船舶衝突에 있어서 過失 責任에 관한 硏究

Abstract

With a gross tonnage exceeding 12 million tons, Korea is currently one of the leading maritime nations of the world. However, approximately 800 marine accidents including ship collisions occur every year, and such frequent accidents result in considerable amounts of property losses and personal injuries. Accordingly, legal provisions governing ship collisions have gradually become very important. Nevertheless, the Commercial Code contains only six articles related to the ship collisions, which are not detailed enough to cover the diversified circumstances of ship accidents.

In particular, the Commercial Code provisions do not address the elements of ship collision, burden of proof or calculation method of negligence ratio, etc. Under the Commercial Code provisions, the ratio of responsibility principle applies with respect to property damage. With respect to loss of life, however, the Commercial Code simply provides for the joint liability principle, and does not mention the calculation method of damages. The Commercial Code invokes the principle of responsibility ratio for both property damages and loss of life as provided in the International Convention for the Unification of Certain Rules of Law with respect to Collisions between Vessels (1910), Article 4, Paragraph (3). However, seriously consideration is necessary as to whether the application of the ratio of responsibility principle is appropriate with respect to loss of life.

Further, in considering the apportionment of responsibility for collisions, the view that both parties to the collision should be responsible (cross liability principle), and the view that only one party to the collision should be responsible as the sole tortfeasor (sole responsibility principle), should be closely compared and analyzed.

The purpose of this thesis is to present various domestic and foreign judicial precedents concerning ship collisions, to serve as a resource for future legislations on the above subjects.

Specifically, Chapter Ⅰ "Introduction" discusses the background of the study and the issues relating to Article 846, Sections 1 and 2 of the Commercial Code

Chapter Ⅱ addresses the definition of the "ships" and the elements required for a ship collision, Collision of ships due to force majeure(The Commercial Code, Article 844), Collision of ships due to negligence of one party(The Commercial Code, Article 845). The meaning of "ship" under each separate legislation must be interpreted in accordance with the context of the relevant legislation, where the legislation provides for the meaning of the term ship in accordance with the purpose of legislation. However, in the case of independent legislations and other matters, the concept of ship should be defined by taking into consideration not only the provisions of the legislation, but also the surrounding circumstances including the ability of navigation, function and purpose of the relevant vessel, together with the provisions of the legislation.

In the case of damage to a third party by a tug or tow, the various existing legal principles lacks generality, and further gives rise to the question whether the innocent third party can be fully compensated. Thus, the responsible party for the tort in the course of towing a vessel should be determined, based on the principle that the tug and tow are a single unit and that the master of the tug has primary responsibility. However in this case, the nature of the tow and the circumstances of the towing operation should be fully taken into account.

Chapter Ⅲ deals with the meaning of "Fault" under the civil law, criminal law and collision regulations, the determination and the criteria of negligence in case of collision between ships. The decision of the Marine Accident Adjudication Tribunal in a case of collision between ships only serves as reference material for the purpose of judgement of the court. In order for the Marine Accident Adjudication Tribunal's decision to carry more weight in the future, it is necessary to establish a system to secure the expertise and independence of the Marine Accident Adjudication Tribunal marine judges. In connection with the type of negligence, calculation of the proportion of negligence and burden of proof as to apportionment of liability, domestic and foreign judicial precedents, have been cited for comparison, and would be important materials for assessment of the ratio of negligence in ship collision cases.

Chapter Ⅳ considers the responsibility for compensation for damage caused by ship collisions, which is the main issue in such accidents.

The following issues are considered in Chapter Ⅳ:

- Who is responsible for the collision?

- The Commercial Code, Article 846, Section (1) : Collision of ship due to negligence of both parties.

- Scope of responsibility for compensation for damage in case of collision of ships due to negligence of both parties.

- Comparison between the single liability principle and the cross liability principle.

- Comparison between liability for loss of life and liability for loss of property.

Chapter Ⅴ discusses the invocation of the immunity clause, limitation of shipowner's liability, time bar, jurisdiction and governing law relating to the ship collision.

In case of collision between two ships of different nationality, adoption of the laws of the perpetrating ships nationality is of questionable validity in terms of legislation. In case where the cause of collision cannot be established, it is very difficult to determine which vessel is responsible for the collision. Therefore, if the two vessels collided on the high seas and an action based on such collision is brought before the Korean court, the case would have to be governed by Korean laws pursuant to the principle of lex loci. To resolve this difficulty, it is necessary to consider a revision of the Korean Conflict of Laws Act so as to accord jurisdiction to the Korean courts in case of collision on the high seas involving a Korean ship, and to apply the Korean Commercial Code for determination of issues relating to liability.

It would be difficult to reach a conclusion on any of the aforementioned subjects. Therefore the writer herein presents judicial precedents in various cases that occurred in England, U.S.A and Korea. The Commercial Code, Article 846 provides the basis for calculation of compensation amount for damages arising out of collision between ships due to negligence of both parties. The International Convention on Collision of Ships (1910) provides that the compensation for damage resulting from ship collisions due to negligence of both parties shall be borne by the owners of the ships in proportion to their respective weight of responsibility for the collision, and that in case the weight of responsibility cannot be assessed, the negligence of both parties shall be deemed equal. The above provision apparently takes into consideration the demands of marine underwriters at the time of drafting the Convention.

Almost all compensations for damage resulting from collision of ships in the present day are settled by way of marine insurance. As such insurance coverage is based on liability for ship collision, it is necessary to closely examine the legal principles governing ship collisions. The principles governing compensation for loss of property in case of collision caused by negligence of both parties are modifications of the general principles under the Civil Code. However, liability for loss of lives of third parties in case of collision due to negligence of both parties is imposed jointly on both parties. It is therefore noteworthy that the loss of property due to ship collisions, which can be considered an internal matter, is governed by the principle of proportionate liability, while the loss of lives of third parties is governed by the tort principles under the Civil Code. Thus, it should be noted that notwithstanding the common nature of marine perils, the system of compensation for damage is governed by a dual principle. The writer, therefore, would like to point out that the liability for loss of property as well as for loss of lives of the third party in case of collision due to negligence of both parties, shall be imposed jointly on both parties in line with the Japanese Commercial Code, Article 797, because there is not any any special reason to discriminate the loss of lives and the loss of property of the third parties for the innocent parties' interest.