하우스 선하증권을 발행하지 않은 해상운송주선인의 법적 지위에 관한 연구 - 서울고등법원 2016. 1. 12. 선고 2015나2020221 판결을 중심으로 -

Abstract

An ocean freight forwarder plays the very important role in the modern international transport in that it, upon the request of cargo owner, arranges not only the carriage of goods by sea but also arranges the whole business ancillary to the carriage such as the custody, insurance, customs clearance and other works for the cargo. In addition, the ocean freight forwarder, if necessary, takes over the contract of carriage with the result that it stands as the carrier in relation to the cargo owner, but, it is often found that, should the ocean freight forwarder not have issued the house B/L under its name, its legal position is not clear on whether it took over the contract of carriage or just arranged the contract of carriage. Therefore, in order to decide the legal status of the ocean freight forwarder it is required to judge intentions of the parties by comprehensively taking into account the situation at the time of the conclusion of the contract, the method of the payment of freight and the ocean freight forwarder’s substantial role. Furthermore, if the fixed freight forwarding contract was concluded between the ocean freight forwarder and the cargo owner, the ocean freight forwarder should be treated as a carrier in accordance with the article 119 of the Korean Commercial Act. Nevertheless, if the ocean freight forwarder cannot be regarded as the carrier, it still retains the position of the freight forwarder, and therefore it should bear the liability as the freight forwarder, if any. However, in this case the liability should be limited to the extent to the violation of the duty of care which is stipulated in the article 115 of the Korean Commercial Act. As the forwarding contract is performed through the close communications between freight forwarder and cargo owner, if, during the course of the communications, the negligence or carelessness by the cargo owner contributed the loss or damage to cargo, the legal principle of comparative negligence must be applied in deciding the quantum of the damage which the ocean freight forwarder is liable for.