2018Nu10154 Revocation of qualification suspension

A

President of the Central Maritime Safety Tribunal

July 18, 2018

September 5, 2018

1. Of the Korean Maritime Safety Tribunal's ruling No. 2017-021 of December 21, 2017, the part of the third-class pilot's business suspension against the plaintiff shall be revoked for one month.

2. The costs of the lawsuit are assessed against the defendant.

3. The execution of the judgment in Paragraph 1 of this Article shall be suspended until the judgment of the court of final appeal of this case is rendered.

The text of paragraph (1) is as follows.

1. Occurrence of marine accidents and details of adjudication;

A. On March 19, 2017, around 08:15, a cargo ship B (B; hereinafter referred to as “instant ship”) abutting on two parts of the Youngjin-gun, Incheon Cheongjin-gun, which had been located, had an accident (hereinafter referred to as “the instant accident”). At that time, at the time, the instant ship was a leading pilot, who is the first-class pilot (the first-class pilot according to the laws and regulations at the time of the instant accident), and the third-class pilot (the second-class pilot according to the laws and regulations at the time of the instant accident), and D, who is the first-class mate, was on board as a captain, respectively.

B. On December 21, 2017, the Korean Maritime Safety Tribunal ruled that the accident occurred due to improper pilotage, such as the main pilot's approach to excessive speed without explaining the pilotage plan, but that the main pilot's negligence in assisting pilotage and the captain's negligence in supervising the pilot's command and supervision was a single cause. On the main pilot C, the 1st mate's duties were suspended for three months, the 1st mate's duties were suspended for the master D, and the 3rd pilot's duties were suspended for one month, and the 3rd pilot's duties were suspended for the plaintiff (the 2017-021 of the Central Maritime Safety Tribunal Act; hereinafter referred to as the "the judgment of this case"). [The grounds for recognition] of absence of dispute, Eul's statement of subparagraph 1, and the purport of the entire pleadings.

2. Whether the ruling of this case is lawful

A. The plaintiff's assertion

1) Absence of grounds for disciplinary action

A) The Pilotage Guidelines of the Incheon Pilotage Society (hereinafter referred to as the "Guidelines") is merely an internal guideline of a private organization, and there is no legal basis for the ruling of this case, and there is no other legal basis for the ruling of this case.

B) Even if the instant guidelines are applied, the situation at the time of the instant accident does not go against the “where it is apparent that the main pilot is erroneous in pilotage” as referred to in Article 11.2.2.4 of the instant guidelines, and thus, the Plaintiff does not bear any intellectual obligation. Moreover, the Plaintiff responded to the Plaintiff that the main pilot C was aware that the speed of the instant vessel is rapid when approximately 6 knots and approximately 0.4 miles away from the wharf, and that the speed of the instant vessel was rapid and that C was known. Therefore, the Plaintiff fulfilled its intellectual duty.

C) Even if the Plaintiff failed to repeatedly point out and neglecting the leading captain’s support duty, the accident of this case occurred, even though the captain pointed out four times to the effect that speed is fast to the leading captain at the time of the accident of this case, so there is no proximate causal relationship between the Plaintiff’s failure to point out and the accident of this case.

2) A deviation from or abuse of discretionary power

Even if there are grounds for disciplinary action against the Plaintiff, the instant judgment is unlawful by abusing and abusing discretion in light of the following: (a) the Plaintiff was subject to disciplinary action at the same level as the captain who is obliged to take active measures, unlike the Plaintiff who bears intellectual duties; and (b) there was no case of disciplinary action of suspending duties against the assistant pilot.

B. Relevant statutes

The entries in the attached Table-related statutes are as follows.

(c) Fact of recognition;

The following facts may be acknowledged in light of the purport of the entire pleadings in the entries or videos of Gap evidence 2, 8 through 10, Eul evidence 1 through 3, and 8.

1) The vessel of this case is the gross tonnage of 92,071 tons, length of 283.18m (291.80m in front place, distance of 250.50m in missionary work), width of 45.00m, depth of 24.75m in depth, and cargo vessel of 174,009.760 tons in weight of goods.

2) Circumstances of the instant accident

A) On February 25, 2017, around 20:25, 2017, 222 seafarers, including captain D, were loaded on the 164,998 tons of flexible coal and started for the interest of the Incheon Spoman-gun.

B) On March 19, 2017, D, when waiting in an anchorage outside the boundaries of the Incheon Port for the 2nd long-term navigation, D began navigation from the anchorage to the steering point in the anchorage of the wharf, which took place on March 19, 2017 (hereinafter referred to as “the time of March 19, 2017”), and around 07:30, which is the scheduled time for pilots to board, around 06:55, at the point of a ferry station, the pilot line and her driver C and assistant pilot were on board the Plaintiff at around 06:55.

C) D provides pilotage cards and shipmaster-ferry information exchange statements to pilots arriving in the missionary mission, but C did not provide or explain specific pilotage plans, such as a contact plan, to the captain, and D did not also require them.

D) Since the scheduled time for the landing of the wharf notified to D was around 09:00, D was sailing with the anti-speeded power plant (Halfad) due to sufficient time. However, the Plaintiff started navigation with the exclusive power plant of the State agency in accordance with the Incheon Port Water.

E) Around 07:30, the instant vessel began to take over pilotage rights from the Plaintiff at the time of navigation near the library ( around 3.8 Emp. from the 2nd head of the Young River), and around 07:55, when the instant vessel was located far away from 2.8 Emp. 2 from the 2nd head of the Young Power, C was a main engine with a extreme electric power to take off four towing vessels. At the time, C was located between Radon Amar and the emardo. At the left side of the missionary mission, C was located between the Plaintiff’s missionary mission and D’s missionary mission.

F) At around 08:10, C maintained approximately 0.52 miles (the distance to the wharf is the AIS standard established in the missionary work; hereinafter the same shall apply) of the instant vessel, while maintaining approximately 6.5 knotss from the wharf, and used the State engine as a extreme electric power failure. C suspended the State engine at around 08:11, but used the State engine at around 08:12:06, at around 08:12:42, the instant vessel used the speed of approximately 6.0 knotss, while maintaining a speed of about 0.36 miless from the wharf, and the Plaintiff maintained the vessel’s order to dismiss the instant vessel at a rapid speed of about 0:25:5 of the instant vessel (hereinafter the same shall apply). At around 08:12:06, at around 08:12:42, the Plaintiff maintained the vessel’s speed from the wharf and maintained the vessel’s order to dismiss the vessel at its rapid speed.

G) At around 08:13:03, at around 08:13, C directed the instant vessel from the time of approximately 0.27 miles away from the wharf, while maintaining the speed of approximately 5.5 knotss, but did not have the speed of the instant vessel. D, at around 08:13:23, issued the vessel’s direct direction, “Half Etern”, and issued the vessel’s direct direction at around 08:13:48, and again, issued the vessel’s exclusive order.

H) C directed a tugboat at the port that it is inappropriate for D to give the main engine’s top-down team direction and the exclusive rear-way team direction. At around 08:14, C still maintained the rapid speed of 4.8 knots at the time of approximately 0.2 miles away from the wharf, it is determined that it would be difficult to speed any longer, and even one adjacent field of interesting power, after two main engines of interesting power scheduled to contact with each other, C continued to contact with the main engine, and actively directed the fleet at the speed of 9:00,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000.

3) Details of the instant guidelines

A) Article 11.2(1) of the Guideline provides that “If two or more pilots are on board the same ship and pilot are on pilotage a ship, the ship shall be conducted under the responsibility and judgment of the pilot who is pilot at the time of pilotage, and the actual and legal responsibilities of the pilot shall be borne exclusively by the pilot who is pilot at the time of pilotage.”

B) Article 2(2) of the same Act provides that 'co pilot's announcement of the oil of the main pilot or 'the allocation of pilotage between the main pilot and the assistant pilot's role. 'The auxiliary work performed by the main pilot shall also be carried out. 'The auxiliary work performed by the main pilot' is ① whether the tugboat act in accordance with the order of the main pilot, 'the auxiliary work performed by the main pilot', 'the status of the waterway, the situation of the wharf and the situation of the port of entry into and departure from the port, 'the confirmation of the situation of the port transportation information room, the contact with the ship', 'the contact with the ship, 'the ship' and 'the ship', 'the ship', and 'the ship', 'the ship', and 'the ship', 'the ship', and 'the ship', and 'the ship', if it is apparent that the main pilot is wrong for pilotage. 'The scope of the work of the assistant pilot' shall be divided by section or work.

(iv) guidelines for the operation of a pilotage society in another port;

A) Article 19-3(1) of the Busan Pilot’s Operating Guidelines provides that, where two pilots are on board the same vessel, pilotage shall be conducted entirely under the responsibility and judgment of the leading pilot, and all substantial and legal responsibilities for the result shall belong to the leading pilot. Paragraph (2) of the same Article provides that "a assistant pilot shall assist pilotage and, at the request of the leading pilot, be in charge of providing information and assistance."

B) On January 1, 2018, where two or more pilots are on board the same vessel, the Incheon Pilotage Association amended Article 11.2(1) of the Guidelines to “in the event that the pilot is on board the vessel at the time, the pilot of the vessel shall be subject to the responsibility and judgment of the pilot (the pilot) who is pilot at that time, and the actual and legal responsibilities for the result shall be attributed exclusively to the pilot, and the pilot (the pilot, excluding the pilot of the vessel) shall not be responsible for the pilot. However, in an emergency where the pilot is unable to perform or perform his duties due to death of the pilot, illness, or any other inevitable reason, the auxiliary pilot immediately performed the leading pilot’s duties.”

C) Article 14 of the Guidelines for Operation of the Leisure Pilotage Society provides for a provision similar to that of Article 19-3 of the Guidelines for Operation of the Busan Pilotage Society, and Article 4 of the Guidelines for Standard Pilotage of the Pilotage Society

There is a provision that the main owner is responsible for the ship.

D. Determination

1) Whether there exists grounds for disciplinary action against the Plaintiff

A) Legal basis for the instant ruling

(1) Article 5(2) of the Act on the Investigation and Inquiry of Marine Accidents (hereinafter “Maritime Accidents Inquiry Act”) provides that if a marine accident is recognized as having occurred due to the intention or negligence of a pilot in the course of performing his duties, the person concerned shall be subject to disciplinary action by judgment. According to the provision of subparagraph (1) of the above Article 5, the judgment in this case may be recognized by the relevant Act and subordinate statutes as having followed Article 5(2) and Article 6(1)2 of the Act on the Investigation of Marine Accidents. Accordingly, the judgment in this case is based on the relevant provision of the Marine Accidents Inquiry

(2) The Plaintiff asserts to the effect that the Defendant disciplinary action against the Plaintiff based on the instant guidelines. However, according to the overall purport of the statement and pleading of the evidence No. 5, the instant guidelines are acknowledged to have been based on facts that stipulated the duty allocation and duty of care in the Incheon port for pilots who acquired a pilot license and perform pilotage duties in the Incheon port. Thus, the instant guidelines itself cannot be deemed the legal basis for the instant rulings, and the Defendant cannot be deemed to have rendered the instant guidelines based on the instant guidelines itself (Although the instant guidelines may serve as the basis for determining the contents of the Plaintiff’s duty of care in full view of various other circumstances and the Plaintiff’s duty of care, the instant guidelines cannot be deemed to have been used as the basis for determining the content of the Plaintiff’s duty of care, since the content of the Plaintiff’s duty of care must not be decided only by law, it cannot be said that it is unlawful to

B) Whether the Plaintiff breached its duty of care

Comprehensively taking account of the following circumstances revealed through the above recognition, the Plaintiff cannot be deemed to have breached its duty of care as an assistant pilot on the ground that the Plaintiff repeatedly pointed out that the speed of the instant vessel is rapid or did not take any other measure against C.

(1) According to the instant guidelines, the scope of the assistant pilot’s work when entering a field-to-be wharf is the voyage from the wharf to the hold, and the Plaintiff directed pilotage from the hold to C. However, there is no evidence to deem that the Plaintiff violated the Plaintiff’s duty of care during the voyage from the window that the Plaintiff directed pilotage (35 minutes prior to the scheduled scheduled time of boarding, the Plaintiff was on board the instant vessel, and the instant vessel was on board the station exclusively with the main engine, and the instant vessel was on the wharf more than 40 minutes prior to the scheduled time of the landing, but there is no evidence to deem that the instant vessel was on the wharf prior to the scheduled time of the landing. Even if considering various conditions, it is desirable to contact around the wharf, the first scheduled time of the landing, the Plaintiff’s violation of the duty of care, and thus, it cannot be seen as the Plaintiff’s violation of the duty of care, and thus, it cannot be seen as the Plaintiff’s violation of the duty of care.

(2) The instant guide provides that the pilot shall bear the ancillary and auxiliary duties of the pilot (Article 11.2(2)) and the scope of the pilot’s work when entering a port other than the Incheon Port, and that where two or more pilots get on board and pilot a ferry, the pilot shall be fully responsible for the result of pilotage at that time (Article 11.2(1)). In full view of the foregoing provision, it is reasonable to interpret that the Plaintiff, who is an auxiliary pilot, is responsible for pilotage from the draft of the ferry to the draft of the boat, is responsible for the result of pilotage, and that the pilot shall be responsible only for the ancillary duties for the subsequent section. In light of the guidelines for the operation of a pilotage society, which was enforced on January 1, 2018, the pilot shall also be jointly responsible for the pilot’s duties, not for the pilot’s assistance to the pilot.

(3) At the time of the instant accident, the Plaintiff had a second-class pilot license for a pilot with a period of 10 days a year and 10 days, and thus, at the time of the instant accident (amended by Presidential Decree No. 2834, Sept. 19, 2017) the Plaintiff was not entitled to independently pilot the instant vessel under Article 1-3 of the former Enforcement Decree of the Pilotage Act (amended by Presidential Decree No. 2834, Sept. 19, 2017). Pilotage was possible only when pilotage a vessel with a first-class pilot, such as C, with a 14-year pilot career. However, the speed of the instant vessel approach could not be said to be high from the wharf to the point no longer than the point no longer than the point no longer than the point no longer than the point no longer than C’s point of view that the Plaintiff had been able to take advantage of the relevant vessel’s point no longer than the point of time no longer than C’s 15-day pilot experience.

(4) At around 08:11, D talks with C that the speed of the instant vessel is rapid, for four times, such as responding to “I am on the back of the main engine in several oarss,” while maintaining approximately 6.2 knotss. Accordingly, C was fully aware that the speed of the instant vessel is rapid, and was obliged to take appropriate measures, and the Plaintiff is not obligated to additionally point out the said speed.

C) Conclusion

Therefore, it is difficult to view that the Plaintiff was negligent in violating the duty of care as an assistant pilot, and the grounds for disciplinary action against the Plaintiff cannot be deemed to have been established through the instant judgment.

2) Whether the instant ruling deviates from or abused the discretionary power

Even if the Plaintiff’s failure to point the speed more actively to C is assumed to constitute grounds for disciplinary action as a breach of the duty of care, considering the following circumstances, comprehensively taking account of the respective descriptions of evidence Nos. 7, 9, and 12 as well as the overall purport of pleadings, the instant ruling is deemed unlawful as it deviates from and abused discretion.

A) In full view of all the evidence submitted by the Defendant, it cannot be recognized that the Defendant rendered a ruling on disciplinary action exceeding the reprimand against the assistant pilot.

B) In the so-called oil tanker facility contact case (Central Maritime Court No. 2016-022), the auxiliary ship company did not report or point out the captain’s speech that the speed of the ship is too fast, and the tugboat did not follow the instructions of the leading ship company as it was difficult for the tugboat to connect towing, but did not report it to the leading ship company. One person was injured due to the accident that occurred, and one of the accident was caused by property damage of 40 billion won or more, and the marine pollution from oil was leaked. As such, in the above case, the result of the non-violation or accident around the auxiliary ship company was remarkably higher than the accident in this case, the auxiliary ship company rendered a disciplinary decision on the reprimand against the auxiliary pilot.

C) In the so-called motor vehicle transport car car bars and the motor vehicle transport vessel collision case (Central Sea depth No. 2016-023), the auxiliary pilot did not make a disciplinary decision even if he/she violated his/her duty of direct care in relation to the collision of vessels because he/she failed to observe the radar and report the situation where other ships are approaching the radar to the leading pilot.

3. Conclusion

If so, the plaintiff's claim is reasonable and acceptable.

In addition, according to the records, even though the court has revoked the ruling of this case, if the effect of the ruling is maintained until the judgment of the court of final appeal of this case is rendered, it would cause irrecoverable damage to the plaintiff due to the execution of the above ruling, and there is an urgent need to prevent such damage, and there is no circumstance to recognize that the suspension of execution may cause serious damage to the public welfare. Accordingly, pursuant to Article 23(2) and (3) of the Administrative Litigation Act, the ruling of this case shall be suspended ex officio until the judgment of the court of final appeal of this case is rendered.

The presiding judge, the highest judge;

Judge Lee Jong-soo

Judge Lee Jin-ju

A person shall be appointed.

A person shall be appointed.

A person shall be appointed.