운송물 불법인도로 인한 손해배상채권의 선박소유자책임제한채권 해당 여부 - 대법원 2014. 5. 9. 선고 2014마223 선박책임제한

The carrier has the right to invoke limitation of its liability by package under the Korean Commercial Act. Its right of global limitation is still effective regardless of the presence of the package limitation right under the Korean law. The cargo was wrongfully delivered to the importer without exchange of the B/L by the intentional act of the warehouse keeper at the warehouse. The shipper as the holder of the B/L demanded the delivery of the cargo to the carrier. The carrier applied for the commencement of global limitation for the claim raised by the shipper. The carrier argued that the claim fell within the definition of claim “‘occurring in direct connection with the operation of the ship’ under the Article 769 of the Korean Commercial Act. However, the lower courts and Korean Supreme Court decided that the claim which occurred after discharging the cargo at the warehouse did not fall within the definition of operation of the ship. The rationale behind the decision is that the global limitation system intends to protect the shipowner which runs business at sea with great risks. The decision resulted in the different treatment between the claims occurred after discharging and the other claims before discharging in terms of sequence of the cargo flow. The carrier is allowed to limit its claims occurred during navigation whereas it is not allowed to limit its claims if the claims occurred after discharging the cargo from the ship. The carrier should be protected in the whole scope of the liability if the Korean law aims at protecting the carrier. The Korean Commercial Act is different in that the scope of the carrier’s responsibility is wider than that of UK, Japan or China. The latter countries have the rules that the scope of the carrier’s responsibility does not include the receipt of the cargo and delivery of the cargo, just like the Hague-Visby Rules. However, the carrier has a duty to deliver cargo and it is not allowed to contract out under the Korean law. As a result, the Korean carrier should compulsorily pay damages to the holder of the B/L where the cargo was wrongfully delivered to the importer. Therefore, this different law should be reflected in the interpretation of the definition of the “operation of the ship” in the global limitation. The author argues that the “operation of the ship” under the Korean Commercial Act should be read including cargo claims even after discharging and thus it should be inclusive of the claims caused by the wrongful delivery of the cargo by the warehouse keeper at the warehouse after discharging of the cargo from the ship. The author shows other evidence that the law makers also intended to interpret the definition of “the operation of the ship” broad enough to include the business of the ship in addition to the navigation when they revised the relevant part of the Korean Commercial Act in 1991. In this respect, the author has different view from the decision of the Korean Supreme Court.