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(영문) 서울고등법원 2011. 9. 2. 선고 2011나21183(본소),2011나21190(반소) 판결

[채무부존재확인·사무관리비용상환등][미간행]

Plaintiff (Counterclaim Defendant) and appellee

Dongbu Fire and Marine Insurance Co., Ltd. (Law Firm Cheonghae, Attorney Seo-soo, Counsel for defendant-appellant)

Defendant (Counterclaim Plaintiff) and appellant

Korea Shipowners Mutual Protection and Indemnity Association (Law Firm Sejong, Attorney Park Jong-soo, Counsel for the plaintiff-appellant)

Conclusion of Pleadings

July 22, 2011

The first instance judgment

Seoul Central District Court Decision 2010Kahap4849 (main office), 2010Kahap92747 (Counterclaim) Decided December 23, 2010

Text

1. The defendant (Counterclaim plaintiff)'s appeal is dismissed.

2. The costs of appeal are assessed against the Defendant-Counterclaim Plaintiff.

Purport of claim and appeal

1. Purport of claim

In relation to the accident described in paragraph (2) of the same list of vessels listed in attached Table 1: it is confirmed that the Plaintiff (Counterclaim Defendant; hereinafter referred to as “Plaintiff”) did not have any recourse and any other monetary obligation against the Defendant (Counterclaim Plaintiff; hereinafter referred to as “Defendant”).

Counterclaim: The plaintiff shall pay to the defendant 1,158,30 U.S. dollars and 5% per annum from August 30, 2008 to the service date of a copy of the counterclaim of this case, and 20% per annum from the next day to the day of complete payment.

2. Purport of appeal

The judgment of the first instance court is revoked. The plaintiff's appeal is dismissed. The plaintiff shall pay to the defendant 1,158,300 US dollars and 5% per annum from August 30, 2008 to the service date of the duplicate of the counterclaim of this case, and 20% per annum from the next day to the day of full payment.

Reasons

The reasons why this Court has stated in this case

- The fifth fifth decision of the first instance court was rejected, which reads “to refuse and notify only the exercise of the right of subrogation and the intent to proceed with the rescue”;

· Following the 8th second half, “The Defendant was responsible for accounting as insurance money, and received US$ 1,211,342.23 from the Defendant’s re-insurance money as re-insurance money (Evidence B 35-1, 2).”

- 19th "...... the provisions of the English Insurance Maritime Law concerning abandonment and subrogation of insurers are as shown in attached Form 2," in the following:

· by adding “interest” after subrogation to “interest” of the 10th 13th x;

- 10th "(19)" means 19th(19th(s) of the subrogation certificate: (i) the phrase "all rights to a ship, ownership, and transfer of profits" is stipulated in the subrogation certificate; (ii) the above subrogation certificate was merely a document which the Plaintiff received from the insured at the time of payment of estimated total loss insurance money in response to the plaintiff's solicitation on December 11, 2006; and (iii) there was no circumstance to reverse the notification of abandonment before the plaintiff's rejection of the notice of abandonment; (iv) it is difficult to view the plaintiff as the subject of abandonment's refusal to receive the above notice of subrogation agreement, even if it was impossible for the plaintiff to reply to the notification of abandonment solely on the basis of the exercise of subrogation right and the progress of salvage; and (iv) it is difficult to view that the plaintiff's subrogation certificate was not entitled to receive the abandonment in the name of the English government, and (iv) it was difficult for the plaintiff to have again expressed his opinion in writing."

· eliminate from 11th to 17th;

· the existence of a Institute Time Clauses, such as “the last 11th reduction” [the deletion]

· inasmuch as “from 3ths” such as “12ths” is not “from the 12ths,” the deletion shall:

· 12 The first 4th " shall add the insurer’s implied approval of abandonment in the event the insurer refuses to claim the payment of the insured’s insurance proceeds and continues to conduct salvage operations for only its interest irrespective of the interests of the insured;

· It is difficult to read “I am 12 7th,” and “I am satch;

· by the Plaintiff’s 12th 7th day, “on the basis of subrogation after the payment of the insurance money”:

·on the 12th nineth anniversary of the vessel’s ? by inserting any benefit from the economic value of the vessel with either the following or the click line:

· 12 easily up to the tenth day of the 10th day), ? “B”, ? to the end;

- The judgment of the court below is based on the following points: "The structural contract maintained by the 13th 4th st th th th th th th th th th th st th st st st st st st st st st st st st st st st st st st st st st st st st st st st st st st st st st st st st st st st st st st st st st st st st st st st st st st st st st st st st st st st st st st st st st st st st st st st st st st st st st st st st st st st st st st st st st st st st st st.

Therefore, the decision of the first instance court is justifiable, and the defendant's appeal is dismissed.

[Attachment 1]

Judges Jo Hee-de (Presiding Judge) For the purpose of this Act