CIP조건 항공화물운송에서 손해배상청구권자의 확정 -대법원 2018. 3. 15. 선고 2017다240496 판결을 중심으로-

Carriage and Insurance Paid To (CIP) is when a seller pays freight and insurance to deliver goods to a seller-appointed party at an agreed-upon location. The risk of damage or loss to the goods being transported transfers from the seller to the buyer as soon as the goods are delivered to the carrier or appointed person. Recently, Korean Supreme Court delivered a notable case relating to loss of air cargo transported in this CIP term. At there, plaintiff, the insurer, sought damages based on its subrogation rights for lost smart phones which were stolen during transport. The carrier moved to dismiss, contending that the insurer’s subrogation rights were not properly established, because there was no timely written damage notice made by consignee in this matter. In fact, a claim letter to carrier requiring damage compensation was made not by consignee but by shipper. The requirement was based on the terms and condition of Air waybill which were reflected article 31 of Montreal convention Here, there are some questionable points of whether the seller can exercise the claim for damages, and for what reason the seller has an insurable interest under the insurance contract. In addition, in order for the insurer's right to claim damages exercised pursuant to the terms and conditions of the air waybill used in this matter and the provisions of the Montreal Convention, an written damage notice must have been made so that the carrier could be aware of the damages. The another main issue is whether the validity of a written notice made by the shipper can be recognized from a given factual relationship. The district court first observed the fact that who was in a position to file a written damage notice against the defendant for damages. The court then noted that as the seller was a the only claimant in this case, there was a legitimate claim written notice even though it was not made by the consignee. Also the court confirmed that the stolen freight was not delivered to consignee at the final destination, the insurable interest under the insurance contract was on the cargo owner, the seller. The Supreme Court decided that the person who could file a written claim notice was the buyer, not the seller. It was confirmed that there was no written objection by the 'person (the buyer)' who has the right to receive the cargo under the terms and conditions. However, by acknowledging the preferential application of the individual agreements that stipulated the carrier's liability for damages, however, the court confirmed the seller’s letter of damages notice was sufficient timely notice of complaints. In the end, the court affirmed that as the seller's right that met the prerequisites for exercising the claim for damages was justified. This paper was written for the purpose of analyzing the issues on the basis of the facts and legal theories in the judgment.