Method of transferring a bill of lading containing an endorsement prohibition clause

Even in cases where a bill of lading is issued in registered form, it can be transferred by endorsement as a legally natural instrument, but in cases where it is stated that the prohibition of endorsement is prohibited, it can not be transferred by endorsement, and in such cases, it can be transferred only by the method of the transfer of ordinary assignment.

Articles 820 and 130 of the Commercial Act

Industrial Bank of Korea (Law Firm Il, Attorneys Kim Young-chul et al., Counsel for the plaintiff-appellant)

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

Seoul High Court Decision 98Na1005 delivered on February 12, 1999

The judgment below is reversed and the case is remanded to Seoul High Court.

1. Fact-finding and judgment of the court below

A. Facts found by the court below

(1) On July 31, 1995, the Plaintiff bank entered into a foreign exchange transaction agreement to provide trade financing for export, import, and transactions related to the local letter of credit by purchasing bills and shipping documents issued in accordance with the letter of credit with the non-party company (hereinafter referred to as "non-party company").

(2) On May 196, the non-party company purchased more than 77,400 kilograms (hereinafter referred to as "the Cargo of this case") from the non-party Dogra SPY & MATRAL CO-OPP COMPPPPP 'LIGIN' and "LINGYIN" were defective in writing. The non-party company entered into an export/import agreement with the non-party Dog Dog Dog Dog Dog Dog Dog Dog Dog Dog Dog Dog Dog Dog Dog Dog Dog Dog Dog Dog Dog Dog Dog Dog Dog Dog Dog Dog Dog Dog Dog Dog g.) to export the cargo of this case with the price 66,564 U.S. dollars and agreed to settle the export price by the credit, and requested the plaintiff bank around the 28th day of the same month to issue the credit.

(3) 위 수출입계약에 따라 소외 회사는 해상운송업자인 피고 회사와 사이에 이 사건 화물을 중국 상하이에서 스리랑카 콜롬보항까지 운송하기로 하는 해상운송계약을 체결하였고 피고 회사는 같은 해 8월 10일 이 사건 화물을 '한진 동해 V. 129W'호에 선적한 다음 송하인은 지앙진사, 수하인은 샤라카·어패럴스-(피브이티) 리미티드. 19/1 갤리 페이스 ..., 콜롬보 3. 스리랑카. 탤레폰 넘버 : 591238{CHARAKA APPARELS (PVT) LTD. 19/1 GALLE FACE..., COLOMBO 3. SRI LANKA TEL NO : 591238, 이하 '샤라카·어패럴스사'라고 한다. 원심의 '샤카' 및 그 영문표기 'CHARKA', 번지표시 '19/ '는 오기이다.}, 양하항은 스리랑카 콜롬보로 된 선하증권(이 사건 선하증권이라 한다)을 지앙진사에게 발행·교부하였다.

(4) Upon receipt of a bill of lading, etc. consistent with the terms and conditions of the instant letter of credit, which is the beneficiary, requested bank BNK OFCHA or BNFCHA to purchase the bill of credit and then requested the Plaintiff bank to collect the letter of credit. The Plaintiff bank paid a sum of USD 66,564 on August 28 of the same year to the Bank and received the instant bill of credit along with the shipping documents.

(5) On the other hand, the defendant company received a letter of intent to submit a bill of lading later without delivery of the original bill of lading from Shamana and Slish Slish on August 17 of the same year after transporting the freight of this case, and after arrival and unloading at the Slish Port of Sri Lanka, the defendant company delivered the freight of this case.

B. The judgment of the court below

Article 130 of the Commercial Code, which applies mutatis mutandis to a bill of lading pursuant to Article 820 of the same Act, provides that "the bill of lading may be transferred by endorsement even if it is a registered bill of lading." Therefore, a legitimate holder of a bill of lading is a person who is stated as a consignee or a person who has commenced endorsement from such person. The purport of prohibiting endorsement in the consignee's column of the bill of lading is "NONGTIBBL (NE)", but the bill of lading does not classify such bill of lading as an unacceptanceable shipping documents, and if the bill of lading purchased the bill of lading from the negotiating bank (or issuing bank) purchases the bill of lading and it can not be exercised by the issuer's right to receive the bill of lading, it is reasonable to interpret the bill of lading bill of this case as an intermediate bill of lading bill of lading bill of this case's bill of lading bill of lading bill of this case's bill of lading bill of lading bill of this case's bill of lading's bill of lading bill of this case's bill of lading.

2. Judgment of the Supreme Court

Even in cases where a bill of lading is issued in registered form, it can be transferred by endorsement as a legally natural instrument, but in cases where it is stated that the prohibition of endorsement is prohibited, it shall not be transferred by endorsement (Article 820 and Article 130 of the Commercial Act), and in such cases, it may be transferred only by the method of the transfer of ordinary assignment.

The bill of lading (No. 2) of this case is printed on the upper part of the consignee "NN NE NE NE NE UNTRS NANE TRDOE, and this phrase is an endorsement prohibition clause that "no transfer may be made unless it is ordered." On the other hand, the consignee's bill of this case is written on the consignee's name and address "CHARAK APPAS RES LTD (PV) LTD. 19/19/1 GATT 19/7 GALE PTRACE PEE PEE PECEE FALO TRALO 3. STRALO 591238: 591238," so the bill of this case constitutes a registered bill of lading in which the endorsement prohibition clause is written.

Therefore, in this case where there is no assertion or proof that Shari and Sari Sari stated as a consignee on the bill of lading of this case notified the Defendant, a carrier, the Plaintiff, of the right to request the delivery of the freight of this case, the Plaintiff cannot be deemed a legitimate holder even if the Plaintiff acquired the bill of this case under the circumstances as seen earlier as the issuing bank. The Supreme Court Decision 96Da6240 Decided September 4, 1998 delivered by the court below is inappropriate as it differs from this case, and it is not appropriate to invoke this case.

Therefore, the judgment of the court below which recognized the defendant's liability for damages on the premise that the plaintiff is a legitimate holder of the bill of lading of this case is erroneous in the misunderstanding of the legal principles as to the transfer of a registered bill of lading of this case, which is prohibited from endorsement

3. Therefore, the judgment of the court below without examining the remaining grounds of appeal shall be reversed, and the case shall be remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices.

Justices Park Jae-sik (Presiding Justice)