[2] The case holding that the judgment below did not err in the misapprehension of legal principles as to the interpretation of a contract and the attribution of ownership of fuel oil, in a case where Gap corporation was delivered a ship upon entering into a time charter contract under the English law with respect to each ship owned by Eul corporation and its foreign corporation, and Gap corporation was delivered a ship upon Gap corporation's commencement of the rehabilitation procedure with the English law, and Gap corporation's administrator returned the ship to Eul corporation after Gap corporation's termination of the above contract, but Eul corporation et al. sought payment of charterage due to the time charter contract against Eul corporation Byung, Eul corporation's bankruptcy administrator's claim against Byung for a set-off claim with automatic claim against Eul corporation's claim against the remainder fuel oil payment claim against Eul corporation, etc. after Eul's rehabilitation procedure commenced, where Gap corporation terminated the time charter contract due to the non-performance of both parties' executory contract after Eul corporation's rehabilitation procedure commenced, and there was no remaining fuel oil payment claim against Eul corporation's non-performance of bilateral contract.

[2] In a case where Gap corporation entered into a time charter contract with Eul corporation, etc. under the English law governing each ship owned by Eul corporation, etc. and received a ship from Eul corporation, after the rehabilitation procedure for Gap corporation commenced, Gap corporation's administrator terminated the above time charter contract and returned Eul corporation, etc., but Eul corporation, etc. sought payment of charterage due to the time charter contract against Byung corporation's bankruptcy administrator, Byung made a set-off claim with automatic claim, the case holding that the above time charter contract provides that the shipowner shall notify the shipowner of the time and place of the ship's arrival in advance, and that the shipowner shall maintain the quantity of fuel oil close to the quantity of fuel oil at the time of delivery, and that the time charter contract cannot perform the above duty when the time charter contract is terminated, and that time charter contract does not apply to Gap corporation's non-redelivery of the above condition after the commencement of rehabilitation procedure, and that there was no error in the misapprehension of legal principles as to the remaining terms of the time charter contract's non-delivery of Gap corporation's non-delivery of the above Annex.

1. Regarding ground of appeal No. 1

A. Each time charter party in this case is a contract with a corporation of the Republic of Korea that has foreign elements, and thus the governing law should be determined pursuant to the Private International Act. The main text of Article 25(1) of the Private International Act provides that “The contract shall be governed by the law that the parties have chosen explicitly or implicitly.” Since each time charter party in this case has set the governing law as the English law, the English law also applies to the case where the plaintiffs sought charterage payment, etc. under each time charter party in this case.

In a time charter contract where a shipowner has both the possession of a ship, the right to appoint a shipmaster and a seafarer, and the right to overall control and management of a ship, the term “redelivery” refers, in principle, to a shipowner return the ship to a shipowner in accordance with the conditions stipulated in the time charter contract. If a time charter contract provides that the shipowner shall take over and pay for the fuel oil remaining on the ship at the time of the counter-ship and the time charterer shall settle accounts and pay the price to the time charterer, the time charterer shall impose in advance a duty to notify the shipowner of the time of the counter-ship and the point of the counter-ship several times, and if the requirements and procedures are prescribed, such as the quality of the remaining fuel oil at the time of the counter-ship and the minimum quantity expected to be determined, the counter-delivery is premised on the condition that the time charter is performed in accordance with the conditions stipulated in the time charter contract, and thus, it shall be interpreted that this does not include cases where a ship

B. In full view of the circumstances as indicated in its reasoning, the lower court determined that the Defendant’s counterclaims against the Plaintiffs, which made it an automatic claim, is groundless, since each remaining fuel oil payment claim against the Plaintiffs exists.

1) The governing law of each of the instant time charters concluded between the Plaintiffs, the owners of each of the instant vessels, and Hanjin Shipping Co., Ltd. (hereinafter “ Hanjin Shipping”) is the English law. Since the Plaintiffs filed a claim for charterage pursuant to each of the instant time charters against the Defendant, the trustee in bankruptcy of Hanjin Shipping, and the Defendant filed a counterclaim against the Plaintiffs by using each of the remaining fuel oil payment claims against the Plaintiffs as the automatic claim, the legal doctrine of legal set-off under English common law applies to the requirements and effects of the said set-off.

2) Each time charter party in the instant case provides that the time and location of the vessel shall be notified in advance to the shipowner when the time and location of the vessel are returned, and that the amount of fuel oil near the quantity of the vessel at the time of the delivery of the vessel shall be maintained and set against the shipowner. However, when the time charter party is terminated, the time charterer is unable to perform the above obligation. In addition, each of the instant time charter party was concluded in the form of revision of the NYPE Form 1946 on the basis of the NYE Form, and the form of revision of some provisions was concluded in Annex 33, which provides that the shipowner shall accept and pay the remaining fuel oil, does not include the termination by the early termination of the time charter. This distinction between the revised NYPE Form 2015, and the revised NYPE Form 2015 and the revised term “on the basis of termination.”

In full view of these circumstances, Article 33 of the Annex to the instant case does not apply to the instant case where the administrator terminated each time charter contract of this case on the grounds that the administrator was an executory contract after the commencement of rehabilitation procedures for the Hanjin Shipping.

3) Furthermore, the Defendant reserved ownership until receiving fuel oil from each oil supplier and paying the total amount of fuel oil, and it is difficult to recognize that the Defendant paid the total amount of fuel oil to each oil supplier. Furthermore, according to the precedents of the English court, it is possible to transfer the right to the shipowner only when the time charterer owns the ownership of the remaining fuel. Thus, even if the shipowner received the ship from the time charterer who did not have the ownership of the remaining fuel, it cannot be deemed that the ownership of the remaining fuel was transferred. The Defendant’s assertion that each remaining fuel price claim against the Plaintiffs exists on a different premise is without merit.

C. Examining the foregoing legal doctrine and the record, the lower court did not err in its judgment by misapprehending the legal doctrine on the interpretation of a contract and the ownership of fuel oil, as otherwise alleged in the grounds of appeal.

2. Regarding ground of appeal No. 2

The Defendant’s ground of appeal No. 2 that the effect of offset against the Plaintiffs cannot be acknowledged with the Defendant’s claim for remaining fuel oil payment against the Plaintiffs prior to the filing of the instant lawsuit is against the lower court’s assumptive and additional judgment. As seen earlier, the lower court’s determination that each of the Defendant’s claim for remaining fuel oil payment against the Plaintiffs did not exist is justifiable, and the legitimacy of such assumptive and additional judgment does not affect the conclusion of the judgment, and thus, the assertion on this issue cannot be accepted without the need

3. Conclusion

Therefore, all appeals by the Defendant are dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee Ki-taik (Presiding Justice)