July 12, 2018

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

O Purport of claim

(1) Main action: It is confirmed that there is no obligation to pay accident compensation and retirement allowances to the Defendant (Counterclaim Plaintiff; hereinafter “Defendant”) of the Plaintiff (Counterclaim Defendant; hereinafter “Plaintiff”) regarding the accident listed in the attached Form.

(2) Counterclaim: The plaintiff shall pay to the defendant 549,423,292 won with 15% interest per annum from the date of this decision to the date of full payment.

The purport of an appeal: To revoke the part concerning accident compensation in the main lawsuit of the judgment of the court of first instance, and to dismiss the part of the plaintiff's claim. The part against the defendant, which is the amount of payment order following the counterclaim of the judgment of the court of first instance, shall be revoked. The plaintiff shall pay to the defendant 207,175,875 won and 15% interest per annum from the day following the date this judgment is rendered to the day of full payment.

(a) Relationship between the Parties

On February 3, 2010, the Plaintiff entered into an employment contract with the Defendant as the captain of “(ship name omitted)” (a vessel chartereded under the conditional acquisition of nationality by the Plaintiff from the corporation located in Washington), which is the carrier of at least 57,773 tons of the nationality of Pakistan, via Nonparty Jinjin Co., Ltd., and the details thereof are as follows.

In the period of employment contract: from February 4, 2010 to October 4, 2010 (However, when leaving a ship prior to the expiration of the contract, the date of leaving the ship shall be the end of the contract).

C. Wages: Monthly salary - Amounting to 5,355,00 won (basic salary of 2,738,000 + overtime allowances of 2,617,00 won for fixed hours)

- Monthly family pay [the monthly leave pay, various allowances, and the Bossp, entered as a seafarer’s passbook such as the above monthly pay, the salary of 80,080,000 won (the monthly leave pay separate from the monthly leave pay, and the usual on-land family pay is referred to as

- Monthly leave pay 1,366,000 won;

- The monthly total amount of payment (monthly family pay + monthly leave pay);

m. Retirement allowance or accident compensation: in accordance with the relevant provisions of the rules of employment.

m. Bonuses: Payment of 800% of the principal salary for 12 months on board;

B. Occupational injury or disease while on board the defendant

(1) From February 3, 2010, the Defendant, on board the above vessel and worked as the captain, around September 15, 2010, took part in emergency training on the sea of Mabrobro MAE 950 E, and took part in emergency training on the ship against the crew, and took part in the demonstration training on the soft Signals project against the crew, and took part in the left side part of the robro signal that was launched by the Defendant.

(2) On September 18, 2010, the Defendant suffered from injury, such as damage to the shore pain, pulmonary vertll, cerebral cerebral dye, and pelvise, and went to Korea after having received first aid from Maddib by leaving the Maddib on September 18, 2010. Since then, the Defendant received two surgerys on September 28, 2010 and October 1, 201 (the name of the hospital omitted) on two occasions (the discharge on October 15, 201), and received outpatients from the above hospital on November 18, 2010 (the name of the hospital omitted), including having received outpatients on November 27, 2016, and was hospitalized in the name of the hospital omitted.

C. Defendant’s wages

(1) On November 201, 2010, after the termination of the above employment contract, the Defendant left the Defendant, and thereafter, the amount of wages for the seafarers belonging to the Plaintiff was increased retroactively as of July 1, 2010. Around January 1, 2012, the amount was increased retroactively as of July 1, 201, and the details of the “captain” wage are as follows.

On January 5, 2010,35,355,000,000 8,080,365,6312,648,648,000,87,87,000 on July 6, 2010, of the monthly salary of the monthly salary (the monthly salary of the original monthly salary + the rate of increase in the total monthly salary of the original monthly salary (the family salary + the rate of increase in the total monthly salary). < Amended by Presidential Decree No. 10358, Nov. 5, 2010; Presidential Decree No. 17032, Jul. 12, 2004; Presidential Decree No. 170812, Nov. 8, 200; Presidential Decree No. 170093, Jul. 7, 2009; Presidential Decree No. 17032, May 1639, 2006; Presidential Decree No. 170301, Jan. 10, 300, 100>

(2) Accordingly, the Plaintiff paid the Defendant additional amount of KRW 2,869,360 [referring to the sum of KRW 3,068,000 in the amount of salary increase + + KRW 1180,00 in the amount of KRW 1180,00 in August 2010 + + KRW 1188,00 in the amount of KRW 70,00 in the amount of salary increase + KRW 700,00 in September 6, 2011] during the period of boarding due to the wage increase as of July 1, 2011 (other than that, the Plaintiff calculated and paid a retirement allowance and unpaid leave allowance as of September 18, 201).

(3) The amount paid to the Defendant for the three months immediately preceding the date of the instant accident is KRW 31,024,20,00 ( KRW 5,037,90 from June 15, 2010 to June 30, 2010 + KRW 10,535,000 on July 2010 + KRW 10,535,000 on August 8, 2010 + KRW 4,916,300 from September 14, 2010 to September 14, 2010).

(4) The provisions of the Act and subordinate statutes on ordinary wages and average on-board wages, which serve as the payment criteria for injury-disease compensation and lump-sum compensation among accident compensation, are as follows (Article 4 of the "Guidelines for Calculation of Ordinary Wages and Average on-board Wages", do not include statutory allowances, such as overtime work allowances, etc., but the Korean Ship Management Workers' Union and the Korean Ship Management Business Association enter into a standard organization employment agreement which provides that "the calculation of ordinary wages shall include overtime work allowances in ordinary wages, but shall include 85% of the total amount of basic wages and overtime work allowances as ordinary wages". The calculation of ordinary wages is governed by the above standard organization employment agreement. The defendant does not dispute that ordinary wages under the above collective agreement are 85% of the

Article 2 (Definitions of Seafarers Act)

The terms used in this Act shall be defined as follows:

11. The term "ordinary wages" means hourly wages, daily wages, weekly wages, monthly wages or contract wages determined to be paid to seafarers regularly and uniformly in compensation for a certain labor or the total labor;

12. The term "average wages on board" means the amount calculated by dividing the total amount of wages paid to a seafarer during the period on board (if the period exceeds three months, the latest three months) before the date a cause for calculating the average wages on board occurs by the total number of days in the period on board: Provided, That if the amount is less than the ordinary wages, the ordinary

Article 3-4 (Adjustment of Ordinary Wages and Average On-board Wages)

(1) The ordinary wages or average on-board wages applicable to the seafarers entitled to injury-disease compensation, etc. referred to in Articles 96 through 102 of the Act shall be the amount increased or decreased according to the fluctuation rate where the average monthly amount per person (hereinafter referred to as "average amount") of the ordinary wages paid to the seafarers engaged in the same duties in the workplace they belong to is at least 105/100 of the average amount of the ordinary wages paid to the seafarers engaged in the same duties in the month which includes the day in which an injury or disease occurs, or is not more than 95/100, and they shall apply from the month following the month in which the cause of the fluctuation occurs: Provided, That an adjustment for an increase or decrease of the ordinary wages and average on-board wages after the second round shall be based on

(4) The ordinary wages or average on-board wages applicable in calculating the unemployment allowance and retirement allowance under Articles 37 and 55 of the Act for a seafarer who suffers from an injury or disease in the course of performing his/her duties under Article 94 (1) of the Act shall be the ordinary wages or average on-board wages adjusted pursuant to paragraphs (1) through (3).

(d) Payment of disaster compensation;

(1) Medical care compensation;

1) In accordance with Article 94 of the Seafarers Act, the Plaintiff paid KRW 282,172,515 in total with the aforementioned operating expenses, hospitalization expenses, outpatient treatment expenses (including transportation expenses required for outpatients), and internal expenses by January 27, 2016.

Article 94 (Compensation for Medical Care)

(1) Where a seafarer is injured or affected by a disease in the course of performing his/her duties, a shipowner shall provide medical treatment at his/her expense or reimburse expenses incurred in medical treatment until his/her injury or disease is cured

2) After the Plaintiff paid lump sum compensation to the Defendant by January 27, 2016, the Plaintiff suspended the payment of the medical care compensation. However, even during the instant lawsuit, the Defendant continued to receive medical treatment at the hospital and additionally incurred KRW 2,431,800 as the medical expenses.

(b) Injury-disease compensation; and

1) From September 2010 to January 2016, the Plaintiff calculated and paid KRW 276,075,931 in total to the Defendant as follows (payment on September 20, 201).

Article 96 (Compensation for Injury and Disease)

(1) A shipowner shall make injury and disease compensation in the amount equivalent to ordinary wages once a month to a seafarer under medical treatment pursuant to Article 94 (1) until he/she recovers from injury or disease within the extent of four months, and where he/she is not recovered from injury and disease compensation in the amount equivalent to 70/100 of ordinary wages once a month until he/she is recovered from injury or disease.

- Details of calculation of injury and disease compensation amount

o No. 100 - September 18, 2010

o Criteria for payment - 100% of ordinary wages from September 19, 2010 to January 18, 2011

- 70% of ordinary wages from the following day to the end of the injury or disease

o’s Award - Increase of KRW 6,665,00 on July 1, 201, as KRW 7,09,000 on July 1, 201.

o Ordinary Wage - From September 201 to June 5, 2011,665,250 won (6,665,000 won x 85%)

- Won 6,034,150 (7,099,000 won x 85%) from July 2011 to January 2016

o Amount paid monthly - 2,266,100 won (5,665,250 won x 12 days ± 30 days) on September 2010

- KRW 5,665,250 each month from October to December 2010

- 4,952,525 won [3,289,50 won (5,665,250 won x 18 days ± 31 days) + 1,63,025 won [3,965,675 won (5,65,250 won x 70%) x 13 days ± 31 days];

- 3,965,675 won (5,665,250 won x 70%) each month from February 2, 2011 to June 2011

- 4,223,905 won (6,034,150 won x 70%) monthly from July 201 to December 2015

- On January 2016, 3,942,311 won [the plaintiff has paid to the defendant an amount greater than 3,678,85 won [4,223,905 won (6,034,150 won x 70%) x 27 days ± 31 days];

o Total Amount of payment: 276,075,931 won

2) On January 27, 2016, the Plaintiff suspended the payment of lump-sum compensation for injury and disease after paying the Defendant lump-sum compensation.

(3) Lump-sum compensation;

1) On April 17, 2015, the Plaintiff deposited KRW 519,545,693 as a lump-sum compensation under Article 98 of the Seafarers Act, and KRW 5,227,787 as of May 12, 2015, respectively, and the Defendant was erroneous and filed a civil petition with the chief of Busan Regional Maritime Affairs and Fisheries Office.

2) 이에 부산지방해양수산청장은 2016. 1. 5. 원·피고에게 ‘위 사고일을 기준으로 그 전 3개월간의 월 승선평균임금은 10,341,400원이나, 2011. 7. 1. 승선평균임금이 5.3% 인상되었으므로 이를 반영하여 승선평균임금을 다시 산정할 경우 그 금액은 10,889,500원이 되므로, 일시보상금액은 535,037,000원[≒1일 승선평균임금 362,983원(10,889,500 ÷ 30일) × 1,474일]이 되어야 한다’는 취지의 회신을 하였다.

3) Accordingly, on January 27, 2016, the Plaintiff additionally deposited KRW 10,263,520 ( KRW 535,037,00 - KRW 519,545,693 - KRW 5,227,787) in the Defendant’s future.

Article 98 (Lump Sum Compensation)

Where a seafarer receiving compensation pursuant to Articles 94 (1) and 96 (1) has not been cured of an injury or disease even after two years have passed, a shipowner may be released from his responsibility for compensation under Article 94 (1), 96 (1) or 97 by paying the amount equivalent to disability compensation of the first degree under the Industrial Accident Compensation Insurance Act to a seafarer in a lump sum.

x Industrial Accident Compensation Insurance Disability Benefit Table

Lump-sum disability compensation benefits in Class I: Average wage for 1,474 days;

E. Defendant’s objection

(1) In the course of the payment of accident compensation, the Defendant filed a petition several times with the head of Busan Regional Maritime Affairs and Fisheries Office (the head of Busan Regional Maritime Affairs and Fisheries Office) from August 2014 to April 2016 to Busan Regional Maritime Affairs and Fisheries Office (the head of Busan Regional Maritime Affairs and Fisheries Office changed from January 2015 to Busan Regional Maritime Affairs and Fisheries Office to Busan Regional Maritime Affairs and Fisheries Office, for the payment of accident compensation for the Defendant. < Amended by Act No. 1257, Aug. 1, 2015>

However, the chief of Busan Regional Maritime Affairs and Fisheries Office, because the above vessel was a vessel chartered by the Plaintiff on the condition that the Plaintiff acquires nationality, it is not the Seafarers' Act, but the Seafarers' Act should be applied in calculating the accident compensation for overseas seafarers. The defendant's wage amount and the amount of wages of the captain on board the above vessel cannot be individually compared to the above vessel. Since ordinary wages have been reduced as of March 1, 2015, there is no reason to increase the amount of injury and disease compensation in this case, and therefore, there is no reason to increase the amount of injury and disease compensation in the above case. The reason that there is no reason to increase the amount of injury and disease compensation as of March 1, 2015. In addition, the Plaintiff did not accept the remainder of the petition except for the payment of interest due to delay in injury and disease compensation under the Seafarers' Act (see the above reply made by the chief of Busan Regional Maritime Affairs and Fisheries Office on January 5, 2016).

(2) In addition, the Defendant applied for an examination and arbitration on two occasions to the Busan Seafarer Labor Relations Commission on the ground that “the amount of injury and disease compensation, lump-sum compensation paid by the Plaintiff was erroneous, and the Plaintiff did not pay retirement pay, encouragement, and bonus,” but the said Labor Relations Commission decided to dismiss the Defendant’s application on June 5 and February 23, 2017.

F. The above facts are not disputed between the parties, or may be acknowledged in light of the respective entries (including serial numbers) in Gap's 1 to 26, and Eul's 1 to 119 and the purport of the whole pleadings, and there is no evidence that obstructs this.

2. Judgment on the plaintiff's principal lawsuit and the defendant's counterclaim

(a) Scope of adjudication of this Court;

The plaintiff sought confirmation of the existence of his/her obligation as the principal lawsuit on the premise that he/she paid the full amount of accident compensation (compensation for medical care, injury and disease compensation, lump-sum compensation) and retirement allowance due to the above accident, and the defendant sought reimbursement of KRW 437,221,533 (compensation for medical care 1,691,460 + KRW 234,081,073 + lump-sum compensation 201,449,000 + KRW 104,926,759, and KRW 7,275,000 for retirement allowance, while the court of first instance has accepted the plaintiff's claim in its entirety, and ordered the defendant to dismiss his/her counterclaim in its entirety.

On the other hand, the defendant appealed only for accident compensation (part 2,431,80 won of medical care compensation + part 124,400,815 won of lump-sum compensation + part 80,343,260 of lump-sum compensation). The scope of the judgment by this court is limited to the part concerning accident compensation (the defendant sought 1,691,460 won of medical care compensation from the first instance court and sought 2,431,800 won of medical care compensation, but did not expand his/her purport of the claim thereof).

B. Judgment on the defendant's appeal

(1) Lump-sum compensation;

1) A shipowner under the Seafarers Act is exempted from the payment of lump-sum compensation and injury-disease compensation by paying lump-sum compensation in full. Therefore, we first examine whether the lump-sum compensation has been paid to the Defendant.

2) On-board boarding wages of the defendant 37,219 won [31,024,20 won [5,000 won from June 15, 2010 to June 30, 2010 + 10,535,00 won paid on July 7, 2010 + 10,535,000 won + 10,535,000 won on-board boarding wages of the defendant 35 days prior to the above three-day period from September 1, 2010 + 4,916,300 average boarding wages of the defendant from September 14, 201 to September 14, 2010] ± (see the above average boarding wages of the defendant 3.5 days prior to the above three-day period x the monthly increase of wage of the defendant 10,500 won from June 15, 201 to 3.10, 2017.

However, as seen earlier, the Plaintiff deposited KRW 535,037,00 ( KRW 519,545,693 + KRW 5,227,787 + KRW 10,263,520) in the Defendant’s future by January 27, 2016. Accordingly, the Plaintiff’s lump-sum compensation is not remaining.

3) 이에 대하여 피고는, 평균승선임금을 통상임금 인상률에 맞춰 산출하여야 하는데 통상임금이 2010. 7. 1.에 24.5%가량, 2011. 7. 1.에 6.5%가량 인상되었으므로 이를 적용한 1일 평균승선임금은 417,490원[≒314,866원{9,446,000원(808만 원 + 1,366,000원. 위 고용계약에 따른 2010. 6. 15.부터 2010. 9. 14.까지 월별 지급액이다(1의 다. ⑴항 참조). 피고는 임금 인상분을 현실적으로 지급받지 못하였음을 전제로 승선평균임금을 산정함에 있어 현실화하지 않은 임금 인상분은 제외하고 위 고용계약에 따라 현실적으로 지급된 위 금액을 산정의 기초로 삼아야 한다고 주장한다) ÷ 30일} × 1.245 × 1.065]이 되고, 따라서 원고가 피고에게 지급할 일시보상금은 615,380,260원(417,490원 × 1,474일)이 되는데, 원고가 535,037,000원만을 지급하였다고 주장하며 반소로써 차액 80,343,260원(615,380,260원 - 535,037,000원)의 지급을 구한다.

4) Therefore, the health stand and the lump-sum compensation shall be based on average boarding wages (Article 98 of the Seafarers' Act and the Industrial Accident Compensation Insurance Act) and if the monthly rate of average boarding wages falls under 5% (Article 3-4 of the Enforcement Decree of the Seafarers' Act), the average boarding wages shall be adjusted by reflecting the "average boarding wage fluctuation rate". Thus, the defendant's assertion that the average boarding wages shall apply to the adjustment of average boarding wages is without merit (Article 3-4 of the Enforcement Decree of the Seafarers' Act is interpreted to mean that average boarding wages shall also be adjusted according to the fluctuation rate of average boarding wages if the rate of average boarding wages falls under 5%, and that average boarding wages shall also be adjusted by directly applying the fluctuation rate of average boarding wages as alleged by the defendant, and interpretation of Article 3-4 of the Enforcement Decree of the Seafarers' Act cannot be permitted

5) Furthermore, since the wage increase was made retrospectively as of July 1, 2010 and the defendant has already received the increase retroactive from the plaintiff, and 337,219 won calculated on average boarding per day is the amount already reflected in the wage increase portion made on July 1, 2010, it is not necessary to adjust average boarding wages by reflecting the wage increase rate made on July 1, 201 at the above 337,219 and at the same time, it is not sufficient to adjust average boarding wages according to the wage increase rate made on July 1, 201. Accordingly, the defendant's assertion that average boarding wages should be adjusted twice according to the wage increase made on July 1, 201 and July 1, 201 cannot be accepted.

(ii)medical compensation and injury-disease compensation;

1) Since it is recognized that the Plaintiff paid the full amount of lump-sum compensation to the Defendant by January 27, 2016 (the Defendant received the said three-time deposit without objection), the Plaintiff is exempted from the obligation to pay medical care compensation and injury and disease compensation money to the Defendant after January 27, 2016 pursuant to Article 98 of the Seafarers Act.

2) As to this, the Defendant asserted that the amount of KRW 80 million out of the lump-sum compensation was unpaid to the Defendant, and that the Plaintiff is obligated to pay KRW 109,821,530 (ordinary wage 6,034,150 x 70% x 26 months from January 29, 2016 to March 29, 2016) and KRW 2,202,500 of the medical care compensation accrued after January 27, 2016. However, the Plaintiff asserted that the amount of lump-sum compensation was paid to the Defendant by January 27, 2016, and is against the foregoing recognition that the amount of lump-sum compensation was paid by January 27, 2016.

(3) Sub-decisions

As above, the Plaintiff paid the full amount of lump-sum compensation to the Defendant by January 27, 2016. Accordingly, even though the Plaintiff was exempted from the obligation to pay the remainder of the accident compensation (medical care compensation and injury and disease compensation) after January 27, 2016, there is a benefit to seek confirmation that the Defendant had no obligation to pay each of the above compensation because it sought additional payment because the Defendant had failed to pay each of the above compensation, and the Defendant’s counterclaim claim is without merit.

3. Conclusion

Therefore, the plaintiff's claim of this case concerning accident compensation is justified, and the defendant's claim of this case shall be dismissed as it is without merit, and the judgment of the court of first instance is just, and the defendant's appeal is dismissed. It is so decided as per Disposition.

Judges Yang Sung-Gyeong (Presiding Judge)