선하증권상 정당한 소지인 관련 운송물 불법인도사건 (대법원2023.8.31.선고 2018다289825판결)

Abstract

The bill of lading is an negotiable instrument which the carrier issues to the shipper after receiving or loading the cargo on abord vessel. It contains the right for the holder to demand the delivery of the cargo against the carrier. The bill of lading has the presentation rule. The carrier should hand over the cargo to the holder of the bill of lading with exchange of it. Without it, the carrier is liable for the cargo loss against the holder. With this kind of nature of the bill of lading, if the seller possesses the bill of lading, the buyer is required to obtain the bill of lading from the carrier. In this respect, the bill of lading plays as a security to guarantee the payment of the goods from the buyer. Even if the buyer want to get the cargo from the carrier or the master of the vessel, the master should not hand over the cargo. If the cargo was released without exchange of the bill of lading, the carrier is subject to the claims from the holder of the bill of lading because it infringes the right of the holder. The opening bank of the letter of credit becomes the holder of the bill of lading. However, in the transaction of the T/T, the shipper may becomes the holder of the bill of lading. Under the FOB contracts, the bill of lading may be issued to the seller as the holder of it. Korean Supreme Court(KSC) regards the seller as the agent of the buyer as the shipper. In this case, the KSC admitted the validity of the issuance of the bill of laing to the supplier for the seller. The Court accepted the bill of lading without signature of the previous holder where the right of the holder is verified with other evidence.