국제해상충돌예방규칙에 규정된 선원의 상무의 국내적 효력

Abstract

The ordinary practice of seamen (OPS) provided in Rule 2(a) of the International Regulations for Preventing Collisions at Sea, 1972 (COLREG) is widely used as a standard on which whether a seaman has neglected any precaution required by prudent seamanship. In accordance with the OPS, the Korean Maritime Safety Tribunal (KMST) has made decisions to sanction seafarers involved in marine accidents. Unfortunately, OPS was not explicitly incorporated in the Maritime Safety Act (MSA) which is to implement COLREG in Korea. Thus, some raise questions on the legality of the decisions made by KMST. In this regard, the purpose of this paper is to look into which rule should be applied on the subject of OPS: COLREG or MSA. Obviously, there are a variety of opinions that favor one instead of another. Considering both pros and cons, the author concludes that only MSA should be applied in Korea; OPS could not be applied as a standard. One of the most compelling reasons of the author's conclusion is that Korean courts including KMST have to be bound by laws passed by the Korean National Assembly (KNA), not by treaties. If treaties overrides Korean Laws, legislative procedures in Korea would become void and meaningless. In addition, taking into account of the treaty obligation, the Republic of Korea, one of the parties of COLREG, has an obligation to perform it in good faith. Even though KNA has not incorporated OPS into MSA so far, unless the Assembly explicitly expresses its objection, MSA articles should be interpreted as harmonious as possible with those of COLREG. Therefore, the special circumstances of the case in Article 96.3 should be understood as including OPS.