(영문) 대전고등법원 2016.12.22.선고 2016누12101 판결

Of the Korean Maritime Safety Tribunal's ruling No. 2016-015 of July 15, 2016, the part of the three-month suspension of the business of the third-class mate against the plaintiff shall be revoked.

Reasons

1. Occurrence of marine accidents and progress of adjudication;

A. (1) B is a cement carrier with a gross tonnage of 5,960 tons, and around 08:30 on September 23, 2015, 2015, 16 seafarers, including captain C, including cement, were loaded with cement and got into the Busan naval port at a three-way port after loading it. On the same day, around 21:51 on the same day, B entered the port of entry into the Busan port of port at 11.8 knots at a speed.

(2) At around 21:55 on September 23, 2015, B converted the engine from the distance of 0.1math from the breakwater outside the breakwater to the anti-speed (8.0 knots). On the same day, B passed at the speed of 10.8 knots at about 21:56 on the same day, and C, at this time, went through the sinking port and the breakwater at the speed of 10.8 knots, and C, from approximately 0.5 miles to the distance of about 0.5 man, began to go through a sea route.

B. (1) D, as the freezing carrier of the gross tonnage of 386 tons, loaded 190 tons of fish and shellfish for export at the line No. 41 in the Walcheon Port 41, and the Plaintiff, the captain, at around 21:52 on September 23, 2015, deemed D to be the first short-wave radio telephone (VHF) at the Control Center at around 21:55, and confirmed the location of B by radar, after hearing instructions from the Control Center, that “B passes through because B, which entered the line No. 21 of Walcheon Port 21, is in transit.”

(2) Around September 23, 2015, when 10 seafarers, including the Plaintiff, who are the captain, were on board the ship, D left the ship to the Simnokk Port of Japan, with the tin No. 41 around 21:55 on September 23, 2015.

(3) On September 23, 2015, D, at around 21:57, around 23, 2015, entered the port of the port, where approximately 238 degrees of players defense, D entered the port of Busan, at a point outside of about 0.1math of the northwest of the front line, such as U.S. No. 4, and at that time, the speed was 7.1 p.m. at that time. At that time, the plaintiff would pass through the port of "B and how it is hot?" The Control Center asked that D will pass through the port of freeboard. It was notified that D will pass through the port of freeboard. (1) The plaintiff, the captain of D, as the captain of D, tried to check D immediately after entering the port of the port of the front line, and tried to approach D's speed from the port of freeboard to the port of 6:10 on May 23, 2015.

(2) On September 23, 2015, at around 21:58, the captain of B was her port side to pass on the port side with D and her port side, and around 353 degrees, speed of B was approximately 9.6Nom or 10.2 knotss. However, D continued to approach B’s course line to B’s course line, and her engine immediately before the collision was her exclusive back (e.g., speed of 9.7 knotss at that time).

(3) However, at around September 23, 2015, at around 21:59, both vessels do not avoid collision and conflict at around 35°03:28 seconds of north latitude, which is the vicinity of the west of Busan Coast Guard (No. 4, 2015; hereinafter referred to as "the marine accident of this case") with B's front part of the number of vessels and D's front part of the vessel at the sea of 129°000 east 15:00 east 15:00 east east, the west of the vessel is about 74 degrees (hereinafter referred to as "the collision situation at the time of collision").

D. (1) Due to the marine accident of this case, B was the upper part of the flag team for indemnity (2 0.15m radius in diameter), and part of the stem-type tank was the stem-type tank, and the stem-type tank was destroyed by approximately seven meters, D was the outer board of the fish hold and fuel oil tank located at the lower part of the repair of the front side of the missionary work (3m radius in diameter), and was damaged by three crew members.

(2) Meanwhile, at the time of the instant marine accident, the maritime and weather conditions were about 2 miles in the rained weather, and the North East Eastern wind was about 7-8 meters deep, and approximately 0.3 meters high (the degree of collision).

A person shall be appointed.

E. On February 18, 2016, the Busan Maritime Safety Tribunal (Seoul Maritime Safety Tribunal No. 2016-011) rendered a ruling that the marine accident of this case shall be caused by the entry of the other party into the roadside by neglecting the boundaries while checking that D, which entered the sea route after departure from the port of trade port, shall pass through the port of port B and the port of the port of the port of the port of the port of trade, but it shall not be bound by the safe speed while navigating under B. The three-month services of the plaintiff in relation to the marine accident shall be suspended for two months. The three-month services of the plaintiff in relation to the marine accident shall be suspended for one month. The plaintiff and C shall request the Central Maritime Safety Tribunal to suspend the business of the second mate in relation to the marine accident from the port of entry into the port of Busan Maritime Safety Tribunal without the agreement of the plaintiff on July 15, 2016 'the course of the marine accident of this case shall be two months before the port of entry into the port of the port of Busan Maritime Safety Tribunal.

[Ground of recognition] Gap evidence Nos. 1, 2, 4, 5, Eul evidence Nos. 1 through 3 (including numbers), the purport of the whole pleadings

2. Whether the ruling of this case is lawful

A. The plaintiff's assertion

Despite the fact that B violated the duty to observe safety speed, neglected the duty to keep boundaries, such as the duty to keep watch prior watch, and failed to properly perform the duty to avoid collision, etc., a disciplinary decision on the instant judgment rendered by applying the rate of fault of 90% to the Plaintiff, which suspended the Plaintiff’s maritime affairs of Class 3 of the Plaintiff’s fishing vessel for two months, is unreasonable.

B. Relevant statutes

It is as shown in the attached Form.

C. Determination

In light of the following circumstances, it is reasonable to view that the marine accident of this case was caused by "the plaintiff's negligence, which led D to the course of B without properly grasping the situation of B navigating to the port of Busan port of port of port, and obstructed B by leaving D to the port of port of the sea route," and on the ground that the judgment of the court on the suspension of the business of the third-class mate of the fishing vessel of this case of this case of this case of this case of the plaintiff is not unfair, since the judgment of the court on the suspension of the business of the third-class mate of the fishing vessel of this case of this case of this case of this case of this case of this case of this case of this case of this case of this case of this case of this case of this case of this case of this case of this case of 13-5, Eul's 4 and 5, and the whole purport of the arguments.

(1) Article 12 (1) 1 of the Act on the Arrival, Departure, etc. of Ships (hereinafter referred to as the "Ship Entry and Departure Act") provides that "a ship shall enter a sea route outside of a sea route or navigate out of a sea route by avoiding the course of other ships navigating along the sea route", and Article 12 (1) 3 of the same Act provides that "a ship shall navigate to the right side where there is a risk of collision with other ships on the sea route."

② On September 23, 2015, 21:52, at the time of departure, the Plaintiff: (a) received instructions from the Control Center at the time of departure from the port that “B passes through two islands because B entered the line No. 21; and (b) fails to comply with such instructions from the Control Center; and (c) left the port on September 23, 2015.

③ It is true that the Plaintiff and B determined the “traffic on the port side”, but it appears that it is merely a mere confirmation of the general navigation method (Article 12(1)3 of the Ship Entry and Departure Act) in a sea route. In addition, even if such agreement is deemed to be an agreement on both sides of the navigation method in a sea route, it is difficult to view that the Plaintiff’s duty of care under Article 12(1)1 of the Ship Entry and Departure Act (a vessel entering a sea route outside of a sea route) completely excludes the Plaintiff’s navigation duty under Article 12(1)1 of the Ship Entry and Departure Act (a vessel entering a sea route

(4) As such, D’s captain, who was trying to enter Busan Port No. 41, has the duty of care to keep out of the way of route B sailing along the route B, and therefore, the Plaintiff, while continuously observing B’s East situation, seems to have entered the sea route only when it is determined that B’s long-term route route can safely pass through and entered the sea route and it can navigate along the right side of the sea route by changing the course.

⑤ Nevertheless, the Plaintiff presumed that B was at low speed (5-6 knots) as other vessels, without examining B’s speed or approach, and that B was at low speed (5-6 knots) as other vessels. On September 23, 2015, the Plaintiff directly operated the steering gear at D’s steering boat and entered into the port of Busan on September 23, 2015 to the port of port 3 of Busan on September 23, 2015, thereby preventing the course of B, which was proceeding along the sea route under Paragraph 3 of Article 3 of the Busan Port.

(6) On September 23, 2015, B entered the port of entry into Busan Port(3) at the speed of 11.8 knots, but around 21:55 on the same day, B converted the engine from approximately 0.1 miles outside the breakwater in the electric power line to the anti-speed (8.0 knots) at around 21:58 on the same day immediately before the marine accident of this case, it is difficult to conclude that the speed exceeds approximately 9.6 knots through 10.2 knots, and therefore, it cannot be said that B violated the speed limit.

7) At around 21:56 on September 23, 2015, B entered the port of Busan at the time of passing through the port of Jancheon and the breakwater. At around 12:57 on the same day, D became aware of its intention to pass through the port of the port of Busan at the port of port of Busan at the port of port of port of port 3, and on the same day at around 12:57, D entered the port of Busan at the port of port 3, and it seems that D would not have reached the port of port of port or to interfere with B’s course when it would interfere with or be likely that D would interfere with B’s course, such as a warning signal or call call at the early port of Busan as far as possible, or a warning signal to the port of Busan at the port of port of port of port. However, it appears that B’s failure to perform its duty of care was found that it was difficult for the Plaintiff to go through the port of port of port, or that it was difficult for the Plaintiff to reach the port of port of port.

(8) According to the guidelines for the determination of disciplinary volume by a person involved in a marine accident under Article 6 (1) 2 of the Act on the Investigation and Inquiry into Marine Accidents and Article 7-2 of the Enforcement Decree of the same Act, the marine accident in this accident is determined by the plaintiff's "outboard" (at least by "outboard" even though it is difficult to readily conclude that it was caused by gross negligence), and "midboards (B is located at least 0.15 meters in diameter)" and "underboards" (2 meters in diameter) of the board of the flag of the claim, part of the tank was flick, which was damaged by approximately 7 meters in length, and D was damaged by the external board of the fish hold and fuel oil tank located on the side of the repair of the part of the mission, and the external board of the ship in this case was 3 meters in diameter (or 3 meters in diameter) and where it is difficult to say that it was caused by gross negligence, it constitutes a type of damage by the plaintiff's 3 months or less (excluding disciplinary action against the plaintiff's 3 months or less).

3. Conclusion

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