[1] In a case where a barge leased by lease conflicts with another ship while operating a tugboat with a tugboat, whether the damage claim owned by the other party constitutes a claim subject to limitation of liability under Article 746 subparagraph 1 of the Commercial Act (affirmative)

[2] In a case where a claim that is subject to shipowner's liability limitation occurs while a tugboat and a towing boat were operated by a tugboat, whether the two vessels shall be deemed a single vessel at all times when determining the limit of liability pursuant to Article 747 (1) 3 of the Commercial Act (negative)

[3] In the case of the above [1], the case holding that the limit of liability of the ship owner of the tugboat shall be the aggregate of the amounts calculated according to Article 747 (1) 3 of the Commercial Act for the tugboat and the towed ship

[1] In a case where the captain and crew of a tugboat, as a combination with the tugboat, used for profit-making purposes without checking the navigational direction, speed, etc. of the prior vessel due to wireless contact, etc. while being driven by a towing boat in violation of the safety rules, and the towing boat faces collision with the vessel, the shipowner of the towing boat is liable to compensate the other shipowner for damage caused by an accident caused by such navigational error by the captain and crew of the towed vessel or crew, and the damage claim constitutes a claim arising from the loss or damage of the goods other than the vessel arising from the direct connection with the navigation of the vessel, as stipulated in Article 746 subparagraph 1 of the Commercial Act.

[2] Article 747 (1) 3 of the Commercial Code provides that the amount determined according to the tonnage of the "ship" shall be limited when adopting the so-called "amount of money among several legislative principles concerning the limitation of liability of the shipowner. Thus, in all cases where a claim that can limit the shipowner's liability occurs while the tugboat is being towed by towing, it shall not be deemed that the tugboat and the towed collectively correspond to the "ship" under Article 747 (1) 3 of the Commercial Code by applying the so-called "the limitation of liability of the shipowner."

[3] In the case of the above [1], since the owner of the towed used the towed for a commercial purpose as a lessee of the towed, he has the same rights and duties as the shipowner in relation to the matters concerning its use as to the third party pursuant to Article 766 (1) of the Commercial Act, the tugboat and the towed are assigned to a maritime business organization of the tugboat owner and caused an accident while carrying out its business activities, and the fault of the captain causing the damage liability of the tugboat owner is not limited to the navigation of the tugboat, but is related to navigation of the towed which cannot navigate as towed by the tugboat, and damage to the other ship due to the collision is caused by the collision and the navigation of the towed can be deemed as the fault of the owner of the towed in violation of the limit of navigation specified in the ship inspection certificate, and the limit of liability of the tugboat owner of the tugboat and the amount calculated according to Article 747 (1) 37 of the Commercial Act, based on the total tonnage calculated according to Article 747 (1) 37 of the Commercial Act.

[1] Articles 746 subparag. 1, 747, and 843 of the Commercial Act / [2] Article 747(1)3 of the Commercial Act / [3] Articles 746, 747(1)3, and 766(1) of the Commercial Act

[1] Supreme Court Order 95Ma325 dated June 5, 1995 (Gong1995Ha, 2492)

Daeyang Shipping Co., Ltd. (Attorney Han Han-chul, Counsel for defendant-appellant)

Busan High Court Order 97Ra26 dated October 2, 1997

The reappeal is dismissed.

The grounds of reappeal are examined.

1. According to the reasoning of the order of the court below, the court below acknowledged the following facts by comprehensively taking account of the evidence attached to the record and the whole purport of the examination

A. Sub-paragraph 201 is owned by the applicant who engages in aggregate extraction and cargo transport business, and is a tugboat with a gross tonnage of 99t and a diesel engine of 2,250 masts. Sub-paragraph 202 is a barge owned by Eastnam Loan Finance Co., Ltd., and not with a power engine of 1,195t gross tonnage of 1,195 tons. The re-appellant entered into a facility leasing agreement with Eastnam Loan Finance Co., Ltd., and used a facility leasing agreement with Eastnam Loan Finance Co., Ltd., to maintain and manage the sub-paragraph 202 and directly maintain and manage the sub-paragraph 1 and a set of 201 sea sand transport.

B. At around 03:40 on July 18, 1995, No. 201: (a) the captain of the non-party 1,541 cubic line, on which approximately 1,541 cubic meters of sand was loaded under the direction and supervision of the non-party 1, the captain of the non-party 1, who was the non-party 1,541 cubic line, left the sea of the Sinando, and operated at 135∑ 34·36'E at a speed of 4.8 knots, with the speed of 135∑ 34°36'E, and 126·150'E, the non-party 1 tried to find out the collision between the captain of the non-party 1 and the non-party 2, who was at a speed of about 15∑ 15°N and the other party 2, who was at a speed of 00's 2,000 cubic line.

C. At the time of the accident, the weather condition was almost 500 to 600 meters, kiscing a dog on the peaceful weather with almost no wind wave. Nonparty 1 attempted to avoid navigation when the accident occurred, without confirming the direction of navigation, speed, movement, etc. of the telecom by radio communications, radar, light signal (fence signal), etc. At the time of the accident, Nonparty 1 attempted to overtake the telecom too close to the telecom. The tugboat No. 202 Es. 202 Mar. 1, 200, on board by two seafarers belonging to the applicant, but there was no contact that there is a concern of collision with Nonparty 1 before the accident. At the ship inspection of the Es. 202 Es. 202 Es. 202, navigation is prohibited, including the weather distance is less than 1 km by the sea inside the sea to ensure the safe navigation of the ship.

2. The lower court determined as follows on the basis of the foregoing facts.

A. Nonparty 1, the captain of Nonparty 201, committed an attempt to overtake the other vessel by lowering speed in the event of navigation by towing an inferior inside her beam 202, and by checking the navigation direction, speed, and condition of the other vessel with radio communications, radars, light signals, etc. when overtaking the latter, Nonparty 1, the captain of Nonparty 201, had a duty of care to prevent the collision at the time of overtaking by maintaining the safety distance to prevent the accident.

In the event that two crew members of the towing fleet 202, who were on board, are overtaken from the distance near the other vessel, they did not take such measures even though they did not take a duty of care to prevent the accident, such as taking contact to the captain of the towing in advance, when there is a concern about the possibility of collision by checking closely the towing condition or the possibility of collision of the towing vessel.

In addition, the 202 piracy is a towing barge that has no own power, and the operation of a vessel under visual restriction is extremely in need of high depth due to poor adjustment performance of the vessel, and the ship inspection certificate stipulates that the navigation of the vessel shall be prohibited when the weather deterioration is made including the case where the distance is less than 1km at the sea through the inside of the sea for safe navigation of the vessel. Therefore, the captain of the 201 piracy or the crew of the 202 piracy should not make the operation of the vessel under towing, but the accident occurred.

Therefore, the re-appellant is liable to compensate for damages caused by the collision of the other party's set forth in No. 202 No. 201(s) which was towed by the navigational error of the captain or crew as the shipowner of No. 201(s)(s)(s)(s)(s)(s)(s)(s)(s)(s)(s)(s)(s)(s)(s)(s)(201(s)(s)(s)(s)(s)(s)(s)(s)(s)(s)(s)(s)(s)(s)(s)

B. The collision accident of this case occurred when the tugboat constituted an organic group of towings No. 201(s) which is linked to the tugboat No. 202(s) which has no independent navigation capacity. The collision accident of this case occurred when the captain or crew's joint fault on board the tugboat or the tugboat was under navigation. The tugboat was formed under the responsibilities and management of the re-appellant, which is the tugboat owned by the re-appellant. The fleet was under the 201(s) order and management, and the two vessels were under the complete control and management of the re-appellant due to continuous and repeated use in the maritime cargo transport business of the applicant according to the same direction and supervision between the captain and the crew employed by the re-appellant. Thus, the limit of liability of the re-appellant who is the shipowner under Article 747 of the Commercial Act is not merely based on the gross tonnage of the tugboat owned by the sub-appellant, and it is reasonable to consider it as a single tugboat and determine the gross tonnage of the towed based on the gross tonnage of the towed.

C. Therefore, the limit of liability that the re-appellant may limit is 29,598 calculated based on the aggregate 1,294t (=99t +1,195t) of the total tonnage of seaworthiness 201 and 202 seaworthiness 3 (b) of the Commercial Act [167,00 +1,294t +1,294t x 167 units/ tons] (the limit of liability suffered by the other party shall exceed the above limit of liability).

3. Judgment of party members

First of all, according to the facts duly admitted by the court below, the claims acquired against the re-appellant by Dong-dong Shipping Co., Ltd., the other party constitutes "claims to the damage incurred due to the loss or damage of things other than the ship, which occurred in direct relation to the operation of the ship" under Article 746 (1) 1 of the Commercial Act, and the re-appellant can limit its liability under Article 747 (1) 3 of the Commercial Act.

However, Article 747 (1) 3 of the Commercial Act provides that "the amount determined according to the tonnage of "the ship" shall be limited to the amount of liability of the re-appellant when adopting the so-called "the principle of limitation of liability of the shipowner" among various legislative principles on limitation of liability of the re-appellants. Thus, in all cases where the tugboat under towing takes charge of all the claims to limit the liability of the shipowner while operating a tugboat, it shall be deemed that the tugboat and the towed are "the vessel prescribed in Article 747 (1) 3 of the Commercial Act". However, in this case, the re-appellant's 202 sea navigation inspection certificate of No. 201 of the Commercial Act, which is the lessee of No. 202 sea for profit, was used for navigation of No. 202 sea for the purpose of navigation of No. 201 of the Commercial Act, and the second sea navigation of No. 20 of the fleet's ship, which is the second sea navigation of No. 1 of this case and the second sea navigation of No. 20 of this case, the plaintiff's. 20.

However, the amount calculated as above is the 83,000 accounting units for the 201 Seaho Lake, and 283,065 accounting units for the 202 Seaho Lakes [167,000 accounting units + (1,195-500 units + 1,195-500) x 167 accounting units] in total and 366,065 accounting units. It is obvious that the limit of liability recognized by the court below is less than this (in addition, this amount is clear that it is less than the amount of credit of the other party recognized by the court below).

If so, the court below's calculation of the limit of liability of this case is improper, but there is no error that the tonnage of No. 202 is to be considered together in calculating the limit of liability of this case, and it is clear that the calculation result is more favorable to the re-appellant than by the correct method. Ultimately, the ground for re-appeal of this case is without merit.

3. Therefore, the reappeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Final Young-young (Presiding Justice)