Korean Bank (Law Firm Chungcheong, Attorney Kim Jong-young, Counsel for the defendant-appellant)

Rof Shipping Co., Ltd.

August 24, 2016

Seoul Central District Court Decision 2015Gahap520810 Decided January 29, 2016

1. The part against the defendant in the judgment of the first instance shall be revoked;

2. The plaintiff's claim against the defendant falling under the above revoked part is dismissed.

3. All costs of the lawsuit shall be borne by the Plaintiff.

Purport of claim

The defendant shall pay to the plaintiff 253,312,920 won to the joint defendants of the first instance trial and the plaintiff 253,312,920 won with 5% per annum from October 16, 2014 to the delivery date of the complaint of this case and 20% per annum from the next day to the day of full payment.

Purport of appeal

The same shall apply to the order.

1. Basic facts

The following facts are not disputed between the parties, or recognized by Gap's evidence of Nos. 1 through 7, Eul's evidence of No. 1 to 6, Eul's evidence of No. 1 to 11, 17, 18, 19, 21 (including additional serial numbers) as a whole the purport of the pleadings.

[1]

The main purpose of the ○○ Co-Defendant LLC is a company that mainly aims at the export and import business of agricultural products.

On August 1, 2014, 000, 000 U.S. dollars 226,800 ($ 600 per ton of the instant cargo) were imported from exporters of the Republic of Korea at the freezing 378 tons (hereinafter “the instant cargo”). The method of payment under the terms and conditions of settlement within two months after shipment, the L/C was entered into, and the port of registry entered into, a contract for the sale of goods at the port of entry into the port of Korea (hereinafter “the instant sales contract”).

On July 31, 2014, in order to pay the purchase price of the instant L/C by using the L/C, ○ Mansan entered into a credit transaction agreement with the Plaintiff and an import L/C loan transaction agreement to secure obligations under the said credit transaction agreement, and applied for the issuance of an irrevocable L/C to the Plaintiff. On August 5, 2014, the Plaintiff issued the L/C (hereinafter “the instant L/C credit”) with the amount of USD 226,800,000, which was the amount of August 5, 2014.

On August 18, 2014, after the issuance of the instant L/C, ○ Mansan entered into a contract with an exporter to change the settlement method of the instant sales contract into a domestic port from the date of shipment to the “T/T (Tleleleleleceer and telegraph transfer transaction) transaction under the settlement conditions for three months from the date of shipment.”

○ Mangsan did not notify the Plaintiff of the change of the settlement method of the instant sales contract in a telegraph transfer transaction. On August 18, 2014, the Plaintiff prepared and submitted only an application for the change of the terms and conditions of the instant L/C to the domestic port of arrival.

[2]

○ Exporter: (a) divided the instant cargo into three occasions; (b) requested transportation of the instant cargo to a transportation broker in China YINKU INT. FREIGHT AGENCO (hereinafter referred to as “Ecow”); and (c) requested transportation of the instant cargo to a charge-on-line corporation, the actual carrier of the instant cargo (hereinafter referred to as “the charge-on-line”).

○○ U.S. issued a cargo B/L as listed below on the shipment date of the instant cargo (hereinafter each bill of lading is indicated as Nos. 1, 2, and 3, and the entire bill of lading, including a bill of lading, No. 1 after the amendment below, is not indicated as the “Defendant’s submitted bill of lading”). Each of the above bills of lading did not contain the credit number of the instant bill of lading.

The date of issuance of the table bill of lading in the table contained in the main sentence is 1 SNKO0261408024 August 25, 2014, which is the consignor's notice date, the exporter's Plaintiff (1) 2 SNKO0271408025 August 31, 2014, the exporter's August 31, 2014 3 SNKO02614080398 August 1, 2014.

1) Plaintiff

[3]

○ The Defendant, as a company conducting international logistics brokerage business, has been delegated with domestic delivery of the instant cargo from Moco.

○ When the instant cargo enters Korea, the Defendant sent a notice of arrival stating “M.B/L SURENNED” to a certain arrival notice as indicated below, and around that time, sent a notice of scheduled arrival of imported cargo to Daesan.

On August 27, 2014, the date of delivery of the table B/L Nos. 1 contained in the main text, the consignor non-consigner M.B/LUREDDD on August 29, 2014, where the consignor entered DALIN HING PINE PTRT AG M.GHHE OLD (Plaintiff M.B/LUREDDDDDDD on August 29, 2014

Upon entering the port of the instant cargo, the ○○ Bank issued a cargo delivery order (D/O, Dedelivery) to the Defendant as indicated below:

The Defendant on September 3, 2014, September 4, 2014, 201, as of August 29, 2014, the date of issuance of the B/L Nos. 548, 100, 2000, 100: (a) on August 29, 2014; (b) on September 3, 2014, Defendant 3: (c) on September 4, 2014; and (d) on September 6, 2014.

○ The Defendant first notified the Nonparty, who is an employee in the Chinese territory, of the cargo related to the bill of lading No. 1 at the time of entry into the Republic of Korea, as credit transaction. However, on August 29, 2014 immediately thereafter, the Defendant revised the above bill of lading to SURRENNNNER B/L (hereinafter “L”), and the settlement method also was corrected to a telegraph transfer transaction, and confirmed that the exporter did not file an application for purchase with the bank. After questioning the Nonparty as to why it was corrected to a telegraph transfer transaction, the Defendant received a copy of the bill of lading before and after correction from the Nonparty. After the correction (hereinafter “the bill of lading No. 1”) received from the Nonparty, the consignee was changed from the Plaintiff to the Plaintiff and the serial number of the letter of credit of this case was not stated in the bill of lading No. 1 before correction.

○ In the process of filing an import declaration of the instant cargo with the Korean Customs, the Defendant entered the consignee as a consignee in accordance with the bill of lading No. 1 prior to the amendment in preparing a cargo manifest with respect to the instant cargo. On August 29, 2014, the Defendant filed an application for changing the consignee into a large farm and farm, on the ground that “the consignee was erroneously stated” on August 29, 2014. As regards the remaining cargo related to the instant bill of lading, the Defendant prepared and submitted a combined cargo manifest with the consignee as a large farm and farm.

○ Defendant was confirmed by the Nonparty that the instant B/L was issued with respect to the cargo related to the B/L Nos. 2 and 3.

After going through the above verification process, ○○ Defendant issued a cargo delivery instruction to the Daegsan as shown below. Mangsan removed each of the instant cargo using the cargo delivery instruction delivered from the Defendant.

The date of issuance of B/L Nos. 1 in the main sentence of the B/L issued by Defendant 1 on August 29, 2014, the consignee 1 on October 1, 2014, the date of issuance of B/L No. 11838, Jun. 3, 2014; and

[4]

On October 20, 2014, ○ Mansan did not pay the instant purchase price to exporters, and was in default.

○ Plaintiff settled 253,312,920 won in total of the L/C price to the negotiating bank of the instant L/C, and received a bill of lading with the same number as that of Defendant’s L/C submission (hereinafter “Plaintiff’s bill of lading”) (hereinafter “Plaintiff’s bill of lading”).

On August 25, 2014, the date of issuance of the table bill of lading Nos. 1 in the main text, the issuer of the consignee, the consignee, and the exporter on August 25, 2014, the B/L No. 11888, the B/L No. 1 in the B/L No. 1 in the main text, the exporter of the B/L, and the exporter of the B/L on August 31, 2014, the exporter of B/L

The plaintiff's possession bill of lading, unlike the copy of the defendant's bill of lading, is written by the consignee as the plaintiff, the notifying party as the plaintiff, and the serial number of the letter of credit of this case is also written, and the forms used are different.

○○ and the Defendant submitted a copy of the bill of lading (BB No. 21, No. 21, No. 3) on which the “SUREND” mark is affixed to the copy of the bill of lading No. 1, 2, and 3 after the correction submitted in the first instance trial.

2. The plaintiff's assertion

The defendant's bill of lading was forged, and the bill of lading held by the plaintiff is the original bill of lading, and the settlement method of the contract of this case is the method of credit transaction.

Whether the settlement method of the instant sales contract was a documentary credit transaction or a telegraph transfer transaction was a transaction, and the Defendant issued a cargo delivery order to the Daesan without having been presented the original bill of lading from the Daesan and had it present the said cargo delivery order to the warehouse operator and had it take out the instant cargo. It infringes on the Plaintiff’s right to claim delivery, which is the holder of the bill of lading regarding the instant cargo.

In addition, if the Defendant had exercised due care in examining the import shipment documents of the instant cargo, the bill of lading submitted by the Defendant was forged, and even if he could have sufficiently known the fact that the settlement method of the instant sales contract was the transaction of credit, he neglected such duty of care and issued a cargo delivery order as above, which constitutes a tort against the Plaintiff.

Accordingly, the Plaintiff seek to the Defendant for the total amount of KRW 253,312,920 of the L/C amount paid by the Plaintiff due to joint tort with the Daesan-si, and damages for delay.

3. Determination

(a) A siren bill of lading;

A siren B/L refers to a bill of lading stating on the surface the “surrened” mark (hereinafter “surrened mark”). In cases where cargo arrives earlier than shipping documents in trade between Korea and China and neighboring countries such as China, the amount of the original B/L is primarily used when the goods are transferred in advance and the goods are shipped. There are many cases where a bill of lading is traded mainly by means of payment method for telegraph exchange remittance. In other words, there is no need to issue a bill of lading from the perspective of the issuer, but if the bill of lading was issued, the original holder cannot escape from the risk of requesting delivery after delivery of the cargo existence of the original. In particular, in practice, the risks are aggravated when the consignor keeps the original B/L in the form of instructions.

A siren bill of lading is not a regular bill of lading. Accordingly, it does not have a right securities, language securities, or redemption securities, but it is a document evidencing the relationship of the contract of carriage as a receipt of the cargo. Because there is no redemption securities, it is not necessary to deliver the cargo to the holder, but must be delivered to the person indicated as a consignee in that bill of lading.

B. Determination on the cause of the claim

(1) A bill of lading

In full view of the following circumstances found in Eul's evidence and evidence Nos. 23 through 28, the defendant submitted a copy of the bill of lading No. 1 after amendment from the first instance court to August 29, 2014, which is the issuer of the defendant's bill of lading, and one copy of the bill of lading No. 1 after amendment. The same form of each of the above bill of lading No. 2 and No. 2 and No. 3, and the △△ exporter expressed a siren's intention to the Chinese merchant office around the time of shipment of each of the cargo of this case, and the 1 and 3 bill of lading-related cargo arrival notice sent to the defendant, "M.B/LRENNERD" was written on the bill of lading arrival notice No. 1 and 3 bill of this case, and the cargo list prepared and revised by the defendant while filing an import declaration twice of the cargo of this case pursuant to the defendant's bill of lading, and the defendant shipping company issued the bill of this case's bill of lading and notified the defendant's agent at the domestic shipping company.

In regard to this, the Plaintiff asserts that the Defendant did not submit a documentary bill of lading at the first instance trial, and the Defendant arbitrarily sealed the documentary evidence on the copy of the bill of lading submitted at the first instance trial, and submitted the documentary evidence No. 21. However, in light of the fact that the Defendant stated “M.B/LS RED” in the notice of arrival sent by the Defendant to the Defendant at the first instance trial, the Defendant had asserted on the documentary bill of lading since the first instance trial. The Defendant did not appear to have operated the copy of the computer screen (BB No. 22) submitted by the Defendant as evidence that the Defendant was in custody in the computers at the time of entering the Republic of Korea. As seen earlier, each of the instant cargo transport operators at the time of the delivery of the cargo of this case stated that the exporter expressed a siren intention, and that the Defendant presented the documentary evidence at the time of the delivery of the cargo of this case, it cannot be seen that the Plaintiff’s assertion that the Defendant submitted the documentary evidence at the latest.

(2) Method of settlement

In full view of the following circumstances: (a) details of the modification of the instant sales contract; (b) details of the amendment thereof; (c) details of the Defendant’s submission of the instant bill of lading; and (d) details of the Nonparty’s correction thereof; and (c) details of the Defendant’s import declaration in the △ Credit transaction; (b) details of the instant sales contract’s correction; and (c) details of the instant sales contract’s correction thereof; and (d) details of the Defendant and the Nonparty’s import declaration; and (c) details of the instant sales contract’s import declaration in the △ Credit transaction, the consignee column was entered in the notice column; and (d) the importer was entered in the consignee column; and (e) △△ Customs broker also entered in the payment method by telegraph transfer while filing the instant import declaration in relation to the instant cargo; and (e) △△

(3) The defendant's intention or negligence

According to the above, the defendant is a performance assistant entrusted with the domestic delivery agent business of overcole, who is a carrier, and is obligated to manage each of the cargo of this case with the duty of care of a good manager in accordance with the direction of overcole.

Therefore, as seen earlier, the Plaintiff’s bill of lading was issued twice with the Defendant’s bill of lading notified to the Defendant during the instant cargo transport process, and the Plaintiff’s bill of lading was issued twice with the Defendant’s bill of lading, barring any evidence to conclude that the Plaintiff’s bill of lading was an original bill of lading, it cannot be deemed that the Defendant had a duty of care to verify whether there was an original bill of lading issued twice other than the Defendant’s bill of lading at the time of issuing the delivery order and to issue the cargo delivery order

In addition, although the bill of lading was entered as the plaintiff in the first bill of lading before the amendment, the consignee was changed to the first bill of lading No. 1 after the amendment, but the first bill of lading No. 1, which had no record of the credit number of the carrier, stated in the bill of lading No. 1, the bill of lading No. 853 of the Commercial Act concerning the descriptions of the bill of lading, but the number of the letter of credit No. 853 of the Commercial Act is not specified as the stated matters. The bill of lading No. 1 was issued by the carrier to the employees of the carrier, the issuer of the bill of lading No. 1, and the defendant issued a siren bill of lading No. 1, which was issued by the carrier, with the notice of the carrier No. 2000 after the amendment, that the carrier did not have the duty to investigate the delivery of the bill of lading No. 1, and that the defendant did not have the duty to directly intervene in the delivery of the original bill of lading No. 1 in the area of the carrier No. 201000.

4. Conclusion

Therefore, the plaintiff's claim against the defendant is dismissed due to the lack of reason, and since the judgment of the court of first instance is unfair with different conclusions, the defendant's appeal is accepted, and the part against the defendant in the judgment of the court of first instance is revoked, and the plaintiff's claim against the defendant in

Judge Cho Young-young (Presiding Judge)

1) After amendment to a bill of lading, the bill of lading was revised to large-scale farming.