Main Issues
Where the captain of a vessel chartered causes a collision due to negligence in navigation and causes damage to a third party, the subject of the liability for damages shall accrue.
Summary of Judgment
In a time charter, the right to occupy a ship, the right to appoint the captain and crew and the overall control and management of the ship are all the owner of the ship. In particular, unlike commercial matters related to the loading, storage, and unloading of cargo, the right to command and supervision over the captain and crew is solely against the owner of the ship, barring special circumstances. Thus, in cases where the captain of a scheduled charter vessel causes a collision with navigational negligence and causes damage to a third party, the shipowner is not the charterer, but the shipowner is the employer of the captain, and therefore, Article 766(1) of the Commercial Act is liable for damages under Article 845 or 846 of the Commercial Act. Thus, there is no room to apply mutatis mutandis to Article 766(1) of the Commercial Act. However, if it is acknowledged that the time charterer is liable for general tort or employer liability under the Civil Act, the time charterer may be separately liable for damages therefrom.
[Reference Provisions]
Articles 766(1), 812-2, 812-3, 845, and 846(1) and (2) of the Commercial Act
Plaintiff, Appellee
1. The term “the term “the term” means the term “the term” means the term “the term” means “the term.
Defendant, Appellant
Kim Jong-hun (Attorney Yang Chang-soo, Counsel for the defendant-appellant)
Judgment of the lower court
Busan High Court Decision 2000Na15801 delivered on September 6, 2001
Text
1. Of the part of the judgment below against the defendant as to damages for delay, the part of the judgment of the court below ordering payment exceeding 56,71,027 won for each of 56,77,027 won for 54,525,081 won for 50,80 won for 50,870,504 won for 50,000 won for 30,000 won for 30,000 won for 40,000 won for 30,000 won for 30,000 won for 30,000 won for 40,000 won for 30,000 won for 30,000 won for 4,000,000 won for 5,000 won for 30,000 won for 4,000,0000 won for 30,000 won for 20,000 won for 30,0005,0000 won for 1.
Reasons
The grounds of appeal are examined.
1. Based on the evidence adopted, the court below determined on June 1, 199 that the non-party 1 corporation, a maritime cargo transport company, was liable to compensate the non-party 1 to the non-party 1 for the crew's wages and vessel repair cost after the defendant employed three crew members including the captain, and the non-party 1 was not liable to compensate the non-party 1 to the non-party 3 corporation for the damages incurred to the non-party 1, the non-party 1 as the ship's crew members by the non-party 4, the non-party 1, the tugboat's fleet, which was the tugboat's towing from the defendant on June 1, 199. The non-party 1 was not responsible to the non-party 1 to the non-party 2, the non-party 2, the non-party 2, the non-party 1, who was responsible to the non-party 1 to the non-party 1 to the non-party 1, who was employed by the non-party 3, the fleet 2, the non-party 2.
2. The charter party is basically a vessel lease contract, a time charter party and a voyage charter party. Of these, the time charter party is a contract under which the shipowner or lessee (hereinafter collectively referred to as the “owner”) agrees to allow the charterer to use a ship serviced by crew on board and equipped with navigation equipment for a given period, and the charterer agrees to pay the charterer the hire determined by the period. It is an element for the charterer to receive services provided by the shipowner through the actions of the captain and crew appointed by the shipowner. The use of the ship itself is in essence different from the vessel lease contract under which the shipowner and crew are on board the ship delivered by the shipowner for the purpose of the contract, with the right to control and management of the ship as well as its own ship. However, the shipowner or lessee is not liable for damages arising from the vessel’s occupation, the right to appoint and dismiss the captain and crew, and the right to control and management of the ship can be separately determined by the shipowner or the shipowner under the Commercial Act, unless there are special circumstances as to the vessel’s scheduled navigation and management of the ship.
The judgment of the court below which recognized the defendant's liability for damages against the collision accident caused by the negligence of the above non-party 1 is justified in accordance with the above legal principles, and there is no error of law by misunderstanding the legal principles as to employers' liability under Article 846 of the Commercial Act or the legal principles as to employers' liability, as otherwise alleged in the ground of appeal (it is obvious that the damage the plaintiff seeks is caused by death, and therefore, the "Article 846 (1) of the Commercial Act" in the ground of appeal is regarded as a clerical error under Article 846 (2) of the Commercial Act). The Supreme Court decisions cited in the ground of appeal are different
3. We examine ex officio the portion of "interest rate prescribed by Presidential Decree" in the main sentence of Article 3 (1) of the Act on Special Cases concerning the Promotion, etc. of Legal Proceedings before the Amendment (amended by Act No. 6868 of May 10, 2003) was decided as unconstitutional by the Constitutional Court on April 24, 2003. Accordingly, the amended provisions of the above Act and the main sentence of Article 3 (1) of the Act on Special Cases concerning the Promotion, etc. of Legal Proceedings (amended by Presidential Decree No. 17981 of May 29, 2003) shall be 20% per annum to apply the statutory interest rate of the case pending at the court at the time of the enforcement of the above amended Act, and since the Defendant's obligation to pay the amount of this case to the Plaintiffs, the court below erred by applying the above revised legal interest rate of 20% per annum from 200 to 30.5% per annum 205% per annum.
4. However, this part constitutes a sufficient time for the court to directly render a judgment, and thus, should be reversed and remanded in accordance with Article 437 of the Civil Procedure Act as follows.
As legally determined by the court below, the defendant is obligated to pay 50,870,504 won per annum to the plaintiff Cho Tae-tae and Lee Jong-nam respectively, 56,771,027 won per annum, and 64,525,081 won per annum to the plaintiff Cho Tae-tae and Lee Jong-nam, and Gyeong-tae, respectively, and 50,504 won per annum: Provided, That with respect to damages for delay, 5% per annum from August 30, 1999 to May 31, 2003, and 20% per annum from the next day to 30% per annum under the above amended Act, the part of the judgment below against the defendant ordering the payment of damages for delay in excess of the above cited amount is dismissed, and all of the judgment of the first instance shall be dismissed, and since the judgment of the court below's 205% per annum and 50% per annum per annum per annum per annum per annum for 30,5000 won per annum per annum per annum.
Therefore, this Court has rendered a final judgment as to the above part of the plaintiffs' claim of this case, and dismissed the defendant's appeal as to the remaining part, and five minutes of the total costs of the lawsuit shall be borne by the defendant, and the remaining part shall be borne by the plaintiffs, and it is so decided as per Disposition by the assent of all participating Justices.
Justices Shin Hyun-chul (Presiding Justice)