선주책임제한절차의 제한채권 조사·확정에 관한 실무상 문제점

Abstract

Limitation proceedings of liability of ship owners mainly regulate proper distributionof dividends to limited creditors. Investigation and confirmation of limited claims is a prerequisiteof distribution, so it is one of the most important parts in the proceedings which should considerfactors as swift process, substantial rights and interests, equity amongst limited creditors etc. There are some practical issues in the limitation proceedings. Provisions of the Act on theprocedure for limiting liability of ship owners do not give enough answers to the issues. Thisarticle deals with the practical issues regarding investigation and confirmation of limited claims inorder. An administer who plays a very important role in investigation needs to discuss with thelimitation court for proper investigation and equity. The limitation court is required to checkduplicated claims, succeeded claims carefully. Especially claims’ assessment reports authorized byIOPC Fund can be useful materials in the case of oil pollution damage. The limitation court needsto ascertain whether claims submitted to IOPC Fund are same as limited claims in court. Assessment decision in the limitation proceedings is a prerequisite for lawsuit challenging assessment decision. However, lawsuit challenging assessment decision is a different procedurefrom limitation proceedings and it is just a kind of civil actions. For trial, civil court and bothparties are required to exercise right of elucidation and bring documents and evidences fromlimitation proceedings. Alteration in claims can not be allowed if it trespasses rights of otherlimited creditors.