[1] Whether the Maritime Safety Tribunal may make a request for correction, etc. under Article 5-2 of the Act on the Investigation of and Inquiry into Marine Accidents against “a person, other than a marine engineer or pilot, who is involved in the cause of the marine accident” (affirmative)

[2] The case holding that although the Maritime Safety Tribunal expressed the order of the ruling as "a recommendation" rather than "a recommendation," the ruling nature is "a recommendation ruling" under Article 5 (3) of the Act on the Investigation of and Inquiry into Marine Accidents

[3] Whether a person, other than a marine officer or pilot, who is involved in the cause of a marine accident, has standing to sue to seek revocation of the "Recommendation Ruling, such as Correction, etc." under Article 5 (3) of the Act on the Investigation of and Inquiry into Marine Accidents, which the Maritime Safety Tribunal has against the person

[4] In case where the Maritime Safety Tribunal adjudicates on correction or improvement under Article 5(3) of the Act on the Investigation of and Inquiry into Marine Accidents against a person, other than a marine officer or pilot, who is involved in the cause of a marine accident, whether such correction or improvement is related to the matter to be corrected or improved and the cause of the marine accident (affirmative), and the criteria for

[5] The case holding that the Korean Maritime Safety Tribunal's recommendation ruling on improvement is lawful, recognizing the necessity of the Korean Maritime Safety Tribunal to prevent similar marine accidents and ensure safety

[1] In light of Articles 5(3) and 5-2 of the Act on the Investigation and Inquiry of Marine Accidents, the Maritime Safety Tribunal may make a request for correction, etc. under Article 5-2 of the same Act to “a person, other than the persons prescribed in Article 5(3) of the same Act, who is involved in the cause of a marine accident” as well as “a decision on recommendation, such as correction, etc.” under Article 5(3) of the same Act.

[2] The case holding that although the Maritime Safety Tribunal expressed the order of adjudication on a person, other than a marine officer or a pilot, who is related to the cause of a marine accident, not the "retailing", it shall be deemed that the nature of the adjudication is the "retailing order" under Article 5 (3) of the Act on the Investigation and Inquiry of Marine Accidents

[3] Where a person, other than a marine officer or pilot, who is involved in the cause of a marine accident, has made the "decision of recommendation such as correction" under Article 5 (3) of the Act on the Investigation of and Inquiry into Marine Accidents, the contents thereof shall affect the reputation and credit of the person who has received the recommendation of improvement measures, such as the publication in the Official Gazette, and the person who has received the recommendation of improvement measures shall, in accordance with the purport of the recommendation, notify the necessary measures and without delay, and notify the measures without delay, and when it is deemed that the measure of improvement measures was insufficient, the person has a legal obligation, such as requesting the implementation of the measure. Thus, even if the person fails to comply with the measure of improvement, the ruling of correction such as correction has the effect of forming or restricting the rights and obligations of the other party, and the other party subject to the disposition has legal interest and standing to sue seeking the revocation of the recommendation decision under Article 74 (1)

[4] The Maritime Safety Tribunal at each level may render a ruling to recommend or order correction or improvement to a person involved in the cause of a marine accident, other than a marine officer or a pilot. The matters to be corrected or improved are related to the cause of a marine accident. However, in light of the fact that the Act on the Investigation and Inquiry of Marine Accidents adopts the principle of free evaluation of evidence and selects the psychological structure similar to criminal procedure but does not have any provision on admissibility, the cause and relevance of a marine accident is uncertain concept, which has no choice but to be determined at the Korean Maritime Safety Tribunal. In particular, in the case of a ruling on correction or improvement, even if it does not comply with it, there is no legal means to enforce it, and there is a limit on legal binding force, the relationship between the matters to be corrected or improved and the marine accident is not necessarily bound by a strict framework of causation, but it is reasonable to grasp the relation between the matters to be corrected or improved and the marine accident as a normative and legal issue of whether it can objectively vest in the person involved in a marine accident.

[5] The case holding that the Korean Maritime Safety Tribunal's recommendation decision on improvement is lawful, recognizing the necessity of the Korean Maritime Safety Tribunal to prevent similar marine accidents and ensure safety

[1] Articles 5(3) and 5-2 of the Act on the Investigation and Inquiry of Marine Accidents / [2] Articles 5(3) and 5-2 of the Act on the Investigation and Inquiry of Marine Accidents / [3] Articles 5(3), 74(1), 83, and 84 of the Act on the Investigation and Inquiry of Marine Accidents, Article 12 of the Administrative Litigation Act / [4] Articles 5(2), (3), and 51 of the Act on the Investigation and Inquiry of Marine Accidents / [5] Articles 5(3) and 51 of the Act on the Investigation and Inquiry of Marine Accidents

[3] [4] Supreme Court Decision 2003Da20 decided Apr. 16, 2004 (Gong2004Sang, 818) / [3] Supreme Court Decision 77Hu21 decided Sep. 26, 1978 (Gong1978, 1126) Supreme Court Decision 93Da182 decided Jun. 24, 1994 (Gong194Ha, 210)

Dai Development Co., Ltd. (Law Firm International Law, Attorneys Lee Won-chul et al., Counsel for the plaintiff-appellant)

President of the Central Maritime Safety Tribunal

September 22, 2006

The Korean Maritime Safety Tribunal Order No. 2004-1 of the Central Maritime Safety Tribunal Order No. 2004-2 of February 24, 2004

The plaintiff's claim is dismissed. The costs of lawsuit are assessed against the plaintiff.

The judgment revoking the part of the judgment of the Korean Maritime Safety Tribunal No. 2004 1, which requested improvement to the plaintiff.

1. Determination on this safety defense

A. With respect to the lawsuit of this case against the plaintiff by the Korean Maritime Safety Tribunal seeking the revocation of the ruling on the purport of the claim made by the Korean Maritime Safety Tribunal against the plaintiff (hereinafter referred to as "the judgment of this case"), the defendant argues that the judgment of this case is limited to the "request for correction, etc." under Article 5-2 of the Act on the Investigation of and Inquiry into Marine Accidents (hereinafter referred to as the "Act"), and does not constitute the "decision on the recommendation of correction, etc." under Article 5 (3) of the Act, and that the lawsuit of this case shall not be deemed administrative disposition, and that the plaintiff

B. Article 5(3) of the Act provides that "The Tribunal may, if necessary, make a ruling to recommend or order correction or improvement to a person involved in the cause of a marine accident, other than those provided for in paragraph (2): Provided, That no ruling to order correction or improvement shall be made to an administrative agency," and Article 5-2 (Request for Correction, etc.) provides that "if the Tribunal deems that there is any matter to be corrected or improved for the prevention of a marine accident as a result of a trial, it may request any administrative agency or organization other than the person involved in a marine accident to take corrective or improvement measures for the prevention of a marine accident."

In light of the relevant provisions of the above law, such as these provisions, with respect to “a person other than the person specified in paragraph (2) above who is involved in the cause of marine accident” as the Plaintiff of this case, not only the “decision on recommendation of correction, etc.” under Article 5(3) of the above Act, but also the “request for correction, etc.” under Article 5-2 of the above Act may be made.

However, in the case of this case, the Central Marine Accident Inquiry Agency made a ruling to find the cause of the marine accident by designating the person involved in the marine accident as the non-party "the non-party" (the "non-party" under the same written ruling which does not make a disciplinary ruling as to the "non-party" pursuant to the same written ruling. However, although the "person involved in the marine accident" is not a "person involved in the marine accident, other than the person provided for in paragraph (2)," the above "the person related to the cause of the marine accident" is recognized as necessary to take corrective measures, and made a ruling to recommend or request the improvement thereof by including it in the written ruling. However, even if the court expressed the order of the ruling as the "request against the plaintiff" rather than the "request for correction, etc." under Article 5-2 of the above Act, the defendant's measure of this case should be deemed as the "improvement recommendation ruling" under Article 5 (3) of the above Act.

However, Article 56 (Service of Written Ruling) of the Act provides that "the chief of the Tribunal shall serve the authentic copy of the written ruling to the investigator and the person involved in the marine accident or to the inquiry counsel within 10 days," but the above "the person involved in the cause of the marine accident, other than the person provided for in paragraph (2), is not separately stipulated in the procedure for service of the authentic copy of the written ruling, and where "the order of correction, etc. or the ruling of recommendation" was made, and on the other hand, the plaintiff is not the authentic copy of the written ruling, but a "written request for improvement" was delivered to the plaintiff, not the plaintiff in this case, but the "person involved in the cause of the marine accident" is not a "person involved in the marine accident" but the "written order of correction, etc. or the ruling of recommendation" is not bound to take the same procedure, and therefore, the title, etc. of the document can not be viewed differently from the fact that the document was delivered with a "written request for correction, etc." instead of the above written order for correction.

Furthermore, when not only "decision on correction, etc." under Article 5 (3) of the above Act but also "decision on recommendation such as correction" is made, the contents thereof shall be announced in the Official Gazette, and shall be reported to the Minister of Oceans and Fisheries, and it shall affect the honor and credit of the person who has received the recommendation of improvement measures (Article 83 of the Act), and the person who has received the recommendation of improvement measures shall take necessary measures in accordance with the purport thereof, and notify the necessary measures without delay, and if it is deemed that the measures of improvement measures were insufficient, the measures shall be notified without delay, and if it is deemed that the measures of improvement measures were not met, the sanctions shall not be imposed if the obligation to comply with the improvement measures is not met, but the other party, who has the effect of forming or restricting the rights and obligations of the person who has been involved in the cause of the marine accident (Article 74 (1) of the above Act, and the other party so ordered shall have the legal interest in seeking cancellation of such recommendation to the court pursuant to Article 74 (1) of the Act.

Therefore, the defendant's defense of this case is not a "decision on recommendation such as correction" under Article 5 (3) of the above Act, but a "request for correction, etc." under Article 5-2 of the above Act, or there is no legal interest in seeking revocation of the ruling of this case to the plaintiff. Thus, the defendant's defense of this case cannot be accepted.

2. Judgment on the merits

(a) Recognition of basic facts;

In full view of the purport of the entire arguments in Gap evidence Nos. 1, 2, 10, 11, and Eul evidence Nos. 1, 3, and 9, the following facts may be acknowledged and there is no reflective evidence.

(1) At around 20:00 on October 25, 2002, the Nacheon Shipping Co., Ltd. loaded a container of 81TEU and 374ton at the port of Japanese mother on a container of 81TEU and departing from the port of Busan for approximately 3.9m and approximately 4.9m mn.m. of the ship, and departing from the port of Busan for about 07:25 on October 26 of the same year at the speed of about 07:25, about 11.1m, after the entrance of the port of Busan for about 307, Jinro (Jin), according to paragraph (1) of the Busan for about 307,07, the same day, at the speed of about 07:29 p. 10.4m.

(2) At the time, Korea Heavy Industries Co., Ltd., which carried out an increased dredging project outside of paragraph 1 of the same section of the Busan Port No. 1 through paragraph 2 of the same section, was running an anchor for position adjustment on the side of the port of the dredging line to set the work location by the 25th (DAEHWA G G25) of the dialogue, which is the dredging line owned by the Plaintiff leased by the Plaintiff.

(3) In order to indicate the location of an anchor for position adjustment, the head of the regional group of the conversation was installed by connecting approximately 1m in diameter, approximately 1m in diameter, approximately 1m in small source (Anchor Buoy, hereinafter “the anchor tag of this case”) with the diameter of 30m in diameter, approximately 25m in length (rach color, Anchor Wire). Since the location at which the anchor for position adjustment of this case was carried is about 15m in depth, the anchor tag of this case was set up within approximately 20m in radius on the basis of the above water surface of the anchor for position adjustment.

(4) 천학호의 추진기는 직경이 2.85m, 피치(Pitch, 1회전시 진행 거리)가 1.92m, 중량이 18.1kg이고, 재질은 인장강도가 높고 연신율(연신율)이 낮아 충격에 의하여 절손되기 쉬운 알루미늄 청동주물(RALBC₃)이며, 4개의 날개(Blade)를 가진 우선회(우선회) 추진기이다.

(5) On February 24, 2004, the Korean Maritime Safety Tribunal rendered a ruling on February 24, 2004, that "the Korean Maritime Safety Tribunal shall ensure that, under Article 5-2 of the Act, the plaintiff should maintain the accuracy of the method of determining the location of dredging lines when operating anchor for the purpose of position adjustment of dredging lines, and that the vessel sailing at sea of class 4 degree is at least 50 meters away from the 500 meters away to the radar and the 50 meters away to the port of Busan or the 40 meters away from the 50 meters away to the 50 meters away to the 50 meters away to the 50 meters away to the 50 meters away to the 50 meters away from the 50 meters away to the 50 meters away from the 50 meters away to the 50 meters away."

B. The plaintiff's assertion

The plaintiff asserts that the decision of this case, based on the premise that the anchor tag of this case was affected by approximately 40 meters from the east boundary line of Busan port and damaged its propellor by the propellor due to the collision of Busan port No. 1 or with the propellor of the astronomical lake, shall be revoked in an unlawful manner.

(c) Markets:

The Tribunal of various levels of maritime safety tribunal may make a ruling to recommend or order correction or improvement to a person involved in the cause of a marine accident other than a marine officer or a pilot (Article 5(2) and (3) of the Act). The matters to be corrected or improved should be related to the cause of a marine accident. However, although the above Act adopts the principle of free evaluation of evidence and selects the psychological structure similar to criminal procedure but does not have any provision on admissibility of evidence, the relationship between the cause of a marine accident is the very uncertain concept, and there is no need to be recognized by the Korean Marine Safety Tribunal, which is an administrative agency. In particular, even if the ruling of correction or improvement does not follow it, the legal binding force of the recommendation is limited because there is no legal means to enforce it, it is not necessarily bound by the framework of a strict causal relationship, but it is reasonable to understand whether the correction or improvement can objectively vest in the person involved in a marine accident from the point of view of promoting the prevention and safety of a similar marine accident in the future by examining the deeds of the marine accident in question.

However, Gap evidence 1 through 6, Gap evidence 1, 2, 8-1 through 11, Gap evidence 9-1, 2, 3, 10 through 14, Eul evidence 1, 2, 3, Eul evidence 4-1 through 4, 7, 8, 9, and each fact inquiry into the Busan Regional Maritime Affairs and Fisheries Office x 1, 300 cm on October 26, 202 x 35 cm 05 cm 25 cm x 1,000 cm 6 cm x 1,000 cm x 1,000 cm- 7 cm cm x 1,000 cm away from the port side of Busan x 1,000 cm x 3 cm away from the port side of the case, respectively, to cross with the vessel sailing at the opposite direction.

On the other hand, according to the evidence as seen earlier, the location of dredging lines is closely managed by teramps (GPS) and maintenance programs, but the location of anchors for position adjustment is determined to be a wooden part, so it is difficult to determine whether they violate the sea route. The anchor tag is mostly a small source of approximately 1m in diameter and approximately 1m in length, and the flood rate reaches approximately 50%, and it is highly likely that the vessel sailing along the sea route might cause danger to navigation because it is difficult to discover it with the radar or land, and there is no counter-proof.

In light of the developments leading up to the marine accident of this case, the necessity to recommend improvement measures, and the details of the recommended improvement measures, which can be seen in the above facts, the Korean Maritime Safety Tribunal recognized by Article 5 of the Act as necessary in order to prevent similar marine accidents and ensure safety in the future by examining the lessons of the marine accident of this case. Thus, the Korean Maritime Safety Tribunal cannot be deemed to have erred in the decision

3. Conclusion

Therefore, the plaintiff's claim of this case is dismissed without merit, and the costs of lawsuit are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices.

Justices Ahn Dai-hee (Presiding Justice)