[1] Determination of the applicable law applicable to whether an arbitration clause under a charter party is incorporated into a bill of lading and has an effect between a bill of lading holder and a carrier

[2] A court to be applied supplementaryly where it is impossible to confirm its contents because foreign laws and regulations to be applied in the course of a lawsuit are defective or material for its existence is not submitted

[3] Requirements for the transfer of arbitration clause to a bill of lading

[4] The validity of a bill of lading

[5] Method of transferring rights under a registered bill of lading, and whether a registered bill of lading is transferred to a holder of a bill of lading as well as the right to claim damages due to nonperformance as well as the right to claim damages due to tort are incorporated into a bill of lading and transferred (affirmative)

[6] The carrier's duty of care in the adequacy of the cargo under the ocean transportation contract

[1] Whether an arbitration clause under a charter party is effective between a holder of a bill of lading and a carrier as incorporated into a bill of lading shall be determined by the governing law of the bill of lading. Article 9 of the former Conflict of Laws (amended by Act No. 6465 of Apr. 7, 2001) of the former Conflict of Laws (amended by Act No. 6465 of Apr. 7, 2001) provides that "the law applicable to the establishment and validity of legal acts shall be determined by the parties' intent. However, if the parties' intent is unclear, it shall be governed by the law of the country where the bill of lading was issued." Therefore, if the law of the country to which the provision applies explicitly in the terms of a bill of lading is prescribed, it shall be determined by such law,

[2] The foreign law should be interpreted and applied in accordance with the meaning, content, and actual interpretation and application of the foreign law to be applied to a conflict of case. If there is a defect in foreign law to be applied in the course of the lawsuit or if it is impossible to confirm its contents because the data on its existence are not submitted, the court shall be based on the foreign customary law according to the large principle of the civil law to be applied to the court (court), and if it is impossible to confirm the contents of the foreign customary law, the foreign customary law shall be judged by the cooking.

[3] In general, in order to transfer an arbitration clause under a charter party to a bill of lading, the provisions that the arbitration clause in the charter party is "in the bill of lading" should be stated in the bill of lading, and in its description, the charter party should be specified as the day of the charter party, the party, etc. (Provided, That even if the charter party was not specified by the above method, the existence of the relevant charter party and the contents of the arbitration clause should be excluded if the holder of the bill of lading knew of the existence of the relevant charter party and the contents of the arbitration clause). If it is stated to the effect that the statement is not specified in the arbitration clause but all of the general provisions in the charter party, and it is not clear whether the charter party is included in the contents of the arbitration clause in the charter party, the transferee of the bill of lading should have known or could have known the existence of the arbitration clause in the bill of lading which is included in the bill of lading, and the pertinent provision does not conflict with the other provisions in the bill of lading because the arbitration clause was incorporated into the bill of lading.

[4] A bill of lading is a securities which proves that a marine carrier has received the cargo and bears the obligation to deliver the cargo to a legitimate holder at the port of unloading. A carrier and the holder of the securities shall have the effect of a claim relationship under the contract of carriage according to the statement of securities between the carrier and the party who disposes of the cargo. The disposition of the cargo shall be made as a security. When a certificate is delivered to the party entitled to receive the cargo, the same effect of a real right as the delivery of the cargo takes effect as to the acquisition of the right to exercise the right on the cargo. Thus, the consignee who takes over the right on the cargo shall acquire the right on the cargo by delivery of the bill of lading and at the same time acquire the right on the contract of carriage with the possession of the object transferred

[5] In the case of a registered bill of lading which is written by a specific person as a consignee on the bill of lading, it is possible to transfer it by endorsement as a legally natural instrument, unless there is an indication that it is impossible to transfer it to the bill of lading or that it is prohibited from endorsement. If the holder of the securities acquires the right without endorsement, the holder of the securities can exercise his/her right on the bill of lading by proving that he/she has acquired the real right by means of other evidence, since it is not possible to prove his/her qualification by the series of endorsement. In such a case, the right to claim damages due to default arising from the loss of or damage to the cargo and the right to claim damages due to tort shall be transferred

[6] When a transport contract is established, the carrier is obligated to receive the cargo at a certain place, transport it to the destination, and deliver the cargo to the consignee at the agreed time. In the loading registry of the cargo for the transport, the carrier has the duty of care to take proper preventive measures to prevent the damage by the captain, crew, or shipper along with the appropriate measures to prevent the cargo from facing or mixing with each other, and from causing damage to the dynamics, etc. of the ship. Even if the loading is performed by an independent shipper or the shipper's instructions, the carrier has the duty of care to take proper preventive measures to prevent the damage, such as the loading of the cargo and the knowledge of the loading's nature, as required by the nature of the cargo.

[1] Article 9 of the former Conflict of Laws (amended by Act No. 6465 of Apr. 7, 2001) (amended by Act No. 6465 of Apr. 7, 200) / [2] Article 1 of the Civil Act / [3] Articles 3 and 8 of the Arbitration Act / [4] Articles 131, 132, 133, and 820 of the Commercial Act / [5] Articles 130 and 820 of the Commercial Act / [6] Articles 78, 789, and 790 of the Commercial Act

[2] Supreme Court Decision 90Meu19470 delivered on February 22, 1991 (Gong1991, 1060), Supreme Court Decision 98Da35037 delivered on June 9, 200 (Gong2000Ha, 1593) / [4] Supreme Court Decision 96Da6240 delivered on September 4, 1998 (Gong1998Ha, 2373) / [4] Supreme Court Decision 97Da19656 delivered on July 25, 1997 (Gong197Ha, 2717) / [5] Supreme Court Decision 90Da8098 delivered on April 26, 191 (Gong191, 1484)

El District Fire and Marine Insurance Co., Ltd. (Law Firm Sejong Chang, Attorneys Kim Hyun-tae et al., Counsel for the plaintiff-appellant)

Hanjin Shipping Co., Ltd. (Law Firm Spah, Attorneys Yu-hee et al., Counsel for the defendant-appellant)

Seoul District Court Decision 99Na36005 delivered on November 2, 2000

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

The grounds of appeal are examined.

1. Facts recognized by the court below

A. Status of the parties

The plaintiff is an insurance company that runs marine insurance business, fire insurance business, etc., and the defendant is a company that runs marine transportation business, port service business, etc.

B. Conclusion of the first maritime shipping contract (charter party)

On February 193, 1993, the non-party Posting Posting Posting Posting Posting Posting Posting Posing Posing Posing Posing Posing Posing Posing Posing Posing Posing Posing Posing Posing Posing Posing Posing Posing Posing Posing Posing Posing Posing Posing Posing Posing Posing Posing Posing Posing Posing Posing Posing Posing Posing Posing Posing Posing Posing Posing Posing Posing Posing Posing Posing (hereinafter referred to as "the vessel of this case").

C. Conclusion of the second marine transportation contract (charter party)

The non-party 1, a U.S. subsidiary company, the non-party 1, the non-party 1, the U.S. subsidiary company, sold melting annual gold (Steel Galv; hereinafter "the cargo of this case") to the non-party 2,025mt (hereinafter "the cargo of this case"), which is the non-party 1, the subsidiary company within the Republic of Korea, and requested the defendant to transport the cargo of this case. The defendant, around November 1995, requested the defendant to deliver the cargo of this case to the non-party 3, the non-party 1, the non-party 1, the non-party 2, the non-party 2, the non-party 2, the shipping contract of this case (hereinafter "the non-party 2, the non-party 1, the non-party 1, the domestic shipping contract of this case"), which is the non-party 1, the non-party 2, the domestic subsidiary company of the Pomilian.

(d) Matters stated in a bill of lading;

The bill of lading of this case provides that "the bill of lading of this case shall be used together with the charter party." The former part of Article 1 of the Terms and Conditions shall be incorporated into the contents of this bill of lading (the term and conditions, rights and exceptions)" (the term and conditions, the term and conditions, the term and conditions of the charter party, the term and conditions, and the term and conditions of the bill of lading of this case shall be included in the contents of this bill of lading. It shall be deemed that the term and conditions, the term and conditions, the term and conditions, and the term and conditions of the bill of lading of this case shall be stated as "the General Rules and Regulations and the Terms and Conditions," as stated in Article 2 of the Terms and Conditions of this Convention. It shall be deemed that the term "the General Rules and Rules," "the Rules," as the term and conditions of this case, are stipulated as "the General Rules and Regulations," and shall be applied to the Acts of this case, "the General Rules and Rules," "the Rules," for the purpose of the International Convention, for 1000.

E. Conclusion of a maritime cargo insurance contract

On December 4, 1995, with a view to securing risks arising from the marine transportation of the instant cargo, the Postradeist concluded a marine cargo insurance contract with the Plaintiff as a joint insurance company and with the Plaintiff as a secretary company, with the subject-matter of the insurance as the amount of 6,000mt (+-10%) 3,120,022,622,620 (110% of the value of the cargo) as the subject matter of the instant cargo, and 50:25:25 of the amount of insurance by joint insurance company.

(f) Assignment of a bill of lading

Postrade, as seen earlier, was the actual importer of the instant cargo, limited Postrade Bank, the issuing bank of the L/C, to the consignee on the instant bill of lading. On January 3, 1996, after the instant cargo was imported, Postrade paid the full amount of the L/C on the L/C amount and received the instant bill of lading, which is a registered document, without endorsement of the Postrade Bank, and currently holds it.

(g)transport and transfer of cargo;

The instant vessel started with the Stockholm State, California, and entered into the 25th of the same month, and completed loading and unloading operations on January 1, 1996, and the instant cargo was transported by the Eastern River, etc., five companies, including the Eastern River, etc., which purchased the instant cargo from the Podar.

(h) the discovery of defects in the cargo and the cause thereof;

(1) On December 25, 1995, the instant cargo was unloaded from the instant vessel arriving at the Mine Port to January 1, 1996, and sold to the end-user of five persons, each of which was the final purchaser, after being unloaded from the instant vessel, from the 30th of the same month to the 1st of January 1, 1996. Among them, three final purchasers, such as solar steel, stuffed steel (dong steel), and Han Han-gu essential steel, filed a claim for damages on the grounds of the defect of the goods purchased to the Pod, and the Poddd on February 8, 1996, the Pod on requested the Seoul Maritime and Fire Damage Adjusters Co., Ltd., a certified appraiser to investigate the instant cargo.

(2) As a result of the investigation by the above authorized person, although the original packing was the standard export package, some co-dayss, including 29 notified that damage was discovered prior to the unloading process, were destroyed and opened, and part of the steel set was cut off. Of the freight set in this case, 181 1,81.715mt (714.996mt + the 918.297mt of the purchase of the same department steel + the 178.42mt of the large steel purchase) and the 178.42mt were excessively distributed to the extent that it was impossible to be used for its original purpose. The damage rate was 21.88% of the purchase of the department steel set, 12.49% of the purchase of the department steel set, and 2024% of the total steel set.

(3) Generally, in a case where strong vibrations are received during the course of transportation, restoration from the transformation due to the weight of the steel board itself and other parts of the steel board has occurred repeatedly. When the volume of such transformation increases, there has been a gap between the steel board packed on each floor and the steel board packed on each floor, and it appears as the above transportation black point due to a separate movement. The instant vessel appeared as the above transportation black point. From 12:00 on December 14, 1995 to 24:00 on December 20, 1995, the vessel of this case continued to 12:0 on the voyage and from 24:00 on December 20, 24:00 on the same day from 24:0 on the 20th day of the same month and 24:00 on the 2nd day of the same month and 3 lines loaded on the cargo hold and 2 lines loaded on the 2nd day and the cargo loaded on the 4th line, and continued to be a difference between the steel and other cargo.

(4) In order to prevent the vibration of the cargo caused by the collapse of the cargo and the sinking of the stuffing apparatus, the co-dayss are stored in three parts in principle. However, the space above the upper end end end is filled in the space above the upper end end end end end, and the space between the upper end end end end end end end end end end, and several co-dayss are tightly integrated so that the co-days does not move up if there is a space between the co-dayss. The cargo of this case was loaded on the cargo of this case and the cargo of this case by the shipper selected by the Positha side who is the consignor of the cost of loading according to the agreement with the defendant, and the cargo of this case was loaded on the cargo of this case, and the two parts were loaded on the side of each column, and the two parts were removed on the co-day of each column, and the three parts were removed on the upper end end, respectively, and the two parts were tights were caused by the collision between the two.

(i) Payment of insurance money;

On April 17, 1996, the Plaintiff paid 148,239,478 won as insurance proceeds from the instant accident to Postrade, and was delegated by Postrade to exercise all rights due to the said accident.

2. Judgment on the grounds of appeal

A. First point: As to the assertion of misapprehension of legal principles as to the validity of the arbitration agreement

Article 9 of the former Conflict of Law (amended by Act No. 6465 of Apr. 7, 2001; hereinafter the same shall apply) provides that "if the parties concerned are unclear, it shall be governed by the law of the country to which the provision of the first charter party is included in the bill of lading and its effect should be determined by the law of the country to which the provision of the first charter party is included in the bill of lading." Thus, if the law of the country to which the provision of the second charter party is included in the bill of lading is not applicable clearly or explicitly, it shall be determined by the law of the country to which the provision of the first charter party is included in the bill of lading and the law of the other country to which the provision of the first charter party is included in the bill of lading is not applicable, it shall be determined by the law of the country to which the provision of the first charter party is not applicable. It shall be interpreted that the provisions of the second charter party are not applicable explicitly or explicitly to the extent that the provisions of the second charter party are not applicable to the bill of lading.

In the case of the instant bill of lading in light of the aforementioned legal principles, although all the provisions of the instant charter contract are stipulated to the effect that all the provisions of the instant charter contract are incorporated into the bill of lading, it is not specified in the said bill of lading itself, and it is not clear to the third party, including the holder of the bill of lading as to whether the term of incorporation includes an arbitration clause among the provisions of the charter contract which is the object of incorporation. The arbitration clause of the instant charter contract which applies mutatis mutandis to the instant charter contract is limited only to the parties to the instant charter contract as seen in the above facts, and the said arbitration clause under the instant charter contract cannot be deemed to have been incorporated into the bill of lading. Although the court below did not err in the misapprehension of legal principles as to whether the provision is incorporated into the bill of lading as alleged by the defendant, the above arbitration clause under the instant charter contract cannot be deemed to have been incorporated into the bill of lading. Although the court below did not err in its conclusion without examining the governing law, it is justified in rejecting the Defendant's safety objection.

B. Second: As to the assertion of misapprehension of the legal principles as to the method of transferring rights of a registered bill of lading

A bill of lading is a securities which proves the receipt of the cargo by a marine carrier and bears the obligation to deliver the cargo to a legitimate holder at the port of unloading. The obligatory relationship between a carrier and the holder of the securities takes effect according to the description of the securities. The disposal of the cargo takes effect as a security; and the same real right has the same effect as the delivery of the cargo to a person entitled to receive the cargo when the bill of lading was delivered. Thus, the consignee who takes over the right to the cargo acquires the right in the contract of carriage with the obligatory effect as well as the delivery of the possession of the object with the real right as the delivery of the bill of lading (see Supreme Court Decisions 96Da6240 delivered on September 4, 1998, Supreme Court Decisions 97Da19656 delivered on July 25, 1997). Thus, if the consignee acquired the right in the bill of lading by an unlawful act as stated on the bill of lading, it cannot be proved that the right in the bill of lading cannot be transferred by another bill of lading holder as evidence or endorsement.

In light of the records, we affirm the decision of the court below that Postrade acquired legitimate rights as a holder of a bill of lading, and there is no error in the misapprehension of legal principles as to the method and effect of transfer of rights of a registered bill of lading, as otherwise alleged in the ground of appeal.

C. Nos. 3 and 4: As to the assertion of mistake of facts and misapprehension of legal principles as to whether the black point generated from the instant cargo occurred due to the Defendant’s breach of its duty of care as the carrier

Upon the formation of a transport contract, a carrier is obligated to receive the cargo at a certain place, transport the cargo to the destination, and deliver the cargo to the consignee at the agreed time. In the loading of the cargo for the transport, a carrier has a duty of care to take appropriate preventive measures to prevent damage by examining whether the loading of the cargo is appropriate, and by examining whether the loading of the cargo is appropriate for the transport of the cargo at an independent shipper or a consignor's order, even if the loading of the cargo is completed by an independent shipper or a consignor's order, the carrier has a duty of care to take proper preventive measures to prevent damage, such as the loading of the cargo, the nature of the cargo received for the transport, and the loading of the cargo, and the loading of the cargo, as required by the nature of the cargo.

According to the evidence and the record, as seen earlier, the black point specified in the freight of this case can be recognized as arising from the Defendant’s failure to perform his duty of care as a carrier. Accordingly, the judgment of the court below that recognized the Defendant liable for damages is just and there is no error in the misapprehension of legal principles as to the carrier’s duty of care and the burden of proof in maritime transport contracts, or in the misapprehension of facts contrary to the empirical rules, as otherwise alleged in the ground of appeal. The allegation in the ground of appeal is just to criticize the lower court’s deliberation of evidence or fact-finding, as long as it does not violate the rules of experience and logic.

D. No. 5: As to the assertion of misunderstanding of facts and misapprehension of legal principles as to the attribution of liability due to the loading and landing of cargo

With respect to the attribution of liability due to the loading and unloading of cargo, the court below recognized that Article 3 (4) of the Agreement between Posimethylian and the defendant (the second charter party) provides that "the loading and unloading of cargo except the ordinary navigation expenses in the loading and unloading area shall be the cost of Posimera," and Article 18 (1) of the Long-term Maritime Transmission Contract between the defendant (the first charter party) provides that "the loading and unloading of cargo shall be the cost of Posimera," and that the court below's determination of the court below is just in the misapprehension of legal principles as to the loading and unloading of the cargo of this case as the owner of the cargo of this case cannot be seen as the carrier's own fault in light of the above provision of each contract and the legal principles as to the loading and unloading of the cargo of this case."

E. 6: As to the assertion of mistake of facts and misapprehension of legal principles as to whether the damage to the cargo of this case was caused by the shipper's insufficient packing or the unique nature or hidden defect of the cargo of this case

The court below rejected the defendant's assertion that the damage to the cargo of this case was caused by insufficient packaging by the shipper's insufficient absorption, or due to the unique character or hidden defect of the cargo, which did not take into account the prevention of the infiltration by damp or the shocking of the cargo of this case, on the ground that the bill of this case was recognized, and there is no evidence to prove that the damage to the cargo of this case was caused by the hard packing of the shipper, the holder of the bill of this case, and that there was no evidence to prove that the damage to the cargo of this case was caused by the unique character or hidden defect of the cargo of this case.

Examining the reasoning of the judgment below in light of the records, the above fact-finding and judgment of the court below are just, and there is no error of misconception of facts or misapprehension of legal principles as to the carrier's exemption from liability.

F. Point 7: As to the assertion of misapprehension of legal principles as to comparative negligence

In recognizing the Defendant’s liability for damages, the lower court assessed the Defendant’s liability as 70% after setting off the Defendant’s liability by 30%, taking into account the shipper’s fault at the time of loading the instant cargo.

The fact-finding or determination of the ratio of comparative negligence in tort constitutes the exclusive authority of a fact-finding court unless it is deemed that it is clearly unreasonable in light of the principle of equity (see Supreme Court Decision 96Da6240 delivered on September 4, 1998, etc.). In light of the record, the court below’s above determination does not seem to be remarkably unreasonable in light of the principle of equity, and thus, the allegation in the grounds of appeal that criticizes the above determination is unacceptable.

3. Conclusion

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

Justices Cho Cho-Un (Presiding Justice)