서해안 기름 유출 사고와 삼성중공업의 배상책임

Abstract

This article deals with the question of whether Samsung Heavy Industries (SHI) may limit its liability to compensate for the loss caused by the oil spill in the West Sea of Korea which followed the collision of SHI’s crane barge and an oil tanker. Since the crane barge and the tugs are not a ‘ship’ within the meaning of the Oil Pollution Damage Compensation Act (OPDCA), the OPDCA’s limitation of liability clause is not applicable to SHI. But Article 746 of Commercial Code provides a limitation of liability for shipowners in general. A ‘personal act’ of the shipowner would include omission as well. In the case of a corporate person, its representative’s act would no doubt constitute an act of the corporate person. Under certain circumstance, however, its employee’s act may also be regarded as a ‘personal act’ of the corporate shipowner. Whether the shipowner had ‘actual knowledge’ that the loss would probably occur is a matter of the subjective state of mind which can only be inferred from objectively available evidence. If there was an obvious risk that the shipowner’s act or omission would cause loss, then it is likely that the court may find, as a matter of inference, that the shipowner had actual knowledge. While the question of recklessness and actual knowledge are conceptually distinct, these two would stand or fall together in practice. The limitation of shipowner’s liability applies only to claims for compensation for a ‘loss’. If a third party who has no duty to take measures to neutralize the oil spill had neutralized the oil spill on behalf of the shipowner who has the duty, the third party’s claim for reimbursement of expenses for neutralization is not a claim for a ‘loss’. With regard to such a claim for reimbursement, the shipowner may not rely on the limitation of liability.