[edit] Supreme Court Decision 2002Da32523, 32530 delivered on October 22, 2002 [Freight Charge]

【Main Issues】

[1] Whether the Warsaw Convention applies to the contracting carrier which is a type of aviation carrier (affirmative)

[2] The meaning of "damage caused by delay under Article 19 of the Warsaw Convention

【Summary of Decision】

[1] A contracting carrier, i.e., a carrier which enters with a passenger, a consigner or its representative into a transport contract governed by the "Convention for the Unification of Certain Rules Relating to International Carriage by Air (the "Warsaw Convention")," as amended in 1955 in Hague, and delegates the whole or a part of such transport to the actual carrier, is a "carrier" under the Warsaw Convention, as amended.

[2]Under Article 19 of the Warsaw Convention, as amended, the carrier is liable for damage caused by delay in the carriage by air of passengers, luggage or goods, and the damage caused by delay includes not only the damage incurred in the course of the aviation transport, as described in Article 18, paragraph 2 of the Warsaw Convention, as amended, but also the damage caused by the delay in loading of the luggage or cargo.

【Reference Provisions】 [1] Article 1 of the Convention for the Unification of Certain Rules Relating to International Carriage by Air (Warsaw Convention) / [2] Articles 18(2) and 19 of the Convention for the Unification of Certain Rules Relating to International Carriage by Air (Warsaw Convention).

Article 1 of the Convention for the Unification of Certain Rules Relating to International Carriage by Air

1. This Convention applies to all international carriage of persons, luggage or goods performed by aircraft for reward. It applies equally to gratuitous carriage by aircraft performed by an air transport undertaking.

2. For the purposes of this Convention the expression "international carriage" means any carriage in which, according to the contract made by the parties, the place of departure and the place of destination, whether or not there be a break in the carriage or a transshipment, are situated either within the territories of two High Contracting Parties, or within the territory of a single High Contracting Party, if there is an agreed stopping place within a territory subject to the sovereignty, suzerainty, mandate or authority of another Power, even though that Power is not a party to this Convention. A carriage without such an agreed stopping place between territories subject to the sovereignty, suzerainty, mandate or authority of the same High Contracting Party is not deemed to be international for the purposes of this Convention.

3. A carriage to be performed by several successive air carriers is deemed, for the purposes of this Convention, to be one undivided carriage, if it has been regarded by the parties as a single operation, whether it had been agreed upon under the form of a single contract or of a series of contracts, and it does not lose its international character merely because one contract or a series of contracts is to be performed entirely within a territory subject to the sovereignty, suzerainty, mandate or authority of the same High Contracting Party.

Article 18(2) of the Convention for the Unification of Certain Rules Relating to International Carriage by Air

1. <omitted>

2. The carriage by air within the meaning of the preceding paragraph comprises the period during which the luggage or goods are in charge of the carrier, whether in an aerodrome or on board an aircraft, or, in the case of a landing outside an aerodrome, in any place whatsoever.

3. <omitted>

Article 19 of the Convention for the Unification of Certain Rules Relating to International Carriage by Air

The carrier is liable for damage occasioned by delay in the carriage by air of passengers, luggage or goods.

【Plaintiff (Counter-Defendant), Appellee】 Ahra Hangyuk, Inc. (Law Firm Lee & Ko, Attorney Kang Jong-gu and 2 others, Counsel for plaintiff-appellee)

【Defendant (Counter-Plaintiff), Appellant】 Marine Jewelry, Inc. (Attorney Seo Moon-chae, Counsel for defendant-appellant)

【Court of First Instance】 Eastern Branch of Seoul District Court Judgment 2000Gahap3437, 3444(Counter-claim) delivered on September 21, 2001

【Court of Second Instance】 Seoul High Court Judgment 2001Na63676, 63683 delivered on May 16, 2002

【Disposition】The appeal shall be dismissed. All costs of appeal are assessed against the defendant(Counter-Plaintiff).

【Reasoning】 1. A contracting carrier, i.e., a carrier which enters with a passenger, a consigner or its representative into a transport contract governed by the "Convention for the Unification of Certain Rules Relating to International Carriage by Air (hereinafter referred to as the "Warsaw Convention")," as amended in 1955 in Hague, and delegates the whole or a part of such transport to the actual carrier, is a "carrier" under the Warsaw Convention, as amended.

As found in the court below, in light of the fact that the plaintiff (also Counter-Defendant, and hereinafter referred to as "Plaintiff") entered with the defendant (also Counter-Plaintiff, and hereinafter referred to as "Plaintiff") into a transport contract to transport the cargo from Kimpo Airport to Los Angeles, United States, issued an airway bill, and entered into a separate air transport contract with Asiana, Inc. to transport such cargo, the transport of such cargo is an international carriage and the plaintiff is a contracting carrier, in each case as governed by the Warsaw Convention, as amended. Therefore, the court below correctly held that the cargo transport contract between the plaintiff and the defendant is governed by the Warsaw Convention, as amended, and did not make a reversible error in matters of law as to the principles of a fair trial. Accordingly, the ground for appeal pointing this out is not justified.

2. Under Article 19 of the Warsaw Convention, as amended, the carrier is liable for damage caused by delay in the carriage by air of passengers, luggage or goods, and the damage occasioned by delay includes not only the damage incurred in the course of the aviation transport as described in Article 18, paragraph 2 of the Warsaw Convention, as amended but also the damage caused by the delay in loading of the luggage or cargo. In addition, according to Article 26 of the Warsaw Convention, as amended, the receiving agent must either raise a complaint against the carrier by either recording the delay in the bill of transport within 21 days of the date on which the cargo may be disposed or sending a separate notice to the carrier; otherwise, an action against the carrier may not be maintained.

The court below held that, although the cargo was shipped five days later than the scheduled date in the bill of transport initially issued by the plaintiff and one day later than the scheduled date in the reissued bill of transport due to the late signing of the transport contract by the plaintiff and Asiana caused by the backlog of export cargoes, the plaintiff's indemnification liabilities as to the delay in delivery of the cargo in this case were extinguished because the defendant did not send a written notice claiming such liabilities to the plaintiff until four months after such cargo had been delivered to the defendant's agent. The court below further dismissed the counterclaim of the defendant without investigating the scope of damage. On both matters, the court below did not err in so holding and there was no reversible error in matters of law or omission of judgment, incomplete investigation in the trial. Therefore, the grounds for appeal cannot be accepted with respect to the foregoing point.

3. Accordingly, the appeal shall be dismissed in its entirety and all costs of this appeal shall be assessed as stipulated in the Disposition.

Justices Bae Ki-won (Presiding Justice)

Suh sung (Justec in charge)

Lee Yong-woo

Park Jae-yoon

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