[1] Whether a tugboat is exempted from the duty to direct and supervise the navigation of a tugboat or its crew, solely on the ground that the tugboat does not have the authority or duty to direct and supervise the navigation of the tugboat (negative), and whether only the side of the tugboat is responsible for the collision with another vessel or object, regardless of the fault of the owner or crew of the barge (negative)

[2] The case holding that the fault on the side of the barge which does not properly convey sound signals and light signals under the former Maritime Traffic Safety Act was also the cause of the collision in case where the barge towing the tugboat towing the tugboat in the area of restricted visibility with the inside of the dog was in conflict with another vessel

[3] Where an accident of fishing vessel crew members, etc. occurs due to a joint tort committed by an insurance policyholder and a third party, the scope of the right to indemnity by the National Federation of Fisheries Cooperatives under Article 35 of the former Act on Accident Compensation for Fishing Vessels, etc. to a third party

[1] Articles 28 and 31(3) of the former Maritime Traffic Safety Act (wholly amended by Act No. 8380 of Apr. 11, 2007) provide that "a vessel being towed shall indicate a pair of sidelights and a stern light." Article 42(1)4 of the same Act provides that "a vessel being towed shall sound four consecutive blasts (one prolonged blast one prolonged blast) at intervals of not more than two minutes if there is a crew member, at intervals of not more than three consecutive blasts." Article 42(1)4 of the same Act provides that a vessel being towed shall not be exempted from the obligation to direct and supervise the navigation of a tugboat to the crew member of the towed, and that a vessel being towed shall not include a collision between the owner of the towed and another vessel under the proviso to Article 10(1)2 of the same Act.

[2] The case holding that the fault on the part of the barge, who did not make a sound signal and light signal under the former Maritime Traffic Safety Act (wholly amended by Act No. 8380 of Apr. 11, 2007, hereinafter referred to as "the former Maritime Traffic Safety Act") caused a collision in case where a barge towing the tugboat in an area in which she is restricted in sight of a dog, could have discovered the existence of the barge in advance and prevented the collision accident because it would have caused a collision since it would have been highly probable that if he had properly done the sound signal and light signal under the former Maritime Traffic Safety Act (wholly amended by Act No.8380 of Apr. 11, 2007)

[3] In a case where an accident of a seafarer, etc. occurred due to a joint tort committed by an insured and a third party, if the National Federation of Fisheries Cooperatives can claim the total amount of insurance benefits against a third party, the third party who has been compensated for the total amount of such benefits may re-compensation the part of the liability at the ratio of negligence against the insured who is the joint tortfeasor. The insured who has responded to the re-compensation shall be entitled to re-compensation of the amount of compensation by applying mutatis mutandis Article 35 of the former Seafarers and Fishing Vessel Accident Compensation Insurance Act (amended by Act No. 9727 of May 27, 2009) to the National Federation of Fisheries Cooperatives pursuant to mutatis mutandis application of Article 35 of the former Fishing Vessel Accident Compensation Insurance Act (amended by Act No. 9727 of May 27, 2009). If so, it would be against the litigation economy and ultimately be returned to the insured, and it is not reasonable in light of the good faith principle to permit it. Thus, the National Federation of Fisheries can only claim the difference from a third party.

[1] Article 10 (1) 2 (see current Article 10 (1) 2), Article 28 (see current Article 40), Article 31 (3) (see current Article 43 (3)), Article 42 (1) 4 (see current Article 54 (1) 4), Article 1-2 subparagraph 3 of the Ship Act, Article 750 and Article 760 of the Civil Act / [2] Article 10 (1) 2 (see current Article 10 (1) 2), Article 28 (see current Article 40), Article 31 (3) (see current Article 43 (3)), Article 42 (1) 4 (see current Article 54 (1) 4 of the Ship Act), Article 750 and 760 of the former Maritime Traffic Safety Act (wholly amended by Act No. 8380 of Apr. 11, 2007), Article 10 (3) 2 (see current Article 10 (1) 2), Article 40 (3) 7) of the Ship Act

[3] Supreme Court en banc Decision 2000Da62322 Decided March 21, 2002 (Gong2002Ha, 1317)

National Federation of Fisheries Cooperatives (Law Firm Cheonghae, Attorneys Im-soo et al., Counsel for the plaintiff-appellant)

Dolul et al. (Attorney Yu-dong, Counsel for the defendant-appellant)

Young-gu Shipping Co., Ltd. and one other (Attorney Jung-dong, Counsel for the plaintiff-appellant)

Busan High Court Decision 2008Na6373, 6380 decided August 13, 2008

The part of the judgment of the court below against the plaintiff (Counterclaim defendant) against the defendant (Counterclaim plaintiff) in the main claim against the defendant (Counterclaim defendant) is reversed, and that part of the case is remanded to Busan High Court. The remaining appeal against the defendant (Counterclaim plaintiff) against the defendant (Counterclaim defendant) and the appeal against the defendant (Seoul High Court) against the defendant Doll, Maritime Shipping Co., Ltd. and the mediation of the defendant (Counterclaim plaintiff) are dismissed, respectively. The costs of appeal against the defendant Doll, Marine Transport Co., Ltd. and the defendant (Counterclaim plaintiff) are assessed against the plaintiff

We examine the grounds of appeal.

1. On the third ground for appeal

원심판결 이유 및 기록에 의하면, 피고 주식회사 도울(이하 ‘피고 도울’이라 한다), 해송해운 주식회사(이하 ‘피고 해송해운’이라 한다)의 공유인 도송1호(총톤수 152t)는 2006. 7. 11. 중국의 웨이하이항에서 피고(반소원고) 영빈해운 주식회사(이하 ‘피고 영빈해운’이라 한다) 소유로서 자력 항행능력이 없는 부선(부선)인 8001영빈호(총톤수 2,200t)를 길이 약 300m의 밧줄로 도송1호의 선미에 연결, 예인하면서 진해항을 향하여 출발하였는데, 당시 8001영빈호에는 건조 중인 선박의 갑판실(Deck House, 약 400t)과 빈 컨테이너 3개가 실려있었고 피고 영빈해운의 직원인 선두(선두, 부선의 선원으로서 그 부선에 대한 총괄적인 관리를 담당하는 사람) 소외인 1, 소외인 2가 승선한 사실, 위와 같이 출항한 이후 항로 주위에는 줄곧 안개가 끼어 짙어졌다가 옅어지기를 반복하였고, 2006. 7. 12. 22:00경부터는 안개가 짙어져 시계가 약 15m 미만으로 제한된 상태였음에도 도송1호는 기적을 울리지 않은 채 항해를 계속하였는데, 도송1호의 2등 항해사 소외인 3은 2006. 7. 13. 02:45경 레이더로 약 5마일 거리에서 항해하는 305장덕호를 발견하였으나, 305장덕호가 도송1호의 선수 전방 2~3마일 거리를 두고 안전하게 횡단할 것이라고 잘못 판단한 채 그대로 항해하던 중, 2006. 7. 13. 03:35경 매물도 등대로부터 318도, 약 8.2마일 거리인 북위 34도 37분 30초·동경 125도 34분 30초 해상(전남 신안군 흑산도 남동 약 8마일 해상)에서 305장덕호가 선수 전방에서 접근하자 충돌의 위험을 느끼고 방향을 변경하여 도송1호는 305장덕호를 피하였으나, 예인되던 8001영빈호의 배 앞머리와 305장덕호의 왼쪽 부분이 서로 충돌한 사실(이하 ‘이 사건 충돌 사고’라 한다), 305장덕호의 선장 소외인 4는 짙은 안개로 극도로 시계가 제한된 상태에서 주위에 통항하는 선박에 대한 레이더 경계를 소홀히 하고 기적도 울리지 아니한 채 305장덕호를 운항하다가 도송1호 예인선열이 존재하는 것을 알지 못하여 위와 같이 8001영빈호와 충돌한 사실, 8001영빈호에 승선하고 있던 소외인 1, 소외인 2는 이 사건 충돌 사고 직전 선실에서 잠을 자고 있다가 충돌 순간 침대에서 떨어져 갑판으로 나왔고, 8001영빈호의 선체를 점검한 후 충돌 흔적을 발견한 소외인 1이 그 사실을 도송1호의 항해사 소외인 3에게 알리며 도송1호의 선장 소외인 5를 깨워 이를 보고해 달라고 요구하였으나, 소외인 3은 소외인 1의 보고를 무시하고 사후 조치를 취하지 아니한 채 계속 항해를 한 사실, 이 사건 충돌 사고로 305장덕호가 전복되어 선장 소외인 4를 비롯하여 선원 7명이 실종되어 사망하였으며, 선원 소외인 6은 저산소성 뇌병증 등의 상해를 입은 채로 해양경찰에 의해 구조된 사실, 이 사건 충돌 사고 당시 8001영빈호에는 음향신호를 내보낼 수 있는 기적이나 사이렌 등의 시설이 장착되어 있지 않았고, 현등 및 선미등을 밝히지 않았던 사실 등을 알 수 있다.

Based on the above facts, the court below determined that the non-party 1 did not occupy the vessel at all and the non-party 1 and the non-party 1 and the non-party 1 and the non-party 1 and the non-party 1 and the non-party 2 did not have any duty to take account of the following: (a) the non-party 1 and the non-party 1 and the non-party 1 and the non-party 1 and the non-party 2, who did not take account of the above facts; (b) the non-party 2 and the non-party 1 and the non-party 1 and the non-party 2, who did not have any duty to take care of the collision with the vessel at the time of the collision; (c) the non-party 1 and the non-party 1 were the non-party 1 and the non-party 2, who did not have any duty to take care of the collision with the vessel at the time of the collision; (d) the non-party 1 and the non-party 1 and the non-party.

However, we cannot agree with the above judgment of the court below.

Articles 28 and 31(3) of the Maritime Traffic Safety Act (wholly amended by Act No. 8380, Apr. 11, 2007; hereinafter the same) provide that “a towed vessel shall exhibit a pair of sidelights and a stern light.” Article 42(1)4 of the Maritime Traffic Safety Act provides that “a vessel towing an area of restricted visibility shall sound four consecutive blasts (one prolonged blast one prolonged blast) at intervals of not more than two minutes if there is a crew member, at intervals of not more than 8 minutes, if there is no authority or duty to direct and supervise the navigation of the towing, the towing vessel cannot be deemed exempted from its duty to give the above sound signal and signal at the time of the collision to the owner of the towing vessel, or if there is no fault or duty to give the towing vessel to the captain of the towing, it cannot be deemed that there is a conflict between the towing vessel and the vessel under Article 10(1)2 of the Maritime Traffic Safety Act, even if there is no fault or duty to give prior notice of the collision.

Therefore, the judgment of the court below on this part is erroneous in the misapprehension of legal principles as to sound signal and light signal duty of the vessel being towed in restricted visibility areas under the Sea Traffic Safety Act, or by misapprehending legal principles as to negligence, which affected the conclusion of the judgment. The grounds of appeal pointing this out are with merit.

2. On the first ground for appeal

Article 35 of the former Fishing Vessel Accident Compensation Insurance Act (amended by Act No. 9727 of May 27, 2009, hereinafter “FFFFC”) provides that “Where an insured has paid in advance money or goods equivalent to insurance benefits to an insured person due to an accident of a fishing vessel crew member, etc. and the money or goods are deemed to have been paid as a substitute for insurance benefits under this Chapter, the insured shall subrogate the insured person’s right to receive the insurance benefits under the conditions as prescribed by the Presidential Decree.” If an accident of a fishing vessel crew member, etc. occurred due to a joint tort between an insured person and a third party, if the National Federation of Fisheries Cooperatives (hereinafter “FFFC”) can claim the total amount of insurance benefits against a third party, a third party who has been recovered in full amount of such benefits may re-claim the amount of such benefits at the ratio of negligence against the insured person who is a joint tortfeasor, and an insured person who has responded to the re-compensation shall be entitled to the difference between the amount of insurance benefits paid to NFFFC and the insured (see 202).

The judgment of the court below to the same purport is just, and the judgment of the court below to this part is not erroneous in the misapprehension of legal principles as to the scope of exercise of the right to indemnity against a third party by NFC's third party who provided insurance benefits, or in the misapprehension of legal principles as to the violation of Article 33 (1) of the Fishing Villages Act, the lack of reason, and the omission of judgment

3. On the second ground for appeal

Examining the reasoning of the judgment below in light of the records, the judgment of the court below is just in determining that the missing benefit is a special compensation recognized by the Fishing Act as being necessary to support living expenses for the dependent of fishing vessel crew members, etc. and to have mental suffering incurred during the missing period, and that it cannot be viewed as having the same nature as the compensation for passive damage equivalent to the lost income. There is no error of law such as misunderstanding of legal nature of the

4. Conclusion

Therefore, the part of the judgment of the court below against the plaintiff against the defendant Young-gu Shipping is reversed, and this part of the case is remanded to the court below for a new trial and determination. The remaining grounds of appeal by the plaintiff are dismissed. The costs of appeal against the defendant Dog, Maritime Shipping, and Choyang are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Jeon Soo-ahn (Presiding Justice)