어선 선장의 직무상 과실의 범위에 관한 연구 - 선원사고와 관련된 해심의 재결사례를 중심으로 -

Abstract

This study is about range of work negligence of the captain of fishing boat. The captain of fishing boat is the general manager of ship. Therefore, basically, the captain must perform all duties based on seafarers law and maritime safety law, ship officers law. And these duties as both life saving duty and mandatory law are legislated on maritime public law. However, this acceptance of work negligence of fishing boat captain and the scope in relation to life saving duty has only ambiguous standard, deciding by circumstances (case by case), no logical and detailed standards. This study show the standard of interpretation in terms of acceptance of work negligence of fishing boat captain. There must be both the work negligence which consist of both consequence foresight duty and evasion duty, and causation between death or injury of fishing boat seamen and negligence. Also, death or injury of seamen should be caused due to this work negligence. Recognizing predicting work negligence in case of death or injury of seamen if there are these conditions, I did my best to discover the standard of interpretation in terms of work negligence of fishing boat captain. The result are as follows : First, causation between work negligence of captain and death or injury of fishing boat seamen as a probability theory based on ordinary empirical rules, must be decided by adequate causation theory. Second, according to the fishing work trait of the horizontal division of work in fishing boat there is possibility for fishing boat captain to escape from work negligence due to principle of trust. Obviously, in case of special circumstances, for example, cases of application of broken principle of trust, if, despite these special circumstances, the fishing boat captain continues to act by omission, we cannot help accepting the work negligence of fishing boat captain.