선하증권을 소지하고 있지않은 신용장 발행 은행의 보호정도 - 대법원 2023. 12. 14.선고 2022다208649판결 -

Abstract

The bill of lading is a negotiable instrument and has the nature of changing with the cargo. The carrier as the obligor has to deliver the cargo with exchange of the B/L. The warehouse keeper as the agent of the carrier has the same duty as the carrier does. In the case, the warehouse keeper colluded with the importer and handed over the cargo to him without exchange with the B/L or delivery order. Due to this negligent act of the warehouse keeper, the bank which issued letter of credit(L/C) for the benefit of the cargo suffered damages. The importer should have paid the proceeds to the issuing bank of the L/C and obtained the B/L. Thereafter, the importer should have took the cargo with the exchange of the B/L. However, the importer did not pay the proceeds but took out the cargo. In normal case, the bank with the B/L raise a claim against the carrier or the warehouse keeper. However, the bank became to possess the wrong B/L. Therefore, it could not obtain the real right for security. As a result, the Korean Supreme Court did not admit the right of the bank to bring about the claim. The lower court admitted that the warehouse keeper had duty to take care of the issuing bank of the L/Cʼs real right. However, the Korean Supreme Court decided that the warehouse keeper did not have duty to take care of the issuing bank without holding the right B/L. In addition the KSC rendered that the bankʼs damages was caused by the wrongdoings of the bank itself. The court said that the damages was caused not by the warehouse keeperʼs wrongful delivery of the cargo but by the bankʼs obtaining wrong B/L. Insurance can be selected as one of protection measure for the bank.