해상법상 선박관리회사의 책임제한 배제사유 - 대법원 2012. 4. 17.자 2010마222 결정 -

A ship management company broadly deals with the acquisition of the ships, securing income from the ships, operating the ships and running the business. One of the important thing is that ship management and administration functions to be undertaken by a third party management company rather than in-house management company. For all ship and shipowners, whether a ship management company has full authority to supervise and control the vessel or not, its behavior depends on the definition of shipowner for the limitation proceeding or not. On the other hand, the right to limitation of liability may be lost if the cargo claimants proves: (ⅰ) that the loss was caused by the personal act or omission of the ship management company; (ⅱ) that the personal acts or omission were committed recklessly; and (ⅲ) that ‘at the time of those acts or omissions’, the ship management company actually knew that such loss would probably result. By comparison, International Convention on Limitation of Liability for Maritime Claims, 1976 at art. 4 and Korean Commercial Act at art. 769, 797(1) more clearly sanction quasi-deviations, but only where the offending ship manager acts with intent to cause the loss or recklessly and with knowledge that such loss would probably result. This paper pays attention to three specific cases of the reason to exclude limitation of the ship management in the commencement proceeding for limitation of liability. They are (ⅰ) the definition of ship under the tug or barge boat, (ⅱ) the significance of the full authority of the ship management company to supervise and control the vessel, and (ⅲ) its intentional act or reckless behavior.