(영문) 대전고등법원 2018.5.31.선고 2017누12887 판결

On July 19, 2017, the Korean Maritime Safety Tribunal revoked the part of the corrective order against the plaintiff in the adjudication on the sinking of fishing vessels No. 2017-014 against the plaintiff.

Reasons

1. Occurrence of the marine accident of this case and the progress of adjudication;

A. On December 1, 2014, the vessel A owned by the Plaintiff (hereinafter referred to as “the instant vessel”) was rescued by 60 seafarers, including the captain B (one person, 35 persons in Indonesia, 13 persons in Russia, 13 persons in Russia) from among the seven seafarers (one person, 13 persons in Russia, and 1 person in Russia) on board the instant vessel due to the Plaintiff’s failure to take corrective measures against the instant vessel’s death or missing (hereinafter referred to as “the instant marine accident”). On July 19, 2017, the Central Maritime Safety Tribunal (hereinafter referred to as the “Board”) failed to take corrective measures against the instant vessel’s death or missing. The vessel’s failure to take corrective measures against the instant vessel’s death or missing, including the instant vessel’s non-explication of weather pressure. The vessel’s failure to take corrective measures against the instant vessel’s sea accident, including the instant vessel’s sea accident.

[Ground of recognition] A without dispute, entry of evidence No. 1, purport of the whole pleadings

2. Whether the instant corrective order was lawful

A. Determination as to the Plaintiff’s assertion that there was no cause attributable to the Plaintiff regarding the instant marine accident

1) The plaintiff's assertion

A) In order for the Tribunal to give a recommendation or corrective order to a person involved in a marine accident pursuant to the Act on the Investigation and Inquiry of Marine Accidents (hereinafter referred to as the “Maritime Accident Inquiry Act”), it shall be recognized as intention or negligence with respect to the marine accident by the person involved in the marine accident. The act resulting from intention or negligence by the person involved in the marine accident shall be the main cause of

B) The Tribunal determined that the Plaintiff’s failure or passive response to the safety management of crew members of the instant vessel was the cause of the instant marine accident and decided on the instant corrective order. However, the instant marine accident is an inevitable accident due to a natural disaster, which occurred due to the combination of the primary cause and the second cause of the instant vessel, which caused the instant vessel to lose her ability to maneuver due to the catch and the instant vessel’s loss of her ability to maneuver.

C) Therefore, even if the Plaintiff is not recognized as intention or negligence with respect to the instant marine accident, and the intention or negligence of the interpreter is recognized, the instant corrective order ruling is unlawful, since the act is not the main cause of the instant marine accident.

(ii) the facts of recognition

A) Around 14:00 on July 14, 2014, 57 seafarers, including captain B (in 11, 13, 13, 33, 33 indonesia), entered the port of Busan Sea with an average number of 6.39 meters, and toward the North Pacific Sea fishing ground, the instant vessel, the gross tonnage of 1,753t, engine output of 3,238W, 76m in length, 13m in width, and 8.4m in depth, was on board the instant vessel, which is an deep-sea fishing vessel of 36 years in length, was on board the instant vessel. Since then two Indonesian crew members and one Russian supervisor were on board the instant vessel.

B) On July 22, 2014, around 01:00, the instant vessel arrived at a fishing ground for the North Pacific Sea (N 61°10°00 N, 179°24°00 N). The instant vessel, at the north Pacific Sea, was loaded at a fishing hold twice a day in a fishing hold with a name of fishing net-equi net-net, and continued to operate the instant vessel by transferring the catch to the transporting vessel and receiving fuel oil, etc.

C) There is a garbage discharge tool on the upper part of 70 cm from the left part of the instant vessel, and an outboard valve (a size: 10m, street 53cm, 70cm in length) is installed in the garbage discharge outlet. The outboard valve of the garbage discharge outlet is ordinarily closed at ordinary times. When the instant vessel discharges garbage on the instant vessel, the outboard valve was automatically opened by the weight of garbage. However, when the instant vessel was moved to the North Pacific Sea, the outboard valve was installed. However, the instant vessel was operated in the North Pacific Sea, and the crew of the instant vessel continued operation without repair of the outboard valve. Since then, the instant vessel continued operation without repair.

D) On December 1, 2014, at around 05:00 on December 1, 201, captain B was predicted that weather will deteriorate, but at the time, the captain determined that the sea condition of the sea at the time was 10 meters high, so that he could operate as much as 2 meters high, and that he began to start a towing network after making a project.

E) From around 10:30 on December 1, 2014, the maritime situation began to worsen to 18 meters above the beginning, and 4 meters above the speed. A captain instructed a two-way net around 11:00 on the same day despite the aggravation of the sea condition, and the end of the water was on the deck at around 12:00. At the time, the captain recommended the captain to open the deck at the end of the instant vessel, because the sea water can be at the time open to B a locker cover in the situation where the sea water was above the upper deck. However, the captain determined that the captain would be able to cope with the collision if a navigation by making the speed coming to the upper deck, and that the captain ordered the captain to open the deck with the top part of the instant vessel covering the catch in order to put the catch back to the upper deck.

F) At around 12:10 on the same day, the instant vessel opened a cover of the brush miter, and kept a catch into the brush miter. During its work, a large amount of waves was released from 2:3 times decks and large quantities of sea water, along with the catch. The captain of the instant vessel ordered to immediately close the brush miter. However, even though the captain ordered to immediately close the brush miter, the water was not completely closed due to a difference in about 10 cm between the brush miter and the upper deck, and a large quantity of sea water that flowed through the brush and the catch from the brush 12:25 on the same day, which was installed in the wall between the brush miter and the fish treatment room, the vessel was placed in the shape of the brush 2000 meters of sea water, and the vessel was placed in the shape of the brush 30 meters of sea water.

G) The captain, as soon as possible, was on the port side to control the port slope of the instant vessel. As a result, at around 12:30 on the same day, the instant vessel was placed on the side of the port side, and the vessel was down to approximately 30 on the starboard side. The instant vessel was down to approximately 30 degrees from the port side, resulting in the flow of sea water to the port side of the other engine, which was opened on the top of the port side, and the electric pumps for the string of the other engine installed on the floor of the steering room was suspended to the string line. Accordingly, the other vessel at the port side was unable to operate in the steering boat.

* The flood route of the instant vessel

A person shall be appointed.

H) Although the captain B had to discharge sea water flowing into the catch treatment room, the captain requested C and D to provide mobile diving pumps support, which is a vessel nearby the ocean water discharge, which is not smooth. At around 13:00 on the same day, B received wind wave from the port side of the port side and ordered B to prevent the flow of sea water into the ship of this case by using a waterproof sheet, etc. At the same time, B did not have the effect of moving fuel oil from the port side to the port side of the ship of this case. Upon continuous discharge of sea water from the fish hold to the right side of the ship of this case, B had the flow of sea water from the port side to the port side of the ship of this case. At around 14:00 on the same day, B had the flow of sea water into the catch treatment room decreased to half of the sea water flowing into the catch treatment room, and the hull slope improved to the port side of the ship of this case by 100 on the same day, the discharge of sea water to the port side of the ship of this case.

(j) The captain B attempted to use the vessel to get out of the port side of the instant vessel once again. However, at least 45 degrees of the hulls of the instant vessel had been sloped from the port side, and it was also impossible to move the catch from the port side to the port side. At around 15:30 on the same day, the ship’s engine was able to be out of the port side due to the increase in the amount of sea water inflows of the instant vessel. At around 16:00 on the same day, at least 3 seafarers of the instant vessel were to have been out of the port side by using the vessel’s main engine to get out of the port side again. However, at least 16:0, the captain, as well as the captain of the instant vessel were to have been out of the port side, to have been out of the port side of the instant vessel and to have been out of the port side by taking out the vessel’s emergency safety control measures, including the vessel’s 3rd vessel’s life raft and the captain of the instant vessel was out of the vessel.

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1 through 4, Eul evidence No. 1 (including branch numbers; hereinafter the same shall apply), the purport of whole pleadings

(iii) the board;

A) According to Articles 5(3) and 2(3) of the Marine Accident Inquiry Act, the Tribunal may, if necessary, make a ruling to recommend or order correction or improvement to a person involved in the cause of a marine accident, other than a marine engineer or pilot. However, matters to be corrected or improved must be related to the cause of a marine accident. However, the Marine Accident Inquiry Act adopts the principle of free evaluation of evidence and selects the psychological structure similar to criminal proceedings, but does not have any provision on admissibility of evidence. The relationship between the cause of a marine accident is an indefinite concept, which is an administrative agency, and there is no choice but to be recognized by the Tribunal as an administrative agency. Ultimately, the relationship between the matter to be corrected or improved and the matter to be ordered by the Tribunal is not necessarily bound by the strict framework of causation, but should be understood as a normative and legal issue as to whether the corrective improvement order can be objectively attributed to the person involved in a marine accident from the perspective of ensuring the prevention and safety of a similar marine accident in the future (see, e.g., Supreme Court Decision 2012Do244, Dec.

B) In full view of the facts and evidence as seen earlier as to the cause of the instant marine accident, it is reasonable to deem that the instant marine accident was caused by combination of human causes, such as physical causes for which the capacity to prepare for the instant vessel was not secured, the captain’s continuous errors, and the failure of the crew to cope with the flood crisis situation.

(1) The vessel of this case was operated under the situation where the outer valve of the garbage discharge outlet gets out and the load loadline was not secured, and the weather of the bend sea gets worse in the situation where it was not secured. (a) The vessel’s loadline is the line showing the maximum limit on boarding, loading, and safe navigation of passengers or cargo due to the repair of the load tank capable of safe navigation of the vessel. The vessel of this case shall not operate beyond the loadline when the loadline is indicated. The light weight of the vessel of this case is 2,487.24t, and the load load capacity of the vessel of this case is 3,398.49m from the 6.35m of the load draft to the 3,398.49m from the next 6.35m of the navigation and operation, and it does not exceed the full loadline and the load capacity during navigation and operation.

However, on July 10, 2014, the instant vessel loaded fuel oil 670.8t, lubric oil 14.7t, and lub water, and other 259.2t at the time of departure from the port of Busan (Pacific fishing) for fishing in the North Pacific fishing ground, and departed from the port under the influence of 6.39m inasmuch as the estimated discharge quantity corresponding thereto exceeds 3,431.84t, and the estimated discharge quantity exceeds 6.39m. In addition, the instant vessel, as the catch loaded in the fish hold on December 1, 2014 when the instant marine accident occurred, was 3,529t in a state where the discharge volume exceeds 3,529t, and the amount equivalent thereto exceeds 6.51m.

(B) The garbage discharge outlet of the instant vessel would lose preliminary power as it could flow into the instant vessel under the same circumstances as the size of the garbage discharge outlet would have occurred, in a case where the outboard valve falls below approximately two meters from the upper deck. The outboard valve of the garbage discharge outlet installed on the instant vessel was left away from the outboard valve by a patrolman’s permission on September 2014, but the crew of the instant vessel continued to operate the instant vessel without repairing the outboard valve until the instant marine accident occurred.

(2) The improper determination as follows by the captain B seems to have caused the instant marine accident.

(A) The weather of the Buling Sea shall be avoided at all times prior to the change of weather conditions and the deterioration of weather conditions due to low voltages frequently occur, and the fishing vessel operating at sea with the temperature of sea water coming under the zero. Since the vessel exceeding the load load line is likely to be sunken in the event of the deterioration of weather due to the lack of spare force, it shall prepare measures in advance. Furthermore, the vessel’s fish disposal room and the port of the instant vessel may have a pressure control room and a smoke, and if the weather is likely to flow out due to the aggravation of weather, it shall not operate the apparatus operated with a hydrotension, and if the weather is likely to flow out due to the aggravation of weather, the entrance should be closed in order to prevent the flooding of the pressure control room and the smoke room.

On December 1, 2014, at around 05:00 on December 1, 2014, captain B did not take measures such as cutting off the outer valves or closing the door of the pressure control room and the air-conditioning room in the garbage discharge outlet, and continued operation without any particular measures even after the aggravation of weather conditions.

(B) Upon receipt of a prediction that weather will deteriorate from P.M., the captain, from around 10:30 on December 1, 2014, the captain was compelled to conduct operations, and thereafter, from around 10:30 on December 1, 2014, the captain continued to continue operations in an unreasonable manner despite the actual aggravation of weather by 18m high speed, wave, and approximately 4.0m. On the date of the accident. After the accident, it is very dangerous that the deck covers down the fast mit, but the captain instructed B, without disregarding the proposal, to put the catch into the fast mit, by opening the fast miter cover and put the catch into the fast mit, and the crew conducted the operation for about 30 minutes at around 30 minutes during which the vessel can complete the above operation. A large quantity of sea water was brought into the fast mit, and the marine accident at this time became the main cause of the instant sea accident.

(C) At around 16:00, the instant vessel was in a situation immediately before the sinking of the life raft installed on the port side, such as automatically leaving the water surface, but the captain did not order the crew to abandon the ship. However, at the time of the captain B, the captain did not order the crew to abandon the ship. However, at the latest, the captain’s order was the cause of large damage to the lives.

(3) Although the crew did not take appropriate action to get off the ship in the critical situation where the ship of this case was sunken, it appears that there was a large number of casualties. In order for the crew to properly respond to the emergency situation, emergency training should be conducted periodically and repeatedly. The ship safety management manual prepared by the Plaintiff provided that “the emergency training on the ship shall be conducted every 10 days of each month during navigation, and the training report shall be submitted to the company once a month.” However, on July 10, 2014, the ship of this case started with the Busan Maman Port and did not conduct other emergency training only once until the marine accident of this case occurred. As such, the crew did not perform their duties under the emergency assignment chart, and did not take appropriate measures to get off the ship.

C) Next, as seen below, examining the legality of the instant corrective order, the Plaintiff’s operation of a ship’s personnel without boarding the instant ship cannot be deemed irrelevant to the fault of the captain B and seafarers. The Plaintiff’s establishment and implementation of systematic measures for safety management of deep-sea fishing vessels, including crew and safety management, by properly managing and supervising the Plaintiff’s safety education and emergency training of seafarers. If the captain provides more concrete and effective technical support in emergency situations, it would be possible to prevent accidents that may cause large human lives in the future. Thus, it cannot be deemed that there was any error in the instant corrective order from the perspective of seeking the prevention of similar marine accidents and securing safety.

(1) According to Article 11 of the Ship Personnel Act, Article 22(1), (2), (7), and attached Table 3 of the Enforcement Decree of the Ship Personnel Act, and Article 22(7) [Attachment Table 4] and attached Table 4 of the Enforcement Decree of the Ship Personnel Act, the vessel of this case shall have nine qualified persons on board the vessel of this case as listed below. However, on July 10, 2014, the Plaintiff had six thousand persons on board the vessel of this case, as listed below, at the time when the vessel of this case starts from the port of Busan, the port of Busan, and had six persons on board the vessel of this case meet the qualification requirements among the six persons on board the vessel’s six persons. In particular, as the captain of the instant vessel fails to meet the qualification requirements required by relevant Acts and subordinate statutes, the Plaintiff entered the vessel as the first mate, and entered another person who did not board the instant vessel as the captain, and obtained approval for boarding the vessel upon request from the Busan Regional Maritime Affairs and Fisheries

As seen earlier, it is difficult to view that the Plaintiff’s having crew members, including the captain of the instant vessel, operate the instant vessel, as irrelevant to the fault of the captain B or crew members of the instant vessel (see Supreme Court Decision 2003Do20, Apr. 16, 2004).

A person shall be appointed.

(2) As seen earlier, the periodic safety training on the instant vessel is one of the causes of large-scale casualties. Although the captain B did not implement the actual safety training, the captain submitted a training report to the Plaintiff that conducted the safety training once a month. In addition to the instant vessel, the safety training appears to have been conducted formally in the deep-sea fishing vessel, and the Plaintiff also knew or could have known that the safety training was conducted formally in the deep-sea fishing vessel.

(3) Although the captain B was at the risk of the sinking of the instant vessel, the captain did not immediately issue an order to abandon the vessel in a timely manner, and the Plaintiff did not take any measures to assist the captain in making a correct judgment. The Plaintiff appears to provide technical support to the captain in an emergency to prevent the occurrence of large-scale human life accidents, etc. that may occur in the future.

D) Ultimately, this part of the Plaintiff’s assertion is without merit.

B. The determination on the allegation that the instant corrective order was unlawful, since all of the corrective measures related to the instant marine accident were completed.

1) The plaintiff's assertion

A) After the marine accident of this case, the Plaintiff prepared manuals for the safety rules of the fishing vessel, and made it available for seafarers to keep them in the ship or carry them, strengthened the safety inspection and reporting system, and completed all measures such as ensuring that the Plaintiff has to leave the ship in compliance with the qualifications-related laws and regulations, and completed all improvement measures related to the cause of the marine accident of this case.

B) Although the Plaintiff sufficiently improved the problematic part regarding the instant marine accident, it is unlawful for the Tribunal to issue the instant corrective order to the Plaintiff.

(ii) the board;

A) In order for the instant corrective order to be unlawful, the measures asserted by the Plaintiff were already taken at the time of the instant corrective order, and such measures were sufficient to be deemed as the establishment and implementation of the safety control system (see Supreme Court Decision 2009Da15, Feb. 24, 201).

(1) Comprehensively taking account of the purport of each of the statements in Gap evidence Nos. 6 through 9, the plaintiff was placed on the ship in the English, Philippines, Indonesia, Chinese language, Vietnam, etc. (Evidence No. 6) after the marine accident in the instant case, and the fact that the plaintiff's vessel was prepared a safety management inspection report on the ship owned by the plaintiff and conducted inspection and training at the captain's supervision, and reported it to the head office.

(2) However, there is no evidence to acknowledge that the Plaintiff, at the time of the instant corrective order, is conducting systematic management of seafarers so that the deep-sea fishing vessel owned by the Plaintiff satisfies the complement, etc. under the relevant laws and regulations, and there is no evidence to prove that the Plaintiff merely ordered the captain, etc. to prepare a safety control check check, and furthermore, was taking measures to ensure safety education or emergency training in deep-sea fishing vessels. Moreover, there is no evidence to prove that the Plaintiff only prepared and distributed a vessel safety control manual with the captain’s responsibility to the effect that the captain would not conduct unreasonable operation in the sea level caused by yellowcheoncheon, and that the Plaintiff prepared and prepared safety control measures to provide specific and effective technical support when the risk situation of deep-sea fishing vessels occurred.

B) Ultimately, the Plaintiff’s assertion on this part is without merit.

3. Conclusion

Therefore, the plaintiff's claim is dismissed as it is without merit. It is so decided as per Disposition.