예선계약상 피예인선의 제3자에 대한 책임 (대법원 2010. 1. 28. 선고 2008다65686, 65693 판결)

Abstract

Regarding responsibility of the tug and tow against a third party during the towage convey,it is commonly accepted in Korea that the contract of towage can be classified to several typical contracts which are stipulated in Korean Civil Code, then from the legal characteristics of those contracts, especially who has the control of the towage convey, the entity who is liable to the third party can be directly decided. However in principle, the entity who is liable for the third party shall be the person who’s fault causes damage, in this regard the above mentioned commonly accepted views must be strictly reviewed. Therefore, when a towage convey or flotilla collides with a third party vessel, the entity who is responsible for the third party must be a person who is at fault. On the other hand, for the performance of the towage no vessel including the tow and the tug is a passive spectator. Regardless of who has the control over towage between the tug and the tow, each vessel remains always under an obligation to exercise reasonable care in and about her navigation simply as a matter of self-help and of a duty owed to others. These duties can be extracted from the proper good seamanship during the towage service and other aspects of the tow’s obligations; the duty of co-operation. In this sense, even though a dumb barge was towed by a tug, the tow must follow the movement of the tug with all proper seamanlike response, and must keep a good look-out and must exercise all ordinary navigation precaution including navigational lights and signals. Especially in fog or poor visibility the tow must not allow the tug to proceed at excessive speed and must warn other vessels about her movement so as to respond to any sudden events threatening a third party with proper ways.