(영문) 대구지방법원 2020.10.29.선고 2020구합22215 판결

1. The Defendant’s disposition of business suspension of the 15-day pilot’s license against the Plaintiff on April 1, 2020 is revoked. 2. The litigation cost is borne by the Defendant.

Purport of claim

The same shall apply to the order.

Reasons

1. Details of the disposition;

A. The Plaintiff is a pilot engaged in pilotage service in the pilotage area in paragraph (2), and C organization to which the Plaintiff belongs (hereinafter “C”) is an organization whose purpose is to facilitate pilotage service in paragraph (2) and promote friendship among pilots.

B. On March 2, 2020, the vessel D (D; hereinafter referred to as "the vessel of this case") started with the Republic of Korea B from the Chinese Republic of China, and E Co., Ltd. (hereinafter referred to as "the instant agent") as the agent of the vessel of this case requested the pilotage of the vessel of this case to C, to which the Plaintiff belongs, around 09:00 on March 5, 2020.

C. C shall work in the sequence, such as 'Jobs - - - 3 - 4 - 5 - . ..', and put in work in order from work in line with the schedule of the relevant day. According to the work schedule prepared by C, March 5, 2020, on which a ferries with respect to the instant vessel were requested, the Plaintiff was on duty and the F Pilot was on duty.

D. On March 5, 2020, at around 10:30, the Plaintiff indicated the position that “A” of the instant vessel is likely to infect a ferry because 14 days have not elapsed since the former port of the instant vessel was in China and its departure from the former port was 14 days.

E. At around 12:00 on March 5, 2020, the president of C (hereinafter referred to as the “president”) and the vice pilot of F agreed that F will perform the pilotage service of the instant vessel.

F. Around 13:00 on March 5, 2020, the president notified the president of the Defendant’s Port Logistics Department that the Plaintiff refused pilotage.

G. At around 15:00 on March 5, 2020, the G Association sent to C a document stating that “The fear of “Coin or infection” cannot be deemed as a justifiable reason for refusing pilotage to Chinese flag vessels. As such, each C sent a document that “the request for cooperation to facilitate pilotage by wearing a thorough personal hygiene and quarantine uniform.” On the same day, the document was sent to B pilot around 15:33 on the same day.

H. Around 16:10 on March 5, 2020, F was carrying out pilotage services on board the instant vessel. Around April 1, 2020, the Defendant, without justifiable cause, refused pilotage against the Plaintiff, issued a disposition of suspension of business for 15 days from the date of returning a pilot’s license pursuant to Articles 9(1)6 and 18(2) of the Pilotage Act (hereinafter “instant disposition”). There is no dispute over the instant disposition; (b) there is no evidence of No. 1, No. 1, No. 2, and No. 1, No. 3, and 5; and (c) the entire purport of the pleadings; (d) whether the instant disposition is legitimate;

A. The plaintiff's assertion

For the following reasons, the instant disposition should be revoked as it is unlawful.

1) Non-existence of grounds for disposition

A) The Plaintiff’s reservation and refusal of pilotage against the instant vessel departing from China on the ground of concern of coin or infection does not constitute a legitimate ground for disposition in the instant disposition.

B) Inasmuch as Coina is very dangerous disease and the propagation of Coina is one of the natural phenomena, Coina is considerably difficult to perform pilotage duties due to natural disasters or other force majeure, there exist justifiable grounds for refusing pilotage stipulated under Article 18(2)2 of the Pilotage Act, and the Plaintiff is likely to pose a risk to life and body due to coin or infection in performing pilotage duties of the instant vessel departing from China. Thus, there exists justifiable grounds for refusing pilotage under Article 18(2)3 of the Pilotage Act and Article 5 subparag. 5 of the Terms and Conditions of Pilotage.

2) Violation of the principle of proportionality

In light of the fact that the Plaintiff, prior to the instant disposition, has piloted a large number of vessels in the B B pilotage area for more than 20 years, the Plaintiff only respondeded with prudent efforts to promote safety by facing a new threatened virus called Coinna, and as a result, the pilotage of the instant vessel is not delayed, and the instant disposition constitutes grounds for disqualification for extending the retirement age of pilot under Article 7 of the Pilotage Act, etc., the Plaintiff’s disadvantage is too large compared to the public interest to be achieved by the instant disposition, and thus, the instant disposition is contrary to the principle of proportionality.

B. Relevant statutes

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

1) According to Article 18(1) of the Pilotage Act, a shipmaster shall request pilotage prior to entering or leaving a pilotage area by means of available means of communication, etc., and pursuant to Article 18(2) of the same Act, a shipmaster shall not refuse pilotage except where a pilot receives a request for pilotage under paragraph (1) of the same Article, “where the operation of a ship is restricted under other Acts and subordinate statutes” (Article 1) or “where the performance of pilotage services is significantly difficult due to a natural disaster or other force majeure (Article 18(1)2) or “where the performance of pilotage services is not in compliance with the terms

Therefore, in order to recognize the reason for disposition that the pilot refuses the pilot request, the pilot's declaration of intention to request pilotage should be confirmed, and the pilot who received the declaration of intention to request pilotage should declare his intention to refuse pilotage finally.

2) In light of the following circumstances, the above-mentioned facts, Gap evidence Nos. 3, Eul evidence Nos. 1 and 2, together with the purport of the entire pleadings, it is difficult to view that the statement of Eul evidence Nos. 4, where the captain of the instant vessel represented the Plaintiff, either the declaration of intention of the instant agent’s request for pilotage on behalf of the captain of the instant vessel, reached the Plaintiff final and conclusive, or the Plaintiff expressed a conclusive declaration of intention to refuse pilotage on the captain of the instant vessel, and there is no other evidence to acknowledge otherwise.

A) Article 11 of the Enforcement Decree of the Pilotage provides that "a pilot may select a specific pilot of the relevant pilotage area and allow him/her to pilot the relevant pilotage area." The instant agent representing the captain of the relevant ship expressed his/her intent to request the route through C, not only to the Plaintiff, who is a specific pilot, but also to the Plaintiff. Although the instant agent was somewhat misleading at the time of the Plaintiff’s request for pilotage, it is confirmed that there was no refusal of pilotage or any delay in pilotage." In light of this, the instant agent appears to have expressed his/her intent to request pilotage even to any pilot belonging to the Pilotage area through C.

B) It seems that C is a private organization organized by pilots of the pilotage area B in order to jointly perform pilotage duties and promote friendship among its members. The captain of a ship requests pilotage to C without a direct request for pilotage for a specific pilot, and C is deemed to have been a practice in B pilotage area to carry out pilotage duties requested by a pilot designated by the pilot in order of the relevant day’s on-duty, part-time, and three positions through the work schedule, etc. However, C is not a organization established pursuant to the law or given any high-exclusive public authority under the law and regulations, but a private organization organized for the purpose of promoting mutual benefits among pilotages of B pilotage area. In principle, as a matter of principle, a pilot may be selected to carry out pilotage duties requested in accordance with the work schedule based on the rules or service regulations, but it appears that the pilot, who is requested by the captain, appears to have been able to change the pilot to carry out pilotage duties requested without following the above work schedule among its pilots. In other words, the pilot, who is to receive the declaration of intention of pilotage, can be deemed to have been voluntarily determined within C internally designated a pilot.

On March 5, 2020, the Plaintiff, in principle, was engaged in pilotage services of the instant vessel as a pilot on duty. However, at around 10:30 on the same day, indicated that pilotage services of the instant vessel departing from China would be unlikely to be performed on the ground of “cro or infections in the event of carrying out pilotage services of the instant vessel,” which is relatively old 64 years old, the Plaintiff’s refusal to accept pilotage services of the instant vessel to the Plaintiff is likely to pose a danger to cro or infection, or requesting to change the pilotage services of the instant vessel from the time of the formulation of the countermeasures against the risks of cro or infection. However, it appears that it appears that the Plaintiff refused pilotage services of the instant vessel at least 4 hours and 30 minutes (or 10:30 on the time of arrival of the instant vessel and 15:00 on the time of arrival of the instant vessel) prior to the commencement of pilotage services of the instant vessel, and that it appears that the Plaintiff did not have reached the Plaintiff’s internal position of the instant vessel’s refusal of pilotage services.

D) Around 11:00 on March 5, 2020, not the Plaintiff, notified the instant agency that pilotage was not possible. Since there is no evidence to deem that the Plaintiff granted the instant agency the authority to substitute or deliver the Plaintiff’s refusal of pilotage, it is difficult to deem that the Plaintiff’s refusal of pilotage reached the instant agency acting for the captain of the instant vessel.

E) Around 12:00 on March 5, 2020, F, who was the president and vice pilot, agreed to perform pilotage services of the instant vessel, and this was transferred around 15:00 on the same day to the Ministry of Oceans and Fisheries that “F cannot be deemed as a justifiable reason for refusing pilotage services to Chinese flag vessels.” The G Association sent to C a document stating the position of the Ministry of Oceans and Fisheries that “F cannot be deemed as a legitimate reason for refusing pilotage services with respect to Chinese flag vessels,” and F, as agreed above, seems to have performed pilotage services of the instant vessel around 16:10 on the same day.

F) Also, the Plaintiff became aware of the position of the Ministry of Oceans and Fisheries as above is around 15:33, March 5, 2020, when the above document was transmitted to the pilots of B, and there is no circumstance that C confirmed the Plaintiff’s final intention as to whether the Plaintiff would refuse pilotage of the instant vessel despite such authoritative interpretation by the Ministry of Oceans and Fisheries, or that the Plaintiff still refused pilotage of the instant vessel.

3) Therefore, there is no reason for the instant disposition that rejected the request for pilotage.

D. Whether the principle of proportionality is violated

Even if the Plaintiff’s refusal of a pilotage request and the grounds for disposition exist, comprehensively taking account of the following circumstances revealed by the purport of the entire pleadings, the Plaintiff’s disadvantage is excessive compared to the public interest intending to achieve the instant disposition. As such, the instant disposition is in violation of the principle of proportionality and is an abuse of discretion.

1) On March 5, 2020, when the Plaintiff’s refusal of pilotage began to spread all over the world, the Plaintiff, who had been known in China, was unable to objectively determine whether it is highly likely to be highly likely to inco or infection, and there seems to have been considerable difficulties in taking preventive measures against infections, such as purchasing a protective uniform and wearing a uniform.

2) On or around March 22, 2020, coaches spread all the world, and a considerable number of countries committed themselves to refuse the entry into the ship of this case where seafarers are on board China, and thus, it cannot be deemed that there was no possibility of cro or infection in the event of carrying out pilotage business of the ship of this case departing from China. Since the fear of infection is large depending on the person who caused fear of infection, it is difficult to see that the Plaintiff has a high possibility of criticism about refusing pilotage by leaving cro or infection. It is very harsh to punish the Plaintiff by cro or infection only the Plaintiff’s responsibility, which belongs to the exceptional situation called the global spread of crona.

3) Article 18(2) of the Pilotage Act provides that a pilot in receipt of a request for pilotage may not refuse pilotage. The purpose of preventing pilotage is to prevent a ship from entering the port or departing from the port in the event that the service of pilotage is not performed smoothly. However, the Plaintiff’s assertion that pilotage with respect to the ship of this case was not possible to enter the port was time when there was considerable time from the scheduled time of arrival of the ship of this case. Thus, even if the Plaintiff was at the risk of delaying the arrival of the ship of this case, it is not deemed that the Plaintiff refused pilotage with respect to the ship of this case only for the safety of the Plaintiff.

4) The F, who was a secondary pilot, performed pilotage services on the instant vessel in accordance with the schedule, did not delay the entry of the instant vessel into the port.

5) On March 5, 2020, the Plaintiff appears to have not refused pilotage while working as a pilot for about 20 years before refusing pilotage on the instant vessel, and even thereafter, it appears that the Plaintiff faithfully performed pilotage duties on the instant vessel, including the Chinese flag vessel.

6) Where the disposition of this case remains effective, the Plaintiff becomes disqualified to be designated as a national essential pilot pursuant to Article 6-3(1) of the Pilotage Act and Article 9-2(2) of the Enforcement Rule of the Pilotage Act, and the Plaintiff suffers significant disadvantage that would be deprived of the opportunity to apply for extension of retirement age under Article 7 of the Pilotage Act.

E. Sub-committee

Therefore, the instant disposition does not exist, and even if the grounds for the disposition exist, even if the grounds for the disposition exist, it should be revoked in violation of the principle of proportionality.

3. Conclusion

Therefore, the plaintiff's claim is reasonable, and it is so decided as per Disposition.