선원법 제9조(선장의 직접 지휘)의 문제점 및 입법 개선방안

Abstract

The Article 9 of the Seafarers’ Act prescribes some occasions when the captain of a ship shall take direct command of steering of the ship. Those include when the ship enters or leaves a port, when the ship passes through a narrow waterway, etc. If he violates the Article, he would be criminally liable to imprisonment not more than 1 year, or a fine of not more than 10 million won. However, the problem is that the Article itself is composed of some ambiguous terms, that should be clearly defined for the captains not to be confused. For example, there is no definitive time frame when the captain takes direct command when the ship enters or leaves a port. Nobody knows when the captain starts taking direct command when the ship enters or leaves a port. Narrow waterway is also problematic: nobody is sure whether a waterway with a certain width and length becomes a narrow waterway. Not a single waterway in the Korean coastal area has been designated as a narrow waterway. Unless well-defined, the captain could not able to abide by the Article 9. In addition, the legal obligation imposed on the captain might put Korean shipowners in adverse situations. Assume a Korean vessel collides with a foreign vessel. If the two vessels have the identical conditions, they may share the damages evenly, that is 50:50. However, if the incident happens in a narrow waterway and both captains do not take direct command at the time of the collision, the proportional fault would be totally different. As the Korean ship violates the mandatory safety provision of Article 9, the Korean-flagged ship is presumed at fault and would be required to pay the majority portion of the damages. Further, the Article prevents captains from getting some rest in accordance with the Maritime Labor Convention 2006, which specifies seafarers’ minimum rest hours. As both domestic and international law are valid in Korea under the Korean Constitution, both provisions are actually in conflict on captain’s rest hours. To solve those problems, the Article 9 should be amended to allow the captain to decide who is going to command the ship at a certain circumstance, based on his professional judgment. Finally, the author provides some amendment proposals, among which the proposal No. 3 would be the best alternative.