FIO 조건 하에서 해상화물의 인도시점과 보세창고업자의 법률상 책임 -대법원 2014. 5. 16. 선고 2012다23320 판결-

Regarding to the decision of delivery time for a marine cargo from a carrier, the Supreme Court has considered whether there was any transfer of ‘de facto control’ according to the Civil Law. In addition, with regard to the transferring time of de facto control, the Supreme Court has decided differently when a marine cargo has been carried into between a private bonded warehouse and a public bonded warehouse. When only existing FIO terms on a contract of carriage by sea, the Supreme Court merely recognized that the time of cargo delivery has been occurred when a consignee’s stevedore received the cargo with assuming the implied onboard delivery agreement being existed(Supreme Court Decision 2004da2137). However, in this judgement(Supreme Court Decision 2012da23320), the Supreme Court adjudged that a cargo delivery had not been happened when the cargo carried into not a private bonded warehouse but a public in spite of existing FIO terms. Therefore, this judgement would be open to dispute in respect of explaining former judgements concerning the cargo delivery time such as 2004da2137. On this paper, in this reason, the former Supreme Court Decisions and related theories regarding to the delivery time of a marine cargo under the FIO terms were checked. As to the juristic relation between a carrier and a public bonded warehouseman, moreover, the Supreme Court’s opinion, i.e. the implied overlapping bailment contract theory was reviewed. Lastly, the consideration whether a public bonded warehouseman seems to be a performance assistant of a carrier was also checked. Conclusionally, it is more proper that the delivery time of a cargo should be determined as per consideration of a substantive delivery time not a perfunctory FIO terms. Following the above criteria, despite there are still insufficiency explanation on the reason for the conclusion, this judgement seems to be reached proper decision.