어선의 충돌사고 발생 시 항법의 착오의 법률상 효과 - 등화 및 형상물의 게시와 관련된 해양안전심판원의 재결태도를 중심으로 -

This study is about legal effect and direction of correct interpretation of navigation’s mistake in relation to posting duty of lights and shapes, which means fishing vessel is whether working or not, on fishing vessels collision accident. Fishing vessels are faced with many different collision cases than commercial ships and are more numerous than commercial ships. The reason for this is that fishing vessels are not mainly intended to be sailed, but are intended to catch a fish at sea by means of navigation. Therefore, fishing vessels have characters, which are to continue both sailing and fishing. Even though the fishing vessel is sailing, as soon as the fish finding machine of fishing vessel discover fishes the state of fishing vessel changes to catching a fish from sailing. The navigation regulations that express such intentions to external ships, which means that the fishing vessel is catching a fish, are posting of lights and shapes under Article 26 of COLREGs, 1972 and Article 84 of Korean Maritime safety Act. Such fishing vessels are more likely to cause navigation’s mistake in relation to the violation of the above rules. Because these declaration of intention due to posting designated lights and shapes is a sign that the fishing vessel is working to catch fish and has navigation priority compared to general ships including sailing boats. Also, these designated signal rules serve as important grounds not only in disciplinary of the related ship officer and counting negligence rate but also civil and criminal procedures which may later take action in the event of a collision accident. However, Korean maritime safety tribunal has judgement tendency that is to decide too easily negligence of general ships which is opponent ships of fishing vessels on the basis of practice of seamanship in case of navigation’s mistake in relation to posting duty of lights and shapes. In addition, Korean maritime safety tribunal easily decides causation between collision accident and negligence of general ship. This means that Korean maritime safety tribunal admit fishing vessel which produce mistake of law about violation of posting duty of lights and shapes has almost no negligence or a very low rate of negligence. This is able to be verified by the rate of negligence which Korean maritime safety tribunal show in judgement papers. I think that we should strictly determine whether there was a “justifiable reason” for such fishing vessels’s violations of posting duty of lights and shapes due to mistake. This is a natural result in the interpretation of the law, which places logic most importantly. Once a clear and logical judgement for justifiable reason of mistake has been performed, if there is any doubt as to the interpretations, then go on to apply the practice of seamanship to the opponent ship. This principal of application is not too late. The specific standard for determining whether there is such a “justifiable reason” can be judged on the basis of custom (practice) → obligation of consideration → obligation of inquiry. When analyzing the cause of an marine accident in the event of a ship collision, the first thing to do is to analyze the violation of navigation. Next step is logical interpretation of law on the violation of navigation. At the final stage, the practice of seamanship will be reviewed and applied.