(영문) 대전고등법원 2014.12.4. 선고 2014누401 판결

1. Of the instant lawsuits, the part demanding the revocation of the part concerning the causes of the marine accident of the Central Maritime Safety Tribunal No. 2014-004 dated May 23, 2014 shall be dismissed.

2. The plaintiff's remaining claims are dismissed.

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

Purport of claim

The Korean Maritime Safety Tribunal's ruling No. 2014-04 dated May 23, 2014 shall be revoked.

Reasons

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

A. A tugboat B (the gross tonnage, 24.6m, 7.5m in width, 7.5m in length, the Plaintiff’s captain), around 9:00 on October 13, 2013, towed on the port side of the barge C (1,174t, 71.52m in length, and 20m in width) with the starboard side of the barge at the port side of the port side, and the mardog of Incheon Reinforcement-gun started from the sea front of the fishing port, and made it a navigation at the outside port of the city, at around 10:30 on the same day, at around 10:30 on the same day while the mardog of Incheon-gun and the marg of the mardog of Incheon-do, the marg-dong port, at a distance of about 0.7m (hereinafter “the sea of this case”) and 0.7m in the sea (hereinafter “the sea of this case”) with the captain’s fishing gear, etc.

B. On February 6, 2014, the Incheon Regional Maritime Safety Tribunal made the plaintiff and Eul as the person involved in the marine accident, and "the case of damage to the marine accident of this case" was made by ruling and ruling of disciplinary action that "the plaintiff and Eul had a strong visibility between the height of visibility and tin-do, and the captain, who was towing the barge, was sailing by setting a sea route very close to the fishing vessel in the safe-burging, and had a very close distance to the fishing vessel in the safe-burging network operation." The plaintiff should reprimand the plaintiff involved in the marine accident (hereinafter "the judgment of the first instance court of this case").

C. On May 23, 2014, E filed a claim with the Korean Maritime Safety Tribunal for the second instance, and on May 23, 2014, the Korean Maritime Safety Tribunal made the plaintiff and E as the person involved in the marine accident, "the case of damage to the marine accident of this case" was that the tugboat sailed at anchor while navigating the barge C and sailed very close to the fishing vessel in operation and contacted with fishing gear due to her negligence at the time of the accident, but the absence of the captain at the time of the accident is that the vessel D does not have a captain. The plaintiff who is involved in the marine accident is subject to the judgment of this case (hereinafter referred to as "the judgment of this case"), while making an adjudication on the identification of the cause of the accident and ruling on disciplinary action that "the rate of provision of the two sides shall be allocated to B 95% and D 5% higher than that of the plaintiff."

[Reasons for Recognition] Unsatisfy, Gap evidence 6-70, Eul evidence 1-1, and whole pleadings

2. Judgment on the claim part concerning the revocation of the adjudication to find the cause of the instant case

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 contents of the judgment subject to 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, which finds the facts of the cause of a marine accident, shall not be deemed to constitute an administrative disposition because it does not have the effect of forming or confirming the rights and obligations of the people, unlike the judgment or recommendation ruling on the person involved in a marine accident (see, e.g., Supreme Court Decision 2006Do21, Oct. 9, 2008).

Therefore, the part of the instant judgment seeking the cancellation of the judgment on the cause of marine accidents in the instant case is unlawful as it has been filed with respect to matters not subject to revocation litigation.

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

A. The plaintiff's assertion

① In light of the fact that the marine accident in this case occurred because, at the center of a narrow channel, anchored at the sea of this case and installed an anchor in the water in the speed of the narrow channel and obstructed passage of B, which may be the narrow channel, and operated in violation of the navigational navigation of the narrow channel, and that B does not wear the shape indicating the designation of a vessel engaged in fishing, and the shape indicating the vessel engaged in fishing, and the shape indicating the existence of the vessel under water, and that the marine accident in this case occurred because B was not aware of the existence of the marine accident, the negligence of B on the part of the plaintiff was 95% in relation to the occurrence of the marine accident in this case, but it was based on the premise that B's negligence was 95% in fact or extremely minor; ② as to the judgment in the first instance of this case on the marine accident in this case, E did not have the authority to request the second instance judgment; ③ The adjudication in this case which is more unfavorable to the plaintiff compared to the first instance judgment in this case is contrary to the principle of prohibition of alteration.

B. Relevant statutes

Attached Form 3 is as shown in the "relevant Acts and subordinate statutes".

C. Determination

1) Facts of recognition

(A) At the time of the instant marine accident, there was no limitation of visibility in the sea location of the instant vessel, and approximately 25-30 of the new Egrgical net fishing vessels were engaged in anchoring and operating, and D, in the center, almost on the south side, was installed in water at the upper part of the 20-meter length and the lower part of the fish-net zone, each of which is about 20 meters of the length assigned to the stern side while anchoring, and the parts connected thereto connected thereto. D was engaged in fishing at a distance of 50 to 100 meters on the starboard side, and the water depth was deep on the D side. At this point, D, the captain of the instant vessel, at the same time, was working in the lower part of the E-F, and there was a deep depth in the lower part.

(B) At the above point, the fleet B and barge B (27.5m in combination of widths) which the player was sailing to D with the north north along the sea near the sea of the instant case was navigating to D freeboard, which is between D and F, and caused the instant marine accident.

[Ground of recognition] Facts without dispute, Gap evidence 6-70, Eul evidence 1-5 and the purport of the whole pleadings

2) Whether the instant disciplinary decision is lawful

(A) Determination on the first argument

There is no evidence to acknowledge that the sea of this case constitutes a narrow waterway as stipulated in Article 67 of the Maritime Safety Act. Under Article 76 (2) of the Maritime Safety Act, a power-driven vessel underway may be deemed to be a vessel engaged in fishing, ② A is a power-driven vessel underway and D can be deemed to be a vessel engaged in fishing, and the plaintiff's navigation is not interfered with the plaintiff's navigation because it is a vessel under navigation restriction in tow B and its navigation restriction. However, the plaintiff's operation restriction vessel is not a main vessel under navigation restriction under Article 2 (13) of the Maritime Safety Act, so it is difficult to acknowledge that the plaintiff still engaged in navigation restriction on the part of the vessel at issue, even if it appears that the plaintiff could not have any other vessel's navigation restriction on the part of the vessel at issue, even if it is difficult to acknowledge that the plaintiff had any other vessel's navigation restriction on the part of the vessel at issue, even if it did not have any other vessel operation restriction on the part of the vessel at issue.

(B) Judgment on the second argument

According to Articles 2 subparag. 3, 39, 38, and 58(2) of the Act on the Investigation of and Inquiry into Marine Accidents and Article 2 subparag. 3, 39, 38, and 58(2) of the Act on the Investigation of and Inquiry into Marine Accidents, E designated by an investigator as a person involved in the marine accident has the authority to make a second instance claim from the judgment of this case as a legitimate person involved in the marine accident. Accordingly, the Plaintiff’s assertion on this part is without merit

Article 65-2 of the Act on the Investigation of and Inquiry into Marine Accidents provides that "No person who is a person involved in a marine accident, shall be subject to any disciplinary action heavier than that adjudicated in the court of first instance against a ship officer or pilot who is a person involved in a marine accident, or a person who has requested the court of second instance for the purpose of a ship officer or pilot who is a person involved in a marine accident." This applies to a person who has referred to in the court of second instance, so the judgment in this case is not in violation of the above provision unless the judgment in this case takes a heavier disciplinary action than the judgment in the court of first instance against E. Even though the above provision applies to the plaintiff, the plaintiff is subject to a disciplinary action in the judgment in the court of first instance, and is subject to a disciplinary action in the judgment in this case, and thus, it

(D) Sub-committee

Therefore, the ruling of the disciplinary action of this case is legitimate, and the plaintiff's claim for the revocation is without merit.

3. Conclusion

Therefore, the claim for the cancellation of the judgment of this case among the lawsuits of this case is unlawful. Thus, the remaining claim for the cancellation of the judgment of this case is dismissed as it is without merit. It is so decided as per Disposition.

Judges

The presiding judge shall receive the award of merit;

Judges Kim Gung-hoon

Judges Kim Jong-il

Note tin

1) Although the Plaintiff is dissatisfied with the determination of the rate of provision of the instant judgment that causes the occurrence of an accident, in light of the purport that the Plaintiff seeks the revocation of the entire instant judgment, the revocation of the instant judgment is also sought.