[1] The method of calculating the limit of liability of a tugboat owner in cases where a claim to limit the liability of a shipowner arises while a tugboat is towed and navigated by a tugboat.

[2] The case holding that the court below erred in the misapprehension of legal principles as to limitation on the liability of a shipowner, holding that the tugboat owner is liable to deposit up to money equivalent to the limit of liability of the towed owner on the ground that the tugboat owner has a duty to deposit up to the amount of money equivalent to the limit of liability of the towed, in the absence of special circumstances that the tugboat owner is merely the towing object of the towed and otherwise bears the same responsibility as the shipowner with respect to the towed as the towed owner owns or rents the towed, etc.

[1] Articles 746 (see current Article 769) and 747(1)3 (see current Article 770(1)3) of the former Commercial Act (amended by Act No. 8581 of Aug. 3, 2007) / [2] Articles 746 (see current Article 769) and 747(1)3 (see current Article 770(1)3) of the former Commercial Act (amended by Act No. 8581 of Aug. 3, 2007)

[1] Supreme Court Order 97Ma2758 dated March 25, 1998

International Maritime Transportation Co., Ltd. (Attorney Seo-sung et al., Counsel for the defendant-appellant)

Gwangju High Court Order 2009Ra102 dated March 31, 2010

The order of the court below is reversed, and the case is remanded to the Gwangju High Court.

The grounds of reappeal are examined.

Article 747 (1) 3 of the former Commercial Act (amended by Act No. 8581 of Aug. 3, 2007) provides that the amount determined according to the tonnage of "ship" shall be the limit of liability when adopting the so-called "ship" among several legislative principles concerning the limitation of liability of the shipowner. Where a tugboat towing and operating a tugboat with a towing system all cases where a claim to limit the shipowner's liability arises while a tugboat towing and operating a tugboat, it shall be deemed that the tugboat and the towed collectively correspond to "ship" under Article 747 (1) 3 of the Commercial Act by applying the so-called towing principle used in the area of navigation law. However, where it is deemed that the tugboat owner bears the same responsibility as the shipowner by owning or leasing the towed, etc., and the shipowner's limit of liability and the amount calculated according to Article 747 (1) 3 of the former Commercial Act (amended by Act No. 8581 of Aug. 3, 200, 205).

Examining the reasoning of the order of the court below in light of the records, the court below determined that Samsung Co., Ltd. (hereinafter “Masung”), on April 14, 2007, leased the instant steel structure from Hansung Shipping Co., Ltd. (hereinafter “ Hansung Shipping”) a non-powered barge for the instant steel structure, and Samsung Co., Ltd entered into a time charter contract with the Re-Appellant on April 16, 2007 with regard to the instant tugboat for towing the instant vessel. Accordingly, the instant vessel is merely a towing object owned by the Re-Appellant Co., Ltd., and the Re-Appellant Co., Ltd bears the same responsibility as the shipowner with respect to the instant vessel due to the ownership or lease of the instant vessel.

Therefore, the court below determined that the re-appellant, the owner of the fleet, was liable to deposit money equivalent to the limit of liability of the ship of this case, on the ground that the re-appellant was in a position similar to the sub- lessee of the ship of this case during towing with a major function of the towed. The court below erred by misapprehending the legal principles on the limitation of liability of the shipowner of this case, which affected the conclusion of the judgment. The ground for re-appeal pointing this out has merit.

Therefore, the order of the court below is reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Jeon Soo-ahn (Presiding Justice)