Masluflas 4 A.S. (Attorney Jeong Byung-hee et al., Counsel for the defendant-appellant)

Rabbbb Doz. (Law Firm Chungcheong, Attorneys Jin-man et al., Counsel for the plaintiff-appellant)

may 12, 2005

Busan District Court Decision 2003Gahap10158 Delivered on June 4, 2004

1. The plaintiff's appeal is dismissed.

2. The costs of appeal shall be borne by the Plaintiff.

The decision of the court of first instance shall be revoked. The amount of dividends to the defendant shall be 386,469,684 won, and the amount of dividends to the plaintiff shall be 11,431,947,950 won, 11,818,417,634 won, from among the dividend table prepared by the same court on April 11, 2003 with respect to the auction of ship at Busan District Court Decision 2002 Ta-29403, Busan District Court Decision 11,818,417

1. Basic facts

The following facts are not disputed between the parties, or acknowledged in full view of the purport of the whole pleadings in the evidence of No. 1, No. 3-1, No. 2, No. 3-3, No. 1, No. 4-1, No. 2, and No. 3, and there are no objections.

A. On May 19, 1998, the Plaintiff (formerly changed: Bergens ASA) as a juristic person of Norway, which is engaged in the financial business, extended US$21,00,000 to the non-party Libers (hereinafter “non-party company”), and registered the loan of 21,000,000 to the non-party company as a ship owned by the non-party company as a collateral, and registered the loan of 25,000 U.S. dollars to the non-party company (hereinafter “non-party company”) and registered the loan of 25,00 U.S. dollars in order of 10,000,000 to the non-party company’s loan of croline Glaal, Crithal, Liberal, or Glac, ASA (hereinafter “the three-party vessels”), and registered the establishment of the loan of 250,0000 U.S. dollars on May 21, 1998.

B. At the time of the establishment of the above mortgage, the non-party LTS charters the above vessel from the non-party company on March 17, 1998. On March 17, 1998, the non-party company, the ship management company, entered into a contract on sales and agency management between the non-party 1, who is the non-party 1, and the non-party 1, who is the ship management company, entered into a contract on sales and agency management with the non-party 1, the ship management company, and the non-party 1, who is the non-party 1, paid the above vessel's wages to the non-party 1, 200, and the non-party 1, 200, 200, 300, 300,000,000,000 won of the above vessel's wages to the crew members of each of the above ships. According to the agreement on the management and operation of the vessel's wages to the above ship.

C. As the Embig Mar service was unable to pay wages to the seafarers of the above vessel due to managerial difficulties, some of the seafarers of the above vessel applied for an auction on September 17, 2002 with respect to the above vessel under the Busan District Court No. 2002 Madro No. 29250, 2002, No. 29267 (No. 2002, No. 29267 (No. 1, 2002), and No. 29274 (No. 1, 2002) on September 23, 2002.

D. However, if the non-party company did not repay the loan to the plaintiff, the plaintiff applied for a voluntary auction of the above vessel to Busan District Court 2002 Madro 29403, and after the above auction procedure was held on April 11, 2003, the auction court paid the plaintiff 2,643,150 won such as the anchorage fee to the Busan Regional Maritime Affairs and Fisheries Office, the non-party 50,859,820 won to the non-party Cheongdong Shipping Co., Ltd., and the non-party 2,90,90 won to the non-party 2,000 Busan District Court 202 Madro 2940,90 won to the non-party 19,000 won to pay the above vessel's wages to the non-party 2,000 won to the non-party 30,000 won to the non-party Cheongdong Shipping Co., Ltd., Ltd. (hereinafter the above vessel's wages to the non-party 361, 9636484.

E. On the other hand, even Rab Gazn service was merged with the Defendant on November 30, 2004, when the instant lawsuit was pending, as an affiliated company belonging to the Defendant.

2. Judgment on the plaintiff's assertion

A. The plaintiff's assertion

The Plaintiff asserts that, if Liber did not pay wages to the seafarers of the above ship, and the money was made to the seafarers of the above ship, it does not pay money directly to the seafarers according to the request of Earbbbbbig service in the form of financing loan, and it does not pay wages on behalf of Earbbbbig service. ② Even if payment was made in lieu of domestic wages, the pertinent seafarers’ rights should be obtained the permission of the court before the payment was made to the seafarers in order to exercise the right by subrogation, and therefore, it does not fall under the maritime lien holder who can exercise the right by subrogation, and therefore, it is unlawful to pay the wages to Earbbig service.

B. Determination

(1) Whether LAS has paid wages to the crew of the vessel

Comprehensively taking account of the overall purport of the arguments in Eul evidence 1, Eul evidence 2, Eul evidence 3-1 to 34, Eul evidence 1, Eul evidence 2, Eul's evidence 3, even if Eul converted the above amount into won by applying 174.52 won, which is the exchange rate of exchange, from February 26, 2002 to August 8, 2002, Eul is an affiliated company, and on behalf of some seafarers of the above ship (such seafarers who did not file an application for auction or who did not receive wages from the plaintiff) the sum of wages is Nowon 2,214,472.18, Daz [the above amount is 386,469,684 won (=), 2,414, 472.18 x 174 x 175 x 25 x 5 x 174). The plaintiff's request for auction cannot be acknowledged that the above amount was paid to the defendant's affiliated company and the defendant's request for auction.

(2) Whether E.S. crew members can exercise their rights by subrogation

(A) According to Article 60 subparag. 1 and subparag. 2 of the Private International Act, with respect to the governing law of the maritime lien and mortgage at issue in the instant case, the ownership and mortgage of a ship, maritime lien and other real rights to a ship, and the order of priority of security rights to a ship shall be based on the law of the country of registry. The country of registry of the ship at issue is Sain Vinazs (hereinafter referred to as “St”) and it is the Sain Vinazs and Dozs (hereinafter referred to as “St”), so the Sainant Pring Act is the governing law.

(B) It is insufficient to recognize the Plaintiff’s assertion that only with the descriptions of Gap evidence 2 and Gap evidence 6, a seafarer’s right may be exercised on behalf of the seafarer only when the court obtained the court’s permission prior to the payment of wages to seafarers under the Sarart Line Act, and there is no other evidence to acknowledge

Rather, comprehensively taking account of the overall purport of arguments in Eul evidence Nos. 4, 5, and Gap evidence No. 2, the Act was amended on Nov. 25, 1997, and Article 1 through 16 of the International Convention on Maritime Lien and Mortgages [the International Convention 1993 hereinafter referred to as the "193 Convention") provides that the transfer or subrogation of a claim secured by a maritime lien shall be accompanied by a transfer or subrogation of such maritime lien, and that the transfer or subrogation of a claim constitutes a claim for maritime lien under Article 10 of the International Convention in 193 constitutes a claim for maritime lien under Article 10 of the 193 Convention, which does not require the shipowner or subrogation of the vessel to pay the vessel wages and other claims registered with the maritime lien under the International Convention 193 or the 193 Maritime Maritime Maritime Maritime Lien Act, and that the said claim constitutes a claim for the shipowner’s wages and other claims under Article 193 of the 193 Convention.

C. Sub-decision

Therefore, E.I.D., which was merged with the Defendant, may exercise by subrogation the seafarers’ right to pay wages on a maritime lien by subrogated payment of wages to the seafarers of the said vessel, which takes precedence over the Plaintiff’s mortgage, and thus, the distribution of wages to D. E.I. is legitimate.

3. Conclusion

Therefore, the plaintiff's claim is dismissed as it is without merit, and the judgment of the court of first instance is just, and the plaintiff's appeal is dismissed as it is without merit. It is so decided as per Disposition.

Judges Park Jong-dae (Presiding Judge)