2019Nu1041 Revocation of a ruling

A

Law Firm Doyang, Attorney Park Do-young et al., Counsel for the defendant-appellant

Attorney Lee Dong-ho

President of the Central Maritime Safety Tribunal

B

Law Firm Donum et al.

Attorney Kim Dong-in

June 20, 2019

July 18, 2019

1. The instant lawsuit shall be dismissed.

2. The costs of lawsuit are assessed against the Plaintiff, including the part resulting from the supplementary participation.

On December 27, 2018, the Korean Maritime Safety Tribunal (Korean Maritime Safety Tribunal 1) has revoked the ruling made with respect to the collision case involving C & C & C in the Central Maritime Safety Tribunal No. 2018-021.

1. Occurrence of marine accidents and details of adjudication;

(a) Occurrence of a marine accident;

1) The Plaintiff is the captain of 13 gross tons or other passenger ships (hereinafter referred to as “D”), and the Defendant’s Intervenor (hereinafter referred to as “ Intervenor”) is the captain of 13 gross tons or other passenger ships (hereinafter referred to as “C”).

2) On June 7, 2017, the intervenor operated C on and around 11:00, and had access to the main captain of the Busan Main Customs Office (hereinafter referred to as the "main captain") and the main captain of the Busan Main Customs, which led to the collision between D's port side penter (hereinafter referred to as the "first collision") and D's port side that had already been mooring on the main port side of the said vessel, which led to the collision between D's port side penter (hereinafter referred to as the "first collision"). After the intervenor, the intervenor operated C in the said side and entered the port side at around 11:24 on the same day, but at around 11:24 on the same day, the mooring space accessed the main engine, thereby creating a space on the starboard side of D's port side, where the main body had no mooring space, making a collision between the two vessels in the process of the collision (hereinafter referred to as "the two collisions").

3) On June 8, 2017, at around 04:50, the Plaintiff: (a) went through the E’s captain, who was living in the floating bridge, and confirmed that D was flooded on the above floating bridge and the engine room has already been flooded; (b) on the same day, at around 05:03, the Plaintiff tried to discharge the inflowed sea water, but at around 05:22 on the same day, the instant vessel was sunken by the fore and the stern was rapidly frighted, and the 90 litres were leaked on the sea near the vessel (hereinafter referred to as the “instant marine accident”). At around 00mm, when D was loaded inside the vessel after the sinking, approximately 90 litres were leaked on the sea (hereinafter referred to as the “instant marine accident”); and (c) after investigating the cause of inundation through the maritime storm, the flood was found to have been connected with the fore and fluor of the instant vessel, and 100mm was found to have been damaged by the 10mm.

(b) Details of adjudication;

1) With respect to the marine accident of this case, the Busan Maritime Safety Tribunal decided that "the collision case was caused by C's failure to avoid an excessive speed and other improper D's failure to avoid the collision, and that "It is presumed that D's sinking was caused and sunken on the west side of D's old speed due to the collision," and that "the intervenor was subject to disciplinary action".

2) However, on December 27, 2017, the Korean Maritime Safety Tribunal, which was the second instance trial, rendered a ruling on the order that C shall not prove the causal relationship with damage to the U.S. on the port side, which caused the sinking of the collision and D by flood (hereinafter referred to as "the ruling of this case").

【Reasons for Recognition】 Entry of Evidence No. 1, and the purport of the whole pleadings

2. Determination as to the defendant's defense prior to the merits

A. Summary of the parties' arguments

The defendant is about the cause of the marine accident of this case where the plaintiff seeks to dispute by the lawsuit of this case. Thus, the defendant is about the cause of the marine accident of this case.

The defense to the effect that the adjudication on the cause of a cause that does not exist, is unlawful, shall be made before the merits.

In regard to this, the plaintiff originally revoked the decision of disciplinary action against the intervenor by the Busan District Maritime Safety Tribunal, and the plaintiff is in the position of a third party for the disposition of reprimand against the intervenor, and has the effect of forming or confirming the plaintiff's rights and obligations against the intervenor due to the cancellation of reprimand against the intervenor by the decision of this case. Thus, the decision of this case constitutes an administrative disposition which is subject to appeal litigation, and the plaintiff has a legal interest in seeking its revocation.

B. Determination

A lawsuit against a judgment rendered by the Korean Maritime Safety Tribunal under Article 74(1) of the Act on the Investigation of and Inquiry into Marine Accidents shall have the nature of a lawsuit against cancellation of an administrative disposition, and thus, the contents of the judgment, which becomes the substitute of a lawsuit, shall have the effect of forming and limiting the rights and obligations of the people, such as the exercise of public authority by an administrative agency. The judgment on the cause of a marine accident, which merely finds the fact that it is the cause of a marine accident, shall not be deemed an administrative disposition because it does not have the effect of forming or confirming the rights and obligations of the people, unlike the judgment on disciplinary action or recommendation made by a person involved in a marine accident, and thus, it shall not be subject to a lawsuit against cancellation of a judgment under the above legal provision (see, e.g., Supreme Court Decisions 9Da16, Jun. 9, 200; 2006Da

In full view of the purport of the arguments in the statement No. 1 of this case, the Korean Maritime Safety Tribunal may recognize the fact that the judgment in this case was made on the ground that a vessel, which was in conflict with D, is recognized as C, but there is no evidence to prove the causal relationship between the first and second collisions and the marine accident in this case where D is sunken. In light of the text of the ruling in this case and its reasoning, the judgment in this case constitutes the causes of the marine accident in this case to find out the facts that the cause of the marine accident in this case was the cause of the marine accident in this case (i.e., the causal relationship between the first and second collisions and the marine accident in this case is not recognized as a result of identifying the cause of the marine accident in this case).

In addition, even though the decision of this case includes the cancellation of the reprimand ruling of the Busan Maritime Safety Tribunal, which is the first instance trial against the intervenor, and the decision not to take disciplinary action against the intervenor, it cannot be deemed that the decision causes any disadvantage to the plaintiff or affects the legal status of the plaintiff, and it cannot be deemed that there is a legal interest to seek cancellation of the decision of this case. The plaintiff argues to the purport that the plaintiff's administrative and criminal liability may eventually affect the plaintiff's specific rights and obligations, as the plaintiff's denial of causation between vessel collision and sinking in the decision of this case may eventually result in the plaintiff's administrative and criminal liability in the future. However, even if the administrative and criminal liability asserted by the plaintiff is actually and indirectly affected by the decision of this case, it cannot be deemed that it is formed or finalized by the decision of this case itself. Thus, the above argument is without merit.

Therefore, the lawsuit of this case seeking the revocation of the adjudication of this case, which is the cause adjudication, is brought about matters not subject to the revocation lawsuit, and is unlawful as there is no legal benefit to seek the revocation thereof.

3. Conclusion

Therefore, since the lawsuit of this case is unlawful, it is decided to dismiss it. It is so decided as per Disposition.

The presiding judge, judge and mining interference

Judges Lee Sung-sung

Judges Doo.

1) The plaintiff stated in the purport of the complaint as a ruling by the chief of the Korean Maritime Safety Tribunal, but it appears to be obvious clerical error.