(영문) 대전고등법원 2015.7.23. 선고 2014누562 판결

Of the Korean Maritime Safety Tribunal's ruling on August 29, 2014, the part of the disciplinary decision against the plaintiff (1 month of the suspension of maritime duties in Paragraph 1) shall be revoked.

Reasons

1. The occurrence of the instant accident and the details of adjudication;

A. On June 11, 2012, around 16:31, a cargo vessel C (hereinafter “the instant vessel”) abutting on the 3 line from the raw material section of the opticalyang Port No. 3 at the time of leisure water had an accident of contact with the center part of the 3 line table of the above raw material (hereinafter “the instant accident”). At that time, the instant vessel was under the command of pilotage by the private person D on board as the main vessel of the first-class vessel, and the Plaintiff was on board as the captain.

B. In relation to the instant accident on August 29, 2014, the Korean Maritime Safety Tribunal rendered a ruling on August 29, 2014 that “The instant case was caused by the failure of C to command the operation of the vessel while approaching C’s mooring at the seat No. 3 of the Magyang Port 3. The Korea Maritime Safety Tribunal rendered a ruling that “The instant judgment was rendered (hereinafter referred to as the “instant ruling”). The type 1 pilot service of the person involved in a marine accident shall be suspended for three months, and the Plaintiff’s 1st mate service shall be suspended for one month.”

[Grounds for recognition] The entry of Gap evidence No. 2 and the purport of the whole argument

2. Determination on this safety defense

A. As to the defendant's main defense

The defendant asserts to the effect that "the judgment of the Korean Maritime Safety Tribunal is not subject to administrative disposition, and thus, it is unlawful because it seeks revocation of the judgment of the Korean Maritime Safety Tribunal which cannot be subject to revocation lawsuit."

On the other hand, it is clear that the subject of the Plaintiff’s claim for revocation in the instant lawsuit is not the part of the judgment by identifying the cause among the instant judgments, but the part of the judgment by disciplinary action against the Plaintiff.

In addition, since the judgment on the cause of a disciplinary action under Article 5 (1) of the Act on the Investigation and Inquiry of Marine Accidents (hereinafter referred to as the "Maritime Accidents Act") does not fall under an administrative disposition, it shall not be subject to an appeal litigation. However, the judgment on the cause of a disciplinary action under Article 5 (2) of the Marine Accidents Act and the determination thereof shall be based on a comprehensive consideration of the causes of a marine accident such as the degree of intention or negligence on the part of a marine officer or pilot, the degree of damage caused by a marine accident, the situation at the time of the occurrence of a marine accident, the experience of a marine officer or pilot, and other circumstances, so that the judgment on the cause of a disciplinary action and the application of the laws and subordinate statutes shall be disputed (see, e.g., Supreme Court Decision 2005Da65, Sept. 28,

Therefore, the defendant's main defense is without merit.

B. As to the Defendant’s Defendant’s Defendant’s Defendant’s Defendant’s defense of safety

The Intervenor joining the Defendant asserts to the effect that “the instant lawsuit was instituted with the lapse of the filing period, and thus, is unlawful.”

Article 74 (2) of the Maritime Safety Tribunal Act provides that a lawsuit against the ruling of the Korean Maritime Safety Tribunal shall be filed within 30 days from the date of receipt of the original copy of the ruling, and Article 161 of the Civil Act provides that if the last day of the period falls on a Saturday or a legal holiday, the period shall expire on the following day.

As to the instant case, comprehensively taking account of the overall purport of the pleadings, evidence Nos. 2 and 5, the Plaintiff served the original copy of the written adjudication on September 11, 2014, and filed the instant lawsuit on October 11, 2014, and on October 13, 2014, and on October 13, 2014, it is recognized that the facts of the Plaintiff’s delivery of the original copy of the written adjudication on the instant case on September 11, 2014, and on October 113, 2014, the date on which the Plaintiff was served with the original copy of the written adjudication on the instant case on September 111, 2014, but on that date, the expiration date of the lawsuit is deemed to be October 13, 2014, which is the expiration date of the lawsuit, and thus, the lawsuit in this case is lawful.

Therefore, the intervenor's defense of this safety is without merit.

3. Judgment on the merits

A. The plaintiff's assertion

In regard to the instant accident, even if the Plaintiff, the captain, was found to have certain degree of negligence on the part of the Plaintiff, the captain of the instant accident, in light of the following: (i) negligence of D, the main captain of the instant accident (i.e., negligence that did not reply to the Plaintiff, while securing a safe distance from tin at an early stage); and (ii) negligence of the Intervenor Sscco and the Intervenor joining the Defendant, Inc., Ltd. (hereinafter “ Intervenor Scco Construction”) (i.e., negligence that caused interference with the instant vessel’s failure to scco construction on the part of the vessel’s scco), and that the instant accident was caused by the instant accident, in light of the fact that the instant judgment on disciplinary action against the Plaintiff, among the instant judgment, was excessively harsh and thus unlawful.

(b) Fact of recognition;

(1) The specifications of the instant vessel

The instant vessel is 148,431 gross tons, 31.89 meters in length (321.95 meters in front), 58.00 meters in width, 29.50 meters in depth, and 266,141 tons in weight of goods, and cargo emphasizing the missionary work type (e.g., light-r., light-rout line).

(2) Power-free port raw material storage and access route

① The raw material section of the luminous port is in the length of 1,800 metres, 5 lines are constructed, and the fluor may move along 3.5 meters from the inner wall of the wharf with the 8 series of unloading machines (CSU) to the center of the tin. The Intervenor’s Poco has been located at the center of the tin when approaching the vessel for mooring.

The raw material wharfs of the opticalyang Port are accessible from the luminous port(3) route and paragraph(4) route, and the distance from the 3 line of the luminous port(s) to the end from the 3 line of the luminous port(s) to the end from the 1,600-meter.

③ In the event of the instant accident, the Defendant was designed to have a vessel, the length of which is 400 meters or less and the minimum depth of which is 21.5 meters or less (DWT) and which is 250,000 tons or less, but the Intervenor’s Poco was able to use a wharf by receiving a reply from the Administrator of the Regional Maritime Affairs and Port Office on December 14, 2004 that it is possible to use the relevant vessel without taking measures, such as the reinforcement of a separate wharf facility.

(3) Management of mining ports raw materials.

(1) According to the implementation of the wharf operating company system, an intervenor scco has leased facilities, such as mining raw materials and wharfs, from the Commissioner of the Regional Maritime Affairs and Port Office, for a period of five years (from June 1, 2009 to May 31, 2014) during which the contract period is fixed, and has been performing duties such as loading and unloading, cargo equipment and removal, maintenance and repair of facilities, and designation and management of the open storage.

② From January 1, 2006, Switzerland entered into a port transport business agreement with a stock company (hereinafter referred to as “StEL”) and managed and operated a wharf in the form of direction, supervision, and education concerning the operation and safety of wharfs, including loading and unloading equipment, for a port loading and unloading business.

(4) The current status of the dredging work at the sea front of the luminous raw materials at the port;

① On January 18, 2012, the Intervenor Spanco entered into a contract with the Intervenor on January 27, 2012, with the approval of the implementation plan for the harbor construction project on the expansion and dredging of the water zone of Wanyang, which was the contractor, on January 27, 2012. On February 20, 2012, the Intervenor Spoco entered into a subcontract with the Hanjin Industries Co., Ltd. (hereinafter referred to as “ Hanjin Industries”) on February 20, 2012.

Among the conditions of approval for dredging works, there was a sufficient safety distance and the conditions of keeping information lines and means of communication so as not to impede traffic safety, in relation to traffic routes, traffic vessels and raw material mooring vessels. However, at the time of the instant accident, the Intervenor Scco construction did not place information lines.

② On February 2, 2012, the Intervenor’s Pocco Construction confirmed “hing work and installation plan (final plan) for the prevention of contamination, including the order of dredging work areas and the design for the prevention of malfunction, through meetings in which the Intervenor Pocco, the Intervenor Pocco, the supervising team, etc. are present.” In the process, at the third execution plan council held February 9, 2012, there was an agreement that “the Intervenor Pocco Construction notified the Intervenor Pocco Construction at the time of entry into or departure from the port of entry with an emergency communication network at the time of anticipated interference from the pumps dredging line, and the Intervenor Pocco Construction will give priority to the navigation accident prevention by giving it to the Intervenor Pocco Construction.”

The dredging Corporation was planned to proceed with a total of three areas. On April 10, 2012, the dredging of Zone 1, which started with the dredging of Zone 4 on the front sea of the raw materials line, around May 25, 2012, and the dredging of Zone 1 was completed, and the dredging of Zone 2 was completed until June 5, 2012. From June 7, 2012, the dredging of Zone 2 began with the commencement of the dredging of Zone 2, and at the time of the instant accident, the dredging of Zone 2 was under way.

(5) The dredging operations at the time of the entry of the vessel of this case and the location of the unloading machine

① On June 11, 2012, on the date of the instant accident, the operator of the dredging boat in the Hanjin Industries, who carried out dredging work in Zone Two (2) from 12:00 to 14:00, moves dredging vessels in currency with the air control room of the Intervenor Spanco, and starts dredging work from 14:00 to 15:00 again, he/she moved dredging vessels from 15:00 to 15:00, and the location of dredging vessels at that time was located at a distance of 50 meters from 3 lines and 540 meters from 5.4 meters from 5 lines.

② The standard work manual of Bollel provides that the loading and unloading machine shall be located at the center of the line scheduled to be mooring if another vessel is moored before the mooring scheduled line, and the loading and unloading machine shall be situated at the center of the line scheduled to be mooring. At the time of the instant accident, another vessel was moored at the luminous port No. 2 and the tin No. 4, etc. at the time of the instant accident, and two payment was located at the center of the loading and unloading vessel No. 3.

(6) Specific details of the instant accident

① On May 13, 2012, the instant vessel loaded 24 seafarers, including the Plaintiff, who were the captain, in the Republic of South Africa, on board 261,140 tons of iron 261,140 tons and departs from the port boundaries of leisure port on or around June 10, 2012, with the length of 19,44 meters in the number of players, and 20.05 meters in the draft of the vessel.

D-1 The arrival at an anchorage (the draft line of the vessel was 19.66 meters, the draft line of the vessel was 19.62 meters), and on June 11, 2012, D and E, a leading pilot of the port-going ferry society, were on board in accordance with the criteria for the application of multiple ferries of the port-going ferry society (the point of June 11, 2012, both hereinafter referred to as “the point of June 11, 2012”). D did not check the safety of the dredging site before boarding the vessel, and did not give any notice to the dredging group at the scene of the expansion and dredging work.

② The Plaintiff, a captain, loaded 252,317 tons on a pilotage card on the basis of the load on the port of departure, and provided them with each of 19.50 meters 19.50 meters her for players and aft.

At the time, the actual draft of the instant vessel was more than 0.16 meters and more than 19.66 meters beyond the permitted draft line. However, D, without knowledge of such fact, started pilotage instruction and did not explain or consult on the Plaintiff regarding the dredging operation of the mining port and pilotage plan, etc.

③ At around 16:06, D directed the instant vessel, and sailed on the 3rd tin of its raw material wharf while sailing under paragraph 3, D 16:06, performed five towing vessels, including F and G, H and I, and J, to the port side of the instant vessel. D did not explain the instant vessel to the Plaintiff or the Plaintiff, even though, in consideration of the following factors: (a) the instant vessel was approach from the right side of the wharf to the 3rd tin; (b) the instant vessel was transported to the right side of the 3rd tin; and (c) the vessel was transported to the port side of the instant vessel at approximately 170 meters away from the port side to the port side of the 3rd tin; and (d) the vessel was scheduled to navigate to the port side of the instant vessel; and (d) the vessel was scheduled to navigate to the port side of the port side of the instant vessel; and (d) the vessel was not required to explain the vessel to the Plaintiff or the Plaintiff.

④ Around 16:19, when the distance from the wharf to the player is about 1,500 meters, D began to proceed with a main engine at a speed of about 5 knotss, 000 degrees, with a speed of 1,500 degrees, and began to proceed with a direction close to the 3 line at a speed of about 003 degrees and speed of 16:20, which deviate from the route of paragraph (3) of the light-going port at about 16:20 degrees and speed of 4.8 knotss.

D Around 16:22, the distance from the wharf to the stem rangeed to 1,000 meters, even though 4.5 p.m. speeded, she continued to resist without taking any measures to reduce her power.

⑤ While the instant vessel proceeds in a string on the right side of the vessel, at around 16:24, 00 degrees, 16:24 degrees 16:2, D used the instant vessel at a speed of 740 meters from the player to the 3rd line, and at a speed of 4.2 knots, D used the instant vessel at a speed of 4.2 knots with the steering gear to turn on the port side. At around 16:25, the instant vessel began to sail on the port side. At around 16:25, the instant vessel stopped the engine to stop the instant vessel on the port side. In such case, even though the player was approaching the wharf at a speed of 610 meters from the player to the wharf, D did not take necessary measures, such as the use of an engine for speed reduction.

6 D used the State engine in the speed back to the speed back of 350 meters in order to reduce speed by approaching the distance from the stem of the instant vessel to the wharf at around 16:27, but the speed still remains 3.9 knotss.

After that, D, at around 16:28, when the distance from the player to the wharf was at least 240 meters, used the main engine back to the back-speed and back-way, but the vessel of this case began to turn back to the port side of 335 degrees her speed at 3.8 knots.

D, at around 16:29, when the instant vessel was approaching the wharf at a distance of 170 meters from the foreline to the wharf, she used a extreme speed engine along with the foreline with the foreline. The speed at this time was 3.4 knots.

While the instant vessel approaches 3.4 p.m. at the speed of 3.4 p.m., 1st class navigator placed on the player according to the arrangement of the arrival department reported to D that “ship shall rapidly approach the wharf.” At around 16:30, D, upon receipt of the report, used an exclusive back-up engine at a distance of at least 75 meters from the wharf, but continued to proceed with the power, and the instant accident occurred, around 16:31 on June 11, 2012, contact the center part of the 3rd class of optical-sea raw material wharf.

7) The Plaintiff did not take any measures despite the fact that the leading captain D’s steering direction deviates from ordinary times to the wharf where the vessel is at an excessive speed.

8. In the instant accident, the instant vessel was damaged by the outer board, deck storage, athletes’ outer board, player deck, player storage, first stressing, etc. on the part of the athletes’ repair, and the instant vessel No. 3 of raw material wharfs.

There were approximately 10 degrees of damage caused by the mar-type shocking materials, 6 meters on the wharf, and aggregate of the continuous loading and unloading strings, leaving the strings, and leaving the strings.

[Ground of recognition] Evidence Nos. 2, Eul evidence Nos. 2 through 5, Eul evidence Nos. 1, Eul evidence Nos. 1 through 6 (including each number), and the purport of the whole pleadings

C. Determination

(1) Whether grounds for disciplinary action exist

In light of the Plaintiff’s status as revealed in the above facts and the circumstances of the instant accident, etc., in the process of causing the instant accident during which D, as the leading captain of the instant vessel, failed to properly control the power-driven force of sailing the instant vessel at an excessive speed while directing the instant vessel, the Plaintiff neglected the Plaintiff’s duty of care to provide accurate information on the instant vessel D and explain detailed pilotage plans to the wharf that the instant vessel is in contact with the wharf, as the captain of the instant vessel, and to review and consult with the captain of the instant vessel, and to confirm that D has access to the wharf scheduled at an excessive speed beyond ordinary navigational direction and fails to take corrective measures, or to direct the vessel to correct the occurrence of the instant accident. Accordingly, it is sufficiently recognized that the Plaintiff’s negligence on the part of the Plaintiff’s duty related to the occurrence of the instant accident constitutes grounds for disciplinary action against the Plaintiff.

(2) Whether the discretion of disciplinary action is exceeded or abused

Article 6 (1) of the Maritime Court Act provides that "the period of suspension of service under paragraph (1) 2 shall be between one month and one year," and Article 6 (2) of the Maritime Court Act provides that "the period of suspension of service under paragraph (1) 2 of the same Article shall be between one month and one year:

In light of the circumstances such as the background of the instant accident and the details of the Plaintiff’s negligence, it is difficult to deem that the part of the judgment of disciplinary action that suspends the Plaintiff’s work for the first-class mate for one month is unlawful since it considerably deviatess from and abused discretion.

Although the Plaintiff asserts to the effect that “the instant accident occurred by adding D’s negligence and the Intervenor’s negligence, such circumstances should be considered in determining a disciplinary decision against the Plaintiff.” However, considering the circumstances asserted by the Plaintiff, it is difficult to view that a disciplinary decision on the Plaintiff’s disciplinary decision in the instant judgment is excessive in light of the circumstances asserted by the Plaintiff.

D. Sub-determination

Therefore, the part of the ruling on disciplinary action against the plaintiff in this case is legitimate, and the plaintiff's assertion disputing this is without merit.

4. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit. It is so decided as per Disposition.