In a case where a shipowner files a lawsuit against a third party on the auction of the ship based on a supply claim, such as the cost of repair of a ship and machinery, to a vessel or charterer, the case holding that the above claim is a claim secured by a maritime lien under the Pakistan, which is the country of registry;

In a case where a shipowner files a lawsuit against a third party on the auction of the ship based on a supply claim, such as the cost of repair of a ship and machinery, to a ship or charterer, the case holding that the above claim is a claim secured by a maritime lien under the Pakistan, which is the country of registry, as the contract was concluded for the provision of goods and services indispensable for the operation of a ship, and thus, is a claim secured by

Articles 5 and 60 subparag. 1 of the Private International Act, Article 1 of the Civil Act

Plaintiff (Law Firm Rate, Attorneys Lee Han-hee et al., Counsel for the plaintiff-appellant)

Defendant 1 and two others (Law Firm Samyang, Attorneys Song-won et al., Counsel for the defendant-appellant)

October 14, 2009

1. In Busan District Court Decision 2009Hu12190, the Plaintiff’s obligation of maritime lien against the Defendants in the case of the auction of the ship at Busan District Court Decision 87,080,000 won for Defendant 1, 42,040,000 won for Defendant 2, and 11,700 US dollars for Defendant 3 company, respectively.

2. The plaintiff's remaining claims against the defendants are all dismissed.

3. The costs of lawsuit shall be borne by the Plaintiff.

On March 20, 2009, the Defendants’ compulsory execution against the ships listed in the [Attachment List] on March 20, 2009 based on the maritime lien ( Busan District Court Decision 2009Ma12190) was denied, and confirmed that there was no obligation of the Plaintiff with maritime lien against the Defendants regarding the above ship auction case.

1. Basic facts

The following facts are not disputed between the parties, or found in each entry in Gap evidence 1, Eul evidence 1, Eul evidence 2-1, Eul evidence 3-1, Eul evidence 12, and Eul evidence 12, by integrating the whole purport of the pleadings:

A. The Plaintiff is the Pakistann corporation, the owner of the vessel listed in the separate sheet (hereinafter “instant vessel”). Defendant 1 is the “○○ Engineering”; Defendant 2 is each engaged in vessel repair and vessel supplies business, etc. under the trade name of “○○ Engineering”; Defendant 2 is the “△△ Korea”; Defendant 3 is the Chinese corporation engaging in vessel supplies business, etc.

B. On March 20, 2009, the Defendants filed an application for voluntary auction against the instant vessel at KRW 145,612,320 [Defendant 187,080,000, and KRW 242,040,000, and KRW 16,492,320, and KRW 16,320,00 ($ 11,700,000, converted into Korean currency based on the sale and purchase standard rate as of March 19, 2009] with respect to Nonparty 1 corporation, the Defendants asserted that the instant vessel was secured by maritime lien as of March 19, 209, and received an order to commence voluntary auction against the instant vessel from the said court on the same day.

2. The plaintiff's assertion and judgment

A. The assertion

The defendants' assertion that the claims for supply of the vessel repair costs and machinery of this case are not related to the vessel of this case, and the existence or amount of the vessel of this case is unclear, and cannot be deemed as a claim secured by maritime lien under the Sarnama Act. Thus, the plaintiff's claims for maritime lien against the defendants in the above case of auction of the vessel do not exist, and therefore, the above auction of the vessel of this case, which the plaintiff owned by the ship of this case based on the above claims, should not be permitted since it is unlawful.

B. Determination

(1) Determination as to the existence and amount of the claim for supply, such as the cost of repair and machinery of the instant vessel

In light of the above facts, the non-party 1 corporation chartered the above vessel of this case from the plaintiff 2 to 13, Eul 2-3-4, Eul 6-3, 7, 9, and 12, the non-party 1 corporation's request for repair of the above vessel of this case from the plaintiff 1 to the 80th day of July 2008, the defendant 1 was not entitled to 80 U.S. vessel's 20 U.S. vessel's supply of the above vessel of this case. The plaintiff 20 U.S. vessel's 80 U.S. vessel's 200 U.S. vessel's 20 U.S. vessel's 80 U.S. vessel's 80 U.S. vessel's 80 U.S. vessel's 80 U.S. vessel's 20 U.S. vessel's 80 U.S. vessel's 208 vessel's 20.

(2) Determination as to whether claims secured by maritime lien are claims secured by maritime lien

(가) 국제사법 제60조 제1호 에 의하면, ‘선박의 소유권 및 저당권, 선박우선특권 그 밖의 선박에 관한 물권’에 관하여 선적국법에 의하도록 규정하고 있어 선박우선특권의 성립 여부, 일정한 채권이 선박우선특권에 의하여 담보되는지 여부 등은 이 사건 선박의 선적국인 파나마법이 준거법이 되고, 이에 관하여 2008년도 개정 파나마 해상법(해상법) 제244조는 ‘선박에 대한 다음의 청구권은 우선특권을 가지며 그 우열은 그 각 금액에 관하여 이 조항에 기재된 순서에 따른다(The following credits will constitute privileged credits against the vessel and will participate in its price in the order expressed in this Article)’고 규정하면서 제9호에서 ‘선박의 필수품 및 공급품에 관하여 체결된 계약에 기인한 채권(Amounts owed by reason of liabilities contracted for the necessities and supplies of the vessel)’을 선박우선특권에 의하여 담보되는 채권 중의 하나로 규정하고 있다.

Meanwhile, in determining the content and interpreting the meaning of foreign laws applicable to legal relations containing foreign elements, the foreign law should be interpreted and applied in accordance with the meaning and content of the foreign law actually interpreted and applied in its own country. However, in cases where it is impossible to confirm the contents because data on the foreign law, precedents and interpretation standards are not submitted during the litigation process, the court shall only confirm the meaning and contents of the law in accordance with the general legal interpretation standards (see Supreme Court Decision 2005Da47939, Jul. 12, 2007, etc.). The plaintiff and the defendants do not submit clear data on what claims are secured by maritime lien and its interpretation standards, and there is no such data to regard that the aforementioned foreign law differs from the criteria of Korean law or general interpretation. Thus, it is reasonable to determine whether the aforementioned defendants' vessel repair costs and supply claims, such as machinery, etc. of this case, are secured by maritime lien or claims guaranteed by maritime lien in accordance with the Korean law and the general law of Korea.

(B) Examining the instant case in accordance with the aforementioned legal principles, it is reasonable to interpret “claim arising from a contract concluded with respect to essential goods and supplied goods of a ship” as the claim arising from a contract concluded with respect to the provision of goods, labor, and other services indispensable for the operation of a ship. According to the above facts, the Defendants’ claim for the supply of the vessel repair charges and machinery, etc. of the instant case shall be the claim arising from a contract concluded with the Defendants and Nonparty 1 corporation, the charterer of the instant ship, regarding the provision of goods and services indispensable for the operation of the instant ship. Thus, the Defendants’ claim for the supply of the vessel repair charges and machinery, etc. of the instant case shall be the claim secured by a maritime lien under the Pakistann Sea Act, and therefore, the Defendants’ claim for the supply of the instant vessel repair charges and machinery, etc. of the instant case shall not be a claim secured by a maritime lien under the Pakistann Sea Act. This part of the Plaintiff’s assertion is without merit.

(3) Sub-decisions

Therefore, the Plaintiff’s obligation of maritime lien against the Defendant 1 with respect to the above vessel auction case shall not exceed KRW 87,080,000 against Defendant 1, USD 42,040 against Defendant 2, and USD 11,700 against Defendant 3, respectively. As long as the Defendants are disputing the scope of each of the above claims, they have the interest to seek confirmation. Meanwhile, the above vessel auction against the instant vessel based on the supply claim, such as vessel repair cost and machinery, which are secured by maritime lien, is legitimate.

3. Conclusion

Therefore, the plaintiff's claim of this case is justified within the scope of the above recognition, and the remaining claims are without merit, and all of them are dismissed. It is so decided as per Disposition.

[Attachment] List of Ships: Omitted

Judges Park Jong-young (Presiding Judge)