of its crew (navigators). The right of the victims to claim damages against the owner
is based on tort law. In essence, a ship collision is a maritime tort. Without being able
to prove negligence on part of the defendant, the plaintiff will not have a cause of
action against the defendant and will not succeed in a tort action. Negligence of the
crew in relation to the ship’s collision means that the crew did not comply with the
collision avoidance rules. The extent of the crew’s violation of the rules dictates the
extent of damages that the owner should pay. In this regard, the collision avoidance
rules have a close relationship with the law of collision liability under which
compensation may be payable to the victim.
Many collisions occur in Korean waters including the territorial seas of Korea.
According to the statistics issued by the Korean Maritime Safety Tribunal (KMST),
in 2009, for example, 87 collisions occurred within Korean territorial seas.
2 Function of Collision Avoiding Rules in the Damage
Compensation
The navigator’s breach of a duty stipulated in the collision avoidance rules may
bring about liability on his part and also the shipowner as his master. According to
the Korean Civil Code Art. 750, victims of a marine collision are entitled to claim for
damages against the wrongdoer based on tort. A “both-to-blame” collision case falls
within the description and definition of a mutually committed tort. In such a case,
both persons who contributed to the tortious act are jointly and severally liable for
the damage so caused by the co-tortfeasors under Article 760 of the Korean Civil
Code (KCC). Notably, however, in the case of a ship collision, the tort law is
modified pursuant to the collision provisions in Article 879 of the KCC. Under the
Korean law, a third party is allowed to claim the portion of a tortfeasor’s share in the
liability. Therefore, the apportionment of liability is very important in Korea. The
apportioned liability is distributed in accordance with the extent to which each party
has been in violation of the collision avoidance rules. In this regard, the collision
avoidance rules have a significant effect on the damages or compensation payable in
a collision case.
3 Collision Avoiding Rules in Korea
3.1 General
By ratifying the 1972 COLREG Convention in 1977, Korea became a contracting
state of that Convention. In addition, Korea enacted the domestic legislation known
as the Korean Marine Traffic Safety Act (KMTSA) in 1986 (a part of 2012
378
I. H. Kim
is based on tort law. In essence, a ship collision is a maritime tort. Without being able
to prove negligence on part of the defendant, the plaintiff will not have a cause of
action against the defendant and will not succeed in a tort action. Negligence of the
crew in relation to the ship’s collision means that the crew did not comply with the
collision avoidance rules. The extent of the crew’s violation of the rules dictates the
extent of damages that the owner should pay. In this regard, the collision avoidance
rules have a close relationship with the law of collision liability under which
compensation may be payable to the victim.
Many collisions occur in Korean waters including the territorial seas of Korea.
According to the statistics issued by the Korean Maritime Safety Tribunal (KMST),
in 2009, for example, 87 collisions occurred within Korean territorial seas.
2 Function of Collision Avoiding Rules in the Damage
Compensation
The navigator’s breach of a duty stipulated in the collision avoidance rules may
bring about liability on his part and also the shipowner as his master. According to
the Korean Civil Code Art. 750, victims of a marine collision are entitled to claim for
damages against the wrongdoer based on tort. A “both-to-blame” collision case falls
within the description and definition of a mutually committed tort. In such a case,
both persons who contributed to the tortious act are jointly and severally liable for
the damage so caused by the co-tortfeasors under Article 760 of the Korean Civil
Code (KCC). Notably, however, in the case of a ship collision, the tort law is
modified pursuant to the collision provisions in Article 879 of the KCC. Under the
Korean law, a third party is allowed to claim the portion of a tortfeasor’s share in the
liability. Therefore, the apportionment of liability is very important in Korea. The
apportioned liability is distributed in accordance with the extent to which each party
has been in violation of the collision avoidance rules. In this regard, the collision
avoidance rules have a significant effect on the damages or compensation payable in
a collision case.
3 Collision Avoiding Rules in Korea
3.1 General
By ratifying the 1972 COLREG Convention in 1977, Korea became a contracting
state of that Convention. In addition, Korea enacted the domestic legislation known
as the Korean Marine Traffic Safety Act (KMTSA) in 1986 (a part of 2012
378
I. H. Kim