2015Nu12821 Revocation of a ruling

The Incheon Metropolitan City Federation

President of the Central Maritime Safety Tribunal

May 12, 2016

June 9, 2016

1. The part of the Korean Maritime Safety Tribunal’s decision on August 19, 2015 regarding the correction recommendation against the plaintiff among the tugboat A marine pollution incident No. 2015-07 of the Korean Maritime Safety Tribunal (the Korean Maritime Safety Tribunal) is revoked

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

The same shall apply to the order.

1. Occurrence of marine pollution incidents and details of adjudication;

A. 1) Towing A (hereinafter referred to as “the instant vessel”) started with a tugboat of 241 ton in gross tonnage, five seafarers, including a shipmasterB, and with a barge of 2,700 meters loaded in the mining area No. 24 of the Mining Business Cadastral Register No. 24, a tugboat connected to the right side of the main line and started with a wharf for the construction work on the northwest side in Jung-gu Incheon Metropolitan City, Jung-gu, Incheon (hereinafter referred to as “Tha”) around 13:00 on July 16, 2014.

2) At around 18:00 on the same day, captain B arrived at the wharf and unloaded the instant vessel, and had all seafarers disembark the instant vessel. At the time, the depth of the sea area near the wharf was about 4.0m to 4.5m.

3) On July 17, 2014, the instant vessel was aground to tidelands. At this time, the protruding part of the steel structure in the tidelands (hereinafter referred to as “the instant steel structure”) contacted the left bottom of the instant vessel, and as a result, the instant marine pollution accident occurred in the fuel oil tank (hereinafter referred to as “marine pollution accident in this case”) whereby approximately 180 litres are leaked into sea (hereinafter referred to as “sea pollution accident”). (The point is indicated as “the point at which the instant marine accident occurred” as “the point at which the point at which the accident occurred”).

B. On August 19, 2015, the Korean Maritime Safety Tribunal caused the instant marine pollution accident by having the instant vessel aground above the tideland of the tideland, which was left tidelands due to the care failure of the wharf manager when the instant vessel was aground while coming aground on the tidelands located in Incheon Metropolitan City. The occurrence of the instant marine pollution accident by having contacted the protruding and the lower part of the fuel oil tank with the protruding and the lower part of the steel structure that had been left tidelands due to the care failure of the wharf manager.

The court made an adjudication (hereinafter referred to as "the adjudication in this case") stating that "I recommend correction to the plaintiff involved in a marine accident."

A person shall be appointed.

【Indication of Accident Points】

[Grounds for Recognition: Evidence No. 1, the purport of the whole pleadings]

2. Whether the correction recommendation part against the plaintiff is legitimate in the adjudication of this case

A. Summary of the parties' assertion

1) Plaintiff

New Airport Conves Co., Ltd. (hereinafter referred to as the "New Airport Conves") was approved for use of a wharf from the Plaintiff on condition that it is responsible for all issues that occur during or after the use of a wooden wharf. Therefore, the new airport Conves are the management and operator of a wooden wharf.

Therefore, the responsibility of safety management for the surrounding waters of the Trijubal may be borne by the Plaintiff, the owner of the new airport, the occupant of the wharf, only if he did not neglect the duty of care as a good manager.

As long as a new airport mar occupied a wooden wharf and failed to prevent and remove the fall of the steel-gu structure by neglecting the duty of a good manager, the part of the judgment of this case that deemed that the Plaintiff, the owner of the marb, was responsible for the safety management of the surrounding waters of the wharf and recommended correction to the Plaintiff is unjust.

2) Defendant

For the following reasons, the decision of this case is legitimate since it is judged that the plaintiff is responsible for the safety management of the waters around the Takban and recommended correction.

A) In light of the fact that the Plaintiff at any time collected a wharf for site and construction work and set the site use plan at its own discretion, etc., the Plaintiff could not actually control the tribs of the new airport ready-mixed by exercising the Plaintiff’s continuous control over the use of the wharf (i).

B) The Plaintiff, the owner of a Tribal, is responsible for guaranteeing the user’s safe use of the wharf facility instead of imposing facility user fees on the new airport ready-mixed (B).

C) Since dredging or removal of obstacles for securing the safety of the surrounding waters of the wharfs is an essential procedure for the maintenance of the function of the wharfs, it cannot be deemed that new airport ready-cons with a short-term approval for use of the tribs is obligated to implement the dredging or removal of obstacles, given that considerable time and expenses are invested in order to implement it (III).

D) The Plaintiff is liable to compensate the Plaintiff who is responsible for managing the sea area adjacent to the wharf where damage is caused by underwater obstacles (No. the reasons for No. the No. the No. the No. the judgment).

E) The Plaintiff asserts that according to the terms and conditions of the extension approval of the site use approval, the Plaintiff is responsible for the safety management of the surrounding areas of the Triban Airport Lebcon, but there is no provision that the said extension approval conditions impose such responsibility (6).

B. Determination

1) Facts of recognition

A) Twitba was created under the Act on the Promotion of the New Airport for Seoul Metropolitan Area Construction and the construction of the Incheon International Airport in September 1992. The Plaintiff is its owner.

B) On December 26, 2013, the Plaintiff approved the extension of the site use to new airport ready-mixed, etc. (hereinafter “approval for the extension of the site use of the instant site”). The main contents of the approval are as follows.

(1) Purposes of use: Operation of construction support facilities for the supply of construction materials.

(2) Period of use: From January 1, 2014 to December 31, 2014

(5) The employer, land subject to use, and area used.

A person shall be appointed.

(1) Rent: Imposition of land user fee (including additional user fee).

(5) Conditions of approval.

[1] When a safety accident occurs due to the installation and operation of a facility no.S., the employer shall compensate for all damages, bear all civil and criminal responsibilities, the damage to the facility due to the use of a wharf which is

(6) Approval conditions for the use of a wharf for construction works

1. The construction wharf user is responsible for the approval, permission, and notification of the relevant period under the relevant Acts and subordinate statutes and regulations at the time of operating a ship, and shall be responsible for all matters arising during or after the period of use. ① The construction wharf user shall be liable for damages to private property, fishery rights, and other operating rights, etc. existing on the sea route. The construction wharf user shall use equipment suitable for the cargo in order to prevent the loading and unloading of the cargo and the accident on the road at the time of the occurrence of the safety accident, and “I shall immediately notify the Plaintiff thereof,” etc.) ① The new airport ready-mixed used part (8,400 square meters in total) of the three-off wharf (12,00 square meters) from January 2014 according to the approval for extension of the use of the said site

② The Plaintiff selected Dongbu Construction Co., Ltd. (hereinafter referred to as “Dongbu Construction”) as a contractor and had been performing the construction of access roads to Incheon Airport 3 levels. The Dongbu Construction Co., Ltd. entered into a sand supply contract with three companies, including Youngjin Construction Co., Ltd. (hereinafter referred to as “Yjin Construction Co., Ltd.”), and supplied sand, etc. to Dongbu Construction Co., Ltd., by leasing the instant vessel, etc. from Lee Jin Construction Co., Ltd., and supplied sand, etc. to Dongbu Construction Co., Ltd. through Samjin Construction

③ For this purpose, the construction of the Dong department requested a joint use of part of the tribs on the side of the new airport line. From June 2014, a joint use of part of the tribs (4,000 meters) of the new airport ready-mixed and the tribs (4,00 meters) was made. Meanwhile, the point where the marine pollution accident occurred was abutting on the said joint use wharf, which was a place abutting on the said joint use wharf, and was a sea area abutting on the wharf, which

[Grounds for Recognition: Evidence Nos. 1 through 5, Evidence No. 6-1, 2, and Evidence No. 1, the purport of the whole pleadings]

2) Determination as to whether the Plaintiff is liable to the Plaintiff as the possessor or owner of a structure pursuant to Article 758(1) of the Civil Act (i)

Even if the Plaintiff continued to exercise the right of control over the use of a wharf as alleged by the Defendant, it means that the Plaintiff is in the superior position to change the wharf occupant or adjust the position of occupation, etc., and such circumstance alone cannot be viewed as a person who is neither the direct possessor of the wharf nor the new airport ready-mixed.

Rather, according to the above facts, it is reasonable to view that the new airport ready-mixed is a lessee of the third part of the neck and is a direct possessor who actually uses and manages it. Thus, it is reasonable to view that the new airport ready-mixed, the possessor of which is not the Plaintiff, bears the responsibility for the marine pollution accident of this case due to the defect in the preservation of the wooden Bab, a structure (the foregoing evidence reveals that the new airport ready-mixed did not take all measures, such as delivering it to the Plaintiff even if the instant accident occurred in the same branch on June 28, 2014, prior to the date of the instant accident, even though the D's low-speed accident occurred, the new airport ready-mixed did not neglect due care necessary for the prevention of damage). In light of these facts, it cannot be said that the new airport ready-mixed did not neglect due care to prevent damage.

Therefore, the above-mentioned reasons cannot be a legitimate reason for adjudication on different premise.

3) Determination as to whether the Plaintiff is responsible for guaranteeing that new airport ready-mixeds can be used safely (ii)

In light of the following circumstances, which can be recognized by the overall purport of the statements and arguments set forth in Gap evidence 1 and 7, it is reasonable to deem that the steel structure of this case appeared at the location where the marine pollution accident of this case occurred on or around June 2014, which was after the lease of part of the main body of the new airport ready-mixed. Since new airport ready-mixed did not remove the steel structure of this case, it cannot be said that the plaintiff has the duty to repair and maintain even the defects of the main body due to the reasons attributable to the new airport ready-mixed. Accordingly, the aforementioned reasons are not a legitimate ground for adjudication.

① Since around 1995, the Tribal was used from the point of occurrence of the marine pollution incident in this case, there was only the occurrence of D’s fleet failure accident at the same point of occurrence of the marine pollution accident in this case, and it seems that there existed no accidents of the Tribal failure at the above point.

During the adjudication process of this case, the captain B, who is the captain of this case, testified that the steel structure of this case seems to have recently occurred.

(c) If the instant steel structure existed at the point of occurrence of the instant marine pollution accident, even before June 2014, it appears that there had been at least the discovery of the instant steel structure. However, such circumstances do not peep in the record.

4) It is unreasonable to impose the primary responsibility for the removal of the instant steel structure on the Plaintiff, who does not have the primary responsibility to remove the steel structure of this case, solely on the ground that dredging for securing the safety of the surrounding areas of the wharfs or considerable time and expenses for the removal of obstacles for the above three reasons. Thus, the above three reasons cannot be a legitimate ground for adjudication.

5) As to the above reasons

④ The above reasons are based on the premise that the Plaintiff is responsible for managing surrounding waters around the wharf, and it is difficult to view that the Plaintiff is responsible for such management. As seen above, the above reasons are not a legitimate ground for adjudication.

6) As to the above reasons

Even if there is no provision stipulating the safety management liability in the area adjacent to the wharfs, as seen earlier, the new airport ready-mixed, etc., which is a direct occupant of a part of the tribbbbbbs, bears the safety management liability as an occupant of a structure under Article 758(1) of the Civil Act. Thus, the above reasons cannot be a legitimate ground for adjudication.

7) Sub-committee

Therefore, the above 1 to 6 reasons cannot be a legitimate reason for the ruling of this case. Nevertheless, the corrective recommendation part against the plaintiff among the ruling of this case, which was based on this, shall be revoked.

3. Conclusion

Thus, the plaintiff's claim of this case is accepted on the ground of the reasons.

Allowable judges of the presiding judge

Judges Kim Gin-han

Judge Park Jong-hoon