운송주선인과 운송인의 지위 확정 문제와 책임제한배제사유로서의 운송물 가액기재 - 대법원 2015. 5. 28. 선고 2014다88215 판결의 평석 -

Abstract

The Korean Supreme Court held that whether the freight forwarder has obtained the status of a carrier or not, (i) it shall be verified by reaching the intention of the parties, and (ii) if the intention of the parties is not clear, it shall be verified through a comprehensive consideration of all circumstances including but not limited to the name of the issuer of the house bill of lading and the payment method of the fee. This judgment means that the freight forwarder is acknowledged as the carrier, despite the name of the issuer of the house bill of lading is not the freight forwarder. With regard to the declaration of value by the shipper and insertion in the bill of lading or in any other document evidencing the contract of carriage by sea, the Court decided that the commercial invoice does not include ‘any other document evidencing the contract of carriage by sea’. It seems that this is the first Supreme Court ruling of the loss of right to limitation of liability, regarding the declaration of value by the shipper and insertion in the bill of lading or in any other document evidencing the contract of carriage by sea. Further, the Court decided that if the accident was occurred before the bill of lading is issued, according to the Act on Private International Law, the contract of carriage shall be governed by the law of the country which is most closely connected with the contract. The Court applied the Korean Commercial Code without considering the various factors, on the grounds that the bill of lading was not issued. It appears that this decision should be reconsidered in another case later.