해사안전법상 특수한 상황에 있어서 선원의 상무 규정 적용에 관한 연구

Abstract

The Article 96 of Maritime Safety Act (hereafter, the Act) is a provision to implement the Rule 2, Responsibility of COLREG domestically within the Korean waters. In contrast, this Article does not include concept of the ordinary practice of seamen stated in the COLREG provision, and this may incur extension of application of the Article than that of the COLREG Rule 2. Also, such extension of application may bring more burden on subjects of the Article, any vessel, or the owner, master or crew thereof with respect of duty they should exercise. In recent maritime collision cases, the Korea Maritime Safety Tribunals applied the Article 96 of the Act and the ordinary practice of seaman of the COLREG Rule 2 in a same case without defining its concept, whereas this has raised uncertainty in the extent of the Article 96, especially, what extent of reasonable conduct a vessel, or the owner, master of crew thereof can take under the Article 96. Recognizing such matter, this paper firstly explores the norm of duty of care and the ordinary practice of seamen of COLREG under the common law system since the COLREG was originally written as an English law. Then, duty of care and reasonable person test in the Article 96 of the Act will be examined literally and systematically, considering its purpose within the Korean legal system. After that, the paper identifies differences between the Article 96 and the Rule 2 and also scrutinizes matters flowed from it, and lastly suggests what measures should be taken to address the matters, including its amendment or enactment of a separate legislation giving effect of the COLREG domestically.