4.8 Legal Meaning of Recommended Course
What is a “recommended course” is not prescribed in the collision avoidance rules in
the COLREG or the KSSA. On the other hand, recommended courses can be found
in the inland sea of Japan such as Setonaikai. According to Japanese academics, a
recommended course has the force and status of a legal provision. Thus, navigators
are required to abide by the recommended course even though it is established by
some private entity rather than the government.
11
The Central KMST has rendered a decision stating that navigators sailing in the
Setonaikai should follow the route as recommended, therefore should navigate on
the starboard side of the recommended course. In this case, the M/V Samho Heron
was navigating on the port side of the route rather than on the starboard side. The
Central KMST criticized the M/V Samho Heron for not following the recommended
route. It explained that, strictly speaking, the recommended route was not of an
obligatory nature imposed by law, but it had reached that status by long repeated
practice of navigators and thus the navigator should follow it by the operation of the
ordinary seamanship rule (Central KMST 2010.9.14., Docket No. 2010-7).
5 Apportionment of Fault Ratio
5.1 Function of KMST
Damages or compensation is calculated on the basis of the apportionment or ratio of
fault of the parties involved in the collision (Art. 879). Therefore, the fault ratio is
very important under the Korean law. In practice, the fault ratio is virtually determined by the decision of the Korea Marine Safety Tribunal (KMST). The KMST
functions as an administrative tribunal acting as a fact-finding body to determine the
cause of a marine accident such as collision, fire, grounding, crew fatalities etc. It
also functions as a tribunal empowered to impose penal sanctions relating to the
licence held by a ship’s officer. This function of the KMST is authorized by the
Korean government which issues the licenses for masters and other navigation
officers serving on board vessels.
The KMST’s decisions on the cause of a marine accident have been widely
accepted by the Korean civil and penal courts. There is a provision in the KMST
Act which provides the KMST with the power to fix a contributed portion of each
party involved in the accident (Art. 4(2)). The fault ratio decided by the KMST is
separate and distinctive from a judgment rendered by the civil court. It is for the
administrative purposes; thus, the civil court is not obliged to follow the fault ratio
decided by the KMST. However, the judges in the civil court tend to rely considerably on the decisions rendered by the KMST including the fault ratio.
11 Ogawa (2002), p. 80.
Korean Collision Avoidance Rules and Apportionment of Liability
385
What is a “recommended course” is not prescribed in the collision avoidance rules in
the COLREG or the KSSA. On the other hand, recommended courses can be found
in the inland sea of Japan such as Setonaikai. According to Japanese academics, a
recommended course has the force and status of a legal provision. Thus, navigators
are required to abide by the recommended course even though it is established by
some private entity rather than the government.
11
The Central KMST has rendered a decision stating that navigators sailing in the
Setonaikai should follow the route as recommended, therefore should navigate on
the starboard side of the recommended course. In this case, the M/V Samho Heron
was navigating on the port side of the route rather than on the starboard side. The
Central KMST criticized the M/V Samho Heron for not following the recommended
route. It explained that, strictly speaking, the recommended route was not of an
obligatory nature imposed by law, but it had reached that status by long repeated
practice of navigators and thus the navigator should follow it by the operation of the
ordinary seamanship rule (Central KMST 2010.9.14., Docket No. 2010-7).
5 Apportionment of Fault Ratio
5.1 Function of KMST
Damages or compensation is calculated on the basis of the apportionment or ratio of
fault of the parties involved in the collision (Art. 879). Therefore, the fault ratio is
very important under the Korean law. In practice, the fault ratio is virtually determined by the decision of the Korea Marine Safety Tribunal (KMST). The KMST
functions as an administrative tribunal acting as a fact-finding body to determine the
cause of a marine accident such as collision, fire, grounding, crew fatalities etc. It
also functions as a tribunal empowered to impose penal sanctions relating to the
licence held by a ship’s officer. This function of the KMST is authorized by the
Korean government which issues the licenses for masters and other navigation
officers serving on board vessels.
The KMST’s decisions on the cause of a marine accident have been widely
accepted by the Korean civil and penal courts. There is a provision in the KMST
Act which provides the KMST with the power to fix a contributed portion of each
party involved in the accident (Art. 4(2)). The fault ratio decided by the KMST is
separate and distinctive from a judgment rendered by the civil court. It is for the
administrative purposes; thus, the civil court is not obliged to follow the fault ratio
decided by the KMST. However, the judges in the civil court tend to rely considerably on the decisions rendered by the KMST including the fault ratio.
11 Ogawa (2002), p. 80.
Korean Collision Avoidance Rules and Apportionment of Liability
385