(영문) 대법원 2011.1.13. 선고 2009추220 판결

Of the instant lawsuits, the part of the judgment of the Korean Maritime Safety Tribunal No. 2009-27 of the Central Maritime Safety Tribunal on November 12, 2009 and the part of the judgment on the causes of marine accidents and the reasons for the judgment, the part of the judgment on disciplinary action against B, and the part on the revocation of the decision on corrective recommendation against C

The plaintiff's remaining claims are dismissed.

Litigation costs shall be borne by the plaintiff.

Purport of claim

It is as shown in the attached Form.

Reasons

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

The following facts are not disputed between the parties, or acknowledged in Gap evidence 10-2 by integrating the whole purport of the pleadings.

A. At around 10:05 on December 11, 2008, captain B of the tugboat: (a) towed the unmanned barge E (the gross tonnage of 1,100 tons, length of 67.01m, width of 20m, depth of 3.7m) owned by C Co., Ltd. with the tugboat; (b) anchored at the sea of 35°02-36 of north latitude and 128°59% 07 of East longitude (hereinafter “the instant accident point”); (c) confirmed that the night light light at the time was not emitted from the e-mail, and returned to the tugboat without taking appropriate measures, and without taking appropriate measures.

B. On December 12, 2008, Fhos, a fishing vessel for coastal self-net fishing (the gross tonnage of 9.77 tons), went through a multi-sea breakwater at a speed of about 7 knotss in the speed of about 05:50 on the sea, where the plaintiff and two seafarers, who are captain and two crew members, were on board, and passed through a multi-sea breakwater, and was sailing at the speed of about 7 knotss near the ethics. The view was very high from around 05:52 to 06:23 when the navigation life begins.

C. The Plaintiff was found to have been on December 12, 2008 at the point of the instant accident on December 12, 2008, at approximately 10 meters of E, when the players of F had been sailing in a water tank with the largest of approximately 185 degrees, while the strike was driven by the 6-ray speed at the speed of 0.5 miles, but the radar was operated as 0.5 miles at the detection distance. However, due to the following waves, the Plaintiff was found to have a conflict between the players of F-ray and E-ray, while maintaining the boundaries only on the surface of the surrounding boundary line by the radar, who had a large number of face-to-face scamblings on the screen, and at the point of the instant accident. Although the Plaintiff was immediately dedicated to F-ho, the Plaintiff did not immediately avoided but did not immediately conflict with approximately 15 degrees of the players and E-to-board players of F-ho.

(d) In this accident, F was considerably damaged on the upper deck, and E was the player.

The damage was caused by the flag of the freeboard and the flag of the freeboard.

E. On November 12, 2009, the Korean Maritime Safety Tribunal rendered a ruling to find out the cause of the collision, disciplinary action, and corrective recommendation (hereinafter referred to as the “instant ruling”) with the content that “this collision occurred due to the failure of Fho Lake to discover the barge E at anchor due to the boundary negligence, but the failure of Eho Lake at anchor in the port to display lights indicating that E is at anchor at night. The plaintiff who is the person involved in the marine accident, is reprimand B, and recommend C to correct it at night.”

2. Judgment on the cause of the instant judgment and on the claim for revocation of the part concerning the cause of the judgment

A lawsuit against a judgment rendered by the Korean Maritime Safety Tribunal under Article 74(1) of the Act on the Investigation of and Inquiry into Marine Accidents shall have the nature of a lawsuit against cancellation of an administrative disposition, and thus, the subject of a lawsuit shall also have the effect of forming and limiting the rights and obligations of the people, such as the exercise of public authority by an administrative agency. The judgment on the cause of a marine accident and the part on the cause of a judgment, unlike the judgment on disciplinary action or recommendation with respect to a person involved in a marine accident, shall not be deemed an administrative disposition because they themselves do not have the effect of forming or confirming the rights and obligations of the people (see, e.g., Supreme Court Decisions 9Da16, Jun. 9, 200; 2006Do21, Oct. 9, 2008).

Therefore, the judgment on the cause of the marine accident and the part on the claim for the cancellation of the reasoning of the judgment among the instant judgment are unlawful as they have been filed for matters not subject to the revocation lawsuit.

3. Of the instant ruling, determination as to the claim for revocation of the part on disciplinary action against the Plaintiff

A. The plaintiff, in the case of the marine accident of this case, was caused by the negligence that the E illegally anchors and does not indicate night lights without reporting it to the authorities where the E can not anchor, and there is no negligence on the part of the plaintiff. Thus, in the marine accident of this case, the plaintiff's judgment of disciplinary action was unlawful by setting the rate of provision of cause to the plaintiff at 5% in the marine accident of this case, and sought revocation of the part of the disciplinary decision.

B. Under the Maritime Traffic Safety Act, a vessel shall at all times proceed at an appropriate speed by all means that can be used in accordance with the prevailing circumstances and conditions so as to fully grasp the surrounding situation and the risk of a collision with another vessel (Article 25), shall at all times proceed at a safe speed so that she can take appropriate and effective action to avoid a collision with another vessel or stop at a distance appropriate to the prevailing circumstances and conditions (Article 26(1)); if visibility is restricted, she shall at a safe speed suitable for the prevailing circumstances and conditions; a power-driven vessel shall be ready to immediately operate her engine if in restricted visibility (Article 39(1)); and a vessel equipped with a radar shall exhibit an all all all the lights at or near the vessel at anchor and at least 4 meters (Article 27(1)); and a vessel shall exhibit an all all all all the all-round white lights at or near the vessel at anchor to ascertain in advance whether a danger of collision with another vessel is likely (Article 27(1)).

However, according to the relevant evidence adopted and examined in the pleading of this case, B, who was willing to anchor a mooring E in a multilateral port within the Busan Sea Traffic Control Center, was anchored the said barge at the point of accident of this case, and thereafter reported the fact to the Busan Sea Traffic Control Center, but did not display a light to indicate that the anchored vessel is at anchor, as seen above, as seen in the above, and multiple ports are allowed to anchor within the anchorage zone 6 districts of which the gross tonnage is 20,000 tons or less pursuant to Table 1 of Article 2 of the Rules on the Law, etc. of the Port of Busan Sea, and in the case of miscellaneous ships such as E, they may anchor within the anchorage zone without designating a separate anchorage, unless it is likely to interfere with the navigation of other ships. In the case of miscellaneous ships such as E, ships entering a multilateral port may anchor within the berth zone without designating a separate anchorage between the horse and the Gyeong-do.

F1(2) G6S passed through and departing from the port of this case. E was not at anchor-free zones, and there was no risk of obstructing the navigation of other vessels. The Plaintiff found that the Plaintiff, despite being aware that large vessels or barges are at anchor between different ports near the accident site, he was at least 10 meters away from the passage of vessels entering and departing from the port of multiple ports on the ground that F does not subject to the sea route restriction under Article 11(1) of the Public Order in Open Ports Act, and caused the accident site in this case. The Plaintiff, on the ground that the radar installed in the vessel of this case, which had not been secured for visibility at the time, maintained the boundary of the land only within the steering house, and was at the close distance of about 10 meters near the speed of speed of 6 knots, but did not avoid any collision.

Examining the above facts in light of the legal principles as seen earlier, the collision accident of this case is deemed to have occurred due to the mistake that B did not display the lights indicating that the ship is at anchor in the night despite the duty of care to display lights in accordance with the relevant Acts and subordinate statutes, and because the plaintiff has navigated the anchor zone without securing visibility due to the plaintiff's leaving the anchor zone, the collision accident of this case is deemed to have occurred by effectively using all possible means, such as radars installed in the ship in preparation for the case of the ship at anchor, cooperation of the crew, etc., and, if a ship is discovered in the front bank, by operating the ship at a safe speed so that it can immediately avoid the collision or stop the ship, even if there was a duty of care to keep the boundaries only on the land, in violation of the duty of care to prevent any accident from occurring.

Considering these circumstances, the instant adjudication that determined the rate of providing grounds for both sides and imposed a disciplinary action on the Plaintiff accordingly cannot be deemed to be erroneous. Accordingly, the Plaintiff’s assertion in this part is without merit.

4. Of the instant ruling, the part on disciplinary action B against the instant judgment and the claim for revocation of the decision on corrective recommendation against C corporation

The plaintiff also seeks revocation of the decision of disciplinary action B and the decision of corrective recommendation against C Co., Ltd. among the decision of this case. However, the decision of this part is not against the plaintiff, and thus, the plaintiff has no interest in the lawsuit seeking its revocation. Thus, this part of the lawsuit is unlawful.

5. Conclusion

Therefore, since the judgment on the causes of the instant judgment among the instant lawsuits is unlawful, the part on the grounds of the judgment, the part on the ruling on disciplinary action against B, and the request for revocation of the decision on the corrective recommendation against C Co., Ltd., it is dismissed. The remainder of the claims is dismissed as it is without merit. It is so decided as per Disposition by the assent of all participating Justices