(영문) 대전고등법원 2015.6.11. 선고 2014누616 판결

In the Korean Maritime Safety Tribunal's ruling No. 2014-013 of October 17, 2014, the part of the Korean Maritime Safety Tribunal's ruling on disciplinary action against the plaintiff is revoked.

Reasons

1. Occurrence of marine accidents of this case and details of adjudication;

A. At around 10:01 on November 17, 201, at sea (34:51°38 degrees north latitude, 127°47 07 seconds) under paragraph (1) in front of the crude oil reservoir in the ebbal port in the ebbal sea (hereinafter referred to as “the instant marine accident”). At that time, B was under command of the Plaintiff, a Class 1 pilot, and C was under command of pilotage, which is a Class 1, for the purpose of sailing from the ebalgal port to the fral port of the U.S. Ebals, the oil tanker B, who called the ebalgal port in the U.S. and the U.S. New Ebal port in order to enter the port as the raw material yard in the ebal port (hereinafter referred to as “instant marine accident”).

B. On July 9, 2013, in relation to the marine accident of the instant case, “this collision is caused by the failure of B to keep out of the way of C sailing along the same sea route while entering the mine port section to Section 1 of the Mineyang Port by altering the crude oil reservoir within the boundaries of the Mineyang Port. However, C has access to B beyond the ordinary navigational navigational navigational navigational navigational navigational navigational navigational navigational navigational navigational navigational navigational navigational navigation due to excessive speed and decline in effect. The Plaintiff’s business of the person involved in the marine accident shall be suspended for one month. The first-class pilot’s business of the person involved in the marine accident shall be suspended for one month.” (hereinafter “the first instance judgment”).

C. On October 17, 2014, the Plaintiff, investigators, etc. filed a claim with the Korean Maritime Safety Tribunal for second instance, and on the instant marine accident, the Korean Maritime Safety Tribunal rendered a ruling with the effect that “this collision occurred due to the failure of B to keep out of the way of C sailing sailing sailing sailing along the same sea route by departing from the port crude oil wharf of the light-going port and using part of Section 1 of the light-going port as the sea area. However, it is also possible for C to approach B’s back to the sea area because C did not properly respond to the impact of tidal currents and the impact of natural water. The Plaintiff’s first-class pilot’s work related to the marine accident shall be suspended for three months. The first-class pilot’s work related to the marine accident shall be suspended for one year (hereinafter referred to as “instant ruling”).”

[Ground of recognition] Evidence Nos. 1, 3, Eul's Evidence No. 1, and the purport of the whole pleadings

2. Determination on this safety defense

A. The defendant's main defense

The judgment of the Korean Maritime Safety Tribunal cannot be the subject of revocation litigation because it is not an administrative disposition. Since the contents of the plaintiff's dispute are applied to the fact-finding part, which is the fact-finding part, and it is unlawful because it seeks the revocation of the judgment to find the causes that cannot be the subject of revocation litigation

B. Determination

However, it is clear that the subject of the Plaintiff’s claim for revocation in the instant lawsuit is not the part of the instant judgment, but the part of the disciplinary decision against the Plaintiff.

In addition, since the judgment on the cause of a disciplinary action under Article 5 (1) of the Act on the Investigation and Inquiry of Marine Accidents (hereinafter referred to as the "Maritime Accident Act") does not constitute an administrative disposition, it cannot be subject to appeal litigation. However, the judgment on the cause of a disciplinary action under Article 5 (2) of the Maritime Affairs Act and the judgment on the cause of a marine accident shall be made by comprehensively taking into account the degree of intention or negligence on the part of a ship officer or pilot on the cause, including the cause of a marine accident, the degree of damage caused by a marine accident, the situation at the time of a marine accident, the experience of a ship officer or pilot, and other circumstances, and thus, the fact-finding and the application of the law in the judgment on the cause of a disciplinary action can be disputed (see, e.g., Supreme Court Decision 2004Do65, Sept. 28, 2005).

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

3. Judgment on the merits

A. The plaintiff's assertion

(1) An investigator in violation of the principle of prohibition of disadvantageous alteration filed a claim with the second instance court to the effect that the judgment of the first instance court rendered an excessive disciplinary action against the Plaintiff by erroneously applying the Public Order in Open Ports Act. As such, the case constitutes a case where the investigator filed a claim with the second instance court for "for the Plaintiff, who is a pilot," and this case is subject to the principle of prohibition of disadvantageous alteration as provided in Article 65-2 of the Maritime Safety Tribunal Act. Therefore, it violates the principle of prohibition of disadvantageous alteration (three months of suspension of business of the first instance vessel) by the Korean Maritime Safety Tribunal to decide on a disciplinary action (three months of suspension of business of the first instance vessel) heavier than the disciplinary action (one month of suspension of business of the first instance vessel pilot) set forth in the

(2) A deviation from or abuse of the disciplinary authority due to the identification of the cause of the accident and the error in the application of the statutes;

Article 13(1)1 of the Public Order in Open Ports Act, which applies to the marine accident of this case by the Defendant, provides that "a vessel entering a sea route outside the sea route or leaving it outside the sea route shall navigate in keeping out of the way of another vessel navigating along the sea route." It is clear that the provision applies only to cases where there is a danger of collision in light of the language and text or the purport of the provision. Meanwhile, Article 13(1)3 of the Public Order in Open Ports Act provides that "a vessel shall navigate to the right side where there is a concern for collision with other vessels on the sea route" and Article 13(1)3 of the Public Order in Open Ports Act provides that "a vessel operating a sea route outside the sea route shall navigate to the right side, which is a basic navigation rule established by the society in consideration of the navigation route of the sea route of the sea route of the sea route of the sea route of this case."

However, at the time of the instant marine accident, C was entering a mine-going port according to the sea route of the port of entry, and B occupied only a maximum of 130 meters out of 925 meters wide to 130 meters out of the light-going port(1). Thus, C, even if there was no risk of collision that normally navigates to the right side of the light-going port(1), it would result in the instant marine accident, and it would result in the instant marine accident, which would result in the instant accident, by breaking C to the opposite right side.

Therefore, there is no room to apply Article 13(1)1 of the Public Order in Open Ports Act to the instant marine accident. Rather, Article 13(1)3 of the Public Order in Open Ports Act applies to the instant marine accident. The instant marine accident occurred by the former liability of C, which performed abnormal navigation, and there is no negligence in accordance with the principle of trust in the Plaintiff who performed pilotage and directed B, while Article 13(1)1 of the Public Order in Open Ports Act and Article 13(1)1 of the Public Order in Open Ports Act are applied to the instant marine accident, and the judgment of disciplinary action against the Plaintiff among the instant judgment rendered by the Plaintiff who directed B by applying Article 13(1)1 of the Public Order in Open Ports Act to the instant marine accident and determined that there was negligence on the part of the Plaintiff who directed B, shall be revoked because it is unlawful as it considerably deviates or abused from discretion

(b) Fact of recognition;

(i)aegic ports crude oil wharf and sea water;

(1) The crude oil wharf in theeyang port is the harbor facility located in the brigade of the water which carries in or manufactures crude oil imported from the primary crude oil line. The primary crude oil for which a report on the acquisition of crude oil enters the port at the port of a port of a port of a port of a port of a port of a port is made, and when departure after the completion of the unloading work, it is inevitable for a vessel to move back from the port of a port of a port of a port of a port of a port of a port of a port of a port of a port of a port of a port of a port of a port of a port of a port of a port of a port of a port of a port of a port of a port of a port of a port of a port of a port of a port of a port of a port of a port of a port of a port of a port of a port of a port of a port of a port of a port of a port of a port of a port of a

In this situation, there was no rules or control standards concerning restrictions on the use of the vessel from the raw milk wharf to the sea area in the case of a vessel sailing along the light-sea port(1), and the departure of a vessel from the raw oil wharf was determined in accordance with the pilotage plan established in the fish-going port society, and even if a vessel enters the light-sea port under the light-sea port(1) route of pilotage command practice of pilots, a vessel departing from the crude oil wharf has been utilized as the sea area.

(2) Four navigation routes are designated within the luminous port boundaries. Paragraph (1) of this Article is located at a distance of 870 to 890 meters in width, and 300 meters from the crude oil bottom of the luminous port, which is located at a distance of 870 to 300 meters from the crude oil wharf of the luminous port. The passage from a specific sea area for traffic safety into the luminous port to the north west of the ebbs of the ebbs in the ebbs of the ebs of the ebs of the ebs of the ebs of the ebs of the ebs of the ebs of the ebs of the ebs of the ebs of the ebs of the sea and the ebs of the ebs of the ebs of the ebs of the ebs of the ebs of the ebs of the ebs of the traffic.

(3) Circumstances of the instant marine accident

(A) Reasons for navigation from B’s departure to the collision under the direction of the Plaintiff

① Around November 17, 2012, 207:25, the Plaintiff, who is a pilot, was mooring the 160,160 gross tonnage, 324.65 meters in length, 60 meters in width, 29 meters in depth, was instructed to load and unload crude oil at around 09:50 on the same day (hereinafter referred to as “the point at which both 2012, 17 November 17, 2012”) and was a pilot, who is a pilot of the vessel at KRW 160,160, 324.65 meters in width, and 29:50.

(2) B B B was approaching the luminous port(1) route to enter into the luminous port(s) section, and C was aware of the fact that C might pass around B’s luminous port(s) route while sailing under the luminous port(1) route while sailing under the luminous port(s) route while sailing under the luminous port(s) route, but C was waiting for passing around B’s luminous port(s).

③ At around 09:56, the Plaintiff opened a bypassing port at around 09:5 to enter into the luminous port (1) route with four towing vessels, and observed C, at around 09:56, when the player defense of B enters the port of 030, 030, the Plaintiff observed C, at a distance of 1,500 meters from the ewal port of 1,50 meters from the ewal port of 1,500 meters from the ewal port of 1,50 meters.

④ The Plaintiff deemed C to navigate along the right side of paragraph 1 route in accordance with the normal navigational method of a navigator of the leisure port, and, without accurately observing C’s dynamic situation, C continued to turn B into the right side of the water side without accurately observing C’s dynamic situation.

⑤ From around 09:57 around 09:57, the Plaintiff continued to set B, which entered into the light-sea port Paragraph 1, around 146, the course of departure, the Plaintiff discovered that C, at a speed of 10.0 knotss, was approaching B’s left right at an abnormal course, where the stem direction toward the raw milk wharf is left at a speed of 10.0 knotss, and approach B’s left right at an abnormal course, where the stem direction toward the raw milk wharf, and suspended B’s turning back on the right side on the right side and reduced the speed of B in order to prevent the distance between B and C from 0.7 miles as it is very close to that of 0.7 miles. At the same time, F, the captain of B, was trying to expand the distance from the rest of C, which is the danger of collision.

6) At around 09:58, when C approaches 1,000 meters, the Plaintiff notified C of C’s navigational status to the Leisure Port Control Center, and expressed D’s multi-level that “C returns to the right side, and that it does not listen to the right side” in the course of communication with D by a pilot boarding C.

7) In the process of continuing communication with D, the Plaintiff: “C begins to her on the starboard side; B her on the starboard side of Do Do Do Do Do Do Do Do Do Do Do Do Do Do Do Do Do Do Do Do , but it had already been delayed and notified D her that it could not be reconvened on the port side of Do Do Do Do Do Do Do , and then B continued to her on the port side. At around 09:59, B began to stop her line to her port side and her line to her on the port side.

8) After that, at the time of the vessel’s meeting on the port side, C continued to approach the vessel’s starboard side and the distance of the two vessels is 70 meters, the instant marine accident occurred in which the Plaintiff used an exclusive dedicated engine in order to minimize the shock of the collision, but, at around 10:01, paragraph 1 of B, the 10:01 U.S. vessel’s U.S. and C’s port of 345 degrees for the bearing of the players’ defense on the sea conflict with approximately 70 degrees of the s.S. vessel’s port of 105 degrees.

(B) The developments leading up to the collision between C's entry into and departure from which D is directed.

① C loaded coal as an industrial cargo vessel emphasizing the saryaryaryary work type, the gross tonnage of which is 42,65 tons, length of 221.6 meters, width of which is 32.26 meters, depth of which is 20.05 meters, and D, a pilot, entered the 1 Pilotage area of lightyang Port No. 1 on November 17, 2012 and directed pilotage and pilotage. D entered a deep sea depth of a specific sea area for traffic safety to move back to a line No. 6 of luminous raw material wharfs, the destination of which is 42,665 tons, into the sea depth of the specific sea area for traffic safety, and observed B along with B, to depart from the port at a distance of 10:50 meters on the port of 09:50 meters on the port of 13.8 miles on the date of departure from the port of crude oil at a distance of 1.8 miles.

② At around 09:54, C entered into a luminous port(1) route and 13.1 p.m. at a strong speed from the stern. However, D ordered C to set the vessel at 15 degrees her port to 330 degrees her port of entry into a luminous port(1) route in order to her general port of entry into a luminous port(hereinafter “B”) but her engine was adjusted to her anti-speed, but the vessel was not well her on the port side, and the vessel was ordered to set at her port her speed at 10 degrees her port her speed at 12.6 p.m., at around 09:5, around 30 minutes, 15 degrees her port her speed at 12.4 p.m.

③ At the rapid time between C and C, D orders to take the steering gear in the state of 09:56 30 % and 10.9 mart. At this time, B continued to hold the steering gear on the port side at a distance of 1,300 meters from 1,300 meters to her port side and C did not control the port side, but D did not notify C of the situation to the Sea Traffic Control Center or B.

④ At around 09:57, when C’s on-site line is not controlled, D adjusted the engine to dedicated to dedicated to B at least 1,100 meters, but at around 09:58, when the distance from B was at least 800 meters, D told the Plaintiff, a pilot boarding the ship at B, to her port side during the course of communicating with the Plaintiff, but C would turn back from the Plaintiff to her port side, and it would be possible to control due to the decline of C’s on-site line, and requested the Plaintiff to continue to turn B to her on-site side and pass it to the port side of each other. In this case, B was already stopped at the right side of the e-site line and went to the port side on the port side.

⑤ Under the circumstance that the communication with B was not accurately confirmed due to the relationship between B and B in an imminent situation, D began on the right side of 09:58 and 30 seconds, and as C starts on the right side of the right side, D had the instant marine accident that conflicts with B around 10:01 because it was difficult to avoid the collision, even though it was adjusted to the agency exclusively to avoid the collision, it did not avoid the collision.

(4) Details of each vessel’s damage

In the marine accident of this case, B suffered 4 meters in width and 6 meters in length from the outer plate of the players' ballast tank, and suffered damage to the wave and damage of 6 meters in length, and C was damaged by the anchor at the center of the U.S., and C was damaged by the anchor at the foreline of the players.

[Grounds for recognition] The descriptions of Gap evidence Nos. 1, 3, 5, 8 through 15, and the purport of the whole pleadings

C. Determination

(1) As to the assertion against the principle of prohibition of disadvantageous alteration

Article 65-2 of the Maritime Affairs and Fisheries Act provides the principle of prohibition of disadvantageous change to the case where a marine officer or a pilot who is a person involved in a marine accident requests the second instance and a case where a marine officer or a pilot requests the second instance for the purpose of a marine officer or a pilot who is a person involved in a marine accident, shall not be subject to any disciplinary action heavier than that adjudicated in the first instance." This is the principle that prohibition of disadvantageous change to the case where a marine officer or a pilot who is a person involved in a marine accident requests the second instance of "limited to a marine officer or a pilot who is a person involved in a marine accident" or "for a marine officer or a pilot who is a person involved in a marine accident"

As acknowledged earlier, since the investigator E also claimed the second instance trial, in order to apply the principle of prohibition of disadvantageous alteration as stipulated in Article 65-2 of the Maritime Affairs and Appeal Act in this case, the above investigator's claim for the second instance trial "for the plaintiff who is a pilot," it is insufficient to recognize that the above investigator claimed the second instance trial for the plaintiff who is a pilot, and there is no other evidence to acknowledge this differently.

Rather, in full view of the purport of the argument in Gap evidence No. 4, the above investigator's written request for the second instance trial only states that it was erroneous in the application of the first instance court's navigation law, and does not state all the purport that it was defective in the first instance court's disciplinary ruling against the plaintiff. However, it is difficult to view that the above investigator's claim for the second instance court for the plaintiff merely because applying the navigation law asserted by the above investigator is favorable to whether it was a disciplinary ruling against the plaintiff and its determination.

Therefore, it is difficult to view this part of the judgment of this case as being subject to the principle of prohibition of disadvantageous alteration under Article 65-2 of the Maritime Affairs and Appeal Act.

(2) As to the assertion of deviation and abuse of discretionary power due to the identification of the cause of the accident and the error in the application of the statutes

(A) Whether there was any error in the application of the statute

In light of the above-mentioned and the circumstances of the marine accident in this case, B, at the time of the marine accident, was in the situation where B, with four tugboat assistance from the 2 line crude oil wharf of the light-sea port in question, used a part of the sea route as the sea area in order to leave a port pursuant to Paragraph (1) of the light-going port in order to navigate to a line No. 6 line, and C, under Article 13 Paragraph (1) Item 1 of the Public Order in Open Port Act, was in the situation where B enters a sea route pursuant to Paragraph (1) of the light-going port in order to navigate to a line No. 6 line, and enters a sea route outside of the light-sea port in this case, it is difficult to view that there is no error in applying Paragraph (1) of this case between B and B of this case as the sea area and the sea area in question. Thus, it is difficult to view that there is no danger of collision between B and C of the sea accident in this case.

In addition, Article 13 (1) 3 of the Public Order in Open Ports Act applies to the case where there is a concern that the ship, which is already entering a sea route, might fall into a normal course of navigation in the course of navigation of the light-sea port Paragraph (1) at the time of the marine accident. However, it is difficult to view that Article 13 (1) 1 of the Public Order in Open Ports Act should be excluded from the navigation relationship between the ship entering the sea route and the ship already sailing the sea route and the ship already sailing the sea route as in this case, and it is difficult to view that Article 13 (1) 1 of the Public Order in Open Ports Act should be applied first to this case. The "Potage Page Bank", as determined by the society, is arbitrarily determined for the convenience of pilotage command. It is difficult to view that Article 13 (1) 1 of the Public Order in Open Ports Act should be applied first to this case.

Therefore, the plaintiff's assertion on this part is without merit.

(B) Whether there was an error in the name of the cause of the accident

As seen earlier, pursuant to Article 13(1)1 of the Public Order in Open Ports Act, B shall be deemed to fall under a vessel obligated to navigate under Article 13(1)1, which enters a sea route outside the luminous port and navigates under Article 13(1)1, and is obliged to avoid the course of C navigating the luminous port. Thus, if the Plaintiff, a pilot who has directed B, intends to navigate a vessel using part of the sea route as the navigational zone in order to depart from the crude oil wharf of the luminous port and navigate the luminous port to the luminous port 1st, he/she shall ascertain the situation of the vessel sailing along the sea route and take measures to ensure safe passage of the vessel navigating to the port such as adjustment of departure time, but he/she shall be deemed to have a duty of care to ensure safe passage of the vessel navigating to the port such as adjustment of departure time. However, the Plaintiff, a pilot who has directed B, is negligent by failing to enter the port and make a safe arrival and adjustment of the sailing route by using the normal right of navigation of female pilots and thereby failing to enter the port.

Although the Plaintiff trusted that C should navigate only to the right side of the light-sea port Paragraph (1) in the course of directing pilotage B, the instant marine accident does not arise when B and C go through a single sea route, but is a conflict with C that has already gone through a sea route in the situation where B and C entered a sea route outside the sea route, and may temporarily proceed to the center or the left side of the sea route due to tidal wave and impact, etc. In light of the above, it is difficult to deem that the Plaintiff did not commit negligence with regard to the instant marine accident solely on the ground that the Plaintiff trusted as above.

Therefore, the plaintiff's assertion on this part is without merit.

Article 6 (1) of the Maritime Court Act provides that "the period of suspension of service under paragraph (1) 2 shall be between one month and one year," and Article 6 (2) of the Maritime Court Act provides that "the period of suspension of service under paragraph (1) 2 shall be between one month and one year."

Considering the above overall circumstances, such as the degree of negligence in the Plaintiff’s duties, degree of damage caused by a marine accident, and situation at the time of the occurrence of a marine accident, it is difficult to deem that the judgment of disciplinary action among the instant judgment with the content of suspending the Plaintiff’s duties for three months as it considerably deviates from and abused discretion.

Therefore, the plaintiff's assertion on this part is without merit.

4. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit. It is so decided as per Disposition.