(영문) 대전고등법원 2019.9.18.선고 2019누10342 판결

1. Of the Korean Maritime Safety Tribunal’s ruling on December 27, 2018, the part concerning the suspension of the Plaintiff’s fourth mate’s business for two months, the suspension of the execution for six months, and the participation in the education on the prevention of navigation accidents for 21 hours shall be revoked.

2. The costs of the lawsuit are assessed against the defendant.

Purport of claim

The same shall apply to the order.

Reasons

1. Occurrence of marine accidents and details of adjudication;

A. C (the length, 61.27 meters, 14 meters in width, 3 meters in weight, 677 tons) and D (2.83 meters in depth, 2.95 tons in weight) which is a fishing vessel, have an accident of collision at sea (hereinafter referred to as “accident in this case”) on December 2, 2017, where the c (7.5 meters in width, 2.66 meters in width, 0.83 meters in weight, 2.95 tons in weight) and the c (1 nautical miles in front of the new base line located in the new base line located in Jinsan-si, Sinsan-si on December 2, 2017, and one nautical miles is 1,852 meters in length; hereinafter the same shall apply). The Plaintiff is the captain of C, and E is the captain of D.

B. On December 27, 2018, the Korean Maritime Safety Tribunal rendered a ruling on the instant accident that: (a) the instant accident was caused by C’s neglecting the boundaries while departing from the port and entering the course of D’s navigation along the waterway; (b) however, it was found that D neglected the boundaries and did not take appropriate action for give-way cooperation (C70%, D30%); (c) the instant accident was partially caused by D’s failure to take action for give-way cooperation; (d) the instant accident was suspended for two months; (b) the enforcement of disciplinary action was suspended for six months from the date of execution of the ruling; (c) the enforcement of disciplinary action was suspended for 21 hours from the date of execution of the ruling; and (d) the order for job accident prevention education for E to recommend correction (hereinafter referred to as “instant ruling”).

[Ground for recognition] Unsatisfy, Gap evidence 1, the purport of the whole pleadings

2. The assertion and judgment

A. The plaintiff's assertion

1) Absence of grounds for disciplinary action

In accordance with Article 67 of the Maritime Safety Act, the area in which the accident of this case occurred falls under the narrow channel.

At the end of the right side of a narrow channel, D navigates on the left side of the narrow channel. In addition, D did not take all appropriate boundaries (Article 63 of the Maritime Safety Act) or actions to avoid collision (Article 66 of the Maritime Safety Act). As such, the instant accident occurred due to the negligence of D. On the other hand, the Plaintiff sufficiently implemented the action to avoid collision with the appropriate boundary. Accordingly, the instant judgment does not exist.

(ii) the deviation and abuse of discretionary power;

In the instant judgment, the Defendant’s suspension of business with respect to the Plaintiff, and only made recommendations for correction with respect to E, the captain of D, would lose balance. The Plaintiff would be at risk of suspending business operations for a period of two months or having to complete job training within six months due to the instant judgment. In addition, the Plaintiff is subject to criminal punishment and civil liability based on the instant judgment. Considering the Plaintiff’s disadvantage, the instant judgment is unlawful as it deviates from and abused discretionary authority.

B. Relevant statutes

The entries in the attached Table-related statutes are as follows.

1) The current state of waters adjacent to the instant accident site

A) The instant accident occurred in the area between the Dolsando and the Dolsando. The instant accident occurred in the northwest of the site where the instant accident occurred, there are new ports (dolsando), the south side of the instant accident, the Man-do (Dolsando), the Man-do (Dolsando), and the southwest side of the instant accident. The current status of the waters adjacent to the instant accident site is as follows.

A person shall be appointed.

B) The area of the instant accident is a sea area where traffic, such as vessels entering and departing from various ports and passing through the water area, is about 0.5 to 0.6 m. The width of the navigational zone between the 7th intersection and the 8th intersection of the Tailand is about 469m, about 69m, about 66m, about 8m, and about 165m between the parallel angles, about 9m. The width of the navigational zone between the 7th intersection and the 8th intersection of the Tailand is about 169m, and about 165m. C). The width of the navigational zone is about 0.5-6m. Not only small fishing vessels adjacent to the instant accident site, but also frequent vessels such as C, such as carpet passenger vessels.

2) Operational status of C and D

A) C shall return to and from the F and G seven times a day, and the first port and the last port shall pass H.

B) Around the time when a day occurs, D departs from a crossing (breadth) and sail through a traffic, leaving a port and leaving a port again around the following day, and leaving a port after the operation, and leaving a port at a stone (projected mountain), leaving a port and leaving a port again, and going back to a crossing (road crossing). A navigation equipment installed in D is limited to a fishing vessel position transmitter (V-Pas) and was exempted from installation on the condition that night navigation is prohibited.

3) The background of the instant accident

A) On December 2, 2017, 07:42 on December 2, 2017, C went away from the landing place with the Plaintiff, three crew members (Voyages, chief navigators, 136 passengers, and 53 vehicles, the captain of C, who is the captain of the vessel, after reporting the 50-way engine, and she turned down at approximately 4-7 knotss in the speed of approximately 200 knotss in the direction towards the head of the vessel. At the time, C’s steering house was the Plaintiff, and the mate and the deck were engaged in work, such as arranging the mooring lines from decks.

B) At the time of the Plaintiff’s commencement of the collision from the direction opposite to the king of the king of the king, one small-sized vessel in the name of the U.S. was approaching the direction of C while maintaining a certain course and speed from the starboard direction of C. The said small-sized vessel passed the front line of C around 07:45 on the same day.

C) Around 05:30 on the same day, D’s captain entered a port of departure from a port of departure from a port of departure from a port of departure from a port of departure from a port of departure from a port of departure from a port of departure from a port of departure from the port of departure from the port of departure from the port of departure from the port of departure from the port of departure from the port of departure from the port of departure from the port of departure from the port of departure from the port of departure from the port of departure from the port of departure from the port of departure from the port of departure from the port of departure from around 06:0, and return to the port of departure from the port of departure from the port of departure from the port of departure from around 07:20.

D) At the time of the instant accident, weather was clear and 4 to 5 miles. At around 07:46 on the same day, the Plaintiff: (a) at a point 600 meters away from 10 meters away from 30 meters away from D to 400 meters away from D, the Plaintiff first discovered D with the land, and continued chip and string. However, there was no reaction in D; (b) the Plaintiff, at a point 400 meters away from D and 400 meters away from D, suspended the engine of the main engine and continued to reduce C by continuously operating the main engine engine. However, at the time of the instant accident, E maintained the course and speed of the instant accident without finding C until the instant accident and maintained the collision between C and C, the circumstances leading up to the collision between C and C at the time of the instant accident and C.

A person shall be appointed.

E) D was sunkd immediately after the instant accident, and E and I went into water, but was salvaged by the guard. There was no damage incurred by C due to the instant accident.

[Reasons for Recognition] Facts without dispute, Gap evidence Nos. 1 through 5, 8, 14 through 20, 22, Eul evidence No. 5 (including provisional number), the purport of the whole pleadings

D. Determination

1) Whether grounds for disciplinary action exist

In full view of the following circumstances revealed by the above facts of recognition, the evidence as mentioned above, and the purport of the entire pleadings, the instant accident complies with the navigation law in narrow waterway (Article 67 of the Maritime Safety Act).

In addition, it is reasonable to view that the negligence of E (D) which did not take part in the boundary (Article 63 of the Maritime Safety Act) and actions to avoid collision (Article 66 of the Maritime Safety Act) led to the principal cause. Therefore, the Plaintiff cannot be deemed to have a cause of disciplinary action under Article 5(2) of the Act on the Investigation of and Inquiry into Marine Accidents (hereinafter “Maritime Accidents Inquiry Act”) and the instant ruling is unlawful as it did not exist.

A) Violation of navigational rules in the narrow channel of E (D)

(1) A vessel navigating along a narrow channel or sea route shall navigate on the right edge of the narrow channel as far as possible, taking into account the safety of navigation. A vessel of less than 20 meters in length shall not interfere with the passage of another vessel that can navigate safely only along the inside side of the narrow channel (Article 67(1) and (2) of the Maritime Safety Act). If a vessel navigates to the port inevitably in violation of the narrow channel’s navigation route, the vessel is obliged to exercise the duty of care to avoid navigation by discovering another vessel in advance on the narrow channel and altering her course by itself (see, e.g., Supreme Court Decision 2004Hu65, Sept. 28, 2005).

(2) Whether a certain waterway constitutes a narrow waterway shall be determined by comprehensively taking into account the geographical conditions of the waterway (breadth, etc. of a sea zone), type, size, and volume of traffic vessels, natural conditions in the area (e.g., the speed of tides and the intensity of the tides, the difference of tides, etc.). If a certain waterway is determined to be a narrow channel, the navigation methods in the narrow channel shall be applied uniformly irrespective of the size or direction of the vessel involved in the accident. On the contrary, it is reasonable to regard a narrow channel to a large vessel, but it is not a narrow channel to a small vessel, or to a vessel navigating along the waterway to a narrow channel, but it is not a narrow channel to a vessel navigating in the form of crossing the waterway. In light of such criteria, it is reasonable to regard a narrow channel adjacent to the area involved in the accident as a narrow channel for the following reasons.

(A) The width of the navigational zone adjacent to the instant accident site is about 0.5 to 0.6 m. The following can be seen as constituting a geographical narrow channel. ① The Supreme Court held that the vessel’s width is about 0.5 m. (see, e.g., Supreme Court Decision 92Da55, Jun. 11, 1993); the vessel’s wastewater at sea (see, e.g., Supreme Court Decision 2004No65, Sept. 28, 2005; 3.00 m. 6m. 8m. 8m. 8m. 8m. 8m. 8m. 8m. 1m. 6m. 6m. 8m. 1m. 6m. 6m. 2008 m. 1m. 6m. 1m. 6m. 2008. 2m. 3m. 3m. adjacent navigational zone.

(B) The instant accident site is a zone where many ports (such as a mountain port, a new port, a math-port, a crossing port, etc.) and the passage of vessels passing through the water area. Not only small vessels, such as D, but also vessels such as Kaf-port passenger vessels, such as C, are frequently passing through the instant accident site. In light of the type, size, and traffic volume of traffic vessels, the area adjacent to the instant accident site may be deemed to fall under a narrow channel where the general navigation rules alone make it difficult to prevent collision among vessels navigating at the port.

(C) There is no positive or negative impact on the free navigation of vessels on the natural conditions, such as the speed and intensity, and the difference of tides in the waters adjacent to the instant accident site. It is presumed that such natural conditions are similar to those of other waters with the width of similar navigation zones.

(3) As above, as long as the vicinity of the accident site of this case falls under a narrow channel, D is obligated to navigate to the end of the narrow channel (Article 67(1) of the Maritime Safety Act), more D is a vessel with a length of 7.5 meters, so it shall not interfere with the passage of other vessels that can navigate safely only from the inside of the narrow channel (Article 67(2) of the Maritime Safety Act). If it has been inevitable to navigate to the port, E is obliged to take the duty of care of avoiding navigation by discovering another vessel on the front side of the narrow channel in advance and altering course by itself. Nevertheless, E does not go to avoid navigation of D while sailing along the narrow side of the channel, but does not go to the port by discovering in advance and changing course. Thus, it is grave error in the violation of the Maritime Safety Act in a narrow channel.

B) Violation of the duty of boundary under E(D)

(1) In order to fully grasp the surrounding circumstances and the risk of a collision with other vessels, a vessel shall always keep at all times an appropriate boundary by all means available in accordance with the prevailing circumstances and conditions (Article 63 of the Maritime Safety Act). The boundaries shall continue to exist in all vessels, and if a vessel fails to perform its duty of care, this would constitute a breach of the duty of care. For an appropriate boundary, a vessel shall always open a door on the side of the mission and grasp the existence of another vessel by utilizing all sense and various equipment, such as sight and hearing, such as sight, and hearing, in order to hear the red sound of the other vessel.

(2) D is not equipped with radars, and navigational equipment (V-Pas) was not installed except for the rash. Accordingly, E should have made efforts to ascertain the existence of the other party’s vessel by fully utilizing all images, such as visual and hearing signals in operating D. If the view is restricted due to the sunlight, E should have taken appropriate measures, such as wearing the rash. However, E did not find C even until the moment of collision with C on the day of the instant accident, which is clear for about 4 to 5 miles, and even if the rash or sound was entirely not heard (E was unable to see C due to sunlight at an investigative agency, in light of the image of the evidence Nos. 9 and 10, it is difficult to believe that E was unable to take appropriate measures, such as the time and place of the instant accident, and the time and place of the accident did not take proper measures, such as the time and place of the accident, due to the violation of the duty of care.

C) Violation of action to avoid collision of E(D)

(1) In order to avoid collision with other vessels, a vessel has a duty to actively take measures at sufficient time (Article 66 of the Maritime Safety Act). In particular, D is a vessel of less than 20 meters in length and has a duty not to obstruct the passage of other vessels that can safely navigate only in the inside of a narrow channel in a narrow channel (Article 67(2) of the Maritime Safety Act). Thus, the duty of care to avoid collision is greater in a narrow channel.

(2) However, as seen earlier, E did not take all action to avoid a collision at the time of the instant accident, and even at the time of the instant accident, at the speed of navigation without being aware of the existence of C at the time of the collision, conflicts with C by straightening the speed of at least seven knotss. Therefore, E’s failure to take all action to avoid a collision due to neglecting the duty of boundary may be deemed as a breach of the duty of care for the occurrence of the instant accident.

D) Plaintiff’s negligence and existence of grounds for disciplinary action against the instant accident

(1) Based on the premise that C is in a state of crossing, Article 73 of the Maritime Safety Act shall apply to the relevant criminal case (Seoul District Court 2018 High Court 2018 Highdan1051), it appears that C is a give-way vessel, and C is a stand-on vessel, and C was negligent in not resisting the Plaintiff (Evidence A 19), but in the case of the instant accident, C shall not be deemed a give-way vessel and D as a stand-on vessel by applying the crossing Navigation Act. The reasons are as follows.

(A) In order to apply navigational rules by deeming that one power-driven vessel crosses the other one course, it should be recognized that C is in a state of crossing D. However, according to the video of the evidence No. 8, C was in a situation where C continued her course to depart from a new port (project) to her course and to her course to her course to her course, and the location of the instant accident is merely about 0.15 mam (27m) from the new port (project) (project). As such, the instant accident did not occur in the situation where C intends to cross the D with sufficient time and time to her course, but the instant accident occurred in the course of the port of the port immediately after her departure, and therefore, Article 73 of the Maritime Safety Act cannot be applied solely on the ground that C is expected to navigate in the direction of crossing D after her course of the port (math).

(B) Even if C is assumed to cross the D, the instant accident area constitutes a narrow channel, and thus, Article 67(4) of the Maritime Safety Act, which is not Article 73 of the Maritime Safety Act, shall be applied. In this case, C violates the duty not to cross the narrow channel if it obstructs the passage of other vessels in a narrow channel (Article 67(4) of the Maritime Safety Act), but D violates the duty not to cross the narrow channel (Article 67(4) of the Maritime Safety Act) and the duty not to obstruct the passage of other vessels, which is less than 20 meters in length, and is less than 20 meters in length (Article 67(1) and (2) of the Maritime Safety Act). Thus, it cannot be determined that the Plaintiff was grossly negligent, such as when Article 73 of the Maritime Safety Act is applied.

(2) The occurrence of the instant accident and the expansion of damages therefrom have a certain negligence on the part of the Plaintiff. However, this shall be deemed to mean that the Civil Damage Compensation requires the Plaintiff with a weak meaning as the comparative negligence or the limitation of liability. In addition, it is difficult to recognize that the Plaintiff had a strong negligence as a breach of the duty that constitutes the elements of the establishment of the tort, or that there was a negligence as prescribed by Article 5(2) of the Marine Accident Inquiry Act.

(A) Article 5(2) of the Marine Accident Inquiry Act provides that if a marine accident is deemed to have occurred intentionally or negligently by a marine officer, the person concerned shall be subject to disciplinary action by judgment. Here, negligence means a strong negligence as a violation of a duty requiring the establishment of a tort, and it does not mean negligence, which is a weak meaning required in community life in accordance with social norms or the principle of good faith, which is a comparative negligence or a limitation on liability. In other words, in civil damages, the Plaintiff is partly liable to compensate for damages, and it cannot be the ground for the Plaintiff’s negligence in the course of performing duties subject to disciplinary action pursuant to Article 5(2) of the Marine Accident Inquiry Act (e.g., the driver of a vehicle running along the intersection where traffic is controlled by signal, etc. with the driver of another vehicle cannot be deemed to have been under the duty of care to enter the intersection and drive the vehicle in violation of the signal, and thus, it cannot be deemed that the driver of another vehicle has been negligent in continuing to enter the intersection or continuing to be subject to criminal punishment pursuant to 97.5.

(B) With respect to the occurrence of the instant accident or the expansion of damages therefrom, the following negligence is committed against the Plaintiff, which may be considered in calculating the percentage of negligence between the Plaintiff and E.

① The Plaintiff, while getting back from the back of the back of the back of the backway C in the New Port (Tlsando), went back to the back of the back of the backway, was driven by the Plaintiff in the steering house, and did not require the Plaintiff to mar the Plaintiff’s mar in the course of the operation of the steering house, and did not require other crew members to watch the surrounding area. Despite the fact that the correction was clear on about 4-5 m of the date of the instant accident, the Plaintiff discovered D at the front of about 600 meters. Although D’s size was small, it was impossible to detect it by the radar, and it was somewhat limited to the view due to the marction, but if the Plaintiff had other crew on the marction and boundary around the surrounding area, it is probable to find D at an early stage.

The Plaintiff discovered D from the front section of about 600 meters and continued sirens and whistles. However, the Plaintiff thought D to be damaged without having to take action to avoid collisions, such as transformation and speed. The Plaintiff, even thereafter, had been approaching D up to approximately 400 meters at the same speed, and had been doing action to avoid collisions, such as transformation and speed. Generally, a small-sized vessel like a fishing vessel, such as a fishing vessel, has the same speed, and it is easy to change the same, and the area adjacent to the accident site of this case is narrow, and thus, the Plaintiff is obliged to take a duty of care to avoid the accident of this case by discovering D in advance and changing it into course. However, if the Plaintiff took action to avoid collisions with D at an early stage, the Plaintiff could have avoided or mitigated the accident of this case.

(C) As above, there is room to view that the Plaintiff was somewhat poor in the boundaries (Article 63 of the Maritime Safety Act) and actions to avoid collision (Article 66 of the Maritime Safety Act), and this should be taken into account in determining liability for civil damages. However, as seen earlier, since the instant accident occurred due to the primary negligence of E, the Plaintiff’s above negligence is merely matters to be considered as comparative negligence or limitation of liability in civil damages, and it is difficult to view it as negligence under Article 5(2) of the Maritime Safety Act.

2) Whether the discretion is deviates or abused or not

Even if it is assumed that there exists a cause for disciplinary action as a result of the Plaintiff’s violation of the duty of care in the instant accident, considering the following circumstances, comprehensively taking into account the facts of recognition, the evidence, and the purport of the entire pleadings, the instant judgment is deemed unlawful as it deviates from and abused discretion.

A) Article 6 (1) of the Marine Accident Inquiry Act provides that "the type of disciplinary action shall be determined according to the seriousness of the act," and Article 6 (3) of the same Act provides that "the type of disciplinary action may be reduced or exempted in consideration of the nature or situation of the marine accident, or the personal career and other circumstances in the marine accident," and Article 7-2 of the Enforcement Decree of the same Act provides that "the degree of intention or negligence in the course of the marine accident, the severity of damage caused by the marine accident, the situation at the time of the occurrence of the marine accident, and other circumstances shall be determined fairly by comprehensively taking into account the degree of intention or negligence in the course of the marine accident."

B) As can be seen from the above statutory provisions, the severity of the act or occupational negligence in a disciplinary action against a marine accident is important in consideration of the degree of the act or occupational negligence. The Defendant rendered a judgment on the disciplinary action on the premise that the Plaintiff’s negligence in relation to the accident of this case is 70%. However, as seen earlier, the negligence in the accident of this case is determined significantly higher than that of the Plaintiff, and the Plaintiff was at fault to the extent that it did not take action to avoid early collision by discovering D more early stages. Furthermore, the negligence that the Plaintiff did not keep another crew at the discretion of the Plaintiff is not due to the Plaintiff’s failure to sufficiently employ the crew on the ship rather than due to the Plaintiff’s personal negligence, and it is difficult to find the Plaintiff only. The Plaintiff took action to prevent collision, such as the continuous siren and whistle, which can be seen as a reasonable measure to the average person at the time. Therefore, the judgment on the accident of this case can not be seen as the exercise of the principal fault or discretionary authority based on the proportion of responsibility.

C) The instant accident caused the sinking and sinking of D, and the two persons caused personal injury that constitutes class 3 ideology on the ground of the injury. When applying Article 6(1) [Attachment Table] of the Guidelines for Determination of the Amount of Disciplinary Action against Persons involved in a marine accident, the instant ruling is a disposition within the scope prescribed by the Guidelines. However, in examining the seriousness of the damage, it seems inappropriate to make a disciplinary decision by considering only the degree of the damage, as a mechanical basis, in light of the reason for the occurrence of such damage or the situation at the time of the occurrence of the damage. In other words, the reason for the serious damage to D, is because it conflicts with C, which is a large vessel, without any boundary from E, without reduction of speed or alteration. Therefore, the degree of damage to D is mainly attributable to negligence, and thus, the disciplinary decision should be made in consideration of the reasons for the occurrence of such damage.

D) The Plaintiff did not cause a marine accident only once every 35 years. If the instant judgment against the Plaintiff is executed as it is, the Plaintiff may cause a certain difficulty in the Plaintiff’s livelihood and may interfere with the operation of passenger ships in remote islands.

3. Conclusion

If so, the plaintiff's claim is reasonable and acceptable.