Whether an investigator under the Act on the Investigation of and Inquiry into Marine Accidents has a legal interest in seeking cancellation of an illegal disciplinary decision against the Supreme Court as a representative of public interest (affirmative)

In light of the investigator's duties, authority, role, etc. as provided in the Act on the Investigation of and Inquiry into Marine Accidents, the investigator is in the position of public interest, such as requesting an inquiry in conflict with the person involved in the marine accident and requesting the Korean Maritime Safety Tribunal to make a request for the second trial to the Korean Maritime Safety Tribunal. If the ruling of disciplinary action is unlawful and it is impossible to seek the cancellation of the ruling unless the person who received the ruling of disciplinary action is dissatisfied with the ruling of disciplinary action, it is unfair as an infringement on public interest. In such a case, the investigator has legal interest to seek the cancellation of the ruling of illegal

Articles 5, 17, and 74 of the Act on the Investigation and Inquiry of Marine Accidents

Supreme Court Decision 86Hu2 delivered on April 28, 1987 (Gong1987, 904 delivered on February 12, 1993)

An investigator of the Korean Maritime Safety Tribunal;

President of the Central Maritime Safety Tribunal

The Korean Maritime Safety Tribunal Ruling No. 2002-8 of Apr. 10, 2002

July 26, 2002

The plaintiff's claim is dismissed. The costs of lawsuit are assessed against the plaintiff.

1. Occurrence of marine accidents and rulings on disciplinary action;

According to Gap evidence No. 1, the following facts can be acknowledged:

A. On May 19, 2001, the cargo clock 6,976t gross tonnage (hereinafter referred to as the "ship of this case") loaded 9,500 tons of sugars at Thailand cock cock cock cock cock cock cock cock cock cock cock cock cock cock cock cock cock cock cock cock cock cock cock cock cock cock cock cock cock cock cock cock cock cock cock cock cock cock cock cock cock cock cock cock cock cock cock cock cock cock cock cock cock cock cock cock cock cock cock cock cock cock cock cock d.

B. Nonparty 1, as the captain of the instant vessel, was under direct command of navigation on behalf of the party on duty at the time of the instant accident.

C. On April 10, 2002, the Defendant rendered a disciplinary ruling, such as the statement in the purport of the claim, on the ground that: (a) discovered a vessel by Nonparty 1 at a relatively low distance; and (b) instead of relianceing on the recent transit distance predicted at the early stage, neglected the continuous boundary, and caused the instant accident by negligence in the course of performing duties excessively approaching the vessel; and (c) caused the instant accident by negligence (hereinafter “instant disciplinary ruling”).

2. Judgment on the Defendant’s main defense

The defendant asserts that the plaintiff's action of this case, which is an investigator belonging to the Korean Maritime Safety Tribunal, shall not be deemed to be a party's qualification or legal interest to file a lawsuit of revocation with the Supreme Court with the Korean Maritime Safety Tribunal, and therefore, the lawsuit of this case is unlawful as it is filed by a person who

In light of the duties, authority, role, etc. of the investigator under the Act on the Investigation of and Inquiry into Marine Accidents, the investigator is in the position of public interest, such as requesting for an inquiry in conflict with the person involved in the marine accident, and the Korean Maritime Safety Tribunal is entitled to request a second trial to the Korean Maritime Safety Tribunal if the ruling of disciplinary action is unlawful and the party against whom the ruling of disciplinary action was rendered cannot seek the cancellation of the ruling unless it is dissatisfied with the judgment. Thus, it is unfair as an infringement against public interest. In such a case, the investigator has legal interest in seeking the cancellation of illegal disciplinary action against the Supreme Court as the representative of the public interest, and therefore, it is reasonable to deem that the plaintiff is qualified in this case (see Supreme Court Decisions 92Da79, Feb. 12, 1993; 86Do2, Apr. 28, 1987, etc.).

The defendant's main defense is not acceptable.

3. Judgment on the merits

A. The parties' assertion

With regard to the Defendant’s assertion that the instant disciplinary decision was lawful, the instant accident was an accident of towing the other vessel, which is not a reduction of the volume of the vessel, and the instant accident was an accident of collision, and that said accident was not observed at night navigation, and thus, it cannot be deemed that Nonparty 1 was the negligence of leaving the fore part of the vessel without knowing the existence of such a reduction, and rather, Nonparty 1 did not display an appropriate light at night while installing a traffic-related vessel, but did not search the traffic-related vessels at night. Despite the risk of being towed, the instant disciplinary decision was unlawful on the premise that Nonparty 1 was negligent in the course of performing his duties by misunderstanding evidence preparation or by misunderstanding the provisions of the Marine Traffic Safety Act on the cause of the instant accident and the vessel under work in the course of the instant accident.

B. Determination

(1) According to Articles 13, 14, 15(1), 16(4) and (5), 26(2), 27(1) and (2), and Article 4 of the Enforcement Rule of the Sea Traffic Safety Act, a vessel shall at all times keep an appropriate alert by all means available in the prevailing circumstances and conditions so as to make full determination of the situation surrounding the vessel and of the risk of collision with another vessel; a vessel shall take proper and effective action to avoid collision with another vessel; a vessel shall at all times keep a safe speed so that she can stop at a distance appropriate to the prevailing circumstances and conditions; a vessel may take proper and effective action to avoid collision; a vessel’s density; a vessel’s stop, her speed and her ability to maneuver; whether it obstructs navigation; a vessel’s passage, wind, sea and her course at night; a vessel’s distance from her port at the time, and any other means of action to avoid collision with another vessel; and a vessel’s safe speed and effect shall be determined, if any, at the time of collision with other vessels.

(2) In full view of the whole purport of the pleadings, the following facts can be acknowledged in the statements of Gap evidence Nos. 1 and Eul evidence Nos. 1 to 9, and the statements of Gap evidence Nos. 2 and 3-1 to 3 shall not interfere with them.

(A) The instant vessel is 116.16m in length, 20m in width, 10.7m in height, 7.6m in her stem, and the other vessel is 13.9m in length, 3.9m in width, and 1.12m in height.

(나) 소외 1은 이 사건 사고 당시 사고장소 부근 해상을 처음으로 운항하면서 이 사건 선박이 2001. 5. 27. 19:45경 전남 영광군 안마도 근해에 이르자 직접 항해당직을 담당하였는바, 당시 전방 항로 주위에 30 내지 40척의 어선들이 산재하여 어로작업을 하면서 자선의 어망을 피해가도록 탐조등을 비추어 주어, 조타수로 하여금 수동조타하도록 하여 진침로 약 23도, 속력 약 11노트의 상태에서 수시로 조금씩 변침, 피항하면서 항해를 계속하던 중, 같은 날 20:50경 선수 거의 중앙 부근 약 4마일 거리에서 백색 전주등(전주등) 한 개를 켠 상대 선박을 발견하였으나 다른 어선과 달리 탐조등을 비추어 주지 아니하여, 선미측으로 어망을 내리고 정지하여 있는 배로 판단하고, 그대로 항해하면 좌현 약 0.15마일 거리로 지나갈 것으로 생각하고 특별히 유의를 하지 아니하고 있던 차에 곧이어 우현측에서 어망을 피해가라고 탐조등을 비추는 어선 현민호를 피항하느라 상대 선박과의 안전한 통과거리를 유지하는 것을 소홀히하였다.

(C) Meanwhile, in the vicinity of the instant accident site, the other vessel was anchored at the anchor line (50 meters in length) covering about 8 meters in width and 20 meters in height to the sea-bed, which connects about 160 meters in length, by tringing about 17 meters in width to the sea-water depth of the instant accident site, and the anchor line (20 meters in length) was set up, and the crew did not put on duty the approaching the approaching vessel while playing rest within the missionary area but did not put the approaching vessel on duty.

(D) On the ground that the vessel of this case was invaded to avoid the above operation of the vessel, the passage distance of the vessel of this case and the vessel of this case was likely to be higher than that of the vessel of this case. However, Nonparty 1, while proceeding from the stern side of the vessel of this case to the stem from the vessel of this case without any remaining speed trusting the above situation judgment, he did not know that the vessel of this case was affected by the vessel of this case, he towing the vessel of this case between about 30 seconds without knowing that the vessel of this case was affected by the vessel of this case and towing the vessel of this case by the vessel of this case.

(3) According to the above facts, the accident of this case is one of the causes caused by negligence not taking cooperative action to avoid collision by neglecting the boundaries while the other vessel is at anchor (However, since the other vessel at the time of the accident is not a vessel engaged in fishing but a vessel at anchor, it cannot be deemed that there is an obligation to indicate an all-round white light in the direction of operating gear, such as Article 33(2)2 of the Maritime Traffic Safety Act, and therefore, it is legitimate to indicate an all-round white light.) On the other hand, as the non-party 1, who first navigates at the sea near the accident site of this case where the vessel under fishing is scattered for the first time, shall prevent the accident by bypassing such vessel as far as possible, and even if the vessel is at anchor and is not at anchor, it can not be seen that the vessel passes along the other vessel, which is at anchor and is at anchor, and thus, it can be done at a safe speed between the vessel and the other vessel without fault and at a safe speed.

(4) Therefore, it is justifiable to recognize that there was a negligence in the course of performing duties on the occurrence of the instant accident in the instant disciplinary decision. Considering the content of the negligence and all the circumstances such as the result of the instant accident, etc., the contents of the disciplinary decision are not excessive, and thus, the discretion on the disciplinary decision is not erroneous. Thus, the Plaintiff’s claim of this case premised on the illegality of the instant disciplinary decision is without merit.

4. Conclusion

Therefore, the plaintiff's claim is dismissed, and the costs of lawsuit are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices.

Justices Yoon Jae-sik (Presiding Justice)