개품운송계약상 수하인의 지위 및 운송물 수령의무에 관한 연구 - 서울고등법원 2015. 12. 4. 선고 2015나9860 판결을 중심으로 -

Abstract

According to the article 802 of the Korean Commercial Act(the ‘Act’), any consignee who has received a notice of arrival should accept cargo without delay at the time and place agreed upon between the parties or by usage of trade of the port of discharge. Nevertheless, there is a question by the academic circles on whether or not it is reasonable for the consignee, who is nothing more than the person designated to request the delivery of the cargo at the port of discharge, to be obliged to receive cargo. In this connection, the Seoul High Court recently denied the consignee’s obligation to receive cargo in substance, despite of the obvious existence of the article 802 of the Act. However, it should be noted that the article 802 of the Act applies only in respect of the contract of affreightment, which represents the carriage of many and unspecified cargoes such as containerized cargoes. Therefore, considering the legislative intent of the article 802 of the Act, a carrier would be in the very disadvantageous position if the consignee’s obligation to receive cargo is not recognized under the contract of affreightment. That said, where the consignee does not request the delivery of cargo for the considerable time, the carrier, in accordance with the article 795 of the Act, should continuously bear the obligation to care for the undelivered cargo until the consignee receive the cargo, as well as bear the storage charge and economic loss due to the loss of hire in containers. Meanwhile, the article 803 of the Act stipulates a carrier’s entitlement to deposit the undelivered cargo and further states that the deposit shall be deemed as delivery, but this article is a mere dead letter, as the actual effect is not supported by the Customs law and its subordinate regulations, with the result that the carrier has no effective remedies against the undelivered cargo. Considering the reality as aforesaid, the consignee’s obligation to receive cargo should be recognized, unless the effectiveness of the article 803 of the Act is enhanced or the substituting legislation is provided. Furthermore, if the consignee does not receive cargo and therefore is in breach of obligation to receive cargo, the carrier could keep tendering the cargo to consignee and make him in the state of m​ora creditoris, In the case, the carrier is entitled to recover the increased storage charge from the consignee as per the article 403 of the Civil Act, as well as could claim damage arising out of the m​ora creditoris by consignee as circumstance requires.