개품운송인의 확정과 운송물의 종류·가액고지의 의의-대법원 2015. 5. 28. 선고 2014다88215 판결을 중심으로

Abstract

According to the Korean Commercial Act (hereafter, KCA), anybody who has the intention to perform the contractual rights and obligations as a carrier can be a party to the contract of carriage, even without having any equipments, such as vessels or aircraft. In this regard, it is not always easy in practice to clarify whether freight forwarders can be deemed carriers or mere agents providing their clients with special services for the processing of cargoes. The Korean Supreme Court precedent holds that whether a person is a sea carrier or a freight forwarder should be decided based on his/her intention. Needless to say, when a person has the intent to carry out the movement of cargoes as a carrier, he/she ought to be deemed a carrier. However, when a person’s intention is unclear as to whether he/she acted as a carrier or merely as a freight forwarder, the court must decide whether the freight forwarder can be deemed to have assumed the movement of cargoes from the client according to logical and empirical rules, by taking into account all the circumstances, including those surrounding the formation of contract, the name under which the bills of lading were issued, the form in which payment was made for the services, and the actual services performed. Although individual facts on the issuance of bills of lading, payment of freight, agreement on the extension of time-bar, and acceptance of funds can be prima facie evidence to infer that a person is carrier, there is real doubt as to the identity of carrier due to deliberate obfuscation, bad drafting, or poor business administration. The court is the only and final arbiter in the determination of the legal status of a carrier based on the selection of the evidence and ascertainment of the probative value of individual pieces of evidence, and therefore its judgment must be respected. Meanwhile, the legislative intent of Article 797(3) of the KCA is to provide the contractual parties with sufficient time for negotiation on such matters as the mode of freight, the level of duty required for the freight, and payment in consideration thereof, by voluntarily giving prior notice of the nature and value of the cargo to the carrier before shipment. In addition, by requiring the notice of the nature and value of the cargoes to be incorporated into bills of lading or other documents evidencing the formation of the contract of carriage, said provision seeks to give explicit warning to the third parties engaged in the movement of cargoes, as well as preventing unnecessary litigations on the value of the cargoes. In light of this, in cases where a carrier becomes aware of the value of the cargoes indicated in a commercial invoice in the course of processing paperworks for their importation, the commercial invoice is not deemed to constitute a bill of lading or other documents evidencing the formation of a contract.