[1] Whether the period of extinction of the rights and obligations of a marine carrier against a consignor or consignee under Article 814(1) of the Commercial Act is the period of limitation (affirmative), and the starting point of that period (=the date of delivery or delivery of the cargo)

[2] Whether the carrier's delivery of the cargo from the hold to the place of delivery after arrival at the port of unloading according to the contract of carriage can be deemed as delivery of the cargo to the consignee (negative)

[3] In a case where the cargo is lost or it becomes impossible to deliver the cargo, whether the exclusion period under Article 814(1) of the Commercial Act should be determined based on the “the date on which the cargo is to be delivered” (affirmative) and the meaning of “the date on which the cargo is to be delivered”

[4] Whether the exclusion period under Article 814(1) of the Commercial Act has lapsed is a matter of ex officio examination by the court (affirmative), and whether the court may newly assert and prove it in the final appeal even if the parties did not assert whether the exclusion period has expired by the time the argument is closed at the court of final appeal (affirmative)

[5] In a case where Gap corporation entrusted Eul corporation with the transportation of the cargo to the port in Turkey, which is the port of unloading at the port of unloading for the shipper, and between the consignor and the consignee, it was expected that the cargo will be transported to Syria, which is the final destination, after unloading from the port of unloading, and the final destination was scheduled after shipping the cargo to the port of unloading, but no customs clearance was permitted since the authorities of Turkey did not allow it to enter the port of unloading, the case held that the judgment below erred in the misapprehension of legal principles as to the exclusion period under Article 814 (1) of the Commercial Act, on the ground that Eul company and Eul attempted to temporarily deposit the cargo to the storage in Turkey until customs clearance was completed, but the cargo could not be transported to Syria because the customs clearance was not completed, the obligation of delivery of Eul corporation should be delivered to the legitimate consignee, but on the ground that the transportation of Eul corporation was completed at the port in Turkey, which is the port of unloading, and thus, it was calculated from the starting point of exclusion period under Article 814 (1) of the Commercial Act

[1] Article 814(1) of the Commercial Act provides that a carrier’s claims and obligations against a consignor or consignee shall be extinguished, whatever the cause of the claim may be, if no judicial claim is made within one year from the date when the carrier delivers or delivers the cargo to the consignee, but the said period may be extended by agreement between the parties. The period of extinguishment for the rights and obligations of the carrier against the consignor or consignee is the exclusion period, and the starting point of the exclusion period is the date when the cargo is delivered or handed over.

[2] In a maritime transport contract, a carrier bears the duty of receiving, loading, loading, keeping, transporting, unloading, and delivering the goods (Article 795(1) of the Commercial Act). A carrier shall complete the performance of a transport contract by delivering the goods to a legitimate consignee at the final stage of the transport obligation. Here, delivery of the goods refers to the possession of the goods, i.e., de facto control and management, transfer to a legitimate consignee. If a bill of lading is issued, delivery of the goods must be made to a legitimate holder of the bill of lading (Articles 861 and 132 of the Commercial Act). Accordingly, the carrier’s delivery of the goods after arrival at the port of unloading stipulated in the transport contract to the bonded warehouse operator cannot be deemed as delivery of the goods to a legitimate consignee regardless of the carrier’s control.

[3] In a case where the cargo is lost or its delivery becomes impossible, the determination of whether the exclusion period has lapsed on the basis of “the date on which the cargo is to be delivered”. Here, “the date on which the cargo is to be delivered” refers to the date on which the delivery should be carried out if the transport contract is performed in accordance with the terms and conditions of the contract.

[4] The issue of whether the exclusion period under Article 814(1) of the Commercial Act has lapsed is the matter of ex officio investigation by the court, and thus, the court should investigate and determine it ex officio, even if there is no party’s assertion. In addition, even if the party did not assert whether the exclusion period has lapsed by the time the argument is closed at the court of final appeal

[5] The case holding that in a case where Gap corporation entrusted Eul corporation with the transportation of the cargo to a port in Turkey, which is a consignor, for the cargo at the port of unloading, and between the consignor and the consignee, it was anticipated that the cargo will be transported to Syria, which is the final destination, after unloading from the port of unloading, and the final destination was scheduled after shipping the cargo to the port of unloading, but no customs clearance was permitted since the authorities of Turkey did not allow the cargo to enter it via the port of unloading, the judgment below was erroneous in the misapprehension of legal principles as to the exclusion period or otherwise made it impossible to deliver the cargo to the consignee on the basis of the date of loading the cargo at the port of unloading, but in a case where the cargo was not transported to Syria because there was no customs clearance, the destination of the cargo pursuant to the transportation contract shall be deemed to be a port in Turkey, which is the port of unloading, but the delivery obligation of Eul corporation should be completed not at the port of unloading stipulated in the transportation contract, but at the point of loading the cargo to the consignee.

[1] Article 814 (1) of the Commercial Act / [2] Articles 132, 795 (1), 814 (1), and 861 of the Commercial Act / [3] Article 814 (1) of the Commercial Act / [4] Article 814 (1) of the Commercial Act, Article 134 of the Civil Procedure Act / [5] Articles 132, 795 (1), 814 (1), and 861 of the Commercial Act

[1] [3] Supreme Court Decision 97Da28490 decided Nov. 28, 1997 (Gong1998Sang, 68) / [2] Supreme Court Decision 2001Da33918 decided May 14, 2004 / [3] Supreme Court Decision 2005Da5058 decided Apr. 26, 2007 (Gong2007Sang, 754) / [4] Supreme Court Decision 99Da18725 decided Oct. 13, 200 (Gong200Ha, 2313)

Jindo Co., Ltd.

Sdrid Co., Ltd. (Attorney Noh Ho-soo et al., Counsel for the defendant-appellant)

Seoul High Court Decision 2018Na2043461 decided December 21, 2018

The judgment of the court below is reversed, and the case is remanded to the Seoul High Court. The defendant's "△△△△, the representative director of ○○○, Pakistanan," among the party indications in the judgment of the court below, shall be corrected to "△△△△△, the representative of ○○ and

The grounds of appeal are examined.

1. A. Article 814(1) of the Commercial Act provides that the claims and obligations of a carrier against a consignor or consignee shall be extinguished, whatever the causes for the claims may be, if no judicial claim is made within one year from the date when the carrier delivers or delivers the cargo to a consignee, but the said period may be extended by agreement between the parties. The expiration period for the rights and obligations of the carrier against the consignor or consignee is the exclusion period (see, e.g., Supreme Court Decision 97Da28490, Nov. 28, 1997); the starting date of the exclusion period is “the date when the cargo has been delivered or is to be delivered”.

B. In a maritime transport contract, a carrier bears the duty of receiving, loading, storing, transporting, unloading, and delivering the cargo (Article 795(1) of the Commercial Act). A carrier completes the performance of a transport contract by delivering the cargo to a legitimate consignee at the final stage of the transport obligation. Here, delivery of the cargo refers to the possession of the cargo, that is, de facto control and management, transfer to a legitimate consignee. If a bill of lading is issued, delivery of the cargo must be made to a legitimate holder of the bill of lading (Articles 861 and 132 of the Commercial Act). Accordingly, the carrier’s delivery of the cargo after arrival at the port of unloading stipulated in the transport contract to a bonded warehouse operator cannot be deemed as delivery of the cargo to a legitimate consignee out of the carrier’s control (see, e.g., Supreme Court Decision 2001Da3918, May 14, 2004).

In cases where the cargo is lost or the delivery of the cargo becomes impossible, the limitation period should be determined on the basis of “the date on which the cargo is to be delivered”. Here, “the date on which the cargo is to be delivered” refers to the date on which the delivery should take place if the transport contract is performed in accordance with the terms and conditions of the contract (see, e.g., Supreme Court Decisions 97Da28490, Nov. 28, 1997; 2005Da5058, Apr. 26, 2007).

C. Meanwhile, the issue of whether the exclusion period under Article 814(1) of the Commercial Act has been exceeded is a matter of ex officio investigation by the court, and thus, the court should investigate and determine it ex officio, even if there is no party’s assertion. Furthermore, even if a party did not assert whether the exclusion period has expired by the time the argument is closed at the court of final appeal, it may be newly asserted and proved at the court of final appeal (see Supreme Court Decision 99Da18725, Oct. 13,

2. Review of the reasoning of the lower judgment and the record reveals the following facts.

A. Both the Plaintiff and the Defendant are running shipping cargo transport agency business, combined freight forwarding business, etc., and the Defendant, around 2013, entrusted the Plaintiff with the transport of a total of 274 used cars (hereinafter “instant cargo”) to Turkey Mers, and the remainder to Turkey Lendun. The Plaintiff agreed to transport the instant cargo through “(trade name omitted)” and “(trade name 2 omitted)” as the maritime carrier.

B. The consignor’s final destination regarding the instant cargo was Syria, and the consignor and the consignee were scheduled to be transported to Syria by transferring after unloading at the port of unloading between the shipper and the consignee and at the port of loading.

C. On December 2013, Incheon, the port of shipment, entered the port of registry, and refused entry into Turkey for the transfer of cargo at the final destination of Turkey at the Turkey’s authority. From January 2014, the instant cargo was waiting at the port of Turkey and entered the port of Turkey and the port of Turkey around May 2014.

D. Even after the instant cargo enters a port in Turkey, the Turkey rejected customs clearance, and the Plaintiff and the Defendant temporarily deposited the instant cargo at the storage place in Turkey and sought a solution until the customs clearance for the instant cargo was made. However, the instant cargo did not undergo customs clearance and was not transported to Turkey.

3. A. Examining the above facts in light of the legal principles as seen earlier, the destination of the instant cargo pursuant to the instant transport contract ought to be considered as having dealt with memans and mesents. However, the Plaintiff’s obligation to deliver is not terminated at the time of arrival at the port of unloading stipulated in the transport contract, but should be completed to a legitimate consignee. Therefore, the lower court should determine whether the exclusion period is calculated based on the date when the Plaintiff delivered the instant cargo to a legitimate consignee, or if the delivery of the cargo becomes impossible, based on the date of delivery of the cargo.

B. Nevertheless, the lower court determined that the Plaintiff’s transport of the instant cargo was terminated at the time of entry into a port in Turkey, and calculated the exclusion period from that date. In so doing, the lower court erred by misapprehending the legal doctrine on the starting point of the exclusion period and failing to exhaust all necessary deliberations, thereby adversely affecting the conclusion of the judgment. The allegation contained in

4. Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench, on the ground that there is an obvious clerical error in the Defendant’s indication among the party indications.

Justices Jo Hee-de (Presiding Justice)