船舶 間 通航方法의 合意와 民事責任의 問題

Abstract

When there is an agreement on the passage between vessels, the parties shall abide by the agreement. In this case, it should be recognized that by an agreement on the passage of vessels the parties gained reasonable credibility that other party would also navigate in accordance with the agreement. Those reliances of the parties' are well-founded either on the ordinary practice of seamen or on the section 2 of the Korean Civil Code(hereunder 'KCC'). In the meantime, the possibility of foresight which is the essence of negligence under the KCC is not a mere concept of words itself, but rather it should be recognized as a possibility of foresight reviewed from the viewpoint of the tort laws. In this regard, when an agreement was concluded between vessels as to the ways of passage, a party's reliance to the agreement should be respected as reasonable and would be regarded as being free from blame in principle. However, even if the legal meaning of an agreement on the passage can be interpreted as mentioned above, there should be a limit to an agreement between vessels as to the ways of passage. An agreement between ships on the passage can not hurt a third party's interest and any public concerns, including protection of marine natural resources and the efficiency of marine traffics. In addition, when a party already violated marine traffic regulations or when a party was aware or should have been aware of the other party's infringement of marine traffic rules, a party's confidence to the other party can not get the legitimacy.