2006 Gohap 19835 Compensation, etc.

206 Doz. 19842 (Joint), damages, etc.

2006Gahap19859 (Lawsuits by Independent Party) Damage

207 Gohap 17515 (Merger) Objections

P (44years, South)

Ps (48 years old, South)

1. D1 (Resus 59 Years, South Korea)

2. D2 (P 36 Years, Residuals);

Attorney Seo-sung et al., Counsel for the plaintiff

Oil Pollution Damage Compensation Fund, 1992 (International Plives)

Faunder 192)

United Kingdom Brart Centre or Royleland Hashes

Law Firm Sejong-Gyeong, Counsel for the defendant-appellant

Attorney Yoon Nam-ho, Counsel for the plaintiff-appellant

July 10, 2008

August 21, 2008

1. Defendant D1 pays to Plaintiff P 5,305,481 won, 4,91,959 won, and 20% interest per annum from November 25, 2005 to August 21, 2008, and from the next day to the date of full payment.

2. Defendant D2 pays to the Plaintiff P 3,448,562 won, 2,984,773 won, and 5% interest per annum from November 25, 2005 to the date of full payment for each of the amounts set forth in paragraph 1, under the condition of suspending the abolition of the shipowner’s limitation of liability procedures or the revocation of the decision to commence the limitation of liability procedures. Defendant D2 pays to the Plaintiff P 3,48,562 won, and the amount set forth in paragraph 1, jointly with Defendant D1.

3. On November 24, 2005, the defendant and the independent party intervenor's obligation based on an accident involving oil leakage in XX due to the collision between oil tanker XX (former: No. 75) and vessel No. 1Y (former: No. 75) and vessel No. 1Y does not exist with respect to the plaintiff (appointed party) Ps, and the plaintiff Pv does not exceed the amount of paragraph 1.

4. This Court approves all part of the judgment on August 28, 2007 regarding the limitation of liability of shipowners No. 2007 Book 1 for Plaintiff P and Plaintiff (Appointed Party) Ps.

5. Each claim against the Defendants by the Plaintiff (Appointeds) and the remainder of the claim against the Defendants by the Plaintiff P and the Selections PV, and the remainder of the claim against the Plaintiff P and the Selections P and the independent party intervenor are dismissed, respectively.

6. The costs of lawsuit shall be borne by each person;

7. Paragraph 1 can be provisionally executed.

The principal lawsuit: The Defendants jointly and severally pay to Plaintiff P 69,177,325 won, and 2,000 won to Plaintiff P 2,000 won, 62,772,000 won to SelectionV, and 5% per annum from 205.11.25 to 20% per annum from the date of this decision, and 20% per annum from the next day to the date of full payment.

An independent party participation: On November 24, 2005, it is confirmed that the obligations of the defendant and the independent party intervenor do not exist against the plaintiffs due to the collision between the oil tanker XX (former: No. 75) and the 1Y of fishing vessels 19Y.

An objection against a judgment on assessment: A court's decision on August 28, 2007 on the shipowner's liability limitation case No. 2007 Book 1 revoked the assessment of the Plaintiff (Appointed Party)'s limited claim amounting to KRW 4,591,959, and the limited claim amount of Plaintiff P as KRW 5,305,481, and dismissed Defendant D2's application for the commencement of limitation on liability limitation procedure.

1. Facts of recognition;

The following facts may be acknowledged if there is no dispute between the parties, or if the purport of the whole pleadings is added to each testimony of Gap 1 through 3 (including a serial number; hereinafter the same shall apply), Gap 15, Eul 1, Byung 1 through 5, the witness Kim Sung-chul, and Kang Jong-gun.

A. The plaintiffs entered into a contract with the Busan City/Do Fisheries Cooperatives to exercise the right to fish farming on the surface of the water surface part 40,000 (hereinafter referred to as "the water surface of this case") connected with each of the items in the attached drawings (A), (b), (c), and (d) of the Do-dong-dong-dong-dong-dong-dong-dong-dong-dong-si, Busan, with the Busan City Fisheries Cooperatives, and were engaged in the ocean farming business on the water surface of this case. Defendant D1 is the owner of the oil tanker No. 75-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-si, and Defendant D2 is the owner of the vessel No. 1Y of the oil tanker No. 75-dong-dong-dong-dong-dong-dong-dong-si, and was the international organization established to compensate for damage caused by oil leakage from the ship for oil transport in accordance with the International Convention on the Establishment of the

B. Nos. 75, a ship for oil transport, loaded a light oil of 28 tons, MDO 30 tons, 119 tons of mith oil, and was entering the port of Busan into the port of North Korea pursuant to Paragraph 2 of Busan. On November 24, 2005, around 17:50, the accident occurred from the 153 degrees from the 153 degrees from the mix of Busan Port No. 2, No. 155, and around 158 meters from the mix No. 155 (N 35.04 degrees 04 degrees 41 degrees in north latitude and 129. 01 minutes 57 seconds in east) of the port of Busan. Accordingly, the accident occurred due to the damage to the mark's central external board of the 75 mark of the mark. (hereinafter referred to as "accident").

C. At the time of the instant accident, the captain of No. 1Y, as set forth in No. 19, discovered that the following passenger ships were sailing along the port side of No. 1Y with a view to facilitating the overtaking to the port side of No. 1Y, and that the passenger ships were approaching the port side of No. 1Y. 75 to the port side of the instant accident. At the time of the instant accident, the captain of No. 75 came to conflict with No. 75. The captain D1 also discovered that the captain of No. 1Y as set forth in No. 75 was sailing from the center side of the sea route to the port side of the port side, but it did not take measures to avoid collision with No. 1YY, deeming that No. 1YY will take out the sea route and did not take measures to avoid collision. 1YY.

D. On November 13, 2006, the Korean Maritime Safety Tribunal rendered a ruling on the reprimand against B, who was the captain of No. 1Y, one month of business suspension, and D1, who was the captain of No. 75, respectively, on November 13, 2006, and determined that the 1YY side No. 65% and 75% on the degree of provision of the cause of the instant accident, was 35%.

E. When oil leaked due to the accident of this case is contaminated with the surrounding sea area of the accident, it was done to prevent the spread of oil leaked by using the oil pent, etc. However, part of the oil leaked was moved to the south-east direction in accordance with wind and tidal currents, and arrived at the fluor of the water surface of this case through the basin farming ground in Busan Young-gu, Busan (hereinafter referred to as the "eropior farming ground of this case"), and the result of the investigation into the basin farming ground of this case by the Korea Maritime Appraisal Co., Ltd., on December 1, 2005, it was found that oil pollution is influor, etc., which is the facilities of the basin farming ground of this case, and the oil shock was found on the surface of the fluoral surface of the fluor.

F. Seaweed from November 1 to February 4 of the following year to the 1st of February of the following year to the 1st of the 1st calendar of this case. The 2nd calendar of this case was contaminated with oil leaked due to the accident of this case, so the 2nd calendar of this case was unable to take and sell the 5th of November 2005 to December 8, 2005. Defendant D2 applied for the limitation of liability procedure to the 3rd of this court on the ground that the total amount of physical damage caused by the accident of this case exceeds the limitation of liability corresponding to the 1Y tonnage of the 19th of the 15th of the 1st calendar of this case. Defendant D2 applied for the limitation of liability procedure to the 196th of this court on the ground that the total amount of the 3rd calendar of this case exceeded the limitation of liability corresponding to the 19th of the 19th of the 207th of the 207th of the 207th of the 19th of the 206th of the 1st of the 207.

2. Determination on the claim for damages by Plaintiff P and SelectionV

A. Grounds for liability for damages

According to the above facts, the accident of this case occurred by the negligence of navigation on the side of 75, who did not carefully observe the direction of navigation of 1Y subparagraph 1, Y subparagraph 75 and the direction of navigation of 1Y subparagraph 75 in order to avoid collisions with 75, while approaching the right side of the sea route, it can be known that the accident of this case resulted in the contamination of the station of this case by moving oil leaked to the water surface of this case by the 75, from the ground of the accident of this case to the water surface of this case, which caused the damage of the plaintiffs as the owner of the 19, as the owner of the 175, who did not take proper measures, such as taking action to avoid collisions with 75, and without carefully observe the direction of navigation of 1Y subparagraph 75, who did not take proper measures, such as taking action to avoid collisions.

B. From among the two vessels that caused the instant accident, Defendant D1’s ownership falls under “ship” as provided by Article 2 subparag. 1 of the Compensation for Oil Pollution Damage Guarantee Act among the two vessels that caused the instant accident, and the damage caused by the instant accident falls under “pollution damage” as provided by Article 2 subparag. 4 of the same Act, and Defendant D1, the owner of TV set forth in paragraph (1) of the same Article, as the owner of TV set forth, shall be held liable for all damages caused by the instant accident regardless of the percentage of fault under Article 4(

However, Defendant D2 is not a vessel to which the Compensation for Oil Pollution Damage Guarantee Act applies, and Defendant D2 is liable for damages arising from the instant accident in accordance with Article 846(1) of the Commercial Act (amended by Act No. 6545, Aug. 3, 2007; hereinafter the same) regarding vessel collisions. According to the above facts, the rate of negligence in the instant accident of Defendant D2 is determined at 65% in consideration of the Korean Maritime Safety Tribunal's judgment. Thus, Defendant D2 is jointly and severally liable for damages about 65% of the amount of damages arising from the instant accident with Defendant D1. However, as seen above, the Plaintiffs' damage liability against Defendant D2 can be acknowledged as having been determined as a claim subject to the shipowner's liability limitation in the procedure of limitation of liability established upon Defendant D2's request, so the Plaintiffs are liable for damages arising from the abolishment of the procedure of limitation of liability, or are jointly and severally liable for damages arising from Defendant D2's cancellation of the aforementioned terms and conditions of the procedure of limitation of liability.

[Ground of recognition] Facts without dispute, Gap 4-12 evidence, Gap 16 evidence, Byung 1-3 evidence, purport of whole pleadings

(1) The Plaintiffs suffered losses due to the Plaintiff’s failure to collect and sell the U.S. basin due to oil pollution resulting from the instant accident, and did not gather and sell the U.S. basin in the instant basin for a period of time (14 days from November 25, 2005 to December 8, 2005). Thus, only damages to the early mountain basin which was possible to be collected as goods during the instant period are recognized.

Furthermore, due to the instant accident, 32,111,722 won (i.e., the amount of losses related to the production and sale of the early mountain basin in the instant basin plantation from November 25, 2005 to January 15, 2005 (i.e., the amount of losses) (i., the normal extraction of the early mountain basin from November 25, 2005 to January 15, 2005, 126,038,238 won - the amount of revenue from the sale from November 25, 2005 to January 15, 2005, 93,926,516 won) of the Plaintiff and the SelectionV’s share in the instant basin plantation (i.e., the amount of losses) (i., 40,503,508 won, 329, 129, 1329, 1329, 129, 2137).29)

(2) Since the re-establishment cost of fishing gear was contaminated with the sub-establishment cost of fish farming facilities installed in the instant fish farm due to oil pollution caused by the instant accident, the total amount of damages incurred in replacing the said fish farm facilities is KRW 10,449,492. The total amount of damages incurred in relation to the instant accident is divided in proportion to the amount claimed by the members of the relevant three fishing village fraternity. As a result, the total amount of the cost of re-establishment cost of fishing gear is divided in proportion to the amount claimed by the members of the relevant three fishing village fraternity, the amount of damages incurred in re-establishment of the fishing gear by the Plaintiff P and the

(3) The plaintiffs asserted that the reduced production volume of oil due to oil pollution was polluted by the low sporadation of oil into the basin roots, the production volume was lowered, and the production volume was reduced due to the use of sporadic agents, and therefore, according to the overall purport of spora, Byung evidence and oral arguments, early mountain sporads cultivating in the basin of this case were installed below 30 to 80 cm below the water surface with the low sporesposponding oil installed to facilitate reverse growth and physical exploitation, and it appears that it would be difficult to infiltrate the water below the water surface. The plaintiffs' assertion that the oil leaked from the accident of this case could not be seen as having spread out of the basin of this case to the near coast beyond the basin of this case, and thus, it is difficult to find that the sporespods were generated in the basin of this case without any other evidence that there was a decrease in the production volume of oil generated in the basin of this case due to the use of the spodspodicul in the basin of this case.

(4)production loss resulting from the failure to conduct recording operations.

From November 25, 2005 to December 8, 2005, the plaintiffs asserted that the production loss was caused by 30% since they failed to conduct the business of collecting cage for early mountain basin (at the time when there is a difference in the degree of growth to the mountain basin that has been born, the business of gathering cage from the early eggs or attaching it so that it is too tight that it is carried out) with respect to early mountain basin. Thus, there is no evidence to prove that the business of collecting cage was conducted in the instant mountain basin, and in the instant mountain basin, there is no evidence to prove that the above mountain basin was engaged in the business of collecting cage from the early mountain basin, and the above mountain basin is a composite form that cultivates the mountain mountain basin or the horses after collecting cage from the early mountain basin. Therefore, the plaintiffs' assertion that the plaintiffs suffered damage due to the lack of recording in the instant mountain plantation field is without merit.

(5) After the instant accident, the Plaintiffs asserted that the price decline damage caused by image damage and the degradation of the quality of the goods has caused damage corresponding to the decline since the price of the U.S. station produced in the instant basin 200 won per kgg. However, there is no evidence to acknowledge that only the price of the U.S. station produced in the instant basin epic has decreased due to the instant accident, and even if the price of the U.S. station was reduced as alleged by the Plaintiff, it is generally affected by the quantity of the U.S. station supplied in the market, so it cannot be concluded that there is a proximate causal relation between the occurrence of the instant accident and the price decline. Accordingly, the Plaintiffs’ aforementioned assertion is without merit.

(6) Sub-determination

After all, the amount of losses of plaintiffs P and PV due to the accident of this case is KRW 5,305,481 (=the amount of losses of the early U.S. 4,043,508 + the cost of re-installation 1,261,973), KRW 4,591,959 (=the amount of losses of early U.S. 3,329,986 + the cost of re-establishment of fishing gear + KRW 1,261,973) and damages from the date of the occurrence of the accident of this case. Accordingly, the defendant D1 who is liable for all damages of this case from the date of the accident of this case to the 50th 5th 5th 5th 6th 6th 1st 5th 5th 6th 5th 6th 5th 6th 6th 5th 6th 6th 205 6th 1st 205 205th 28th 28th 2015 of this case.

3. Determination as to the claim for damages by the Plaintiff (Appointeds) Ps.

In accordance with Article 2 subparagraph 4 (a) of the Compensation for Oil Pollution Damage Guarantee Act, the term "pollution damage" means "loss or damage caused outside the ship by contamination caused by the outflow or discharge of oil from the ship, regardless of the place of outflow or discharge," and there is no express provision as to whether it constitutes the oil pollution damage, but our Civil Act provides for mental damage separately under Articles 751 and 752, but it is a general principle that the claim for compensation for oil pollution damage under Article 750 of the Civil Act shall accrue if mental damage is not caused unless otherwise provided for in the above provision. Therefore, there is no reason to interpret the oil pollution damage under the Compensation for Oil Pollution Damage Guarantee Act as the economic and property damage (see, e.g., Supreme Court Decision 2001Da36733, Apr. 28, 2004).

However, although the plaintiff (Appointed) argued that the U.S. S., which was engaged in a reverse farming business along with the SelectionV, suffered mental damage due to the pollution by oil leaked from the accident of this case, the plaintiff (Appointed)'s claim for consolation money of the plaintiff (Appointed Party) shall not be accepted, since there is no evidence to acknowledge that there was any special circumstance to prove that the damage was caused to the property damage caused by the tort that pollutes the basin of this case, even if the damage was caused by the tort.

4. Determination as to the claims of an independent party intervenor

(a) The assertion of an independent party intervenor;

(1) The fact that Defendant D1 paid compensation exceeding KRW 2 billion to Defendant D1 on behalf of the victim (including the victim’s party and the victim’s damage to prevent the spread of damage) caused by the instant accident was due to the fact that Defendant D1 did not subscribe to the liability insurance and was in an insolvent state. However, in the course of the investigation and agreement on the instant case, it was confirmed that Defendant D1 had a considerable liability property, the Intervenor did not have a duty to compensate the Plaintiffs for the damages on behalf of Defendant D1.

(2) Even if Defendant D1’s fault occurred in the occurrence of the instant accident, and the Intervenor is liable to compensate the Plaintiffs for the damages, according to the results of the expert examination by the specialized examination company that investigated the instant accident, the amount of damages of Plaintiff P should be limited to KRW 5,305,481, and the amount of damages of SelectionV should be limited to KRW 4,591,959.

B. Determination

(1) Article 23 of the Compensation for Oil Pollution Damage Guarantee Act provides that "the injured party may claim compensation under the provisions of Article 4 (1) of the International Fund Convention with respect to oil pollution damage that has not been paid by the shipowner or the insurer, etc. in accordance with the International Fund Convention," and Article 4 (1) of the International Convention on the Establishment of the International Fund for Compensation for Oil Pollution Damage in 192 provides that "where a person suffering oil pollution damage is unable to receive sufficient and adequate compensation for damage due to the following causes, the Fund shall bear the obligation to pay compensation to the injured party for such pollution damage." Thus, the intervenor's liability is exempt from the intervenor's assertion that there is no sufficient and adequate evidence to acknowledge that the plaintiffs had been paid such compensation."

(2) With respect to the scope of the Intervenor’s responsibility due to the instant accident, among the plaintiffs (appointed parties) who are victims of oil pollution damage caused by the instant accident, there is no mental damage caused by the instant accident against the plaintiffs (designated parties). As seen earlier, the plaintiff P suffered property damage of KRW 5,305,481, and the Selection PV suffered property damage of KRW 4,591,959, respectively. Thus, the intervenor is liable for compensating the plaintiff P and the Selection PV within the scope of the amount recognized under the provisions of the Act on Guarantee of Compensation for Oil Pollution Damage and International Convention. However, in the instant lawsuit, the intervenor sought implementation on the premise that the plaintiffs’ damage amount exists in excess of the above recognized amount. Thus, the intervenor’s claim against the plaintiffs is reasonable within the scope of recognition.

5. Determination as to a claim for objection against a judgment on circumstances

In the procedure for limiting liability of Defendant D2, the court shall limit the amount of limited claims of Defendant D2 to 5,305,481 won against Plaintiff P and Plaintiff (Appointed Party) P and 4,599 won in the procedure for limiting liability of Defendant D2, which was commenced upon Defendant D2’s motion, to 65% of its fault ratio (3,448,562 won against Plaintiff P and 2,984,773 won) among damages caused by the accident of this case, the scope of damages to be borne by Defendant D2 should be changed to the scope of damages to be actually borne by Defendant D2. However, since only the Plaintiffs raised an objection against the above determination result, Defendant D2 or other creditors did not raise any limitation to the amount of claims to be borne by Defendant D2,595,951,959 won, the amount of damages to be borne by Defendant D2 shall be limited to the amount of damages to Defendant D2 and 73 won.

6. Conclusion

Therefore, each claim against the Defendants by the Plaintiff P and the Selection-V and each claim against the Plaintiffs by the independent party intervenor is accepted within the scope of the above recognition, and the remainder is dismissed as it is without merit. Each claim against the Defendants by the Plaintiff (Appointed Party) is dismissed as without merit. The Plaintiffs’ claim for circumstance against the Defendants by the Plaintiff (Appointed Party) is dismissed as it is without merit. It is decided to authorize the judgment of the court

The presiding judge and judge of interest-gu

Judges fixed-term

Judges Jong-ho