Hyundai Marine Fire Insurance Co., Ltd. (Attorney Kim Hong-Gyeong, Counsel for the plaintiff-appellant)

Han Industrial Machinery Co., Ltd. (Attorney Kim Dong-dong, Counsel for the plaintiff-appellant)

September 7, 2017

1. The Defendant shall pay to the Plaintiff 32,90,000 won with 6% interest per annum from October 21, 2015 to October 19, 2017, and 15% interest per annum from the next day to the day of full payment.

2. The plaintiff's remaining claims are dismissed.

3. 3/10 of the costs of lawsuit shall be borne by the Plaintiff, and the remainder shall be borne by the Defendant.

4. Paragraph 1 can be provisionally executed.

The defendant shall pay to the plaintiff 47,00,000 won with 6% interest per annum from September 2, 2015 to the service date of a copy of the complaint of this case, and 15% interest per annum from the next day to the day of complete payment.

1. Facts of recognition;

A. The defendant is a company with the purpose of wholesale and retail business of industrial machinery, manufacturing business of industrial machinery, installation and transportation business of industrial machinery, transportation business of composite cargo forwarding business, etc.

B. On March 1, 2012, Hyundai Libers Co., Ltd. (hereinafter “Mogles”) drafted a “combined Transport Contract” with the Defendant. The content of the contract is as follows.

(1) Article 2 of the table contained in the main text / [Purpose of a contract] The scope of services prescribed in Article 5 (hereinafter “subject services”) shall be entrusted to the Defendant with respect to the carriage of goods produced and exported by Hyundai Characters, and the Defendant shall be entrusted with the disposal thereof. [1] The scope of services to be provided by the Defendant under this contract shall be as follows: all the contents of the bill of lading and the simplified contract (FIXRE) after the selection of the successful bidder for each carriage; 2. The Defendant shall be liable for damages arising from the destruction or loss of the goods at the port of destination; Presidential Decree No. 17657, Jan. 1, 2007; Presidential Decree No. 20600, Feb. 1, 2007> The Defendant shall be liable for damages arising from the destruction or loss of the goods at the port of destination; Presidential Decree No. 20600, Mar. 1, 2001>

C. Hyundai item Co., Ltd. (hereinafter “instant item”) exported 212 packagings, such as press equipment, etc. (hereinafter “instant cargo”) to the “Pod Indago Pvt Ltd.” and entrusted the entire carriage of the instant cargo to the Hyundai Round.

D. The Plaintiff concluded an international cargo transport business entity liability insurance contract for the instant cargo with Hyundai Glosovis.

E. The “KNT Car” actually taking charge of the carriage of the instant cargo by sea is a carrier: Hyundai item, consignee: “Podon”, “Madon”, the place of receipt: The name of the Republic of Korea Pyeongtaek, the name of the ship: Mao Sho, the port of registry: the port of registry in Korea, and the port of discharge: the multimodal transport bill stated in the “Madora” was issued as a carrier.

F. On April 11, 2013, the instant cargo was shipped to and depart from the instant vessel at Pyeongtaek Port, and arrived at the India Rod Port on May 21, 2013.

G. After the instant cargo arrives at the port of India on May 21, 2013, the shipper felled into the hold, and collisioned with two different packages among the instant cargo, thereby severely damaging three of the instant cargo packages (hereinafter “instant accident”).

H. Hyundai item subscribed to the Plaintiff’s cargo insurance regarding the instant cargo, and received cargo insurance money from the Plaintiff on May 14, 2014 in relation to the instant cargo accident.

(i) On April 18, 2014, in the course of exercising in subrogation the right to claim damages against the modern flouses of modern items, the term “the Lao law office” representing the Plaintiff as the cargo insurer of modern items requested to extend the prescription in respect of the claim for damages arising from the instant accident to August 20, 2014, and modern flouses consented to the extension of the prescription period. Thereafter, the term “the Lao law office” and Hyundai flouses agreed to extend the prescription period until November 20, 2014, until February 20, 2015, and February 20, 2016.

(j) On September 11, 2015, the Plaintiff, as a cargo insurer of modern items, agreed to receive KRW 50,000,000 as to the instant accident from Hyundai Glos. Accordingly, on October 20, 2015, the Plaintiff paid liability insurance amount of KRW 47,00,000 (the actual payment place is the amount calculated by subtracting KRW 3,00,000 from the aforesaid agreed amount of KRW 50,000,00 (the actual payment place is the agent’s office) to the Plaintiff, who is the cargo insurer of modern items, as a liability insurer of Hyundai Gloss.

C. According to the Plaintiff’s request, the “international adjustment” assessed the amount of damages at KRW 241,578 and KRW 213,288,645 in Korean won.

[Ground of recognition] Facts without dispute, Gap evidence 1 through 6, Eul evidence 1 and 4, the purport of the whole pleadings

2. The parties' assertion

A. The plaintiff's assertion

The Defendant, as a party to a multimodal transport contract directly requested the multimodal transport of the instant cargo, is under a contractual obligation to safely transport the cargo. However, due to the negligence of not properly managing and supervising the transport process and the duties of its subordinate actual carrier, the Defendant neglected to damage the instant cargo in the loading and unloading process and caused damage to Hyundai Rovis. Therefore, by paying insurance money, the Defendant is liable to compensate the Plaintiff for damages due to failure to perform the contract of carriage.

B. Defendant’s assertion

(1) The defendant is not a carrier but a forwarding agent, and thus is not liable for damages for the instant accident occurred during the carriage.

(2) The extinctive prescription period for the liability of the forwarding agent is one year from the date on which the consignee received the goods, and thus, even if the Defendant is liable as the forwarding agent, this extinctive prescription has already expired.

(3) Even if the defendant is not a forwarding agent but a carrier, the lawsuit of this case is unlawful since it was filed after the lapse of the period for filing the lawsuit stipulated in Article 814 of the Commercial Act.

(4) Even if the Defendant is liable for the instant accident, the Defendant’s liability should be limited in consideration of the circumstances, such as that the instant accident was not caused within the Defendant’s direct management and control.

3. Determination

A. Determination as to whether the defendant is a carrier

In addition to the purport of the oral argument in Gap evidence No. 1, the defendant entered into a contract with Hyundai roman to entrust the transportation of the cargo of Hyundai roman to the defendant (a written contract). In principle, the transportation of the cargo of Hyundai roman is entrusted (Article 6 of the contract), the transportation of the cargo of Hyundai roman, which was requested after selecting a successful bidder for each carriage from Hyundai roman, and the above cargo is transported by utilizing the cream line secured by the defendant (Article 7 of the contract). The freight rate payable by the defendant shall be determined by the freight rate agreed between the defendant and Hyundai roman (Article 9 of the contract). The defendant is responsible for all the cargo from the time of receipt of the cargo at the place designated by Hyundai roman (Article 10 (1) of the contract) to the time of arrival at the final destination designated by Hyundai roman (Article 10 (2) of the contract), and the defendant's obligation and responsibility should be borne by the carrier as a good manager (Article 10 (2) of the contract).

B. Determination as to whether the exclusion period under Article 814 of the Commercial Act is complied with

Article 814(1) of the Commercial Act provides, “Any claim and obligation of a carrier against a consignor or consignee shall be terminated, whatever the cause of the claim may be, if no judicial claim is made within one year from the date on which the carrier has delivered or will deliver the cargo to the consignee: Provided, That this period may be extended by an agreement between the parties, provided,” and Article 814(2) of the Commercial Act provides, “If, in cases where the carriage taken over by the carrier has been re-entrusted to a third party, the consignor or consignee has agreed on the compensation with the carrier or has made a judicial claim against the carrier within the period of paragraph (1), the claim and obligation of the carrier against the third party shall not be terminated, notwithstanding paragraph (1), until three months have elapsed from the date of such agreement or claim. The same shall also apply in cases where there is an agreement between the carrier and the third party

The fact that the Plaintiff filed the instant lawsuit on November 13, 2015, claiming damages from the instant accident on behalf of the Defendant, who is a carrier, is apparent in the record that the instant cargo arrived at the India Port on May 21, 2013, and the Plaintiff, the consignor, as the cargo insurer of modern item, agreed on the extension of the period for claiming damages from the instant accident through the Lao Law Office on April 18, 2014, and agreed on the extension of the period until February 20, 2016. The Plaintiff, the consignor, as the cargo insurer, agreed on the extension of the period for filing damages from the instant accident to the date of February 20, 2016, may recognize the fact that the Plaintiff, as the cargo insurer, agreed on September 11, 2015, agreed on the extension of the period for filing damages from the instant accident.

According to the above facts, the period for which Hyundai Gomans may claim damages under the main sentence of and proviso to Article 814(1) of the Commercial Act extended by February 20, 2016 by agreement between the consignor's Hyundai item and the consignor's side, and on September 11, 2015, the period for which the claim for damages was made pursuant to the main sentence of and proviso to Article 814(1) of the Commercial Act. The lawsuit in this case was filed against the defendant on November 13, 2015, which is apparent within three months from the date of agreement, and which is apparent within three months from the date of agreement. Thus, the lawsuit in this case was filed within the exclusion period under Article 814(2) of the Commercial Act. Accordingly, the defendant's assertion that the lawsuit in this case is unlawful is not acceptable (the defendant's "period under Article 814(2) of the Commercial Act" in the main sentence of Article 814(1) of the same Act, but does not include the extended period under the proviso to the same paragraph.

C. The occurrence and scope of the defendant's liability

If a carrier does not prove that he, the forwarding agent, any employee, or any other person employed for the carriage did not neglect his care in connection with the receipt, delivery, custody, and carriage of the cargo, he shall be liable for damages arising from the loss of, damage to, or delay in arrival of the cargo (Article 135 of the Commercial Act). As seen above, the defendant constitutes a carrier, and according to the above evidence, the defendant is liable for damages arising from the accident of this case due to the negligence of the shipper, and the defendant is liable for damages arising from the accident

Therefore, barring special circumstances, the defendant is obligated to pay the insurance money for the damages incurred by the accident of this case and pay the damages to the plaintiff who acquired the subrogation claim against the defendant within the scope of the insurance money paid by the plaintiff.

However, in light of the circumstances of the accident, since the accident in this case cannot be deemed to have occurred due to the defendant's gross negligence, the amount of damages can be reduced in accordance with Article 137 (3) of the Commercial Act, and considering all the circumstances, such as the degree of negligence of the defendant, the degree of damages incurred by the freight in this case, and the degree of damages borne by the Hyundai Groman, it is reasonable to limit the scope of damages to 70% in principle of fairness.

D. Sub-committee

Therefore, the defendant is obligated to pay to the plaintiff 32,900,000 won (=47,000,000 won x 70%) and to pay damages for delay at each rate of 15% per annum under the Commercial Act from October 21, 2015, which is the day following the date of subrogated by the plaintiff, to October 19, 2017, which is the date of the decision of this case, that the defendant claims as to the existence and scope of the obligation of performance of this case from October 21, 2015.

4. Conclusion

Therefore, the plaintiff's claim is justified within the above scope of recognition, and the remainder is dismissed as it is without merit. It is so decided as per Disposition.

Judges Lee Jin-American