해사안전법상 해양사고 발생시 조치의무의 문제점 및 개선방안

Abstract

The requisite for making duty of care with respect to marine accidents under the Maritime Safety Act has several problems so that it shallbe interpreted and reformed as follows. First, the Maritime Safety Act does not have a substantive provision with regard to ‘the definition of the marine accident’, but it shallbe an accident related to safety of ships and sailing under the purpose of the act. Second, the Act imposes duty of care on the master as well as the ship-owner in the event of the marine accident, but it is legislatively appropriate that the regulation shall be rescinded (removed) and limited to the master Third, ‘the necessary measure’, ‘the scope of the report’, and ‘the fulfillment scope of the order’among requisites which a person has to fulfill in the case of the marine accident shall be established under the benefit and protection of law for public interests preventing the obstacle and danger of the marine traffic. Fourth, a necessary measure would not obviously need in advance of a report because the purpose of the Act is to secure the smooth traffic of the vessel flow, even though it provides that one shall notify after necessary measure in the event of the marine accident. Fifth, it is not reasonable that the necessary duty of care does not apply to a person who violates itself although it is the most important method to secure the safety of the marine traffic among ‘necessary duty of care’, ‘duty of notice (report)’, and ‘duty of order’. Sixth, legislation is needed to impose sanctions which divide marine accidents resulting from intent and negligence into no fault.