[Defendant-Appellant-Appellee] Kok-gu Baebbba (Attorney Jeong Byung-hee et al., Counsel for defendant-appellant-appellant-appellee)

1. The term “the term “the term” means “the term used in relation to the term used in the term used in the term used in the term used in the term of “the term”

Jeonju District Court Order 2013Ma148 dated July 25, 2013

1. The decision of the first instance shall be revoked;

2. On December 3, 2012, with respect to the case of the auction of the vessel (No. 12656) in the Jeonju District Court’s Gunsan Branch, the said court revoked the decision to commence auction on December 3, 2012, and the respondent’s voluntary auction application is dismissed.

1. Basic facts

According to the records of this case, the following facts are recognized.

A. The vessels listed in the separate sheet (hereinafter “instant vessels”) are owned by the Sea Clas 9 IMBH & Co., Ltd. (hereinafter “Sea Clas 9 GMH& KG”) that are German corporations, and are manufactured by vessels, etc. in Germany.

B. On August 11, 201, the applicant, as a German legal entity operating banking business, lent USD 17,000 to Czelex on a loan of USD 17,000, and on the 12th of the same month, the applicant established a first priority mortgage of USD 28,275,00 with respect to the instant vessel on the 10th of the same month and completed the registration of establishment in the German vessel registry.

C. Meanwhile, on July 16, 2007, the transfer owner of the instant vessel entered into a bareboat charter (Barebaat LLC; hereinafter referred to as “Chon”) with the Defendant on the instant vessel, on November 4, 2010, after purchasing the instant vessel from Nagoya on November 4, 2010 and obtaining on July 16, 2007 the status of the bareboat charter (Barebaat LLC; hereinafter referred to as “C”) with the Defendant on the instant vessel, and with the Defendant’s consent on July 16, 2007, acquired the instant vessel on July 16, 2007, with the Defendant’s consent on July 16, 2007.

D. On April 15, 2008, the respondent entered into a ship management agreement between the lease located in the ship management business, which is a lessee who is engaged in the ship management business. On August 2, 2012, the respondent supplied the ship 981 tons of fuel oil for the ship of this case in accordance with the above oil supply contract on August 9, 2012, which led to the supply price of the ship of this case to supply 1,000 tons of fuel oil for the ship of this case with LTD (Word LTD, hereinafter referred to as “monthly”). On August 2, 2012, the respondent supplied the ship of this case to 981 tons of fuel oil for the ship of this case in accordance with the above oil supply contract, and the supply price of the ship of this case to 605 U.S. dollars at the time of the supply price of fuel oil of this case to 6035 U.S. dollars (hereinafter referred to as “the above oil price of this case”).

E. On November 27, 2012, Furice transferred the instant oil payment claim to the respondent, and notified the respondent of the said transfer to call. On November 29, 2012, the respondent paid the transfer price under the said transfer contract to Furice.

F. The respondent did not pay the instant oil price, and on December 3, 2012, the respondent filed an application for auction of the instant vessel with the Jeonju District Court 2012 Doz. 12656, with respect to the instant vessel with the claim for the instant oil price claim on December 3, 2012, and the said court rendered a decision to commence auction on the same day.

G. On March 21, 2013, the applicant filed an objection against the ruling to commence auction on March 21, 2013 with the Jeonju District Court Branch 2013Ma148, but the said court dismissed the applicant’s objection on July 25, 201.

2. Summary of grounds for appeal;

The law of the country of registry, which is the law of the country of registry, to determine whether to recognize maritime lien in this case, is not the Marshall Islands, but the German law, the country of registry, which is the country of registry, is not the country of registry, and the maritime lien is not recognized in relation to the claim for oil payment in accordance with German law.

Even if the Marshall Islands Act constitutes the governing law of this case, the respondent is in the position of a ship manager who entered into a ship management contract with the charterer and granted the general authority for the operation of the ship from the owner of the vessel. According to the Marshall Islands Act, the respondent in such position is not entitled to maritime lien.

3. Determination

Article 60 Subparag. 1 and 2 of the Private International Act provides that “The priority of the ownership and mortgage of a ship, maritime lien and other real rights on a ship, and the security rights on a ship shall be governed by the law of the country of registry,” and provides that the law of the country of registry shall be the standard for determining the governing law in the legal issues concerning the priority of real rights and security rights on a ship. Here, the law of the country of registry refers to the law of the country to which the ship belongs, that is, the law of the country to which the ship belongs, is the nationality. In general, the law of the country of registry refers to the law of the country to

On the other hand, bareboat is a kind of vessel lease in which the vessel owner only borrows the hull for the vessel users, and a charterer who is a lessee through bareboat acquires the obligatory right to possess and use the vessel during the charter period. As such, in cases where a vessel registered in a particular country is temporarily chartered to another country, bareboat registration is required to be made by bareboat in order to acquire the right to fly and operate the flag of that other country.

If the above vessel is chartered from the vessel owner to the charterer and operates the vessel while flying the flag of the bareboat registry office, the question is whether the vessel becomes the vessel's registry office in question, unlike general cases in relation to the interpretation of the law of the State of registry under Article 60 of the Private International Law.

In light of the legal relationship formed by a vessel owner and a charterer through a bareboat charter, the registration of bareboat is a system with the purpose of flying the flag of a registry of bareboat for a certain period of time by flying the flag of a registry of bareboat that is not a registry of ownership, and establishing the exclusive jurisdiction and supervisory rights of the registry of bareboat for a certain period of time, and enjoying the benefit therefrom. As such, the fact that a vessel registered in a specific country is registered as a bareboat charter to another country and operates the flag of that country alone does not affect the real right of the vessel’s ownership. However, it is reasonable to view that the maritime lien is a legal security right that takes priority over other creditors with regard to a vessel’s navigation. Thus, it is reasonable to view that the establishment and priority of maritime lien is not affected by the fact that the vessel was registered as a bareboat charter in other countries than a registry of ownership in light of the stability of the legal relationship of bareboat. Therefore, it is reasonable to deem that the registration of ownership of a vessel is still a registry of a new State.

In addition, examining the structure of Article 60 of the Act on Private International Law, the following matters concerning maritime lien shall be governed by the law of the country of registry, and in particular, subparagraph 1, "ownership, mortgage, maritime lien, and other real rights to the ship", and subparagraph 2, "the priority order of the security rights to the ship." Thus, it is reasonable to understand the meaning of the law of the country of registry as a whole in a uniform sense rather than understanding differently according to the contents of each subparagraph. Therefore, in cases where a bareboat charter registration has been completed separately from the registration of ownership, it is inconsistent with the literal interpretation of the provisions of Article 60 of the Act on Private International Law regarding maritime lien, in which the meaning of the law of the country of registry is different from other security rights or other rights.

In light of the above legal principles, the law of the country of registry, which is the applicable law to determine whether the instant oil payment claim is recognized as a maritime lien, is a German law. However, Article 754 of the German Commercial Code, where maritime lien is acknowledged, claims relating to the wages of the captain and other crew members of the instant vessel, ② public charges, vessel taxes, entry taxes and pilotage charges granted to the vessel, ③ loss of human life, physical injury and damage to property directly caused by the operation of the vessel, ③ exclusion from the application regarding the loss of or damage to property under a contract, ④ additional expenses including residual or residual value, ④ claims for a ship’s contributions or freight charges, ⑤ claims for a social insurance agency, such as unemployment insurance for the instant vessel, etc., and there are no special claims for maritime lien concerning the instant goods, such as the instant claim for maritime lien.

4. Conclusion

Therefore, the appeal of this case is reasonable, and the decision of the court of first instance is revoked, and the respondent's application for commencement of voluntary auction of this case is dismissed, and it is so decided as per Disposition.

Judges Jeong Jae-sung (Presiding Judge)