물돛을 내리고 어로작업 중인 선박의 항법상 지위

Abstract

A vessel engaged in fishing as stipulated in the COLREG and the Maritime Safety Act is not simply a vessel whose purpose is for fishing or externally engaged in fishing, but it refers to a vessel whose maneuverability is substantially restricted due to being engaged in fishing. Therefore, in spite of being engaged in fishing, if the maneuverability of the vessel is not affected or restricted in any way, it cannot be regarded as a vessel engaged in fishing. In this context, in the Maritime Safety Act, the characteristics of a ship engaged in fishing and a vessel restricted in her ability to maneuver are substantially limited in maneuverability, but considering that there is a certain degree of difference in the practical restriction of maneuverability, it can be seen that there is only a difference in the navigational status. Then, in the case of a vessel engaged in fishing, depending on the case, it may have a status as a 'vessel restricted in her ability to maneuver' or 'a vessel engaged in fishing' in the application of the COLREG and maritime safety laws, also may have overlapping status as a 'vessel restricted in her ability to maneuver' and a 'vessel engaged in fishing'. On the other hand, it is difficult to determine unambiguously whether a vessel using a sea anchor is a vessel engaged in fishing. In order to recognize a vessel using a sea anchor as a vessel engaged in fishing as prescribed by the COLREG, the sea anchor should have a substantial effect on the ship's maneuverability. However, the shape and size of sea anchors used in fishing practice are not designed and manufactured based on hydrodynamic characteristics, but are arbitrarily manufactured according to the customary needs of users and the experience of manufacturers. Accordingly, whether or not a sea anchor has any effect on the maneuverability of a ship is a part that requires factual and judicial judgment to be determined in detail by courts and judges in individual cases. However, if engaging in fishing with a sea anchorl causes substantial restrictions on a vessel’s maneuverability, the vessel concerned can be regarded as a ‘vessel engaged in fishing’ as stipulated in Article 18 of the COLREG or Article 76 of the Maritime Safety Act. Furthermore, if the maneuverability of a vessel is severely restricted due to the influence of a sea anchor, there is room for recognition of the navigational status of a vessel concerned as a vessel not under command or a vessel restricted in her ability to maneuver.