Whether a tugboat is exempted from the duty to give sound signals and light signals under the former Maritime Traffic Safety Act solely on the ground that the tugboat is a barge or has no authority or duty to direct and supervise the navigation of the tugboat to its crew (negative), and whether only the tugboat is responsible for the collision with another vessel or object, regardless of the fault of the owner or crew of the barge (negative)

Articles 10(1)2 (see current Article 10(1)2), 28 (see current Article 40), 31(3) (see current Article 43(3)), and 42(1)4 (see current Article 54(1)4) of the former Sea Traffic Safety Act (wholly amended by Act No. 8380, Apr. 11, 2007); Article 1-2 subparag. 3 of the Ship Act; Articles 750 and 760 of the Civil Act

Hyundai Marine Fire Insurance Co., Ltd. (Attorneys Kim Hong-Gyeong et al., Counsel for the defendant-appellant)

National Federation of Fisheries Cooperatives (Attorney Byung-il et al., Counsel for the plaintiff-appellant)

Seoul High Court Decision 2008Na32541 decided August 12, 2008

The appeal is dismissed. Of the judgment of the court below, the part of the judgment below against the plaintiff as to the plaintiff's claim for confirmation of the non-existence of an insurance claim against the non-party in relation to the conflict case between the plaintiff and the non-party △△△△ and the non-party ○○ho Construction Co., Ltd. on July 13, 2006 and the non-party ○○○ on July 13, 2006. The costs of the appeal

The grounds of appeal are examined.

1. Plaintiff’s ground of appeal

Articles 28 and 31(3) of the Maritime Traffic Safety Act (wholly amended by Act No. 8380 of Apr. 11, 2007; hereinafter the same) provide that “A towed vessel shall indicate a pair of sidelights and a stern light.” Article 42(1)4 of the Maritime Traffic Safety Act provides that “a vessel towing in an area of restricted visibility shall sound four blasts in succession (one prolonged blast one prolonged blast) at intervals of not more than two minutes if there is a crew member, at intervals of not more than three minutes.” Thus, solely on the sole ground that the towed vessel is unable to navigate in person, or that there is no authority or duty to direct and supervise the navigation of the towed vessel to direct and supervise the navigation of the towed, it cannot be said that the above sound signal and signal of the towed vessel is exempted, and Article 10(1)2 of the Maritime Traffic Safety Act provides that only the owner or crew member of the towed vessel shall bear the responsibility for collision with the barge under Article 12-2 of the Ship Act.

The court below, after compiling the adopted evidence, found the facts as stated in the judgment, based on the facts acknowledged, determined that the collision accident of this case was negligent on the side of the tugboat, the tugboat, and further, rejected the plaintiff's assertion that such determination is not in violation of the contents of the final judgment between the plaintiff, co-defendant ○○ Shipping Co-Defendant 1 (hereinafter "○○ Shipping") and the non-party, on the ground that the defendant is not a party to the above final judgment and its effect does not extend to the defendant. In light of the above legal principles, the court below's decision is just and acceptable, and there is no error of law such as violation of the rules of evidence, subject matter of adjudication, res judicata and misunderstanding of legal principles as to the Sea Traffic Safety Act, as alleged in

2. Ex officio determination

According to the reasoning of the judgment below, the court below rejected the plaintiff's lawsuit on the ground that ○○ Shipping and ○○○ Shipping owned by the non-party's △△△△△ and ○○○○ Shipping sought confirmation of the non-existence of the plaintiff's obligation to pay claims against the defendant in addition to seeking confirmation of the non-existence of the plaintiff's obligation to pay claims against the defendant against ○○ Shipping and the non-existence of each insurance claim against the non-existence of the non-existence of the plaintiff's obligation to pay claims against the non-existence of claims against ○○○ Shipping and the non-party in relation to the non-existence of the plaintiff's obligation to pay claims against ○○○ Shipping and the non-party in relation to the non-existence of the plaintiff's obligation to pay claims against the non-party on July 13, 2006. As such, the court below dismissed the plaintiff's claim on the ground that there is no interest of confirmation as to the non-party'

However, even if examining the record, the Plaintiff sought against the Defendant confirmation of the absence of the Plaintiff’s obligation to pay attached claims against the Defendant, confirmation of the absence of the Plaintiff’s obligation to pay insurance claims against ○○ Shipping, and confirmation of the absence of the Nonparty’s obligation to pay insurance claims against the Nonparty, respectively, and there is no claim against the Defendant for confirmation of the absence of the Plaintiff’s obligation to pay insurance claims against ○○ Shipping and the Nonparty.

Nevertheless, the judgment of the court below on the part of confirming the absence of each insurance claim against the plaintiff ○○ Shipping and the non-party, which the plaintiff did not claim against the defendant, constitutes an unlawful violation of the principle of disposition under Article 203 of the Civil Procedure Act. Thus, this part of the judgment of the court below cannot be reversed.

3. Conclusion

Therefore, the appeal is dismissed, and the part of the judgment of the court below against the plaintiff as to the plaintiff's claim for confirmation of the absence of insurance money payment obligation against the non-party. The costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating

Justices Ahn Dai-hee (Presiding Justice)