국제항공화물운송에 관한 운송증서의 요건 및 효력 = The Requirement and Effect of the Document of Carriage in Respect of the International Carriage of Cargo by Air

다국어 초록 (Multilingual Abstract)

The purpose of this paper is to research the requirements and effect of the document of carriage in respect of the carriage of cargo by air under the Montreal Convention of 1999, IATA Conditions of Carriage for Cargo, and the judicial precedents of Korea and foreign countries. Under the Article 4 of Montreal Convention, in respect of the carriage of cargo, an air waybill shall be delivered. If any other means which preserves a record of the carriage are used, the carrier shall, if so requested by the consignor, deliver to the consignor a cargo receipt. Under the Article 7 of Montreal convention, the air waybill shall be made out by the consignor. If, at the request of the consignor, the carrier makes it out, the carrier shall be deemed to have done so on behalf of the consignor. The air waybill shall be made out in three original parts. The first part shall be marked for the carrier, and shall be signed by the consignor. The second part shall be marked for the consignee, and shall be signed by the consignor and by the carrier. The third part shall be signed by the carrier who shall hand it to the consignor after the goods have been accepted. Under the Article 5 of Montreal Convention, the air waybill or the cargo receipt shall include (a) an indication of the places of departure and destination, (b) an indication of at least one agreed stopping place, (c) an indication of the weight of the consignment. Under the Article 10 of Montreal Convention, the consignor shall indemnify the carrier against all damages suffered by the carrier or any other person to whom the carrier is liable, by reason of the irregularity, incorrectness or incompleteness of the particulars and statement furnished by the consignor or on its behalf. Under the Article 9 of Montreal Convention, non-compliance with the Article 4 to 8 of Montreal Convention shall not affect the existence of the validity of the contract, which shall be subject to the rules of Montreal Convention including those relating to limitation of liability. The air waybill is not a document of title or negotiable instrument. Under the Article 11 of Montreal Convention, the air waybill or cargo receipt is prima facie evidence of the conclusion of the contract, of the acceptance of the cargo and of the conditions of carriage. Under the Article 12 of Montreal Convention, if the carrier carries out the instructions of the consignor for the disposition of the cargo without requiring the production of the part of the air waybill or the cargo receipt, the carrier will be liable, for any damage which may be accused thereby to any person who is lawfully in possession of that part of the air waybill or the cargo receipt. According to the precedent of Korea Supreme Court sentenced on 22 July 2004, the freight forwarder as carrier was not liable for the illegal delivery of cargo to the notify party (actual importer) on the air waybill by the operator of the bonded warehouse because the freighter did not designate the boned warehouse and did not hold the position of employer to the operator of the bonded warehouse. In conclusion, as the Korea Customs Authorities will drive the e-Freight project for the carriage of cargo by air, the carrier and freight forwarder should pay attention to the requirements and legal effect of the electronic documentation of the carriage of cargo by air.

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