[1] In a case where a barge leased by lease conflicts with another ship while operating a tugboat with a tugboat, whether the damage claim owned by the other party constitutes a claim subject to limitation of liability under Article 746 subparagraph 1 of the Commercial Act (affirmative)

[2] In a case where a claim that is subject to shipowner's liability limitation occurs while a tugboat and a towing boat were operated by a tugboat, whether the two vessels shall be deemed a single vessel at all times when determining the limit of liability pursuant to Article 747 (1) 3 of the Commercial Act (negative)

[3] In the case of the above [1], the case holding that the limit of liability of the ship owner of the tugboat shall be the aggregate of the amounts calculated according to Article 747 (1) 3 of the Commercial Act for the tugboat and the towed ship

[1] In a case where the captain and crew of a tugboat, as a combination with the tugboat, used for profit-making purposes without checking the navigational direction, speed, etc. of the prior vessel due to wireless contact, etc. while being driven by a towing boat in violation of the safety rules, and the towing boat faces collision with the vessel, the shipowner of the towing boat is liable to compensate the other shipowner for damage caused by an accident caused by such navigational error by the captain and crew of the towed vessel or crew, and the damage claim constitutes a claim arising from the loss or damage of the goods other than the vessel arising from the direct connection with the navigation of the vessel, as stipulated in Article 746 subparagraph 1 of the Commercial Act.

[2] Article 747 (1) 3 of the Commercial Code provides that the amount determined according to the tonnage of the "ship" shall be limited when adopting the so-called "amount of money among several legislative principles concerning the limitation of liability of the shipowner. Thus, in all cases where a claim that can limit the shipowner's liability occurs while the tugboat is being towed by towing, it shall not be deemed that the tugboat and the towed collectively correspond to the "ship" under Article 747 (1) 3 of the Commercial Code by applying the so-called "the limitation of liability of the shipowner."

[3] In the case of the above [1], since the owner of the towed used the towed for a commercial purpose as a lessee of the towed, he has the same rights and duties as the shipowner in relation to the matters concerning its use as to the third party pursuant to Article 766 (1) of the Commercial Act, the tugboat and the towed are assigned to a maritime business organization of the tugboat owner and caused an accident while carrying out its business activities, and the fault of the captain causing damage liability of the tugboat owner is not limited to the navigation of the tugboat, but is related to navigation of the towed which cannot navigate as towed by the tugboat, and damage to the other ship due to the collision is caused by the collision and the navigation of the towed is the fault of the owner of the towed in violation of the limit of navigation specified in the ship inspection certificate, and therefore, the limit of liability of the tugboat owner and the ship owner shall be the total tonnage calculated according to Article 747 (1) 37 of the Commercial Act, based on the total tonnage calculated according to Article 747 (1) 37 of the Commercial Act.

[1] Articles 746 subparag. 1, 747, and 843 of the Commercial Act / [2] Article 747(1)3 of the Commercial Act / [3] Articles 746, 747(1)3, and 766(1) of the Commercial Act

[1] Supreme Court Order 95Ma325 dated June 5, 1995 (Gong1995Ha, 2492)

Daeyang Shipping Co., Ltd. (Attorney Han Han-chul, Counsel for defendant-appellant)

Busan High Court Order 97Ra26 dated October 2, 1997

The reappeal is dismissed.

The grounds of reappeal are examined.

1. According to the reasoning of the order of the court below, the court below acknowledged the following facts by comprehensively taking account of the evidence attached to the record and the whole purport of the examination

A. The ○○○○○○○○○ is an applicant’s possession of the aggregate extraction and cargo transport business, and is a tugboat with a gross tonnage of 99t and diesel engine 2,250 masts. The △△△△△△△△△△ is a barge owned by Dongnam Loan Finance Co., Ltd., and with no power engine of 1,195 tons gross tonnage. The re-appellant entered into a facility lease agreement with Dongnam Loan Finance Co., Ltd., and directly maintained and manages the △△△△△△△△△△△△△△△△△△△△△△△△△△△△△△, and used it for sea sand transport.

B. At around 03:40 on July 18, 1995, 00, the ○○○○○○○○○ was in line △△△△△△△△△△, on which approximately 1,541 cubic meters of sand were loaded, under the direction and supervision of the Nonparty’s captain belonging to the re-appellant, and was in line 180 meters in length, coming from the port of Asia, at 04:15 on the same day, operated at 135∑, at a speed of 4.8 miles, with a speed of 34∑ 36°350 E., and the △△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△, which was in line, tried to find out the collision between the captain’s △△△△△△△△△△△△△△△△△△△△, which was in line.

C. At the time of the accident, the weather condition was almost 500 to 600 meters in the safe weather (distance). At the time of the accident, the Nonparty attempted to overtake △△△△△△△△△△△, the tugboat, without confirming the navigation direction, speed, dynamics, etc. at the time of the accident by wireless communications, radars, andless signal (fence). The Nonparty attempted to overtake △△△△△△△△△△△△△△△△△△△△△△△△, the tugboat, was on board by two seafarers belonging to the applicant, but there was no contact with the Nonparty that there is a concern of collision before the accident. The △△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△

2. The lower court determined as follows on the basis of the foregoing facts.

A. The non-party, the captain of the ○○○○○○○○, was trying to overtake the other party by lowering speed when sailing △△△△△△△△△, while checking the navigational direction, speed, and condition of the other party’s vessel through radio communications, radars, heavy signal, etc., and maintaining the safety distance to avoid collision at the time of overtaking the other party, without any duty of care to prevent collision.

If two crew members of the fleet, who were on board △△△△△△△△△, are overtaken in a distance near the other vessel, a thorough examination of the towing condition or possibility of collision of the towed vessel is confirmed, and if there is a concern of collision, the tugboat's captain has a duty of care to prevent the accident in advance, such as taking contact with the tugboat's captain, but did not take such measures.

In addition, the △△△△△△△△△ is a towing barge without a self-powered power, and the operation of a ship under visual restriction is extremely in need of high depth due to poor adjustment performance of the ship, and the ship inspection certificate stipulates that the navigation of the ship shall not be allowed when weather deterioration is made, including the case where the visible distance is less than 1km on the sea side for safe navigation of the ship. Therefore, the captain of ○○○○○○○ or the crew of △△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△

Therefore, the re-appellant, as the shipowner of ○○○○○○○, is liable for damages caused by the collision of terms and conditions owned by the other party by the △△△△△△△△△△, which was towed by ○○○○○○○○○○, due to the above error of navigation by the captain or crew of the ship being used for the navigation. The damage claim against the other party is the damage claim that the other party against the applicant is the damage claim that the other party incurred due to the loss or damage of things other than the ship, which occurred in direct connection with the operation of the ship, and is subject to the limitation of liability prescribed by Article 746 of the Commercial Act.

B. The collision accident of this case occurred due to the collision between the fleet ○○○○○○ and the fleet’s joint fault on the part of the captain or crew of the fleet or the tugboat on the part of the re-appellant, who was on board the tugboat or the towed. Under the re-appellant’s responsibility and management, the fleet formed a group of tugboatss with the fleet ○○○○○○○○○○○○○○○, the tugboat owned by the re-appellant. The two vessels were used continuously and repeatedly in the maritime cargo transport business of the applicant under the same direction and supervision of the captain and crew employed by the re-appellant and under the complete control and management of the re-appellant, and thus, the limitation of the liability of the re-appellant, the shipowner under Article 747 of the Commercial Act, is not merely based on the gross tonnage of the tugboat owned by the sub-appellant, and it is reasonable to consider the entire gross tonnage of the towed and the towed as a single vessel as the total gross tonnage of the towed.

C. Therefore, the limit of liability that the re-appellant may limit is 299,598 calculated based on the aggregate 1,294t (=99t +1,195t) of the total 1,294t (299,598 calculated based on Article 747(1)3(b) of the Commercial Act [167,00 +1,294t +1,294t x 167 units/ tons) (the physical damage suffered by the other party exceeds the above limit of liability).

3. Judgment of party members

First of all, according to the facts duly admitted by the court below, the claims acquired against the re-appellant by Dong-dong Shipping Co., Ltd., the other party constitutes "claims to the damage incurred due to the loss or damage of things other than the ship, which occurred in direct relation to the operation of the ship" under Article 746 (1) 1 of the Commercial Act, and the re-appellant can limit its liability under Article 747 (1) 3 of the Commercial Act.

However, Article 747 (1) 3 of the Commercial Act provides that the amount of △△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△'s liability shall be limited when the tugboat was towed and operated by towing, and all of the tugboats are used in the navigational area of navigation (ship method) and the "ship" under Article 747 (1) 3 of the Commercial Act. However, in this case, the re-appellant is a tenant of △△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△'s negligence.

However, the amount calculated as above is 83,000 units for ○○○○○○○○○, and 283,065 units for △△△△△△△△△△ (167,00 units + (167,00 units + (1,195-500) x 167 units) x 36,065 units for total amount. It is obvious that the limit of liability recognized by the court below is less than this (in addition, this amount is clear that it is less than the amount of credit of the other party recognized by the court below).

Therefore, the court below is improper to calculate the limit of liability of this case in a different way, but there is no error in finding that the △△△△ should consider the tonnage of the △△△△ in calculating the limit of liability of this case, and it is clear that the result of calculation is more favorable to the re-appellant than by the correct method. Ultimately, the ground for re-appeal of this case is

3. Therefore, the reappeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Final Young-young (Presiding Justice)