. Thus, even if the consignee is the carrier of the cargo of this case, and the importer of this case was the consignee of this case and the consignee of this case returned the cargo of this case under his direction, the consignee of this case shall be liable to deliver the cargo of this case to the plaintiff or the third party designated by the plaintiff, the consignee of this case or the importer of this case, and the plaintiff shall not deliver the cargo of this case to the consignee of this case for delivery of the letter of credit.

(3) Defendant 2: (a) concluded a basic credit transaction agreement with the importer of this case to set a certain limit and received corresponding security; and (b) issued the letter of credit of this case; (c) accordingly, Defendant 2 asserted that if the importer of this case gains profits from the L/C transaction of this case, such as the Plaintiff’s exercise of security offered according to the fact that the L/C was not repaid, the profits should be deducted from the amount of damages.

As asserted by Defendant 2 Co., Ltd., there is no evidence to acknowledge that the Plaintiff recovered all or part of the amount of the letter of credit from the collateral. Thus, the above assertion by Defendant 2 Co., Ltd. is without merit.

(4) Determination on the assertion of comparative negligence

Defendant 2’s assertion that when trading with the importer of this case with the importer of this case, the Plaintiff was negligent, such as neglecting the credit condition inspection and post management of the importer of this case, or delaying the exercise of the security right to be provided, and thus, it should be taken into account in determining damages.

In this case, in which the Plaintiff sought damages against Defendant 2 Co., Ltd. who infringed the Plaintiff’s right of delivery held as a consignee of the instant cargo air transport port, even if there was negligence between the Plaintiff and the importer of this case, it cannot be considered when calculating the amount of damages as long as it cannot be deemed that it contributed to the establishment of tort by Defendant 2 Co., Ltd. or the expansion of damages arising therefrom. Thus, the above assertion by Defendant 2 Co., Ltd. is without merit.

(5) Determination of the claim on limitation of liability

Defendant 2 asserts that the liability of Defendant 2 corporation should be limited to the limit of 250 Francs per 1kg cargo pursuant to Article 22 of the Warsaw Convention.

Therefore, in a case where a transportation business operator who entered into a transportation contract including air transport contract causes damage in the course of delivering the cargo after the completion of carriage by air, the damage occurred after the completion of carriage by air, and thus there is no room to apply the limitation of liability provisions under the Warsaw Convention. In addition, Article 22 (2) (a) of the Warsaw Convention provides that "the liability of a carrier for the carriage of consigned baggage and cargo shall be limited to the amount of 250 frans per kilogram per kilogramme." The former part of Article 25 provides that "the limitation of liability provisions of Article 22 shall be limited to the amount of 1 kilogram." It is highly probable that the carrier, its employees or agents knew that it would cause damage or damage to the plaintiff by the delivery of the cargo without the consent of the consignee, but it is not probable that the damage was caused by the act or omission of the importer of the cargo of this case as stipulated in Article 25 of the War Convention."

4. Conclusion

Therefore, Defendant 2 is obligated to pay to the Plaintiff the amount of KRW 151,089,979 as well as damages for delay calculated at the rate of 5% per annum as stipulated in the Civil Act from May 13, 2003 to November 12, 2003, the delivery date of a copy of the complaint of this case, and 20% per annum as stipulated in the Act on Special Cases concerning the Promotion, etc. of Legal Proceedings from the next day to the date of full payment. Thus, the Plaintiff’s claim against Defendant 2 Co., Ltd. against Defendant 1 is justified, and the Plaintiff’s claim against Defendant 1 Co., Ltd. is dismissed due to the lack of any justifiable reason. Accordingly, the judgment of the first instance is justifiable as it is with this court’s conclusion. Accordingly, the Plaintiff’s appeal against Defendant 1 Co., Ltd. and the appeal against Defendant 2 Co., Ltd. are dismissed as it is without merit.

Judges Noh Young (Presiding Judge)