[1] The burden of proof and degree of proof as to the fact that the loss incurred to the insurance purpose was caused by the inherent marine risks

[2] Requirements for the negligence of seafarers, etc. under Article 6 (2) 3 of the English Association Term Clause to constitute an insured risk

[3] In accordance with the English Marine Insurance Act and customs, whether only a causal relationship between the non-performance of the duty of disclosure and the conclusion of the insurance contract is an important matter and subject to the duty of disclosure (negative)

[4] Requirements for the insurer to be exempted from liability under the English Marine Insurance Act for lack of seaworthiness

[1] According to the English marine insurance law and customs, the insured bears the burden of proving that the loss or damage caused by the subject-matter of the insurance occurred due to the inherent marine risks covered by the insurance policy, and the degree of proof is sufficient as a proof by the so-called so-called "refeit of evidence."

[2] In order to constitute an insured risk by negligence of a seafarer, etc. under Article 6 (2) 3 of the English Institute Terms and Conditions, the insured, shipowner, or ship manager does not lack due care in relation thereto.

[3] According to the English Marine Insurance Act and customs, only there is a causal relationship between the non-performance of duty of disclosure and the conclusion of an insurance contract is not an important subject of duty of disclosure.

[4] Under the provisions of Article 39(5) of the English Marine Insurance Act, in the case of a fixed-term insurance, the insurer may be exempted from liability only when the insured knew that he had no ability to resist the vessel.

[1] Article 3 of the English Marine Insurance Act, Article 6 (1) 1 of the English Institute Time Clauses - [2] Article 3 of the English Marine Insurance Act, Article 6 (2) 3 of the English Institute Time Clauses / [3] Article 18 of the English Marine Insurance Act / [4] Article 39 (5) of the English Marine Insurance Act

[1] Supreme Court Decision 96Da2773 delivered on May 15, 1998 (Gong1998Sang, 1621) / [3] Supreme Court Decision 95Da28779 delivered on March 8, 1996 (Gong196Sang, 1199)

Busan Bank (Attorney Yu-soo et al., Counsel for the plaintiff-appellant)

International Fire Insurance Co., Ltd. (Attorney Lee Jae-soo et al., Counsel for the plaintiff-appellant)

Busan High Court Decision 97Na13696 delivered on April 2, 1999

The appeal is dismissed. The costs of appeal are assessed against the defendant.

1. Summary of the judgment of the court below

The lower court, based on its adopted evidence, found the following facts and determined as follows.

(a) Conclusion of hull insurance contracts;

(1) On April 1994, the Defendant concluded a hull insurance contract of 1 billion won with respect to the baseline ○○○○ (hereinafter “instant vessel”) owned by Nonparty 1, and received KRW 15,114,500 for the first quarter of the insurance premium between the insured and Nonparty 1 on April 29, 1995.

(2) In entering into the instant insurance contract, the Defendant and Nonparty 1 agreed to apply the English Institute Time Clauses (INTSITITITTE TUESS TRS - HULS, 1983) to the English Association Time Clause. The above terms and conditions stipulate in the first head that “this insurance is governed by the English law and customs.” Article 6(1) provides that “The insurance is subject to the English law and customs.” Article 6(1) provides that “the unique risks in the sea, river, lake, or any other waters available for navigation” and Article 6(2)3 provides that “the high-class crew of the captain, senior crew of the ship or the pilot’s negligence” as one of the respective insured risks.

B. Management status of the instant vessel

(1) The instant vessel, which was advanced around October 1963, was used for deep-sea fishing. However, on December 30, 1993, Nonparty 1 purchased 80 million won or more from the former owner of the instant vessel from January 30, 1993, and remodeled and repaired it for deep-sea fishing with a gold of at least KRW 300 million from January 1994 to April 1994, passed a regular inspection by the Korea Shipping Association on April 26, 1994. On May 19, 194, after obtaining a fishery permit from the Administrator of the Fisheries Administration, the instant vessel went to work for deep-sea new-sea fishing with a long-term period of at least 1,000 seafarers of the instant vessel to leave from the former owner of the instant vessel for deep-sea fishing, but the vessel was unable to return to the Republic of Korea’s local government, excluding Nonparty 2, an agent of Nonparty 1, the head of the instant vessel, as Nonparty 1’s local government.

(2) As seen earlier on April 29, 195, Nonparty 1 determined the instant vessel to her port, and renewed the instant insurance contract. However, on May 22, 1995, when the instant vessel had suspended advance payment due to incomplete interim inspection, Nonparty 1 notified the Defendant of the following day of the suspension of advance payment, and paid KRW 6,842,145 as additional premium accordingly. On the other hand, Nonparty 5 (the holder of the first-class mate’s license) as the captain, Nonparty 6 (the holder of the second-class engineer’s license) as the captain, Nonparty 7 (the holder of the second-class engineer’s license), as the chief radio operator, Nonparty 8 as the mate, Nonparty 9 as the chief radio operator, Nonparty 9 as the first-class engineer, Nonparty 9 as the first-class engineer, and Nonparty 1 as Furian New Airport on May 28, 1995.

(3) On May 29, 1995, Non-party 1 et al. arrived at New Zealand and received the instant vessel from a local manager. At that time, the vessel was melting at the bottom of the vessel and was melting on the hull. However, as a result of the trial operation, five crew members, including non-party 5 et al. were replaced by a navigation instrument, main engine, electricity, etc., which led to the commencement of the trial. Thus, five crew members, such as non-party 5 et al. left the port on June 12, 1995 without any particular repair of the vessel.

(c) An accident at a port of the Art Art Mosbs expenses;

(1) At the time of departure, the instant vessel entered only the fuel oil tank Nos. 3, 5, and 6, and the oil tank Nos. 1 and 2 were left behind, and thus, the player was left behind. Thus, Nonparty 5 instructed the head of the agency Nonparty 6 to inject sea water into the fuel oil tank No. 2, which is non-party 6, to address this, and Nonparty 6 instead of No. 2, injected sea water and fuel into the third fuel oil tank.

(2) However, Nonparty 5 left the instant vessel without being aware of it, and the vessel’s fuel mixing with sea water was suspended by entering the fuel system of the engine and its power generation period, which was approximately five minutes after the vessel’s navigation near the port entrance of the Art Magnbbs.

(3) Accordingly, Nonparty 5 set anchors rapidly, but the depth of both anchored, did not contact the seabed. Accordingly, the vessel of this case was set up at the bottom of the mountain site near the entrance of the bring port at the time when the bring port by leaving the wind, and the anchored down at the top of the mountain site near the port of the bring port near the port of the bring, while the anchor stopped, it was brued by a speed of about 3.5 to 4 meters high, and then she was salvaged by the tugboat called at the request for rescue, and turned back to the bring port.

(4) Afterwards, Nonparty 5, etc.: (a) deducted sea water that was entered in the fuel system of the instant vessel from the Magregnban Port; (b) repaired the main engine, etc.; (c) did not make any specific investigation or confirmation with respect to the bottom of the U.S. vessel; and (d) started navigation to the port of Busan at the speed of 5 to 7 knotss at the speed of July 17, 1995 by re-entering the port of the instant vessel with the port of Magregnbb from the port of this case.

(d) Sunken ships;

(1) For about 3 days after the re-entry as above, due to bad weather conditions, the phenomenon that the hull of the instant vessel was seriously driven by high wave was continued. At around 22:00 on July 15, 1995, Nonparty 6 increased the engine transfer (RPM) of the vessel from 290 to 305 by Nonparty 5’s instruction, and Nonparty 6 generated any further vibration on the said vessel.

(2) At around 01:00 on July 16, 1995, the non-party 6 was in charge of the duty of the engine room, and confirmed whether sea water has been flooded (unexploited). At around 04:00, the engine room was narrow and further confirmed decks. At around 04:0, the ship of this case was confirmed only fuel condition without confirming whether sea water has been polluted. At around 00:0, the ship of this case went back to the engine room, 06:0,00,000,000,000 20:0:0:0,000,000,000, and 129:12:00,000, when it came to the engine room, and returned to the engine room, and it was reported immediately to the non-party 5.

(3) Although Nonparty 5 and Nonparty 6 wanted to confirm the place where sea water enters, they did not confirm the flooded sea water so much high that the flooded sea water did not reach. However, even though Nonparty 5 attempted to drain the drain pumps, it could not reduce the amount of damage in the engine room due to excessive inflows compared to the discharge pumps capacity. On July 16, 1995, the power generator was operated around 06:20 on July 16, 1995, and around 06:30 on the operation of the main engine was suspended due to flooding.

(4) On July 16, 1995, around 07:35, the flooded flooded up to 50cm above the engine 50cm, and the rapid increase in the inflow. Nonparty 5, who was at risk of sinking, decided to get out of the ship of this case on 08:00, decided to get out of the ship of this case, and 4 of the crew were first able to get out of the ship of this case on the life raft before the sinking of the ship of this case, and she was waiting in the ship of this case for about 1:10 minutes and 10 minutes before the sinking of the ship of this case.

(5) Afterwards, the instant vessel came to be sunken from the stern to the right side, and was completely sunken at around 10:00 on July 16, 1995, and crew members went to the port for about 60 hours and passed at about 17:50 on July 18, 1995, at the point of 00°25:00 north latitude and 128°56°00 East longitude, and at the point of 128°56.00 East longitude, all of them were salvaged by the NAS at the port line of Hong Kong.

(e) Markets:

According to the above facts, it is reasonable to view that the sinking of the ship of this case was caused by the rupture and vibration of the ship, which occurred due to bad weather conditions and increase in engine transfer while leaving the port and sailing at the port of mountain, and the rupture of the ship was further deepened and caused damage to the ship. Thus, it constitutes a risk stipulated in Article 6 (1) 1 of the above Institute Terms and Conditions, and the captain, non-party 5, etc. did not properly investigate and confirm the rupture part of the ship of this case prior to the arrival of the ship of this case. This constitutes the risk stipulated in Article 6 (2) 3 of the above Institute Terms and Conditions, as one of the nearest areas of the sinking of the ship of this case.

2. Judgment of the Supreme Court

A. As to the first ground for appeal

According to the English marine insurance law and customs applicable to the insurance contract of this case, the insured bears the burden of proving that the loss or damage caused to the subject-matter of the insurance occurred due to the inherent risk at the sea, which is the insured risk, and the degree of proof is sufficient by a representative of the so-called evidence.

In light of the records, we affirm the fact-finding and judgment of the court below as seen above, and there is no error of law in the misapprehension of legal principles as to the burden of proof as otherwise alleged in the ground of appeal, or in the incomplete hearing, incomplete hearing, or misconception of facts due to the violation of the rules of evidence. This part of

B. Regarding ground of appeal No. 2

(1) As to the misapprehension of legal principles as to insured risks

In order to ensure that the negligence of seafarers, etc. under Article 6 (2) 3 of the English Institute Term Clause, which applies to the insurance contract of this case, constitutes an insured risk, the insured, shipowner, or ship manager does not lack due care in relation thereto as prescribed.

According to the records, although the defendant's agent asserts that the non-party 1, who is the shipowner of this case, lacks considerable attention, the court below erred in finding that the non-party 5, etc. was negligent in not making any mentioning about it and not properly investigating and confirming the bottom of the ship prior to the port of re-entry of the ship of this case, which constitutes a risk as stipulated in Article 6 (2) 3 of the Institute Time Clauses. However, the court below has determined that the sinking of the ship of this case constitutes an insured risk as stipulated in Article 6 (1) 1 of the Institute Time Clause. In addition, in light of the records, it is difficult to recognize that the non-party 1 lacks considerable attention in relation to the re-entry of the ship of this case. Accordingly, the court below's error did not affect the conclusion of the judgment of this case and the conclusion of the court below is justified. Thus, the defendant's ground of appeal pointing this out is without merit.

(2) As to the misapprehension of legal principle as to the duty of disclosure

The court below rejected the defendant's agent's assertion on the ground that the fact that the ship of this case was at the time of the conclusion of the insurance contract of this case was at long-term stay in Sururia, is an important matter stipulated in Article 18 of the English Marine Insurance Act and subject to duty of disclosure. However, according to the employment evidence, etc., the non-party 1 notified the defendant's non-party 10 to the defendant's employee non-party 10, or could have known the fact that

Under the English law applicable to the insurance contract of this case, the policyholder must prove that there was a violation of the duty of disclosure to the policyholder. However, as seen earlier by the court below prior to the burden of proof, it is erroneous to recognize the policyholder's duty of disclosure. However, in light of the records, it cannot be acknowledged that the non-party 1, the policyholder, violated the duty of disclosure as alleged by the defendant. Accordingly, the court below's rejection of the defendant's assertion is justified, and there is no error of law of misconception of facts due to lack of reason or violation of the rules

However, in addition to the above judgment, the court below held that it is difficult to conclude that there was a causal relationship between the non-performance of duty of disclosure and the conclusion of the insurance contract of this case even though non-party 1 violated such duty of disclosure, and therefore, the defendant's attorney's assertion of breach of duty of disclosure is without merit. However, according to the English Marine Insurance Act and customs applicable to the insurance contract of this case, under the insurance contract of this case, only a causal relationship between the non-performance of duty of disclosure and the conclusion of the insurance contract of this case does not necessarily require a causal relationship between the non-performance of duty of disclosure and the conclusion of the insurance contract of this case. Thus, the court below's determination of this part of the judgment of this case on the premise that the causal relationship between the non-performance of duty of disclosure and the conclusion of the insurance contract of this case is a mistake

(3) As to the misapprehension of legal principles as to seaworthiness or mistake of facts

The court below held that it is difficult to conclude that the vessel of this case was unable to have physical resistance, even if Nonparty 6 received an order from Nonparty 5 to injecte fuel oil tanks at the time of transfer of the vessel of this case at the end of May, 1995, and melting the hulls, the vessel of this case passed a regular inspection of the Korean Warmen Association with large remodeling and repair from January 1994 to April 1994, and was managed by Nonparty 3, the base captain, etc. even while the vessel of this case was at long-term stay at the port of softs, and it was difficult to conclude that the vessel of this case had no physical resistance ability to pay back the vessel of this case. Meanwhile, in light of the fact that Nonparty 6 did not have any physical resistance ability to pay back the vessel of this case even if Nonparty 6 received an order to inject fuel oil tanks No. 2 from Nonparty 5, the vessel of this case, but did not have any evidence to conclude that Nonparty 6 did not have the capacity to pay back the vessel of this case.

In light of the records, the above fact-finding and determination of the court below on the vessel's ability to rescue the vessel of this case is justifiable. On the other hand, as acknowledged by the court below, if the vessel of this case was able to rescue the vessel of this case in the first place of mountain accident, and the vessel of this case was in contact with the vessel of this case with the vessel of this case and damaged the vessel of this case, it would be reasonable to view that the vessel of this case had already failed to have the ability to rescue the vessel of this case at the time of re-entering the vessel of this case. However, the court below erred in finding that the court below did not have the ability to rescue the vessel of this case because it was difficult to view that the vessel of this case had no ability to rescue the vessel of this case because the vessel of this case had no ability to rescue the vessel of this case for the same period of time under the provisions of Article 39 (5) of the English Marine Insurance Act, which is applicable to the insurance contract of this case, the insurer of this case's ability to rescue the vessel of this case could not be justified.

3. Therefore, the appeal is dismissed, and all costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Son Ji-yol (Presiding Justice)