A. In a case where a bill of lading of a carrier contains a provision on the exclusive jurisdiction of a specific foreign court, whether the above provision applies to a domestic bank that is the holder of the bill of lading of a carrier's domestic shipping agency for committing a tort in Korea (negative)

B. Whether the carrier, etc. can be recognized as intentional or gross negligence with respect to the fact that the right of a legitimate holder of a bill of lading may be infringed due to the “level of guarantee” (affirmative)

(c) Purport of Articles 820 and 129 of the Commercial Act;

D. Whether a claim for damages caused by a tort is also transferred to a holder of a bill of lading as a result of the transfer of a bill of lading by being incorporated into a bill of lading (affirmative)

(e) The scope of the application of the exemption clause stated in a bill of lading or the limitation on the amount of compensation.

F. Whether the provisions of Articles 746 and 747 of the Commercial Act concerning the limited liability of the shipowner apply to cases where liability of tort is charged

(g) Whether the terms and conditions of a bill of lading concerning the period for filing a lawsuit apply to cases where liability for tort is held.

H. Whether the overdue interest rate under the import Daejeon Payment Agreement applies to the damages for delay as to the damages for delay caused by the tort of “guarantee limit”

A. Even though there is a provision that a lawsuit by this bill of lading belongs to the exclusive jurisdiction of a specific foreign court which is the domicile of a carrier, a domestic shipping agency of a carrier cannot be deemed as the purport of this provision to apply to cases where a domestic bank which is the holder of the bill of lading claims damages against it by committing a tort in the Republic of Korea.

B. An act of infringing the right of a holder of a bill of lading by delivering the cargo without redemption of the bill of lading by the carrier or the consignee of the cargo shall not be deemed legitimate or reduced or exempted from the duty of care of the carrier. In a case where the right of a legitimate holder of a bill of lading was infringed on due to “a guarantee limit,” the carrier shall be liable for tort by intention or gross negligence.

C. It is reasonable to deem that the provisions of Articles 820 and 129 of the Commercial Act provide that the carrier has the obligation to refuse delivery of cargo with the right to refuse a request for delivery of cargo without a presentation of a bill of lading.

D. In the event of the loss of the cargo due to “guarantee”, etc., the right to claim damages due to nonperformance as well as the right to claim damages due to tort is also transferred to the holder of a bill of lading as a result of the transfer of a bill of lading, so even if a bill of lading was acquired after the cargo has been lost, the holder of the bill of lading can exercise the right to claim damages and the separate notice

E. Although the terms and conditions of exemption or limitation of the amount of compensation stated in a bill of lading apply not only to the nonperformance of the obligation under the contract, but also to the tort caused by the infringement of ownership of the cargo, barring any special circumstance, it shall not apply to cases of enforcing liability for tort caused by intention

F. The provisions on the shipowner's limited liability under the Commercial Act are applicable only to cases where the parties are held liable for nonperformance of obligations under the contract of carriage unless the bill of lading provides the exemption clauses or the limitation of liability clauses. It does not naturally apply to cases where the parties are held liable for tort.

(g) a clause concerning the period of filing a lawsuit as stated in the terms and conditions of a bill of lading with respect to cargo does not apply where such clause is to enforce liability for tort due to intentional

H. The overdue interest rate under the import Daejeon Payment Agreement, which is concluded between the holder of a bill of lading and the importer, cannot be naturally applied to damages for delay on the carrier’s tort liability.

a.E. (g. Article 814(a) of the Commercial Code. Article 13(1)(f) of the Conflict of Laws. (h) Article 750(b) of the Civil Code. (d) Article 820(d) of the Commercial Code. Articles 132, 133(e) of the Commercial Code. Article 790(f) of the Commercial Code. Articles 746, 747(h) of the Commercial Code. Articles 379 and 397 of the Civil Code

B. D. Supreme Court Decision 91Da14123 delivered on December 10, 1991 (Gong1992, 475). (b) Supreme Court Decision 90Meu8098 delivered on April 26, 1991 (Gong1991, 1484). (b) Supreme Court Decision 91Da8012 delivered on August 27, 1991 (Gong1991, 2420). Supreme Court Decision 87Da1791 delivered on March 14, 198 (Gong1989, 593 delivered on February 14, 1989) (Gong1989, 400) and Supreme Court Decision 87Da124 delivered on February 14, 1989 (Gong1989, 1989, 1980).

Seoul High Court Decision 200Na14488 delivered on August 1, 200

Seoul High Court Decision 201Na1488 delivered on May 2, 2012

Seoul High Court Decision 90Na49940 delivered on April 12, 1991

The part of the lower judgment against the Defendants regarding damages for delay shall be reversed, and that part of the case shall be remanded to the Seoul High Court.

The plaintiff's appeal and the defendants' remaining appeals are dismissed, and the costs of appeal are assessed against each party.

We examine the grounds of appeal.

1. We examine the Defendants’ grounds of appeal.

Examining the reasoning of the judgment below in light of the records, we affirm the fact-finding of the court below, and there is no error of law in the incomplete hearing or the rules of evidence. Furthermore, we examine the following:

As to the ground of appeal No. 1 by Defendant Dongdong Ship Co., Ltd. (hereinafter referred to as the "Dongdong Ship") and Defendant Shin Young Shipping Co., Ltd. (hereinafter referred to as the "New Young Shipping") disputing jurisdiction

Even though there is a provision that the lawsuit of a carrier due to this bill of lading belongs to the exclusive jurisdiction of a specific foreign court which is the domicile of the carrier, it cannot be interpreted that the above Defendants, a domestic shipping agent, committed a tort in Korea and the Plaintiff bank, a holder of the bill of lading, filed a claim for damages against them.

The plaintiff's claim against the above defendants is a claim for damages caused by a tort as a ship agency. The plaintiff and the above defendants are both domestic corporations and foreign courts, the principal office of the carrier, without a domestic trial, even when considering the convenience and effectiveness of enforcement of the trial procedure. It is reasonable to view that the above terms and conditions of the contract are invalid or not applicable between the plaintiff and the defendants. As to the above case, the above defendants responded to the suit without claiming the violation of jurisdiction and present arguments as to the merits, and thus, it cannot be said that there is no ground to conclude that the violation of jurisdiction has been delayed after the final appeal.

As to the ground of appeal Nos. 2-a and 3-4 of the defendant Dongdong Shipping Co., Ltd. (hereinafter referred to as the "Dongnam Shipping"), and the manager of the defendant Dongnam Shipping Co., Ltd. (hereinafter referred to as the "Yinam Shipping"), the first ground of appeal by the defendant Dongdong Shipping Co., Ltd., Ltd., who asserted the ground of appeal Nos. 2-a and 3-4 of the defendant Dongnam Shipping Co., Ltd., and the first ground of appeal by the defendant Dongnam Shipping Co., Ltd., Ltd., which asserted the ground of appeal Nos. 2-2,

(1) The so-called theory about the existence and significance or function of the so-called guarantee limit is just. However, such guarantee limit is not for the purpose of exempting the lawful holder of the bill of lading from liability to the carrier or the consignee, but rather is premised on compensating for the damage in a case where the holder of a bill of lading suffers damage due to the guarantee road, so it cannot be said that the act of infringing the rights of the holder of the bill of lading or the consignee's duty of care is legitimate, or that the carrier or the consignee's duty of care is mitigated or exempted from the act of infringing upon the rights of the legitimate holder of the bill of lading due to the guarantee road. This is also the opinion of the party member that such guarantee is liable for tort intentionally or by gross negligence (see, e.g., Supreme Court Decisions 87Da1791, Mar. 14, 1989; 9Da12314, Dec. 10, 191; 2000Da123480, Mar. 14, 1991).

(2) In a case where a carrier or a consignee provides a guarantee, it shall be deemed that the carrier or the consignee has the responsibility to verify whether the cargo has been actually established, and if the carrier or the consignee delivers the cargo without redeeming the bill of lading and thereby causes damage to the legitimate holder of the bill of lading without finding out the forgery of the cargo taking-out warranty, it shall be deemed that the carrier or the consignee is liable for intentional or gross negligence, barring any special circumstances. It shall not be deemed that the guarantee has the form and appearance of the cargo taking-out warranty, nor shall the illegality be dismissed.

In addition, it should be deemed that there exists a causal relationship between the Defendants’ tort and the damages suffered by the holder of a bill of lading, and even if such guarantee is issued in the name of the issuing bank, the same holds true that the carrier or the transporter is responsible for verifying the authenticity of the guarantee. If the cargo was not discovered and the cargo was delivered to a person other than the holder of the bill of lading, it should be held liable for gross negligence, barring special circumstances.

(3) The provisions of Articles 820 and 129 of the Commercial Act provide that the carrier is obligated to refuse to deliver cargo with the right to refuse a request for delivery of cargo without a presentation of a bill of lading. Therefore, the judgment below to the same purport is also justifiable (see Supreme Court Decision 91Da14123, Dec. 10, 191).

(4) In the event of the loss of cargo due to guarantee, etc., not only the right to claim damages due to default but also the right to claim damages due to tort is transferred to the holder of a bill of lading as a result of transfer of a bill of lading, so even if a bill of lading was acquired after the cargo has been lost, the holder of the bill of lading can exercise the right to claim damages, and it is not necessary to give separate notice of assignment of claims (see, e.g., Supreme Court Decision 90Meu8098, Apr. 26, 1991; Supreme Court Decision 91Da14123, Dec. 10, 199). The judgment of the court below on the cause and degree of comparative negligence is just.

In this regard, the precedents cited by the defendant Namnam Shipping (Supreme Court Decision 80Da2943 delivered on February 23, 1982) cannot be deemed appropriate in this case.

(5) Therefore, the judgment of the court below did not err in the misapprehension of the legal principles as to the guarantee or the validity of the bill of lading as a real right, or in the incomplete hearing or incomplete hearing, or in the omission of judgment, or in the absence of reasons, and there is no reason

As to the grounds of appeal No. 5, which asserted that the delivery of the instant cargo is lawful and that there is no infringement of the right to the cargo.

In this case, the final shipment date of the cargo and the effective date of the credit are allowed by the maximum of 181 days, and the exporter was a transaction under the so-called "Sel" condition, and it cannot be deemed that the exporter lawfully approved the delivery of the cargo which was not repaid with the bill of lading on the ground that the exporter had delivered the documents necessary for the import clearance of the cargo of this case. Moreover, it cannot be deemed that the Plaintiff, who is the holder of the bill of this case, concluded a security agreement for transfer of the cargo with the mobilized Unemployment Co., Ltd. (hereinafter referred to as the "PP") which is the importer, and the Plaintiff cannot be deemed to have approved the delivery of the cargo without the bill of lading or without the Plaintiff's consent, and it cannot be deemed that the cargo of this case was delivered by the exporter to the importer (see Supreme Court Decision 91Da14123, Dec. 10, 191).

The court below held that although the fact that a transfer security contract with the plaintiff was not illegitimate and that there was a transfer security contract with the above mobilization unemployment, it does not constitute a justifiable ground for the infringement of the bill of lading holder's right to the cargo by delivering the freight of this case to the above mobilization unemployment without redemption of the bill of lading, the court below's fact-finding of the court below is not erroneous and contrary to the rules of evidence.

Therefore, there is no reason to challenge the opposing position.

With respect to the grounds of appeal Nos. 3 and 4 of the defendant Dongdong Shipping and the ground of appeal No. 2 (B) and No. 6 of the defendant Dongnam Shipping, claiming the exemption terms and conditions on a bill of lading and applying limited liability to the ship owner:

(1) Although the terms and conditions of exemption or restriction on the amount of compensation stipulated in a bill of lading apply not only to the default of obligations under the contract of carriage, but also to the liability for tort caused by the infringement of ownership of the cargo, barring any special circumstance, it shall not apply to the execution of tort by intention or gross negligence (see, e.g., Supreme Court Decision 90Meu8098, Apr. 26, 191; 91Da8012, Aug. 27, 1991). Therefore, the court below was just in rejecting the Defendants’ assertion as to the terms and conditions of exemption or restriction on the amount of compensation, and there is no misapprehension of legal principles as to the theory

(2) The provisions concerning the shipowner's limited liability under the Commercial Act apply only to cases where the terms and conditions of exemption or the terms and conditions of limitation are set on a bill of lading, or where the parties are held liable for nonperformance of obligations under the contract of carriage, and it does not naturally apply to cases where the parties are held liable for tort (see, e.g., Supreme Court Decision 88Meu16294, Nov. 24, 1989; Supreme Court Decision 88Meu7641, May 8, 190; Supreme Court Decision 88Meu3085, Aug. 28, 1990; Supreme Court Decision 88Meu3085, Aug. 28, 1990). The argument that the court below erred in the application of the shipowner's limited liability under the Commercial Act, and it does not affect the outcome of the instant case even if

As to the grounds of appeal No. 5 of the defendant Dongdong Shipping and New Young Shipping as to the period of filing a lawsuit, and the grounds of appeal No. 1 of the defendant Dongnam Shipping

The clause of the theory of lawsuit regarding the period of filing a lawsuit against the instant cargo under the terms and conditions of the bill of lading does not apply to cases where tort liability is held against the instant cargo intentionally or by gross negligence. Accordingly, the lower court’s rejection of the aforementioned Defendants’ assertion on this point is justifiable, and the assertion of objection against the contrary cannot be accepted.

The court below determined additionally that the freight of this case cannot be determined whether the period is observed on the basis of the date of delivery to Nonparty mobilization unemployment. Thus, whether this part of the judgment is justified or not does not affect the outcome of this case. There is no reason to discuss this.

With respect to the part disputing the interest rate of delay damages

Although the lower court acknowledged the Defendants’ tort liability, but ordered the Plaintiff to pay the interest rate of 19% per annum, which is the agreed interest rate at the time of payment at the time of the World Import Daejeon, which was concluded between the Plaintiff and the Nonparty mobilization unemployment, until the lower court rendered a decision on the damages for delay. However, the overdue interest rate under the import Daejeon Payment Agreement concluded between the Plaintiff and the said mobilization unemployment shall be naturally applicable to the carrier or the Defendants’ tort liability.

Therefore, the judgment of the court below is erroneous in the misunderstanding of legal principles as to the interest rate on delayed payment of monetary claims, and there is a ground to point this out.

As to the Plaintiff’s ground of appeal

The court below's finding that there is no error of law against the rules of evidence in the court below's finding of facts as above, and if the facts are the same, the judgment of the court below as to the cause and degree of comparative negligence can also be justified, and the court below's decision that did not reject the defendants' defense of comparative negligence cannot be deemed unlawful (see Supreme Court Decision 91Da14123 delivered on December 10, 191, 191), and the precedents of the theory of lawsuit are not appropriate in this case. The arguments are without merit.

Therefore, the part of the judgment of the court below against the defendants as to damages for delay is reversed, and this part of the case is remanded to the court below. The remaining appeal by the defendants and the plaintiff's appeal are dismissed, and the costs of appeal are assessed against each party. It is so decided as per Disposition by the

Justices Lee Jae-chul (Presiding Justice)