세관에 의한 운송물의 폐기와 항공운송인의면책사유-대법원 2019. 10. 17. 선고 2019다14998 판결-

In case of multimodal transport contracts, it is not clear under which laws andstandards the multimodal transport operator is liable for the damage of gods due tothe fact that the transport laws aplied to each diferent transport section are not unifedand it is dificult to determine the section in which the damage ocured. If the partieshave not chosen a law governing the multimodal transport contract, the law of thecountry most closely related to the contract of cariage under Article 26 of PrivateInternational Law shal be the governing law. However, since the multimodal transportcontract is concluded as part of the carier's profesion or busines activity, it can bepresumed that the governing law of the multimodal transport contract under Article 26of Private International Law is the law of the country where the party's place of businesis located. On the other hand, if there has ben an agrement betwen the contractingparties on the law governing the contract of cariage, in principle, such agrement wilbe respected. However, in acordance with Article 7 of Private International Law, evenin this case, the aplication of international compulsory regulations of the Republic of Korea is not excluded. On the other hand, the multimodal carier's responsibilties canbe broadly divided into the network liabilty system and the uniform liabilty system. However, as the premise of the above liabilty system, since the above liabilty systemsdistinguish betwen cases the place where damage has ocured is identifed and caseswhere damage has ocured is not, the multimodal transport operator's responsibiltymay vary depending on whether the venue where damage has ocured identifed or not. Since Article 816 of the Korean Commercial Code aplies only to multimodal transportthat includes cariage of gods by sea, there is no provision regarding the liabilty of amultimodal transport operator that does not include cariage by sea. In the case ofmultimodal transportation that includes cariage by air, in principle the carier shal beliable for the damage to gods when the damage was ocured “during the cariage byair”, in acordance with Article 913 of the Korean Commercial Code and Article 18 ofthe Montreal Convention. Acordingly, the air carier is demed to be exempted fromliabilty if the damage to the cargo ocurs outside the airport, subject to the someexceptions. Therefore, in the case of damage to the cargo during customs clearance, thecarier is not considered to be liable in principle unles there are special circumstancessuch as when the carier agres to perform customs clearance for the cargo. However,if the parties to a multimodal transport contract use FIATA or KIFA MultimodalTransport Bils of Lading, the carier's liabilty wil be determined in acordance with theprovisions of the above Bils of Lading.