[1] The legal nature of the time charter and the case where the time charterer is liable for civil and criminal liability when the captain of the time charter vessel causes a collision by negligence in the course of navigation, resulting in damage to a third party

[2] The case holding that Gap and Eul are punished as co-principals of obstruction of general traffic by occupational negligence in case where Gap and Eul are involved in navigation of the tugboat at the high time of the danger of an accident, and Eul, the tugboat's captain Eul, under Gap's instruction, instructed Gap to sail on the port at the high time of the danger of the accident, operated the tugboat in an unreasonable manner, such as departure from the port at the high time of the danger of the accident, and they obstructed the vessel traffic

[1] A time charter is a contract under which a shipowner or a bareboat charterer (hereinafter “owner”) agrees to allow a charterer to use a ship serviced by crew on board and equipped with navigation facilities for a given period for navigation, and the charterer agrees to pay the charterer the hire calculated by the period to that effect. This is essentially different from a bareboat charter under which a charterer receives services provided by the shipowner through the actions of a shipmaster and crew appointed by the shipowner. This is, in essence, from the vessel itself as the purpose of a contract, the use of the ship itself is a captain and crew on board the ship delivered by the shipowner, and has the control and management right to use the ship as well as his/her own ship. Meanwhile, if the captain of a time charter causes a collision with a navigational negligence and causes damage to a third party, the shipowner is not a charterer but a charterer, who is an employer of the captain, under Article 845 or 846 of the former Commercial Act (amended by Act No. 8581, Aug. 3, 2007).

[2] The case holding that Gap and Eul are punished as co-principals of obstruction of general traffic by occupational negligence in case where Gap and Eul are punished as co-principals of obstruction of navigation in case where the steel structure loaded on a non-powered barge was obstructed by navigation of the tugboat at a large time due to the high risk of an accident, although Gap had delayed loading of the steel structure and the marine tugboat transport work at the sea, and it was impossible to depart from the port due to delay of loading at the fixed point of time, and Gap did not take measures to delay departure or make recommendations to extend departure from the tugboat's captain Eul, and Eul got off the tugboat at a large time due to Gap's instruction, and the tugboat's captain Eul got out at the sea, and it was unreasonable to emphasize the sea and interfered with marine traffic by operating the tugboat.

[1] Articles 812-2 (see current Article 842), 812-3 (see current Article 843), 845 (see current Article 878), and 846 (see current Article 879) of the former Commercial Act (Amended by Act No. 8581, Aug. 3, 2007) / [2] Articles 185, 189 (2), and 30 of the Criminal Act

[1] Supreme Court Decision 2001Da65977 decided Aug. 22, 2003 (Gong2003Ha, 1912)

Defendant 1 and one other

Defendants

Attorney Choi Dong-young

Gwangju District Court Decision 2008No1390 Decided December 10, 2008

All appeals are dismissed.

The grounds of appeal are examined.

1. As to the legal nature of the charter party

A bareboat charter is basically a bareboat, time charter and voyage charter, and among which a shipowner or a bareboat charterer (hereinafter collectively referred to as “owner”) agrees to allow a charterer to use a ship serviced by crew on board and equipped with navigation equipment for a given period, and a charterer agrees to pay a charterer the hire determined by the period to the charterer. It is a factor that a charterer receives a service provided by a shipowner through the actions of a shipmaster and crew appointed by the shipowner. The use of a ship itself is essentially different from a bareboat charter, which is essentially different from that of a bareboat charter, where a shipowner or a charterer agrees to allow a charterer to use a ship equipped with navigation equipment for a given period, and the charterer provides a charterer with a service provided by a shipowner through the actions of a shipmaster and crew appointed by the shipowner.

Meanwhile, in cases where the captain of a vessel charteredd causes a collision due to navigational negligence and causes damage to a third party, the shipowner is not a charterer but a charterer is liable pursuant to Article 845 or 846 of the former Commercial Act (amended by Act No. 8581 of Aug. 3, 2007; hereinafter the same shall apply) as the user of the master. However, if the time charterer is found to be liable for the general tort liability or employer liability under the Civil Act, the time charterer may be separately liable (see Supreme Court Decision 2001Da65977 of Aug. 22, 2003). In addition, if the charterer is found to be negligent in the course of business in relation to navigation of a vessel chartered, the time charterer shall be separately liable for such liability (see Supreme Court Decision 2001Da65977 of Aug.

The court below determined that the charter party of this case cannot be deemed as a scheduled charter party or a navigation charter party, and that it is reasonable to view the charter party of this case as a special contractual relationship accompanied by the elements of the labor supply contract which the charterer has the right to direct and supervise the master and the crew in addition to the right to use the ship in comparison with the right to use the ship under the Commercial Act amended by Act No. 8581 of August 3, 207).

According to the facts duly established by the court below, it is reasonable to view that the non-indicted 1 corporation borrowed international 1 and 5 of the tugboat international 1 and international 5 of the fleet crew on board from the non-indicted 2 corporation for the necessary time for international 1, and agreed to pay the international 5 million won for the international 8 million won per day from April 2007 to April 27, 2007. At the time of the towing work in this case, the international 5 of the case was on board the ship including the defendant 2, the four crew members including the defendant 2, the captain, and three crew members including the non-indicted 3, the non-indicted 1, the captain, respectively. When considering the above facts in light of the legal principles as seen earlier, it is reasonable to view that the charter contract in this case satisfies all the basic requirements of the time charter that is distinct from the bareboat charter contract. However, the court below rejected all of the grounds of appeal by the non-indicted 1, since the charter contract in this case did not affect the conclusion of the judgment.

2. As to the act forced

The act of coercion referred to in Article 12 of the Criminal Act refers to an act committed by force of another person, such as intimidation, etc. that may not be resistanceable violence, life, or body, which means an act committed by force of another person. In this context, unforeseen violence means a case where a physical act cannot be absolutely performed in a psychological meaning or where it is forcibly pressure in ethical sense. Intimidation means a intimidation that does not have any other method to prevent harm to the life and body of himself/herself or his/her relatives, and coercion means to force a specific act by preventing a forced person from making a decision on free will (see Supreme Court Decision 2007Do306, Jun. 29, 2007, etc.).

In light of the above legal principles and the records, it is proper that the court below rejected Defendant 2's assertion that he could not obey Defendant 1's order due to the strict relationship of command and uniforms due to the characteristics of the field at the time, and there is no violation of the rules of evidence or misapprehension of the legal principles as to acts forced by the rules of evidence.

3. As to occupational negligence

The court below affirmed the judgment of the first instance court that found Defendant 1 guilty on the ground that Defendant 1 was negligent in the business of operating the towing boat, even though Defendant 2 was recommended to postpone departure from the port, it did not accept it and ordered Defendant 2 to continue departure from the port at the time of the accident risk. In particular, Defendant 2 left the port at the high time of the accident risk, and it was emphasized in the direction of the Jindo bridge in front of the water tank, and it was found that Defendant 1 was negligent in operating the towing boat, even though he was aware of the seriousness of the situation and had a prudent approach to the water tank.

In light of the records, the judgment of the court below is just and acceptable, and there is no error in the misapprehension of legal principles as to occupational negligence and accomplice relation or in violation of the rules of evidence as otherwise alleged in the ground of appeal. Therefore, this part of the defendants' ground

4. Conclusion

Therefore, all appeals are dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Shin Young-chul (Presiding Justice)