[1] Where there is a provision that a performance assistant of a carrier under a bill of lading prior to the enforcement of Article 789-3(2) of the current Commercial Code may invoke the defenses and the limitation of liability that a carrier may claim as to the liability for the cargo, the scope of the application

[2] Whether Article 811 of the current Commercial Code applies to tort liability due to intentional or gross negligence (negative)

[1] In a case where a claim for damages against the cargo was made against the performance assistant prior to the enforcement of Article 789-3(2) of the current Commercial Act, which was newly enacted by Act No. 4470 of Dec. 31, 1991, the performance assistant may invoke the defenses and the limitation on liability which the carrier may claim, in accordance with the terms and conditions of the bill of lading, unless the damage was caused by the willful misconduct or other reckless act or omission of the performance assistant while recognizing the concern about the occurrence of the loss, damage, or delay in arrival of the cargo, such performance assistant may invoke the defenses and the limitation on liability which the carrier may claim in accordance with the terms and conditions of the bill of lading.

[2] As a result of the amendment by Act No. 4470 of Dec. 31, 1991, Article 811 of the current Commercial Act was enforced before the enforcement of Article 811 of the current Commercial Act, the provisions concerning the period of filing a lawsuit as to the cargo under the terms and conditions of a bill of lading do not apply to cases where the tort liability

[1] Articles 105 and 391 of the Civil Act, Article 789-3 of the Commercial Act / [2] Articles 121, 790, and 812 of the former Commercial Act (amended by Act No. 4470 of Dec. 31, 191), Article 811 of the Commercial Act

[2] Supreme Court Decision 90Meu8098 delivered on April 26, 1991 (Gong1991, 1484) Supreme Court Decision 91Da1494 delivered on January 21, 1992 (Gong1992, 875)

Hyundai Marine Fire Insurance Co., Ltd. and 10 others (Attorneys Han Han-soo et al., Counsel for the plaintiff-appellant)

Kim-su et al., Counsel for the defendant-appellant in charge of the net regular loan, and one other (Attorneys Kim Jong-hwan et al., Counsel for the defendant-appellant)

Seoul District Court Decision 93Na45274 delivered on April 28, 1995

All appeals are dismissed. The costs of appeal are assessed against the Defendants.

We examine the grounds of appeal.

Even before the enforcement of Article 789-3(2) of the current Commercial Act which was newly established by Act No. 4470 of December 31, 1991, which entered into force, prior to the enforcement of this Act, if a claim for damages against the cargo was filed against the performance assistant, the performance assistant may invoke the defenses and the limitation on liability which the carrier may claim, if the damage is included in the terms and conditions of the bill of lading, unless it is caused by the willful misconduct or other reckless act or omission of the performance assistant while recognizing the concern about the occurrence of the loss, damage or delay in arrival of the cargo, the performance assistant may invoke the defenses and the limitation on liability which the carrier may claim in accordance with the terms and conditions of the bill of lading.

However, prior to the enforcement of Article 811 of the current Commercial Act which was newly established as a result of the amendment as above, the provision on the period of filing a lawsuit as to cargo under the terms and conditions of a bill of lading does not apply to cases where tort liability is held due to intentional or gross negligence (see, e.g., Supreme Court Decisions 90Meu8098, Apr. 26, 1991; 91Da14994, Jan. 21, 1992). If the contents of the provisions stated in Article 24 of the terms and conditions of the bill of lading of this case are as determined by the court below, it is clear that it is the provision on the period of filing a lawsuit, and the claims arising from an accident that occurred prior to the enforcement of the above provisions of the Commercial Act shall follow the previous precedents. Thus, in this case where it is evident that the plaintiffs, an executing assistant of the carrier, were claiming tort liability against the defendants as to cargo due to gross negligence, and the application of the terms and conditions should be deliberated and decided.

Although the expression in the judgment of the court below is somewhat inappropriate, it is just in the conclusion that the defendants should deliberate and decide on whether or not they are liable for tort due to gross negligence on the damage to the cargo, and there is no error in the misapprehension of legal principles, such as theory of lawsuit. There is no reason to discuss

Therefore, all appeals are 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 on the bench.

Justices Lee Yong-hun (Presiding Justice)