Supreme Court Decision 2005Da5058 Decided April 26, 2007[Damages]

[Main Issues and Holdings]

[1] The significance of the phrase "date when the transporter is required to deliver the cargo to the consignee" under Article 811 of the Commercial Code, and the proper date for determining whether the period for filing a cause of action under the above Article has run, in cases where the cargo was not delivered due to such factors as the cargo being destroyed, the carriers refusal to deliver, etc. (= the date on which the cargo is to be delivered)

[2] The meaning of "agency" under Article 114 of the Commercial Code and whether a carriage agent loses her agency status where the agent signed a carriage contract in the name of the cargo owner, the carrier representative, or the consignor, and then acted as an agent (negative)

[3] Whether a bill of lading written by a sea carriage agent on behalf of an unrelated party may be deemed a "bill written by a carrier agent," as required under Article 116 of the Commercial Code in order to qualify as a valid exercise of the authority to act as a go-between (negative)

[Summary of Decision]

[1] Article 811 of the Commercial Code stipulates the "date when the transporter is required to deliver the cargo to the consignee" normally refers to the date by which the delivery shall be performed where the transportation contract is implemented in accordance with the contents of the contract. As such, if the cargo is not delivered, due to such factors as the cargo being destroyed, the carriers refusal to deliver, etc, whether the above period for filing a cause of action has run shall be determined on the basis of the "date when the transporter is required to deliver the cargo to the consignee."

[2] Since Article 114 of the Commercial Code stipulates that "acting as an agent" refers to engaging in legal activities in his own name under the account of another, although a carriage agent acts as an agent in his own name in principle, if in fact he acted as an agent in concluding a transportation contract under the name of the cargo owner, the carrier representative or the consignor, he does not thereby lose the status of carriage agent.

[3] If a sea carriage agent writes a bill of lading at the request of a consignor, he shall be deemed to have exercised his authority to act as a go-between as stipulated in Article 116 of the Commercial Code. However, a bill of lading that the sea carriage agent writes on behalf of an unrelated person, unless there are special circumstances, shall not be deemed a "bill written by a carrier agent" qualifying as a lawful exercise of the authority to act as a go-between under the same Article.

[Reference Provisions]

[1] Article 811 of the Commercial Code / [2] Article 46 Subparagraph 12 of the Commercial Code, Article 114 of the Commercial Code / [3] Article 116 of the Commercial Code

Article 811 of the Commercial Code (Time-Bar of Claims and Obligations of Carrier) Any claims and obligations of the carrier to the shipper, consignor or consignee shall, regardless of the cause of the claims, be extinguished if no legal action is filed within one year after the carrier delivers or should have delivered the goods to the consignee: Provided, that this period may be extended by agreement between the parties

Article 46 of the Commercial Code (Basic Commercial Activities) The following activities which are affected as business are called commercial activities: Provided, that this shall not apply to such activities as are affected by persons who manufacture Articles or render services solely for the purpose of earning wages:

12. Activities relating to commission agency and any other intermediation;

Article 114 of the Commercial Code (Definition) A person who makes it his business to act in his own name as intermediation for the carriage of goods is called a forwarding agent.

Article 116 of the Commercial Code (Right to Intervention) (1) A forwarding agent may himself undertake the carriage, unless otherwise agreed by the parties. In such cases, the forwarding agent shall have the same rights and duties as a carrier.

(2) When a forwarding agent has produced a land bill of lading upon demand of the principal, he shall be deemed to have undertaken the carriage of the goods for himself.

[Reference Cases]

[1] Supreme Court Decision 97Da28490 decided Nov. 28, 1997 (Gong1998Sang, 68) / [2] [3] Supreme Court Decision 85DaKa1080 decided Oct. 13, 1987 (Gong1987, 1691)

[Plaintiff-Appellant]Plaintiff (Law Firm Kwangjang, Attorney Hyun Duck-kyu, Counsel for plaintiff-appellant)

[Defendant-Appellee]Defendant Incorporated Company (Attorneys Lee Im-soo and four others, Counsel for defendant-appellee)

[Judgment of the court below]Seoul High Court Decision 2004Da8588 decided Dec. 24, 2004

[Disposition]

The appeal is dismissed. All costs of appeal shall be borne by the plaintiff.

[Reasoning]

The Grounds for Appeal are examined as follows (additional reasons submitted after the deadline for such submissions fall within the scope of supplements to the Grounds for Appeal).

1. Concerning the proper date from which the period for filing a cause of action, as stipulated in Article 811 of the Commercial Code, begins to run.

Article 811 of the Commercial Code stipulates, "Credit or debt held by the transporter against the vessel renter, the consigner or the consignee, no matter what the reason for the claim, shall become extinct, if there is no claim on trial within one (1) year of the date when the transporter delivered the cargo to the consignee or the date when the transporter shall deliver the cargo to the consignee." The phrase "date when the transporter shall deliver the cargo to the consignee" normally refers to the date when the delivery shall be performed where the transportation contract has been implemented in accordance with the contents of the contract (see Supreme Court Decision 97Da28490, November 28, 1997). As such, if the cargo is not delivered, due to such factors as the cargo being destroyed, the carriers refusal to deliver, etc, whether the above period for filing a cause of action has run shall be determined on the basis of the "date when the transporter shall deliver the cargo to the consignee."

According to the reasons stated in the judgment below, Cargo No. 1 of the instant action arrived at the port of Long Beach in the United States before December 2000, and as such it shall be deemed to have been delivered around that time, but the suit in the instant action was filed after one (1) year had passed since that date. Therefore, that part of the suit which seeks compensation for damages against the defendant as the sea carrier of Cargo No. 1, caused by the defendant’s unlawful conduct and its failure to perform its obligations, shall be deemed invalid, as it was filed after the filing period had passed.

The decision by the court below of the same purport is proper and does not constitute an unlawful determination based on a defect of insufficient hearing or a misapprehension of the legal principles concerning the proper date from which the filing period begins to run, as so argued in the Grounds for Appeal.

2. Whether the defendant exercised the authority to act as a go-between as the carrier agent

Since Article 114 of the Commercial Code stipulates that "Carriage Agent' refers to a person who engages in business activities under his own name acting as an agent in the transport of goods," where ‘acting as an agent' refers to engaging in legal activities in his own name under the account of another, although a carriage agent acts as an agent in his own name in principle, if in fact he acted as an agent in concluding a transportation contract under the name of the cargo owner, the carrier representative or the consignor, he does not thereby lose the status of carriage agent. If, meanwhile, a sea carriage agent writes a bill of lading at the request of a consignor, he shall be deemed to have exercised his authority to act as a go-between as stipulated in Article 116 of the Commercial Code. However, the bill of lading that the sea carriage agent writes on behalf of an unrelated person, unless there are special circumstances, shall not be deemed a "bill written by a carrier agent" qualifying as a lawful exercise of the authority to act as a go-between under the same Article (see Supreme Court Decision 85DaKa1080, October 13, 1987).

In view of the overall circumstances described in the decision below, this Court is persuaded by the determination of the court whereby it did not view the defendant as a carrier agent. In addition, according to the reasons stated in the decision below, when Cargo No. 1, exported to the United States by the plaintiff, was being loaded at the port of Busan, the defendant, who is the local legal entity in Seoul for the Danzas Group, an international shipping company, signed a bill of lading as the agent of Danmar Lines Ltd., an associate of the Danzas Group (hereinafter "Danmar"), whereby Danmar was entered as the carrier, and then delivered the bill of lading to the plaintiff. As such, the bill of lading that the defendant issued as the agent of Danmar shall not be deemed a "bill written by the carrier agent" constituting a valid exercise of the authority to act as a go-between as stipulated in the Commercial Code, and the defendant therefore does not have an obligation to compensate for damages as the carrier agent that exercised the authority to act as a go-between.

Although the court below did not clearly determine whether the defendant exercised a authority to act as a go-between as a carrier agent, the decision by the court below as to whether the filing period had run or as to the carrier agent, shall be deemed to include a determine that purports to exclude such. The judgment shall not be deemed to constitute an unlawful determination based on an omission of judgment, a misconception of the facts in contravention to the rules of evidence, or a misapprehension of the legal principles concerning the authority to act as a go-between held by a carrier agent, as so argued in the Grounds for Appeal.

3. Whether a decision was omitted on Cargo No. 2 of the instant action

Since the above point, as provided in the Supplementary Grounds submitted after the deadline, is an absolutely new argument that was not made in the Grounds for Appeal, it shall not be deemed a valid ground for appeal. Furthermore, in accordance with the Record, it shall not be deemed that the court below omitted a deliberation on the claim concerning Cargo No. 2 of the instant action.

4. Conclusion

By unanimous decisions of all participating Justices, the appeal is dismissed and the costs of appeal shall be borne by the defeated party.

Justices Ahn Dai-hee (Presiding Justice)

Kim Young-ran

Kim Hwang sik (Justice in charge)

Lee Hong-hoon