[2] Scope of “official accidents” under the Seafarers Act and whether performance of duties is excluded in a case where an accident occurred in a drinking state (negative in principle)

[3] Whether comparative negligence is applied to accident compensation under the Seafarers Act (negative)

[4] The case holding that the above accident constitutes an occupational accident under the Seafarers' Act in case where a sand gathering vessel crew member returned to a vessel which was scheduled to sail in preparation for departure from the next day and suffered an injury, such as a thalute thalute and a downladrosis, etc., on the ground that the said accident constitutes an occupational accident in case where the crew's act was done after returning to the vessel and making a return report after leaving the vessel on the goods necessary for departure from the port in compliance with the captain's order

[2] The term "occupational accidents" under the Seafarers Act is more broad concept than "occupational" under the Labor Standards Act. "occupational accidents" include occupational accidents of seafarers, which are caused by seafarers while on duty and inherent in the duties of seafarers or risks accompanying them. In light of the unique nature of maritime labor provided by seafarers, all acts performed in a ship in principle constitutes duties in light of the unique nature of maritime labor provided by seafarers, and includes all acts performed in a ship, such as meals, sports, erosion, rest, etc., and where a seafarer goes aboard or leaves a ship while on duty during a holiday period, where a seafarer goes out of a ship or leaves the ship, he/she is on board or leaves the ship, and where a seafarer moves from the place of his/her own car or means of public transportation to the place of his/her daily life or moves from the place of leaving the ship to the place of his/her daily life, the act permitted by social norms such as food, purchase of goods, communications, etc. in the port does not fall under the inherent duties of a seafarer, but it cannot be evaluated that the seafarer was under drinking from the duty of a shipowner, regardless of influence.

[3] The purpose of the accident compensation system under the Labor Standards Act is not to ask an employer who operates an enterprise in which the risk of disasters exists without asking for whether there is negligence or not, and to compensate for the damages suffered by an employee due to a disaster. The essence of the accident compensation system is not different from that of the worker's occupational accident compensation system, but also has the characteristics of livelihood security as well as the characteristics of the worker's occupational accident compensation system. Thus, the essence of the accident compensation system is in principle not different from that of the worker's occupational accident compensation under the Seafarers Act, and thus, the employer should not be exempted from liability

[4] The case holding that in case where a sand gathering vessel crew member suffered bodily injury, such as an accident that occurred during the period of absence from work, and that the said accident cannot be deemed to have occurred during the period of absence from work due to the accident that occurred after the vessel started to make preparations for departure, and that the crew also started preparation work such as transporting food, loading, etc., and the fact that the crew was able to return to the port and return to the ship after leaving the ship in accordance with the captain's order and making a report of return after leaving the ship, and leaving the ship after leaving the ship, and leaving the other crew and the half of the ship in preparation for departure from the port, the above accident constitutes an occupational accident provided by Article 85 (1) of the Seafarers Act, etc. when comprehensively takes account of the following facts: (a) the crew member was unable to be deemed to have been on duty during the period of absence from work; and (b) the crew was on duty to make a return report, and (c) the crew was on duty to prepare for departure from the port on the following day.

2. The plaintiff's remaining claims are dismissed.

3. 1/10 of the costs of lawsuit shall be borne by the Plaintiff, and the remainder by the Defendant, respectively.

4. Paragraph 1 can be provisionally executed.

A. The Plaintiff was owned by the Defendant from August 2005 to February 10, 2008, and served as the engineer or the head of Han River 77 (hereinafter “instant vessel”) from North Korea.

B. The instant vessel returned to Incheon Port on February 4, 2008 after work in the North Sea area of North Korea. The Plaintiff, after departure from the Republic of Korea, went to Busan Port, which is the domicile of the Plaintiff. On February 9, 2008, the Defendant’s employees “Isn't expect to depart from the Republic of Korea on February 11, 2008,” received contact and returned to Incheon on the 10th day of the same month, which is the last day of the New Year’s Session.

C. The Plaintiff arrived at Incheon and returned to the former secretary of the Defendant Company. The captain of the instant vessel, upon Nonparty 1’s order, left the vessel with goods necessary for his living on board for a period of two months, and left the vessel, and she was the mate of the instant vessel, Nonparty 2 who was the mate of the instant vessel.

D. After a half-way meal, the Plaintiff was injured by an injury, such as an external cerebral throde and a sub-explosion, etc., on the wind falling down, while the Plaintiff returned to the instant vessel and was unloaded by an engine room in preparation for departure from the port following the following day (hereinafter “instant accident”).

[Reasons for Recognition] Facts without dispute, Gap evidence Nos. 1 through 4, Eul evidence Nos. 2 through 4 (including paper numbers; hereinafter the same shall apply), non-party 1's testimony and the purport of the whole pleadings

2. Determination on this safety defense

A. Summary of the defense

On April 28, 2008, the Defendant asserted that the instant lawsuit was filed against the Plaintiff’s wife Nonparty 3, who received a resignation and a written resignation from the Plaintiff and paid retirement allowances and retirement consolation money to the Plaintiff next day, thereby concluding all damages incurred due to the instant accident. As such, the instant lawsuit was brought against the Plaintiff’s wife Nonparty 3.

B. Determination

In full view of the evidence Nos. 1 through 3, Eul evidence Nos. 1, and the purport of the testimony and arguments by Non-Party 4 as well as the witness, the plaintiff signed a letter of commitment that the plaintiff received treatment on April 28, 2008 and agreed to the defendant's employee Non-Party 4 and discharge, and agreed to not raise any civil or criminal objection after the company's completion of treatment. In this regard, Non-Party 4 received retirement pay of KRW 7,743,350 and retirement consolation money of KRW 8,900,00 after the following day. At that time, Non-Party 4 and Non-Party 3 were not treated by the Shipping Association because the accident of this case was done in consideration of drinking accidents. The plaintiff's signature was received at the time of treatment in each letter of commitment prepared by the company, and the plaintiff had already been aware that there was a mental disorder caused by an accident.

In light of the above facts and the various circumstances revealed in the records and arguments of this case, particularly, the plaintiff was obliged to pay a considerable amount of medical expenses when discharged at the above hospital. The plaintiff appears to have failed to accurately understand the legal meaning and effects of each of the above statements due to the symptoms of a qualitative mental disorder and lack of legal knowledge or legal service experience; the defendant's employee did not fully explain the legal meaning and effects of each statement to the plaintiff; rather, he did not explain the plaintiff's negligence; if the plaintiff could have predicted the present state of disability at the time of the agreement, he could have predicted that he did not agree with the above amount, the plaintiff's expression of intent pursuant to each of the above statements should be deemed null and void as a juristic act ( even if the above expression of intent was not an unfair juristic act, it is reasonable to view that the plaintiff signed each statement of intent that the whole amount of medical expenses should be borne by the plaintiff without signing each statement of intent, and thus, the plaintiff's declaration of intent was revoked by the above statement of intent 2016).

Therefore, the defendant's main defense is without merit.

3. Judgment on the merits

(a) Occurrence of liability to pay disaster compensation;

1) Parties’ assertion

The Plaintiff asserted that the instant accident constitutes “official injury” as prescribed by the Seafarers’ Act, and thus, should be compensated accordingly. The Defendant asserted that the instant accident falls under “an injury caused by reasons other than duties while on duty” under the same Act, since the Plaintiff was injured while on board a ship after drinking alcohol during the period of absence.

2) Relevant provisions: omitted.

3) Determination

In light of the aforementioned facts, the Plaintiff’s return report after receiving the Defendant’s return order and filed a return report, and the Plaintiff started work for departure from the port, including loading food, etc. on the ship. In full view of the entries in Gap’s 3, 4, 7, and Eul’s 2, and the testimony and arguments of Non-Party 1 as well as the witness Nonparty 1, the instant vessel was scheduled to depart at around 10:00 on February 11, 2008, and the Plaintiff, the head of an agency, was obliged to make preparations on the ship before departure from port, and the Plaintiff, the head of an agency, had a duty to make preparations on the ship before departure from port, and the seafarers, whose residence is located in Incheon’s port, may be recognized as having been placed on the berth in the ship in advance.

The term "occupational accidents" under the Seafarers' Act is more broad concept than "occupational" under the Labor Standards Act, and it should be deemed that "occupational accidents" of a seafarer include occupational accidents caused by him/her while on duty, and accidents that can be seen as actualizing risks inherent in or accompanying the work of a seafarer. In light of the special nature of maritime labor provided by a seafarer, all acts performed in a ship in principle constitutes duties in light of the special nature of the seafarer's work provided by the seafarer. It includes all acts conducted in a ship, such as meals, sports, erosion, rest, etc., and where a seafarer goes on or leaves a ship during a holiday period, and where a seafarer goes on or leaves the ship, he/she is not allowed to move from his/her own car or means of public transportation to his/her base of living or move from the place of his/her landing to the place of his/her life. However, even if he/she actually suffers from drinking as a matter of course, it cannot be evaluated that the seafarer's occupational injury was under influence of alcohol, regardless of the degree of his/her duty.

Meanwhile, the purpose of the accident compensation system under the Labor Standards Act is to have an employer who operates an enterprise which provides labor under its control and which is in charge of the risk of disaster compensates the worker for the damages suffered by the worker due to the occurrence of the disaster without asking for whether the worker has negligence or not, and its nature has the characteristics of guaranteeing the worker's damages arising from the occupational accident as well as the characteristics of guaranteeing the livelihood of the worker (see Supreme Court Decisions 81Da351, Oct. 13, 1981; 93Da38826, May 24, 1994, etc.). Since the nature of the accident compensation system is not different from that of the worker's accident compensation under the Labor Standards Act, it is a principle that the employer is exempted from liability for compensation or limit the scope of compensation by taking into account the negligence of the worker due to the occupational injury or disease.

In the instant case, the health team back to the instant case, the facts recognized earlier, and the various circumstances revealed in the records and arguments, namely, ① the instant accident occurred during the period of leave since the instant vessel started preparation for departure on February 10, 2008; ② the Plaintiff also started the preparation for departure, such as reporting return, transporting food, etc.; ③ the Plaintiff’s return to the instant vessel was the first state of commencing the preparation for departure from the instant vessel; ③ the Plaintiff’s return to the instant vessel was not only for the first time but also for the next day to prepare for departure from the A.M. (the Plaintiff’s return to the vessel was the act of maintaining the crew’s ability to work as a seafarer, and it constitutes a seafarer’s duty to prepare for departure from the instant vessel). ④ In full view of the Plaintiff’s injury and detection place, etc., it is unreasonable to deem that the Plaintiff was injured and on board the instant vessel in light of the Plaintiff’s injury and detection place, etc., the instant accident constituted an occupational accident under Article 85(1) of the Seafarers Act.

In regard to this, the Defendant: (a) the Plaintiff was on board under the influence of alcohol; (b) Article 24 of the Seafarers Act provides that the act of disturbing the crew’s drinking is a cause for disciplinary action; and (c) the Plaintiff was injured on board the instant vessel without obtaining the approval of the captain and the Defendant; (b) so, the instant accident was caused by the Plaintiff’s gross negligence; (c) however, the circumstance that the injury was caused by intention or gross negligence is merely a matter of immunity recognized as a shipowner in the event of an injury other than duties under Article 85(2) of the Seafarers Act; and (d) there was no evidence to acknowledge that the Defendant

(b) Scope of accident compensation;

1) Medical care compensation

(A) medical expenses for the East University Hospital;

1,710,950 won from July 14, 2008 to November 19, 2009

November 23, 2009 KRW 171,640

B) Medical expenses for a hospital specializing in the elderly

967,120 won from September 16, 2008 to October 29, 2008

1,338,910 won from April 20, 209 to June 24, 2009

C)Calculation

Medical care compensation totaling KRW 4,188,620

[Reasons for Recognition] Evidence Nos. 1, 2, and 5, the purport of the whole pleadings

(ii) Injury and disease compensation;

A) Ordinary wages

Basic wage of KRW 2,58,00, and bonuses of KRW 539,340 (the plaintiff asserts that monthly ordinary wage of KRW 4,300,000 is the monthly ordinary wage of KRW 3,30,00,000, while there is no evidence to acknowledge it in excess of the above recognition scope).

(b)the period of recuperation;

From February 11, 2008, the date of the accident in this case, to November 23, 2009, where the East Asian University Hospital completed medical treatment.

C)Calculation

early four months 12,389,360 won (=3,097,340 won x 4 months x 100%)

After 17 months 36,858,346 won (=3,097,340 won x 17 months x 70%)

A total of injury and disease compensation KRW 49,247,706 (=12,389,360 + 36,858,346)

[Reasons for Recognition] Gap evidence Nos. 1, 2, 5, Eul evidence No. 1-3, the purport of the whole pleadings

3) Disability compensation

A) Disability grade

The latter disability rate: 62% [62% [2% of 10-24%) applicable mutatis mutandis to Mabrid 2-B-3 (1) of Mabrid 2, 1-A-1-b (4) of 24% applicable mutatis mutandis, 62% of combined evaluation [=24% + (100-24%) x 50%)]

Physical disability grade under the Industrial Accident Compensation Insurance Act: Grade V;

Lump-sum disability compensation benefits: Average wages of 869 days;

B) Average wages on board;

Amounting to KRW 9,292,00 in total amount of wages paid from November 2007 to January 2008 (=basic wage of KRW 7,674,00 + KRW 1,618,00 in bonuses)

92 days on board for three months;

On-board boarding (i.e., KRW 101,00 (i.e., KRW 9,292,00,000/92); and the Plaintiff asserts that on-board boarding is KRW 120,000; however, there is no evidence to acknowledge that it exceeds the recognition scope)

C)Calculation

Disability compensation totaling KRW 87,769,000 (=101,000 x 869 days)

[Reasons for Recognition] Unsatisfy, Eul evidence No. 1-3, and the court's entrustment of physical examinations to the head of the relevant university of the Republic of Korea, the purport of the whole pleadings

4) Mutual aid

The defendant asserts that the sum of retirement consolation benefits paid to the plaintiff, retirement benefits paid to the plaintiff in February and March 2008, nursing expenses of KRW 2,580,00, medical expenses of KRW 22,642,770, and KRW 36,289,950 should be deducted.

In light of the facts that the Defendant paid KRW 8,90,00 to the Plaintiff on April 29, 2008, as seen earlier, the Defendant paid KRW 2,167,180 to the Plaintiff on February 2008 and in full view of the facts stated in the evidence Nos. 1, 5, and 200, the Defendant paid KRW 2,167,180 to the Plaintiff on February 2008. Thus, the above aggregate amount of KRW 11,067,180 (= KRW 8,900,000 + KRW 2,167,180) should be deducted from the accident compensation (the nursing and treatment expenses already paid by the Defendant on April 28, 2008 are all paid by the Defendant on or before April 28, 2008, not the nature that the Plaintiff should be deducted to the extent that the Plaintiff only claimed the medical care expenses thereafter).

(c)Calculation of accident compensation amount;

The above recognized accident compensation amounting to KRW 141,205,326 (=compensation 4,188,620 + Compensation 49,247,706 + Compensation 87,769,000 + Compensation 134,968,620, which the Plaintiff seeks, deducts the above KRW 11,067,180 from compensation 134,968,620. The accident compensation amount in this case is KRW 123,901,440.

4. Conclusion

Therefore, the defendant is obligated to pay to the plaintiff 123,901,440 won for accident compensation and the damages for delay calculated at the rate of 5% per annum under the Civil Act from January 13, 201, which is the date following the delivery date of a copy of the complaint of this case until April 13, 2011, and 20% per annum under the Act on Special Cases Concerning the Promotion, etc. of Legal Proceedings from the next day to the date of complete payment. Thus, the plaintiff's claim is justified within the above recognition limit, and the remainder is dismissed as of January 13, 201.

Judges Cho Jin (Presiding Judge)