[1] In a case where a sub-charter who charters a uniform from a time charterer concluded a transportation contract with a consignor, the case holding that the time charterer is not in the position of a carrier responsible for the transportation contract

[2] Whether the carrier bears the burden of proving the reason attributable to the tort liability of the sea carrier

[3] The case holding that the carrier's fault was not recognized in a case where the cargo was damaged due to improper packaging and loading of the adjacent cargo during the marine transportation

[1] The case holding that, in case where a sub-charter who was chartered from a time charterer entered into a transportation contract with a consignor, the sub-charter is not in the status of a carrier liable for the transportation contract in consideration of the circumstances such as the fact that a time charterer only pays a certain charter hire to a time charterer but all the freight under the transportation contract is regarded as the income of the sub-charter, in light of the back charterer's terms and conditions of the bill of lading issued by the sub-charter, and the sub-charter is not in the status of a carrier

[2] Article 789-3 (4) of the Commercial Act provides that the provisions of paragraphs (1) through (3) shall also apply in cases where a claim for damages concerning cargo has been filed against an actual carrier, its employees, or agents other than a carrier. Article 789-3 (1) of the Commercial Act provides that the provisions concerning the liability of a carrier under this Chapter shall also apply to the liability of a carrier for damages caused by a tort. Article 788-3 (1) of the Commercial Act concerning the allocation of burden of proof does not include Article 788 (1) of the Commercial Act concerning the distribution of burden of proof. Thus, in order

[3] The case holding that in case where the actual carrier, captain, and crew members received the container from the actual carrier, and received the container in an ordinary way and loaded and loaded the container appropriately in the ordinary way on the grounds that there was no error in appearance at the time when the container loaded into the container was transshipped, and that the above chemical was not classified as dangerous substances under the vessel and storage rules or the International Maritime Dangerous Substances Regulation, and thus, if the container was properly loaded and loaded in a proper manner, it cannot be said that it was erroneous even if the actual carrier, captain, and crew did not examine whether the cargo was loaded and loaded in the container in an appropriate way, and the cargo was loaded and loaded in the container, and therefore, the actual carrier does not bear liability for damages to the adjacent cargo.

[1] Articles 788(1) and 812-2 of the Commercial Act / [2] Article 750 of the Civil Act, Articles 788(1) and 789-3 of the Commercial Act / [3] Article 750 of the Civil Act, Article 16-2 of the Ship Safety Act, Article 2 of the Rules on Transport and Storage of Hazardous Goods (amended by Ordinance of the Ministry of Construction and Transportation No. 58 of Feb. 23, 1996)

Fire and Marine Insurance (Law Firm Cheonghae, Attorneys Yu Dong-dong et al., Counsel for the defendant-appellant)

2. The term “the term “the term” means “the term” means “the term” means “the term” means “the term or “the term” means “the term or “the term or “the term” means

Seoul District Court Decision 98Na59377 delivered on September 3, 1999

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

1. The court below acknowledged the following facts.

가. 대유해운 주식회사(아래에서는 '대유해운'이라고 한다)는 대영컨벌팅 주식회사(아래에서는 '대영컨벌팅'이라고 한다)와 사이에, 대영컨벌팅이 미국 버지니아주 리치먼드에 있는 마루찬 버지니아 인코퍼레이티드(Maruchan Virginia, Inc., 아래에서는 '마루찬 버지니아'라고 한다)에 수출하는 식품포장용 필름 2,941롤(아래에서는 '이 사건 화물'이라고 한다)을 부산항에서 미국 버지니아주 노퍽(Norfolk)항까지 운송하기로 하는 해상운송계약을 체결한 다음, 대영컨벌팅에게 통지선이 마루찬 버지니아로 된 지시식 선하증권을 발행하였다. 대유해운은 다시 대영컨벌팅을 대리하여 조양상선 주식회사(아래에서는 '조양상선'이라고 한다)와 사이에, 조양상선이 이 사건 화물을 부산항에서 노퍽항까지 운송하기로 하는 해상운송계약을 체결하였고, 조양상선은 대유해운에게 "송하인 대영컨벌팅, 수하인 컨테이너 트레이드 인터내셔널 코포레이션(Container Trade Int'l Corp., 아래에서는 '컨테이너 트레이드'라고 한다)"으로 된 기명식 선하증권을 발행하였다.

The steering boat again requested the Defendant to transport the freight of this case to him. The Defendant entered into a time charter contract with the Conti Capitaldo SymbH & Co., Ltd. (hereinafter referred to as the 'mixed carnet' below) and operated the freight of this case in Busan around March 27, 1994, which is the exclusive vessel for containers owned by the Trithono, and loaded the freight of this case in Busan at Busan around March 27, 1994.

나. 대영컨벌팅은 1994. 3. 25. 원고와 사이에 "선박 도쿄 세나토르호, 선적항 부산, 양륙항 미국 버지니아주 노퍽, 보험목적 필름 2,941롤"로 된 해상적하보험계약을 체결하였다.

다. 도쿄 세나토르호는 1994. 3. 29.경 부산항을 출발하여 1994. 4. 28. 미국 버지니아주 노퍽항에 도착하였는데, 당시 이 사건 화물이 선적된 제2번 선창에서 연기와 냄새가 심하게 나는 것이 발견되었다. 이에 도쿄 세나토르호의 선원들은 제2번 선창의 환기통을 닫고 이산화탄소를 주입시켰다. 그 후 1994. 5. 10. 이 사건 화물이 적재된 컨테이너가 개봉되었는데, 이 사건 화물은 연기에 오염되고 열반응에 의하여 변형되어 모두 폐기되었다.

D. On August 10, 1994, the Plaintiff paid $192,167.36 U.S. dollars to the Dolled Liberia with insurance money for the damage to the instant cargo.

2. Determination on the grounds of appeal as to the part on the responsibility of the transport contract

A. After recognizing the above facts, the lower court dismissed the Plaintiff’s claim on the ground that the Defendant’s failure to perform the obligation under the contract of carriage against the Defendant, on the ground that the Defendant was in the relationship of a charter party, and that it was not directly related to the contract of carriage against the freight of this case, between the wing and the wing-out vessel which entered into the contract of carriage against the freight of this case through the Daechina Shipping.

In light of the above, it is reasonable to determine that the court below is not in the status of a carrier for the cargo of this case in light of the above circumstances, and there is no error in the misapprehension of legal principles as to the parties to the contract of carriage or their agent, or in the incomplete hearing, or in violation of the rules of evidence, and the judgment of the court of this case pointed out in the ground of appeal is different from this case. Accordingly, this part of the ground of appeal is dismissed.

B. Meanwhile, the Plaintiff asserts that, in light of the circumstances in which the bill of lading issued by the Choyang Shipbuilding may be transferred by endorsement even in registered form, and in this case, the Plaintiff lawfully acquired the right under the above bill of lading from the container Round. Thus, the Defendant, who is a carrier under the contract of carriage of this case, paid insurance money to the Plaintiff who subrogated to the company by paying the insurance money to the ridge, and thus, is liable for damages due to nonperformance of obligation under the contract of carriage of this case. However, as seen earlier, the Defendant is not in the status of a carrier who directly entered into a contract with the Dae Young-do, and the above bill of lading was not issued by the Cho Young-do on behalf of the Defendant. Thus, the Plaintiff, the insurer, regardless of whether the right under the bill of lading received by the Dae Young-do had been legally transferred to the ridge, cannot exercise the insurer's right under the contract of carriage or issuance of the bill of lading on the ground of non-performance of obligation under the contract of carriage or issuance of the bill of lading. Therefore, the Plaintiff's assertion as to the above.

3. Determination on the ground of appeal on the part of tort liability

A. The lower court determined as follows on the Plaintiff’s claim based on the Plaintiff’s tort.

⑴ 이 사건 화물이 훼손된 것은, 피고가 1994. 3. 28. 부산항에서 중국으로부터 노퍽항까지 운송되는 이산화티오요소(Thiourea Dioxide, 아래에서는 '이 사건 화학물질'이라고 한다) 300드럼이 든 컨테이너 1개를 다른 선박으로부터 도쿄 세나토르호 제2번 선창으로 환적(환적)받았는데, 이 사건 화학물질은 습기와 고온에 약하고 금속과 반응하면 위험하기 때문에 습기 및 금속과의 차단을 목적으로 하는 폴리에틸렌 라이너가 부착된 유리 또는 플라스틱제 용기로 밀봉하여 포장하여야 함에도 불구하고 뚜껑 및 바닥이 금속제인 드럼에 아무런 차단장치 없이 적입하고 또한 컨테이너 내부에 위 드럼들을 버팀대도 없이 엉성하게 쌓아 놓은 결과, 이 사건 화학물질이 드럼 내부에서 서서히 분해되다가 운송과정에서 상당수의 드럼이 컨테이너 내부의 빈 공간으로 기울어지거나 쓰러지면서 드럼 밖으로 쏟아져 나와 공기 중의 습기와 결합하면서 폭발적으로 화학반응이 일어나 고열과 연기 및 가스를 분출하였기 때문이다.

Domen actual carrier shall be liable for the damage resulting from damage to the goods unless he proves that himself, the crew, or other employees of the ship have not been negligent in giving due attention to the receipt, loading, legality, carriage, storage, unloading and delivery of the goods.

Secondly, when the Defendant received transshipment of the container containing the instant chemical at Busan port: ① the instant chemical had already been loaded in the container and sealed by the consignor; and the Defendant was merely notified by the consignor that the instant chemical was loaded in the container in the Chinese territory; on the other hand, the captain and crew members of the ASEAN had only been provided with cargo placement including other cargo to be loaded in the instant vessel at the time of transshipment of the container containing the instant chemical; ② at that time, the instant chemical had not been provided with any notification on the state of the content and particulars of the container containing the instant chemical; ② at that time, the instant chemical had no duty of care for shipping and storage of dangerous goods or international rules on shipping of dangerous goods, which are domestic laws, or international rules, and the instant chemical was not received at the time of loading and storage of the instant container; and the instant chemical was not in the position of the captain or crew members of the instant vessel, and thus, the instant chemical was not in the position of the captain or crew members of the instant vessel. In light of the foregoing, it was not recognized that there was no duty of care to receive the instant container or container.

B. Article 789-3(4) of the Commercial Act provides that the provisions of paragraphs (1) through (3) shall also apply in cases where a claim for damages concerning cargo has been filed against the actual carrier, its employees, or agents other than the carrier, and Article 789-3(1) of the Commercial Act provides that the provisions on the liability of the carrier in this Chapter concerning the liability of the carrier shall also apply to the liability of the carrier for damages caused by the tort. However, Article 788(1) of the Commercial Act concerning the allocation of the burden of proof does not include Article 788(1) of the Commercial Act concerning the distribution of the burden of proof. Therefore, in order to compensate the carrier for damages caused by tort, the claimant must prove that there is a cause attributable to the carrier. Therefore, the lower court erred by misapprehending

C. However, in this case, if the actual carrier, at the time when the Defendant received transshipment of the container in which the instant chemical was loaded by the loading method, there was no apparent error in appearance at the time the container was loaded, and the instant chemical was not classified as dangerous substances under the Rules on Ship Transport and Storage of Hazardous Substances or International Maritime Dangerous Substances Rules, and such container was properly loaded and loaded in a normal manner, it cannot be said that it was erroneous even if the Defendant or the captain and crew of the ASEAN ASEAN did not receive the container, and did not look at whether the cargo was loaded and loaded in an appropriate container in an appropriate way. Thus, if the Defendant was not found to be erroneous in the loading and loading of the container with the loaded container, the Defendant, who is the actual carrier, is not liable for tort as to the verbi, the owner of the instant cargo, which was the owner of the instant cargo.

Furthermore, Article 791-2(1) of the Commercial Act provides that “In the event that a carrier loaded the cargo with inflammable, explosive, or other dangerous nature with the knowledge of such nature, if there is a danger that the cargo may cause danger to the ship or other cargo, the shipmaster may, at any time, unload, destroy, or take no measures to dispose of the dangerous cargo” and provides the captain with the right to dispose of the dangerous cargo. However, it does not interfere with the conclusion that it is difficult to view the occurrence of the instant accident as erroneous in the captain and crew’s measures against the occurrence

D. Therefore, the dismissal of the claim by the court below on the ground of the plaintiff's tort is justified as a result, and contrary to the allegations in the grounds of appeal, the court below did not err by misapprehending the legal principles as to the carrier's duty of care in the appropriateness, management, and disposition, or by violating

4. Therefore, the appeal shall be dismissed, and the costs of the lawsuit shall be borne and so decided as per Disposition.

Justices Zwon (Presiding Justice)