복합운송주선인의 법적지위와 선하증권상의 히말라야 약관의 적용 범위 - 서울고등법원 2009. 7. 2. 2008나108226호 판결 평석 -

Abstract

The terminology, 'Freight Forwarder', is not a firmly established word in the relevant industry yet, but, it is generally accepted to mean an agent who substantially intermediates shipments between a carrier and a consignor by mobilizing two or more means of shipment including land and marine shipment methods. Usually, a freight forwarder is asked to make shipment from a shipper, at the same time a consignor, and then, asks a sea carrier(actual carrier) to actually move goods. In this case, a Freight Forwarder issues House B/L to a shipper, and then, a sea carrier issues Master B/L to a freight forwarder. However, in case that the legal status of a freight forwarder is not clear, and that it can't be clearly decided whether a freight forward is asked to perform shipment or he/she is only asked to perform intermediation, the supreme court suggests that a decision be made by considering intention of relevant parties first, or, in case intention of the parties is not clear, it suggests that whether a freight forwarder is a carrier or a mediator for shipment be judged by considering all the relevant and comprehensive circumstances including whether B/L is issued or not and how the shipment charge is paid. Hence, if a freight forwarder repeatedly performs the shipment business directly or indirectly with the purpose to make a profit, he/she should be considered to have the legal status of being a carrier who takes the responsibility of actually moving goods as though he/she doesn't issue B/L. Hence, it isn't rational not to consider him/her as a carrier for the reason that he/she doesn't issue B/L. Also, in respect of application of Himalaya Clause, it has to be judged that a Independent Contractor can claim limited responsibility according to aforementioned clause since he/she is asked to carry out shipment for a partial distance or district by a freight forwarder who takes the full responsibility to perform shipment for the entire shipment district.