[1] Whether the term of filing a lawsuit under the terms and conditions of a bill of lading applies to the carrier's contractual liability and the tort liability based on the carrier's intentional or gross negligence

[2] The meaning of "the date on which cargo should be delivered" as the starting point for the filing of a lawsuit under the terms and conditions on the back of a bill of lading

[3] Whether a carrier is liable for a tort committed by a ship agency (negative)

[1] The term of filing a lawsuit under the terms and conditions of a bill of lading does not apply to the liability of tort caused by the carrier's intentional or gross negligence, but the default liability under the contract of carriage applies.

[2] The purport of the provision of the time limit for filing a lawsuit in the back clause of a bill of lading lies in relatively short-term termination of the legal relationship between a carrier and a consignee such as a bill of lading holder. If the holder of a bill of lading interpretation that the time limit does not commence unless the bill of lading holder presents a bill of lading, it is highly likely that the time period will be unfairly prolonged, contrary to the purport of the provision of the time limit for filing a lawsuit. Therefore, it is reasonable to interpret that the date when the cargo should be delivered under the back clause of a bill of lading is not the date when the bill of lading holder actually presented the bill of lading to

[3] Generally, vessel agency is its own independent merchant and is in a delegation relationship with the marine carrier, so it cannot be viewed as an employee of the marine carrier unless a special direction and supervision relationship is recognized. Therefore, the marine carrier is not liable for the tort of the vessel agency.

[1] Articles 105 and 750 of the Civil Act / [2] Article 105 of the Civil Act / [3] Article 756 of the Civil Act

[1] Supreme Court Decision 91Da14994 delivered on January 21, 1992 (Gong1992, 875)

National Bank of Korea (Attorney Kim Chang-soo et al., Counsel for the defendant-appellant)

Maritime Shipping Co., Ltd. (Attorneys Kim Jong-soo et al., Counsel for the plaintiff-appellant)

1. To dismiss a claim based on contractual liability among the instant lawsuits.

2. The plaintiff's remaining claims are dismissed.

3. Litigation costs shall be borne by the plaintiff.

The defendant held that the defendant shall pay to the plaintiff 5,600 U.S. dollars to the amount calculated by applying the exchange rate of customer telegraph redemption rate at the time of the conclusion of the argument in this case and the amount calculated by applying the rate of 5% per annum from February 13, 1991 to the service date of the copy of the complaint in this case, and the amount calculated by applying the rate of 25% per annum from the next day to the full payment date.

1. Judgment on the main defense of this case

On August 17, 190, the plaintiff entered into an agreement with the non-party 1, 5,00 US dollars 56,60 (hereinafter "the cargo of this case") to export the cargo under D/P terms (the condition that the importer would deliver the cargo at the time of payment of purchase price). On October 30, 1990, the plaintiff shall deliver the cargo of this case to the defendant and the same person (the consignee shall be the above 19 U.S. dollars 5, U.S. dollars 6, U.S. dollars 6, U.S. dollars 6, U.S. dollars 9, U.S. dollars 5, U.S. vessel's freight delivery contract to the above non-party 1, U.S. dollars 9, U.S. vessel's freight delivery contract to the above non-party 5, U.S. vessel's freight delivery delivery delivery contract to the plaintiff. The plaintiff shall de facto purchase the cargo of this case to the above non-party 1, U.S. dollars 500, U.S.S. dollars 16.

Therefore, if you add the whole purport of pleading to the statement in Eul evidence No. 1, it can be recognized that Article 20 of the Terms and Conditions on the back of the above bill of lading and Article 20 of the Terms and Conditions on the back of the bill of lading, and unless a lawsuit is brought within one year from the date on which the cargo has been delivered or the cargo has to be delivered, the carrier shall be exempted from all responsibility for non-delivery, unjust delivery, delay of delivery, loss or damage." Thus, the exclusion period cannot be said to be the exclusion period because it cannot be established under an agreement of the parties as the exercise period stipulated by the provisions of the Acts. Thus, the limitation period cannot be said to be the exclusion period of the above bill of lading agreement, but it can be recognized as the so-called "the so-called "non-scheduled bill of lading special clause" (the so-called "non-scheduled bill of lading special clause). This agreement does not apply to the tort liability of the carrier due to the carrier's intentional or gross negligence, but the default liability under the contract of carriage applies (see Supreme Court Decision 9Da14, 194, 194, 194, 194.).

Meanwhile, as long as the scheduled date of delivery of the cargo is not clearly indicated in the above bill of lading, the plaintiff's date of presenting the bill of lading to the defendant who is the holder of the above bill of lading, and the plaintiff's filing date of lawsuit has not passed one year since the date of presentation of the above bill of lading. The date when the ship which actually loaded the above starting date arrives at the port of Mexico's objective, or when the period required to deliver the cargo to the consignee, generally, after the arrival of the cargo at the port of destination, or around December 15, 1990 when the above cargo was delivered to Lelora in fact, or around December 15, 199 when the cargo should be delivered to Lelora, it is reasonable to set the rule on the time of filing of a lawsuit in the back of the bill of lading to relatively terminate the legal relationship between the consignee, such as the carrier and the holder of the bill of lading, and if the holder of the bill of lading fails to present the above long-term statutory prescription period or the period of filing a lawsuit, it should not be interpreted the bill of lading.

In this case, around October 30, 1990, the vessel loaded the cargo of this case departing from the port of Busan, the port of loading the cargo of this case, the port of Busan, the port of loading the cargo of this case, and arrived at the port of Mexico, the port of unloading around November 20, 1990, and around that time, the cargo of this case was loaded. On December 15, 1990, the defendant's shipping agent, the above cargo of this case did not redeem the above cargo with the above bill of lading and received only a copy of the above bill of lading, the importer, the importer, and delivered the above bill of lading to the above Lera. Thus, it is reasonable to view that the above cargo of this case could normally be received if the bill of lading holder arrived at the port of destination, and that the above cargo of this case arrived at the port of loading the cargo of this case by using the copy of the bill of lading of this case's port of discharge, and therefore, the defendant's claim against the above cargo of this case's tort and safety liability of this case's claim.

2. Facts of recognition;

The following facts are not disputed between the parties, or may be acknowledged by taking into account the whole purport of the pleadings as a whole each of the statements in Gap evidence 1 to 5, evidence 6-1, 2, 3, Eul evidence 2-1 to 5, Eul evidence 3, 5, evidence 3, evidence 3 and 5, evidence 6-1 to 5, evidence 3 and evidence 5.

A. On August 17, 1990, the non-party Gangwon-gu, who operates promark trade in Korea, entered into a contract for the export of Handbags (hereinafter “the instant cargo”) equivalent to US$ 56,600 on D/P terms, and on October 30, 1990, upon requesting the Defendant to transport the instant cargo from Busan Port to Mexico Port, the Defendant deliver the said cargo to the Defendant, and was issued the same bill of lading (securities No. HG901080, consignor’s mark trade, consignee’s above leba, port of loading, Busan, Yangyang Port, and Yangyang Port (hereinafter “the instant cargo”).

B. In accordance with the export financing agreement of January 30, 191 concluded with the above Gangwon-gu, the Plaintiff paid KRW 39,959,720 equivalent to US$5,600 to the Gangwon-gu on February 13, 1991, and purchased the above shipping documents, and became the holder of the above bill of lading, and thereafter requested the collection of the above shipping documents to the bank located in Mexico, and the said documents were returned to the Plaintiff by refusing to accept the above shipping documents.

C. On the other hand, the defendant accepted the freight of this case from the plaintiff, and actually entrusted the transportation of the freight of this case to the non-party Aju Shipping Co., Ltd. to the non-party Aju Shipping Co., Ltd. for the transportation of the freight of this case by using Magcrel s V-13EB. The above vessel arrived at the Mexico port, which is the objective port around November 20, 1990, and thereafter the above freight was loaded at around that time.

D. At the time, the defendant's shipping agent in Mexico was the non-party Lespian, and the above Lespian was entrusted by the defendant, followed the speed of entering and departing from the defendant-related vessels in Mexico, followed the process of collecting and shipping the cargo on behalf of the defendant, and received fees from the defendant. In the case of the cargo in this case, the defendant sent the above Lespian a copy of the bill of lading to the above Lespian and requested him to act on behalf of the defendant. On December 19, 190, the defendant was notified by the above prospian that the above Lespian delivered the above cargo to Lespian who was the consignee without repayment of the original bill of lading, and the above Lespian did not deliver the cargo to Lespian on the 20th of the same month with the notice that there was a problem between the exporter and the importer on the payment of the cargo price, but the above 19th of the above 19th of the bill of lading and the above 10th of lading.25.

3. Determination on the liability of the employer of the tort

The plaintiff asserts that the above Lesphers committed a tort to deliver the above cargo without redeeming the above bill of lading, and that Lesphersphersphers are in the position of an employee under the direction and supervision of the defendant, and that the defendant is liable for damages incurred to the plaintiff due to the above Lesphers' tort. Accordingly, the defendant asserts that the above Lesphersphers are in a delegation relationship with the defendant, and the defendant did not have an employee status, so the defendant cannot be held liable for the tort of Lesphersphersphers.

Therefore, in light of the above facts, the vessel agent is the independent merchant of the vessel and the marine carrier is in the delegation relationship, so long as it is not recognized as a special direction and supervision relationship, the marine carrier cannot be deemed as an employee of the marine carrier. Therefore, the marine carrier is not liable for the tort of the vessel agent. According to the above facts, the above Lesphersphers, upon the delegation of the defendant, shall follow the speed of the entry and departure of the Defendant-related vessel under the United Nations Convention on Mexico, shall perform the duties such as collecting bills of lading by acting for the volume of cargo and delivery, and shall receive the prescribed fees from the defendant, and it shall be difficult to view that the vessel agent was in the position of the employee under the direction and supervision from the defendant, and there is no other evidence to support this, the above assertion that the defendant is liable for the tort of Lesphersphers, as the user of Lesphersphers.

4. Conclusion

Therefore, among the lawsuit of this case, the claim against the defendant for the non-performance of obligation under the contract of carriage is dismissed as unlawful, and the claim to hold the defendant liable for tort due to intention or gross negligence is dismissed as it is without merit. It is so decided as per Disposition.

Judges Yang Sung-soo (Presiding Judge)