(영문) 부산지방법원 2006.9.14.선고 2006나880 판결

1. Of the judgment of the court of first instance, the part of the judgment against the Defendants ordering the Defendants to jointly and severally pay USD 34,274 to the Plaintiff in excess of 5% per annum from March 5, 2004 to September 14, 2006 and 20% per annum from the next day to the date of full payment, and the Plaintiff’s claim against the Defendants corresponding to that part is dismissed.

2. The defendants' remaining appeals are dismissed.

3. The total cost of a lawsuit shall be borne individually by each party.

Purport of claim and appeal

1. Purport of claim

The defendants jointly and severally pay to the plaintiff 48,190 US dollars and 5% per annum from March 5, 2004 to the delivery date of the complaint of this case, and 20% per annum from the next day to the full payment date (the plaintiff reduced the plaintiff's claim for damages for delay in the first instance).

2. Purport of appeal

The part of the judgment of the court of first instance against the Defendants shall be revoked, and the plaintiff's claim against the Defendants corresponding to that part shall be dismissed.

Reasons

1. Basic facts

The court's explanation on this part is the same as the reasoning of the judgment of the court of first instance, and thus, citing this part in accordance with the main sentence of Article 420 of the Civil Procedure Act.

2. Occurrence of liability to pay disaster compensation;

A. Determination as to whether a person died on duty

(1) The Plaintiff asserts that the deceased’s death constitutes “the case where a seafarer died on duty” as prescribed by the Regulations on Compensation for Overseas Employment Accident of Seafarers (hereinafter “the foregoing provision”). Accordingly, the Defendants asserted that the deceased’s death constitutes “the case where a seafarer died on duty,” and that it does not constitute “the case where a seafarer died on duty,” as prescribed by the instant provision, since the deceased was on board a taxi to return to play in a singing room after eating with the captain, etc. of the above ship.

(2) "Duties" under the Seafarers' Act is more broad concept than " duties" under the Labor Standards Act. In light of the special nature of maritime labor provided by seafarers, all acts performed on board a ship in principle falls under duties. In other cases where a seafarer gets on or leaves a ship, where a seafarer gets on or leaves a ship, he/she moves from his/her own car or means of public transportation to a place of boarding or leaving a ship to a place of living, or where he/she moves from a place of living to a place of boarding or leaving a ship to a place of living, such acts as meals, purchase of goods, communications, etc. in the port of call do not constitute a seafarer's own duties, but it is recognized that the performance of duties is recognized, and where a seafarer is involved in an accident while performing the above acts, it constitutes "occupational

As seen in paragraph (1), the deceased, who was the captain of the above vessel, temporarily anchored at a port**** the deceased who was the captain of the above vessel, left the above vessel with the captain of the above vessel and the first class engineer of the first class mate of the above vessel, and went back in a singing room, and other crew members first returned to the ship, and died due to a traffic accident. This constitutes a case where the deceased, who was the captain of the above vessel, left the port area to a foreign port and went back with the captain, was recognized to have been subject to a traffic accident while performing his duties to resolve the tension caused by maritime labor and restore labor force (this is reasonable to deem that the deceased was under the control of the captain at the time of the traffic accident). Ultimately, the deceased died on duty as the captain of the above vessel.

B. Sub-determination

Therefore, Defendant 1 and Defendant 2 are those who concluded a charter contract on the above vessel with Defendant 2 and actually operated the above vessel, and Defendant 2 are jointly and severally liable to pay accident compensation under the provisions of this case to the Plaintiff as the owner of the above vessel (Defendant 1 and Defendant 2 are externally separate corporations, and Defendant 1 and Defendant 2 are the same representative director, and Defendant 1 and Defendant 2 had both corporate locations in VM before changing the name of Defendant 1 and Defendant 1 and Defendant 2 are the same. According to Article 17 of the above provision, Article 32(1) of the Enforcement Decree of the Seafarers Act, Article 32(1) of the Seafarers Act, and Article 98 of the Seafarers Act, it is reasonable to view that the Defendants are jointly and severally liable to pay accident compensation to the Plaintiff in light of the fact that the owner of the above vessel is not Defendant 1 but Defendant 2, and Defendant 1 did not have any property.

3. Determination on the scope of accident compensation

A. The facts that the accident compensation that the Defendants are obligated to pay to the Plaintiff under the instant provision are the combined compensation for bereaved families with USD 1,300 and USD 40,000 for special compensation, and the funeral expenses for 120 days for average boarding wages are as seen in paragraph (1).

(b) Calculation of average boarding wages;

(1) On-board wages based on calculation means the amount calculated by dividing the total amount of wages paid to the seafarer during the period prior to the date on which the cause for calculating the average boarding wages occurred by the total number of days in the boarding period. The monthly wage under the labor contract entered into with Defendant 1 1 on behalf of the deceased is US$ 3,350 (ordinary wage 2,848 US$ + overtime hours 503 US$) and the paid leave is set on the 5th day of each month. The fact that the total number of days on-board days prior to the death of the deceased is 92 days from October 203 to January 19, 2004 is as set forth in paragraph (1) and that if the above labor contract does not use paid leave under the above labor contract, the monthly paid leave is 474.6 US dollars (ordinary wage 2,848 US$ 30 days) that the deceased would have received between the parties concerned.

(2) Whether food expenses are included

(A) The Plaintiff asserts that the prime food cost agreed at USD 7 of the deceased’s labor contract also includes the calculation of average boarding wages. The Defendants claim that the prime food cost is not the wages but the cost of purchasing raw materials, so it does not include the calculation of average boarding wages. In addition, according to Articles 74 and 75 of the Seafarers Act, the shipowner should supply the seafarers working on board with food and water, cooking and providing meals in a ship, or may have the captain manage the provision of meals in a ship in lieu of supply of the above food, and the captain should pay the captain the cost of purchasing the food in a ship (in-board food cost) and the cost of providing meals in a ship (in cases of paying the food in a ship, the daily food cost per capita should be stated in the calculation of average wages for the seafarers, which is the cost of providing meals in a ship or the cost of providing meals in a ship, and the shipowner’s duty to provide meals in a ship should not be included in the calculation of average wages for the captain’s health of the ship, as stated in the Seafarers Act.

(3) Calculation

US$ 124.7 [$350 per month wages + USD 474.6 per month paid leave) x 3 months] ±92 days];

(1) Survivor’s compensation USD 202,110 ($ 124.7 x 1,300 x 40,000) + special compensation)

(2) Funeral expense of USD 14,964 ($ 124.7 on board average wages x 120 days)

(3) Mutual aid

US$ 182,800 received by the Plaintiff

(4) Calculation

US$ 34,274 ($ 202,10 + 14,964 + 182,800)

4. Conclusion

Therefore, the defendants are jointly and severally liable to pay to the plaintiff 34,274 US dollars and 34,274 US dollars as the accident compensation of the deceased, and since March 5, 2004, the plaintiff sought from March 5, 2004, the plaintiff's appeal against the defendants to pay damages for delay at the rate of 5% per annum under the Civil Act from September 14, 2006 to September 14, 2006, which is the date of the judgment of the court of first instance, and 20% per annum under the Act on Special Cases concerning the Promotion, etc. of Legal Proceedings, etc. from the next day to the date of full payment. Thus, the plaintiff's claim against the defendants of this case is justified within the scope of the above recognition, and the remaining claims are dismissed as it is unfair. Accordingly, the judgment of the court of first instance has partially accepted the defendants' appeal and dismissed the plaintiff's claim against the defendants corresponding to this part. The remaining appeal by the defendants is dismissed as per Disposition.