(a) The case holding that a ship agency which performs the duties of delivery of ship cargo, collection of bill of lading, etc. has committed a tort on account of gross negligence or intentional delivery of such cargo to a person other than a bill of lading holder;

B. Whether the short-term extinctive prescription provision of Article 121 of the Commercial Act, which applies mutatis mutandis by Article 812 of the same Act, applies mutatis mutandis to a claim for damages due to a tort (negative)

C. Whether a clause of immunity stipulated in a bill of lading applies to tort liability due to intentional or gross negligence (negative)

(a) The case holding that a ship agency which performs the duties of delivery of ship cargo, collection of bill of lading, etc. has committed a tort on account of gross negligence or intentional delivery of such cargo to a person other than a bill of lading holder;

B. The short-term extinctive prescription of Article 121(1) and (2) of the Commercial Act, which is applicable mutatis mutandis by Article 812 of the Commercial Act, shall apply only to claims for damages due to nonperformance of obligation of a carrier in a transport contract, and shall not apply to claims for damages due to general

C. The term of exemption stipulated in a bill of lading applies not only to the non-performance of liability under the contract of carriage but also to the tort liability arising from the infringement of ownership of the cargo, unless there are special circumstances. However, the same shall not apply to the cases of pursuing tort liability caused by intention

A. Article 750 of the Civil Act; Article 820 of the Commercial Act; Articles 812 and 121 of the Commercial Act; Article 814 of the Commercial Act

A. Supreme Court Decision 87Meu1791 delivered on March 14, 1989 (Gong1989,593) (Gong1989,593). Supreme Court Decision 90Meu8 delivered on April 26, 1991 (Gong1991,1484) B. Supreme Court Decision 84Meu966 delivered on May 28, 1985 (Gong1985,900) (Gong19833 delivered on March 22, 1983). Supreme Court Decision 87Meu124 delivered on February 14, 1989 (Gong1989,400)

[Defendant-Appellee] Korea Industrial Bank of Korea

Hanjin Shipping Co., Ltd., Counsel for the defendant-appellant and one other

Seoul High Court Decision 88Na26920 delivered on January 15, 1991

The appeal is dismissed.

The costs of appeal are assessed against the defendant.

We examine the grounds of appeal.

On the first ground for appeal

In light of the records, the court below's finding that Gap evidence Nos. 24-1 to 4 (Loading and Unloading Order) and Eul evidence Nos. 2 (charter Contract) were based on various evidence and the whole purport of the argument adopted by the court below, and it cannot be said that the Incheon Office of the defendant company's Incheon was a ship's agent in Incheon Port, which is the main port of the wing be seen as having been in charge of the delivery of cargo and collection of wing securities, or that the court below did not examine the detailed reasons for designation and did not err in violation of the rules of evidence, and the court below did not explain to the defendant who was the ship's agent of the above wing wing C, which affected the conclusion of the judgment, and it did not err in the misapprehension of the law of incomplete deliberation.

There is no reason to dispute the exclusive authority of the fact-finding court.

On the second ground for appeal

According to the facts acknowledged by the court below, the defendant company was a shipping agent at the same port of this No. 1, wing beer, and this was engaged in the delivery and collection of the bill of lading, and the defendant company delivered the cargo to the non-party who is not the holder of the bill of lading and lost it. This part of the fact-finding by the court below cannot be deemed as a violation of the rules of evidence, and there is no error of law in finding the same as the theory. And if the facts were acknowledged by the court below, the defendant company is merely a shipping agent, who is in charge of delivery of the cargo and collection of the bill of lading, and it cannot be deemed as the principal who delivered the cargo of this case without exchange of the bill of lading with the above non-party, and the defendant company could have predicted that delivery of the cargo to the non-party who does not possess the bill of lading without exchange with the bill of lading, and therefore, it cannot be deemed that the defendant company was liable for damages due to an unlawful removal and delivery of the cargo by the bill of lading holder.

Even if a charterer has entered into a transport contract with a third party under Article 806 of the Commercial Act, it was true that only the shipowner is liable for the third party to the extent that the performance of the contract belongs to the duties of the master. However, in this case, the court below acknowledged that the defendant company committed the duty of delivery of the ship's cargo and recovery of the bill of lading as the independent representative of the ship's agency, and recognized tort liability on the ground that the defendant company infringed the rights of the plaintiff bank that is the holder of the bill of lading intentionally or by negligence in the course of performing such duties, it is not judged that the liability for damages due to the negligence belonging to the duties of the captain of the above ship is against the defendant company. Thus, it cannot be said that there is any inconsistency or disagreement in the reasoning, and it cannot be said that the court below did not separately disclose the nature of the ship's agency, and it is just that the court below recognized that the ship of this case delivered the cargo of this case to the above third party (see Supreme Court Decision 88Da23735, Feb. 13, 1990).

Therefore, we cannot accept the argument of the argument of the argument of the argument that is favorable from the opposite position, and there is no reason for the argument.

On the third ground for appeal

The short-term extinctive prescription provisions of Article 121(1) and (2) of the Commercial Act, which are applicable mutatis mutandis by Article 812 of the same Act, apply only to claims for damages arising from nonperformance of obligation in a transport contract by a carrier, and do not apply to claims for damages arising from general tort, such as this case (see, e.g., Supreme Court Decision 84Meu966, May 28, 1985). Accordingly, the court below’s decision that rejected the Defendant’s claim for prescription based on such opinion is justifiable.

In addition, in the event that a bill of lading was received and possessed, the terms and conditions of the bill of lading exemption shall be deemed to apply not only to the non-performance of the obligation under the contract of carriage, but also to the tort liability arising from the infringement of ownership of the cargo, unless there are special circumstances, (see Supreme Court Decision 82Meu1533, Mar. 22, 1983; Supreme Court Decision 90Meu8098, Apr. 26, 1990). However, in this case, it shall be deemed that the defendant company knew that the delivery of the cargo to a person who is not the holder of the bill of lading may result in infringing the right of the holder of the bill of lading to the cargo, and if the result was not known, the provision of the bill of lading exemption clause shall not apply to the defendant company's tort liability as stated on the bill of lading's intentional or gross negligence (see Supreme Court Decision 87Meu1791, Mar. 14, 1989).

On the fourth ground

The court below is just in rejecting the defendant's defense that the plaintiff bank's claim of this case violates the principle of trust and good faith on the ground that the light industry company, without issuing a bill of lading, has impliedly entered the imported cargo in the self-facing unit for ten times in the past. It cannot be said that the court below's rejection of the defendant's defense that the plaintiff bank's claim of this case violates the principle of trust and good faith. The court below's failure to explain

On the fifth ground

The claim for damages of this case is not an action against the Republic of Korea where the U.S. product and credit system management was neglected, but it is not an action against the defendant company. The plaintiff is merely a secured party, and in the case where the security right was infringed, it is nothing more than denying the plaintiff's assertion or legal assertion, and among the reasons for the judgment below that recognized the plaintiff's claim for damages of this case, the purport of rejecting the above defendant company's assertion is included. It cannot be said that there was a omission of judgment affecting the conclusion of the judgment on the ground that the court below did not separately determine and reject the defendant company's claim as above. The argument is without merit.

Concerning the sixth Ground for Appeal

The reasoning of the court below's rejection of the defense of comparative negligence by the defendant company is just, and there is no error of law by misunderstanding the rules of evidence in this part of the court below's fact-finding, and there is no error by misunderstanding the legal principles of a fixed letter of credit and a bill of lading transfer and comparative negligence.

The maritime cargo must be delivered to the holder of the bill of lading in exchange for the bill of lading, and the cargo cannot be legally taken out without such bill of lading. Thus, the Plaintiff bank holding the bill of lading cannot be deemed to have any obligation to issue the letter of credit or to take measures to preserve the instant house by predicting the fact that the instant house can be illegally taken out by the light industry company. No other duty of care exists with regard to the preservation of the imported house in question to the Plaintiff bank that issued the letter of credit, and even if the light industry company's financial position of importing the instant cargo at the time of the instant transaction, it cannot be said that the Plaintiff bank, the holder of the bill of lading, had any physical security of receiving the imported house guaranteed by the bill of lading, and thus, it cannot be said that there is no reason to issue the letter of credit.

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 Lee Jae-chul (Presiding Justice)