In a case where the purchase of lub oil necessary for a ship in operation and the consignment thereof using another ship is made, whether it constitutes a claim with a maritime lien on the claim for payment.

If the Defendant Company purchased lubric oil necessary for a ship which starts on the voyage and consigned it to each of the above vessels using other vessels, the claim for lub oil price does not constitute a claim for maritime lien under Article 861(1)6 of the Commercial Act.

Article 861 of the Commercial Act

Saly Petroleum Corporation

The same number of corporations and 3 others

1. The equal number of defendant corporation shall pay to the plaintiff 15,961,186 won with an amount equal to 25 percent per annum from September 9, 1983 to the date of full payment.

2. The plaintiff's remaining claims against the same number of defendant corporation and the remaining claims against the defendants are all dismissed.

3. Of the litigation costs, the part arising between the plaintiff and the defendant corporation with the same number shall be borne by the same defendant, and the part arising between the plaintiff and the remaining Defendants shall be borne by the plaintiff

4. Paragraph 1 can be provisionally executed.

The plaintiff confirmed that the plaintiff has claims with maritime lien of KRW 5,484,682 as stated in the attached Table 5 with respect to the mobilization of KRW 21 on the base line listed in the attached Table 1 attached hereto and KRW 44,000 as listed in the attached Table 6 List 22 attached hereto with respect to the mobilization of KRW 5,942,700 as listed in the attached Table 3 attached Table 7, the number of shares of the defendant corporation and the National Federation of Fisheries Cooperatives as listed in the attached Table 4, the number of shares of KRW 102 as listed in the attached Table 4, the same as listed in the attached Table 8, the same amount of KRW 4,089,798 as listed in the attached Table 1, and the same amount of KRW 22 as listed in the attached Table 3.

The costs of lawsuit are assessed against the defendants and a declaration of provisional execution.

1. Judgment on the claim for the price of goods against the same number of defendant corporation

A evidence Nos. 1, 2, 3, and 4-1 (written confirmation), A’s evidence Nos. 1-2, 5, 2-2, and 3-2, A’s evidence Nos. 3-2, 3, 7, 10, 13, A’s evidence Nos. 4-2, 1-3, 6, 2-3, 3-4, 8, 11, 4-3, 1-4, 1-4, 1-4, 2-4, 3-3, 2-3, 3-4, 3-5, 6, 9, 12, 15, 4-4 (each tax invoice), and 9-1, the Plaintiff’s total statement of evidence Nos. 2, 57, and 4-4 (each of the above tax invoices) was sold to the Plaintiff Co. 4, Ltd.

Therefore, the same number of defendant corporation has the obligation to pay to the plaintiff damages for delay at the rate of 25 percent per annum from September 9, 1983 to the date of full delivery of a copy of the above article 15,961,186 and a copy of the complaint.

2. Determination on the part of the claim for confirmation of existence of a maritime lien against the Defendants

The Plaintiff sold lux oil equivalent to KRW 5,484,682, as stated in the [Attachment 5] List No. 1 that the Plaintiff left Busan Port and was operating in the North Pacific region. The Plaintiff sold lux oil equivalent to KRW 44,00,00, which was in operation at the same place, to the captain listed in the annexed Table No. 2 List No. 8 mobilization of the attached Table No. 6, and sold lux oil equivalent to KRW 5,942,706, which was in operation at the same place, to the captain listed in the attached Table No. 3 list No. 7, which was in operation at the same time, as stated in the attached Table No. 4 List No. 102, which was in operation at the same place, to the captain listed in the attached Table No. 102, which was the owner of the above ship No. 102, and sold lux oil equivalent to KRW 4,089,798, which was the same in accordance with the above maritime lien No. 16 of the Plaintiff’s.

In light of the above evidence, even though the plaintiff sold lub oil to the same number of the defendant corporation as above, it is acknowledged that the price claim is a maritime lien as stipulated in Article 861 (1) 5 of the Commercial Act, and the claim stipulated in Article 861 (1) 5 of the Commercial Act refers to the claim arising from a contract or the performance of the above authority entered into by the captain outside the port of registry due to the need to preserve the ship or continue navigation. The last voyage stipulated in Article 861 (1) 6 of the Commercial Act refers to a new voyage planned in the future. As such, first of all, considering whether the plaintiff's sale of lub oil outside the port of registry directly sold it to the captain, it is insufficient to accept all evidence submitted by the plaintiff. Rather, in full view of the witness's testimony, the plaintiff's claim that the defendant company sold lub oil for each of the above ships operating in the North Pacific Ocean did not constitute a maritime lien on the part of the defendant corporation's claim that the plaintiff's claim for the above provision of lub oil should not be justified.

3. Conclusion

Therefore, the plaintiff's claim for the purchase of goods against the same number of defendant corporation is justified, and the claim for the confirmation of existence of claims with maritime lien against the same defendant and the remaining defendants is dismissed without merit. Among the costs of lawsuit, the part arising between the plaintiff and the same number of defendant corporation shall be borne by the same defendant, and the part arising between the plaintiff and the remaining defendants shall be borne by the plaintiff and the provisional execution declaration shall be attached. It is so decided as per Disposition.

Justices Park Tae-young (Presiding Justice)