[1] The meaning of "the date on which the cargo is to be delivered" under Article 811 of the Commercial Act, and the standard point of time for determining whether the cargo is to be delivered where the cargo is not delivered due to the reason such as the loss of the cargo or the refusal of the carrier to deliver the cargo (=the date on which the cargo

[2] The meaning of "employee" under Article 114 of the Commercial Code, and whether a forwarding agent loses his status as a forwarding agent in a case where a forwarding agent concludes a transportation contract under the name of the shipper, the agent of the carrier, or the principal, and acted as a broker (negative)

[3] Whether a bill of lading prepared by a marine transportation broker in its name on behalf of another person constitutes "securities prepared by a transportation broker," which is a legitimate condition for the exercise of the right of intervention as stipulated in Article 116 of the Commercial Act (negative)

[1] The phrase “the day on which the cargo is to be delivered” under Article 811 of the Commercial Act refers to the day when the contract of carriage has been performed in accordance with its contents. In a case where the cargo has not been delivered due to such reasons as the loss of the cargo or the refusal of the carrier to deliver the cargo, the determination of whether the period for filing an action under the above provision has expired should be made on the basis of “the day on which the cargo

[2] “Mediation” under Article 114 of the Commercial Act refers to a juristic act under the account of another person in its own name. Thus, a forwarding agent is in principle acting as an intermediary in his own name. However, if a forwarding agent actually acted as an intermediary, he does not lose his status as a forwarding agent even when a shipping contract was entered into under the name of the shipper, the carrier’s agent, or the truster.

[3] If a marine transportation broker prepares a bill of lading at the request of the principal, it shall be deemed that the marine transportation broker exercised the right of intervention as stipulated in Article 116 of the Commercial Code. However, a bill of lading prepared by the marine transportation broker under the above another person's name on behalf of the other party cannot be deemed as a "securities prepared by the transportation broker," which is a legitimate condition

[1] Article 811 of the Commercial Act / [2] Article 46 subparagraph 12 of the Commercial Act, Article 114 of the Commercial Act / [3] Article 116 of the Commercial Act

[1] Supreme Court Decision 97Da28490 delivered on November 28, 1997 (Gong1998Sang, 68) / [2/3] Supreme Court Decision 85Meu1080 delivered on October 13, 1987 (Gong1987, 1691)

Plaintiff (Law Firm Squa, Attorney Park Young-hoon, Counsel for the plaintiff-appellant)

Defendant (Attorney Lee Im-soo et al., Counsel for the defendant-appellant)

Seoul High Court Decision 2004Na8588 delivered on December 24, 2004

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

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

1. Point of starting the period for filing a lawsuit under Article 811 of the Commercial Act;

Article 811 of the Commercial Act provides, “A claim and obligation of a carrier against a charterer, consignor, or consignee shall be terminated if no judicial claim is made within one year from the date on which the carrier delivers or delivers the cargo to the consignee, regardless of the cause of the claim.” Here, “the date on which the carrier delivers the cargo to the consignee” refers to the date on which the delivery should be made if the contract of carriage has been performed in accordance with the terms and conditions of the contract of carriage (see Supreme Court Decision 97Da28490, Nov. 28, 1997). In a case where the cargo has not been delivered due to such reasons as the loss of the cargo or the refusal of delivery of the cargo by the carrier, the determination of whether the above period for filing a lawsuit has expired shall be made on the basis of “the date on which the

According to the reasoning of the judgment below, the freight No. 1 of this case could have been delivered at the U.S. port prior to December 2000, and since the lawsuit of this case was filed after one year has passed thereafter, the lawsuit of this case against the defendant as a marine carrier for the non-performance of obligation and tort of the freight No. 1 of this case was filed after the lapse of the period for filing the lawsuit, and it is unlawful.

The decision of the court below to the same purport is just, and there is no error in the misapprehension of legal principles as to the starting point of the filing period.

2. Whether the defendant exercised his right to intervene as a forwarding agent

Article 114 of the Commercial Act provides that "a forwarding agent engaged in the business of transporting goods in his/her own name shall act as a broker under his/her own name." Thus, "a forwarding agent" refers to an act of arranging in his/her own name under another's account. Thus, in principle, a forwarding agent shall not lose his/her status as a forwarding agent even in cases where a shipping agent actually acts as an agent in the name of a shipper or carrier, a consignor's agent, or a truster. Meanwhile, if a shipping agent prepares a bill of lading at the request of a truster, he/she shall be deemed to have exercised the right of intervention as provided in Article 116 of the Commercial Act. However, a bill of lading prepared under his/her name by a maritime forwarding agent under his/her own name shall not be deemed as a "securities prepared by a forwarding agent," which is a legitimate condition for exercising the right of intervention as provided in Article 116 of the Commercial Act, unless there are special circumstances (see Supreme Court Decision 85Da1080, Oct. 1

In light of the overall circumstances indicated in the judgment below, the judgment of the court below that did not regard the defendant as a forwarding agent is acceptable. In addition, according to the reasoning of the judgment below, at the time when the first cargo of this case exported to the United States by the plaintiff was loaded at the port of Busan, the defendant, who is a local corporation located in the part of the single unit group, signed the bill of lading in which the single unit cargo of this case exported to the United States, the ship owner of the international transportation chain, the ship owner of the international transportation chain Lt (hereinafter referred to as "the single unit") as a carrier, signed the bill of lading as a carrier, and delivered it to the plaintiff. Thus, the bill of lading issued by the defendant as a representative of the single unit group, cannot be deemed as a "securities prepared by the forwarding agent," which is a legitimate condition for exercising the right to intervene under the Commercial Act, and therefore the defendant is not liable for damages as a forwarding agent exercising the right to intervene.

Although the court below did not explicitly decide whether the defendant exercised the right to intervene as a forwarding agent, it can be deemed that the judgment of the court below as to whether the period of filing a lawsuit for the carrier's liability expires, and the judgment of the court below as to the forwarding agent includes the judgment to reject it, and there is no error of law such as omission of judgment, violation of the rules of evidence, or misapprehension of the legal principles as to the exercise of the right to intervene of the forwarding agent, as alleged in the

3. Whether the judgment on the second cargo of this case was omitted

The omission of judgment in the appellate brief, which was written after the expiration of the submission period, is entirely a new argument that was not asserted in the grounds of appeal, and thus cannot be deemed a legitimate ground of appeal. In addition, according to the records, the court below did not err in its judgment as to the claim for the second cargo in

4. 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 Ahn Dai-hee (Presiding Justice)