서렌더 선하증권(Surrendered B/L)에서 이면약관의 효력 - 대법원 2016. 9. 28. 선고 2016다213237 판결 -

Abstract

In cases where the original B/L arrives later than the goods in the short distance of carriage, the original B/L could be deemed to have already been recovered from the place of departure in order to eliminate the inconvenience that the consignee can not deliver the goods promptly based on trade practices and the negotiability of the B/L could be extinguished so that the consignee would be able to immediately deliver the goods without the original B/L at the landing port. In this court decision regarding the aforementioned trade practices, where the shipper requested the carrier to surrender the B/L after receiving of the original B/L from the carrier. Then the carrier collected the original B/L on which he stamped with "SURRENDERED" seal and sent the surrender notice to the shipper’s agent to remit the goods to the consignee, without delivery of the original B/L. In this case, it was questioned whether the Himalaya clause stated on the reverse side of the B/L would apply to the subcontractors. As for the first type of the Surrendered B/L which is recovered after issuance of the original, it is not a document of title but functions merely as an evidence of the contract of carriage and this is based on the willingness to annul the negotiability of the B/L between the parties. Therefore, if there is no other declaration of intention between the parties, the liability for the carriage in accordance with the terms & conditions of the B/L is still valid, except annulling of the negotiability of the B/L. This legal principle applies to the second type of the Surrendered B/L which is using the front and reverse side of B/L without issuing of the original B/L. On the other hand, the precedent court decision (Supreme Court Decision 2006Da27082 decided on Dec. 26, 2006) stated that this legal principle does not apply to the third type of the Surrendered B/L, using the front side of B/L without issuing of the original B/L. This decision seems to be unreasonable because it does not conform to the intentions of the parties. Therefore, it is desirable that maritime shipping parties use the first type or the second type of the Surrendered B/L, and not the third type of the Surrendered B/L until the precedent decision is changed.