좁은 수로에서의 항법 적용에 관한판례 평석- 대법원 2020.1.16. 선고 2019두54092 판결 및 대전고등법원 2019.9.18. 선고 2019누10342 판결 -

Abstract

A number of maritime accidents such as collisions and grounding by ships of allsizes, such as fishing boats and passenger ships, can occur when sailing withinnarrow channels. In accordance with the Rule 9 of Convention on the International Regulations forPreventing Collision sat Sea 1972(hereinafter the “COLREGs”) and its domesticlegislation, Article 67 of the Maritime Safety Act, the navigation rules in a narrowchannel shall be applied, such as a vessel proceeding along the course of a narrowchannel or fairway shall keep as near to the outer limit of the channel or fairway onher starboard side as long as it is safe to do so. Article 67 of the Maritime SafetyAct in Korea also stipulates the same contents as in the COLREGs regardingnavigation rules in a narrow channel. However, given COLREGs and Maritime SafetyAct do not stipulate definitions and criteria of “a narrow channel”, it is not clearhow to define and to set criteria for “a narrow channel”. In this regard, in relation to the recent collision case between the car ferry andthe fishing boat(hereinafter “this incident”), Korean Maritime Safety Tribunal(hereinafter the “KMST”) decided that the waterway where this incident happened isnot a narrow channel. However, on the other hand, High Court and SupremeCourt(hereinafter the “Court”) made a judgement that it is a narrow channel. In otherwords, decisions handled down by the KMST and the Court were different on crews’negligence of the both vessels in this incident based on whether the waterway thisincident occured falls under a narrow channel or not. A criminal case against the master of the car ferry was also proceeded in respectof this incident. As a result of the different decisions made by the KMST and theCourt, higher criminal court has turned over the judgments of the lower criminalcourt. Even before this incident, there were some decisions made by KMST and Koreancourts on a narrow channel, but the certain criterion and definition for a narrowchannel is not established yet. Under the circumstances, this study aims to review the issues in relation to thenavigation rules in a narrow channel, the apportionment of liability and negligence onthe collision in a narrow channel, the effect of the decision of KMST on civil andcriminal proceedings and the necessity of maritime court by reviewing Supreme CourtDecision 2020.1.16. Docket No. 2019du54092 and Daejeon High Court Decision2019.9.18. Docket No. 2019nu10342, the decisions of the KMST and the criminalcourts, etc.