1. Carriage business

2. -definition
Art. 125.
For the purposes of this Act, the term "carrier" means a person who engages in the business of carrying goods or passengers by land or on lakes and rivers, and in ports and bays
- carrying goods and passengers by bus, trucks, taxi form one place to another to get paid.

3. -economic function
1. expanding the working area
2. enhancing the exchangeable value of goods and balancing supply and demand of goods.

4. -Types of carriage
1. subject-matters
carriage of goods/
carriage of passengers/
carriage of communication
## communications business act : mail/ telephone, communications-> national undertaking business

5. 2. area
land carriage(commercial act Ⅱ-commercial activities)/urban rail roads act/passenger transport service act/
shipping(commercial actⅤ-marine commerce) /
air transport(commercial act Ⅵ-carriage by air)
3. multimodal transportation
Carrying goods by more than 2 different transportation modes

6. - carrier by art 125
"carrier" means a person who engages in the business of carrying goods or passengers by land or on lakes and rivers, and in ports and bays.
-area : undergrounds(subway)/temporary transport by air but using the means connected to land(cable car)

7. * lakes and rivers and in ports and bays
: the risk are same to transport in land
: ‘enforcement decree of ship safety act’ sets limits of them:
-subject matters
Goods : movables/stocks and bonds
Passengers : natural person

8. -carriage
Moving goods and passengers in one place to another
-merchant
Article 4 (Merchant-by Nature of Business)
Article 46 (Basic Commercial Activities)
The following activities which are effected as business are classified as commercial activities: Provided, That this shall not apply to such activities as are effected by persons who manufacture articles or render services solely for the purpose of earning wages
13. Undertaking of carriages;

9. -carriage contract
Contract which aims at fulfillment of work-carriage
Contract for work :
Civil act
Article 664 (Definition of Contract for Work)
A contract for work becomes effective when one of the parties has agreed to perform a certain job and the other has agreed to pay remuneration for the result of such work.
-> but commercial act provides detailed provisions so there is little possibilities to be applied to commerce carriage

10. -parties
Consignor : who consign carrying of goods to carrier
Carrier : take over the transport
Consignee : who receives goods from carrier (not parties)
1) contract for the benefit of a third person
2) special status by commercial act(cases)

11. - methods
Verbal contract/ express contract
** waybills or Delivery of Bills of Lading
-> not compulsory

12. Carriage of goods 1. obligations
1) transport : receive goods by the carriage contract, carry it to destination with fiduciary duties
2) issue of Delivery of Bills of Lading
Article 128 (Delivery of Bills of Lading)
(1) A carrier shall, upon the request of a consignor, deliver to him/her a bill of lading.

13. (2) The following particulars shall be entered in a bill of lading, and the carrier shall write his/her name and affix his/her seal or sign thereon:
1. The particulars mentioned in Article 126 (2) 1 through 3;
2. The name or trade name, place of business, or domicile of the consignor;
3. The freight charge and any other expenses incurred in relation to the transported goods, and the distinction between advance payment or payment after arrival;
4. The place and date where the bill of lading was prepared

14. Cf) Article 126 (Waybills)
(1) A consignor shall, upon the request of a carrier, issue a waybill
(2) The following particulars shall be entered in a waybill, and a consignor shall write his/her name and affix his/her seal or sign thereon:
1. The type of the transported goods, and their weight or dimensions, as well as the description and number of packages and markings therereon;
2. The destination;
3. The name or trade name, place of business, or domicile of the consignee and the carrier;
4. The freight charge and the distinction between advance payment and payment after arrival;
5. The place and date where the waybill was prepared

15. 3) duty of disposition of goods
Article 139 (Right to Demand Disposition of Goods)
(1) A consignor or the holder of a bill of lading, if the bill of lading is issued, may request the carrier to suspend the carriage, return the goods or take any other measure. In such cases, the carrier may demand payment of freight charges in proportion to the transportation already effected as well as of any substituted donation for another person and other expenses incurred in relation to the measures.

16. -issuing the Delivery of Bills of Lading
4) duty of delivery of goods
Carrier completes the transport, in the destination, he delivers goods to the consignee
-issuing the Delivery of Bills of Lading
 Article 129 (Exchangeability of Bills of Lading)
If a bill of lading has been prepared, request for delivery of the transported goods is not possible unless the bill of lading is exchanged with the goods.
 the bills holder has exclusive right to demand delivery of goods

17. Article 130 (Bills of Lading as Instrument to Order)
Even where a bill of lading is in the form of the order of a specified person, it may be transferred by endorsement: Provided, That the same shall not apply if the bill of lading contains entries forbidding endorsement.
-> bills of lading are marketable securities, so it can be traded in the market like other bills and checks

18. Article 131 (Legal Effects of Entries in Bills of Lading)
(1) When a bill of lading has been issued pursuant to Article 128, it is assumed that a contract of carriage has been entered into between the carrier and the consigner, as stipulated in the bill of lading, and the transported goods have been received as such.

19. (2) In regard to a holder who has acquired a bill of lading in good faith, a carrier is deemed to have received the transported goods, as stipulated in the bill of lading, and shall be responsible for the goods as the carrier, as stipulated in the bill of lading.

20. Article 132 (Bill of Lading-Disposition of Goods)
Where a bill of lading has been prepared, disposition of the goods is possible only by means of using the bill of lading.

21. Article 133 (Bill of Lading-Property Rights' Legal Effects)
If a bill of lading has been delivered to a person who is entitled thereby to receive the transported goods, such delivery shall have the same effect as delivery of the goods themselves in respect of the acquisition of rights exercised over the transported goods

22. Not issuing the bills Art. 140
(1)When the transported goods have arrived at the destination, the consignee shall acquire the same rights as that of the consignor.
(2)When the consignee requests delivery of transported goods after they arrive at the destination, the rights of the consignee shall have the preference to those of the consignor. <Newly Inserted by Act No. 5053, Dec. 29, 1995>

23. Responsibilities of carriers
1. damages
Article 135 (Liability for Damages)
A carrier shall be liable for damage resulting from the loss of, damage to or delay in the delivery of goods unless he/she proves that the carrier, forwarding agents, his/her employees or other persons employed in respect of the carriage did not fail to give due care in connection with the receipt, delivery, custody and carriage of the goods.

24. -> 1) principle of liability of faults
General Obligations in civil act -> make up special obligations in a concrete form in the commercial act
Burden of proof is on the carrier
Civil act
Article 390 (Non-performance of Obligations and Compensation for Damages)
If an obligor fails to effect performance in accordance with the tenor and purport of the obligation, the obligee may claim damages: Provided, That this shall not apply to where performance has become impossible and where this is not due to the obligor's intention or negligence.

25. Civil act
Article 391 (Intention or Negligence of Performance Assistant)
Where a legal representative for the obligor effects performance in lieu of the latter or the obligor effects performance through the other person as an employee, the intention or negligence of the legal representative or the other person shall be deemed as that of the obligor.

26. 2) types of damages
the loss of, damage to or delay in the delivery of goods
Violation of fiduciary duties in receipts, delivery, storages, carriages of goods.
-> another types of violations : civil act will apply to

27. 3) standardization of damages
to protect the carrier because he has high risk in carrying goods.
to protect the trade safely and speedy

28. Article 137 (Amount of Damages)
(1) If transported goods have been totally lost or their delivery has been delayed, the amount of damages shall be determined by the price prevailing at the place of destination on the day they should have been delivered. <Amended by Act No , Apr. 14, 2011>

29. (2) In cases of a partial loss of or damage to goods, the amount of damages shall be determined by the price prevailing at the place of destination on the date of delivery.
(3) Where the loss of, damage to or delay in delivery of goods has arisen from the willfulness or gross negligence of the carrier, he/she shall be liable for all damages.

30. (4) Any freight charges and other expenses, the payment of which has been obviated by the loss of or damage to the goods, shall be deducted from the amount of the damages mentioned in the preceding three paragraphs.

31. Article 136 (Liability for Valuables)
With respect to money, securities, or other valuables, the carrier shall be liable for damage only if the consignor has expressly stated the type and value thereof when consigning the transport of the carriage.

32. 1) valuables : remarkable expensive in considering its weight and capacities
Money, securities, precious metals, value antiques, high precision machine component etc.
2) methods and dates on expressing
Free to express in the bills, waybills, etc.
when deliver the goods to carrier,

33. 3) if not express valuables
a. Consignor did not express valuables, carrier does not have responsibility of damages as ordinary goods
B. consignor did not express, but carrier happened to discover it as a valuable,
 carrier has fiduciary duties(duty of care) as a ordinary goods, if he neglects his duties, he has responsibility as valuables.(general opinion)

34. ## relationship with torts liability
Civil act art 750
Any person who causes losses to or inflicts injuries on another person by an unlawful act, intentionally or negligently, shall be bound to make compensation for damages arising therefrom.

35. Non-performance of Obligations and Compensation for Damages
torts
Burden of proofs
Carrier(Commercial act 135)
Creditor(civil act 750)
damages
Standardization(commercial 137)
Ordinary damages and special damages
Extinctive prescription
(1)The liability shall be extinguished by prescription upon the lapse of one year from the date the consignee of the goods received the goods.(121)
Article 766 (Prescription in respect of Right to Claim for Damages)

36. (1) The right to claim for damages resulting from an unlawful act shall lapse by prescription if not exercised within three years commencing from the date on which the injured party or his/her legal representative becomes aware of such damage and of the identity of the person who caused it.
(2) The provisions of paragraph (1) shall also apply if ten years have elapsed from the time when the unlawful act was committed.

37.  commercial act is special rules for civil act
 commercial act is special rules for civil act. So carrier’s liability is adopted
-> two liabilities have different requirements and effects, creditors can choose one of them, and the other can not be performed.