[1] Details of liability for damages borne by a forwarding agent under Article 115 of the Commercial Act and meaning of "performance assistant" under Article 391 of the Civil Act, which is an employee

[2] Whether a forwarding agent may be in charge of incidental business that assists in realizing the purpose of transportation, such as customs procedures for the goods, inspection, storage, insurance, and recipient of the goods (affirmative)

[3] In a case where Gap corporation entered into a cargo liability insurance contract with Eul insurance company, and thereafter entered into a freight forwarding contract with Byung corporation, etc., and was entrusted with marine transportation, bonded warehouse storage, customs clearance, and domestic delivery for imported cargo, and when the aforementioned cargo entered into a bonded warehouse operated by Jung corporation and entered into the Incheon port and entered into the bonded warehouse for the operation of Jung corporation and entered into the bonded warehouse for the operation of Jung corporation, the case holding that the judgment below erred by misapprehending legal principles, even though it is reasonable to see Gap corporation as an agent for the performance of Eul corporation, in a case where Gap corporation claimed for the payment of liability insurance against Eul corporation

[4] In order for the insured to exercise his/her right to claim insurance against the insurer, whether the insured’s liability to the third party should be determined by the method stipulated in the Commercial Act or the insurance clause (affirmative)

[1] According to Article 115 of the Commercial Act, a forwarding agent shall not be exempted from liability to compensate for damages arising from the loss of, damage to, or delay in arrival of cargo unless he/she proves that neither he/she nor his/her employees have neglected due care in connection with the receipt, delivery, and custody of the cargo, the choice of a carrier nor other shipping agents, and any other carriage. Meanwhile, “performance assistant” as stipulated in Article 391 of the Civil Act, if an employee is a “performance assistant” who performs the act of performance of the obligation under the obligor’s involvement in the obligor’s intention, is sufficient and does not necessarily have to have a relation of direction or supervision of the obligor. Accordingly,

[2] Although the primary business purpose of a forwarding agent is to accept a consignment such as concluding a contract of carriage of goods on behalf of the principal, it is the case where such forwarding agent is in charge of the affairs such as customs clearance of goods, inspection, storage of goods, insurance, and recipient of the goods, since such forwarding agent may be in charge of incidental affairs that assist another person in realizing the purpose of carriage.

[3] In a case where Gap corporation entered into a freight indemnity insurance contract with Eul insurance company, and thereafter entered into a freight forwarding contract with Byung corporation, etc., and was entrusted with marine transportation, bonded warehouse storage, customs clearance, and domestic delivery for imported cargo, and when the aforementioned cargo entered into a bonded warehouse for the management of Jung corporation, which was traded with Gap company after the arrival of Incheon port and entered into the bonded warehouse after the arrival of Incheon port, and filed a claim for the payment of the liability insurance amount against Eul corporation, the case holding that Gap corporation was liable for the payment of the liability insurance amount, in addition to the carrier's choice and conclusion during the transportation of the above cargo, and was entrusted to Eul corporation for the storage of Incheon bonded warehouse, customs clearance, and domestic delivery (or the conclusion of the transportation contract) as well as the duty of due care as a good manager, and the custody of the above cargo belongs to Gap corporation's performance of the obligation under the involvement of Gap corporation Gap corporation. Thus, the judgment below erred by misapprehending the legal principles as to the freight forwarder's liability for damages.

[4] In order for the insured to exercise his right to claim insurance against the insurer, at least the insured should pay damages to a third party, or the insured's liability to a third party should be finalized in such a way as prescribed by the Commercial Act or the insurance clause.

[1] Article 115 of the Commercial Act, Article 391 of the Civil Act / [2] Articles 114 and 115 of the Commercial Act / [3] Articles 114, 115, and 719 of the Commercial Act, Article 391 of the Civil Act / [4] Article 719 of the Commercial Act

[1] Supreme Court Decision 2001Da4438 Decided July 12, 2002 (Gong2002Ha, 1940) Supreme Court Decision 2017Da275447 Decided February 13, 2018 (Gong2018Sang, 563) / [2] Supreme Court Decision 85Da1080 Decided October 13, 1987 (Gong1987, 1691) / [4] Supreme Court Decision 87Meu276 Decided June 14, 198 (Gong198, 102Da30206 decided September 6, 2002 (Gong202Ha, 2002Ha, 2405)

C. C. S. S. P. P. S. (Law Firm Doon, Attorneys Yoon Jin-ho et al., Counsel for the defendant-appellant)

E.S. A.S. Fire and Marine Insurance Co., Ltd. (Attorneys Kim Hong-Gyeong et al., Counsel for the plaintiff-appellant)

Seoul Central District Court Decision 2014Na68241 Decided October 20, 2015

The judgment of the court below is reversed, and the case is remanded to the Seoul Central District Court Panel Division.

The grounds of appeal are examined.

1. According to Article 115 of the Commercial Act, a forwarding agent shall not be exempted from liability to compensate for damages arising from the loss of, damage to, or delay in arrival of cargo unless he/she proves that neither he/she nor his/her employees have neglected to exercise due care in connection with the receipt, delivery, and custody of the cargo, the choice of a carrier nor other forwarding agents, and any other carriage. Meanwhile, “performance assistant” as stipulated in Article 391 of the Civil Act is sufficient if an employee is a person performing an act that falls under the act of performance of obligation under the obligor’s involvement in the obligor’s intention, and does not necessarily have a relation with the obligor’s instruction or supervision. Therefore, whether he/she is subordinate to, or is independent from, the obligor (see, e.g., Supreme Court Decisions 2001Da4338, Jul. 12, 2002; 2017Da27547, Feb. 13, 2018

2. A. Review of the reasoning of the lower judgment and the record reveals the following facts.

(1) On March 25, 2013, the Plaintiff engaged in multiple cargo forwarding services, etc. concluded a cargo liability insurance contract with the Defendant to compensate for the Plaintiff’s legal liability arising from the damages, etc. to the cargo.

(2) The Plaintiff was commissioned from the Chinese port on the instant cargo to the maritime transport, bonded warehouse, customs clearance, and domestic delivery of the instant cargo from the Chinese port on the instant cargo to the Incheon port. The Plaintiff issued the instant cargo under its own name, and issued the instant cargo bill of lading in its name.

(3) The Plaintiff entered the instant cargo, which arrived at at Incheon port, into a bonded warehouse (hereinafter “instant bonded warehouse”) in the operation of the Mama General Logistics Co., Ltd. (hereinafter “Mama General Logistics”), and followed customs clearance procedures by sending a claim for freight, including customs duties, customs clearance fees, domestic transportation charges, and warehouse charges, to the Mama General Logistics (hereinafter “Mama General”) and sending it to the Maman Port and Espo (SB), based on the amount stated in the claim for freight.

(4) As above, the instant cargo stored in the instant bonded warehouse for domestic delivery upon the request of the next Twitter’s day and the SBC, was entirely handed down on July 25, 2013 due to a fire, the cause of which was unknown in the instant bonded warehouse.

B. The lower court: (a) held that the Plaintiff himself/herself is a “ Forwarding Agent”; (b) held that the Mama General Logistics is in the position to assist the Plaintiff in the performance of the freight forwarding contract; and (c) held that the Mama General Logistics was not in the position to assist the Plaintiff in the performance of the freight forwarding contract; and (d) rejected the Plaintiff’s claim for the liability insurance money premised on the premise that the Mama General Logistics

C. However, in light of the aforementioned legal principles and circumstances, the lower court’s aforementioned determination is difficult to accept. The reasons are as follows.

(1) The primary business purpose of a forwarding agent is to accept a consignment, such as concluding a contract of carriage of goods on behalf of the principal. However, it is the case where such forwarding agent is in charge of the affairs such as customs clearance of goods, inspection, storage of goods, insurance, and the recipient of the goods, etc., as it is possible for such forwarding agent to take charge of incidental affairs that assist another person in realizing the purpose of carriage (see Supreme Court Decision 85Meu1080, Oct. 13, 1987).

(2) From the time of the lawsuit to the court below, the Plaintiff revealed that from the Chinese port on the instant cargo from the next Twitter and the SBEtek to the lower court, the Plaintiff was entrusted with all of the freight forwarding services from the Chinese port on the instant cargo to the sea transportation, bonded warehouse storage, customs clearance, and domestic delivery to the Incheon port. The lower court also recognized the scope of the business requested by the Plaintiff.

(3) In addition, taking into account the circumstances in which the Plaintiff issued a cargo bill of lading and the details of the Plaintiff’s claim for freight, the scope of business requested by the Plaintiff is not limited to the choice of a carrier and the conclusion of a contract of carriage.

(4) The Plaintiff shall be deemed to have the duty to perform the delegated duties with the care of a good manager, as well as the choice of a carrier and the conclusion of a transport contract in the course of transport of the instant cargo, as well as the custody of the bonded warehouse in Incheon Port, customs clearance, and domestic delivery (or the conclusion of a transport contract)

(5) Inasmuch as the custody of the instant cargo by the white-mate comprehensive logistics can be deemed as belonging to the Plaintiff’s act of performing the Plaintiff’s obligation under the Plaintiff’s involvement in the Plaintiff’s intent, it is reasonable to deem that the goods by the white-ma

D. Nevertheless, the lower court erred by misapprehending the legal doctrine regarding multiple freight forwarding contracts and the liability of a freight forwarder for damages, thereby adversely affecting the conclusion of the judgment. The ground of appeal assigning this error is with merit.

3. However, in order for the insured to exercise his/her right to claim insurance against the insurer, the insured’s liability against a third party should be finalized at least by paying damages to a third party or by determining the terms and conditions of the Commercial Act or the insurance (see, e.g., Supreme Court Decisions 87Meu2276, Jun. 14, 198; 2014Da2098, Jan. 25, 2017). The lower court asserted that the Plaintiff’s liability was finalized through “approval” by means of debt confirmation stipulated in Article 723(1) of the Commercial Act, although the Plaintiff failed to actually pay damages, the Plaintiff asserted that the liability of the Plaintiff was finalized by “approval” in the manner of debt confirmation stipulated in Article 723(1) of the Commercial Act, but it is necessary to re-examine whether the Plaintiff had “approval” indicated in the SBE.

4. Therefore, without further proceeding to decide on the remaining grounds of appeal, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Jo Hee-de (Presiding Justice)