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The legal effect of Rule 2 (a) of COLREG in Korean Legal System

  • DONG-A LAW REVIEW
  • 2014, (62), pp.407-431
  • Publisher : The Institute for Legal Studies Dong-A University
  • Research Area : Social Science > Law

Cheong Yeong Seok 1

1한국해양대학교

Accredited

ABSTRACT

Rule 2 (a) of COLREG, 1972 provides that “nothing in these Rules shall exonerate any vessel, or the owner, master or crew thereof, from the consequences of any neglect to comply with these Rules or of the neglect of any precaution which may be required by the ordinary practice of seamen, or by the special circumstances of the case”. The Rules provides conduct of vessels to prevent collisions as an international convention to internationally unify rules on collisions regulations. COLREG, 1972 has the same effect as the domestic laws and therefore the same normative effect as the domestic laws since a ratified international convention has the same effect as the domestic law. However, it comes into question what the legal liability is in Rule 2 (a), and how to hold the offender liable since the Rules do not provide legal liability in detail. The Rules are criteria of negligence of the defender who is legally liable for the consequence of breach of the Rules since the Rules are conduct norm to be observed by ship operators to avoid collisions. But specific legal liability is decided by domestic laws of individual countries as the legal liability shall be provided differently in respect of criminal liability, administrative liability and civil liability. Rule 2 (a) of the Rules provides legal liability declaratorily without classifying the liability into criminal law, administrative law and civil law, so that Anglo-American law countries and civil law countries adopt the Rules comprehensively. Therefore, the subject of liability, the nature of liability and the requirements for liability are to be provided by domestic laws of individual countries. In the meantime, whilst the criminal liability and the civil liability are a matter of fault liability in connection with breach of the Rules by negligence, administrative liability has a nature of fault liability or strict liability depending on individual regulations. Responsibility would not be an issue in the disciplinary punishment on a licensed captain, marine officer or pilot since Responsibility is the premise for the issuance of licenses. The licenses would be cancelled on the grounds of disqualification if the license holder’s Responsibility becomes an issue in an incident(Article 6. 1. of Ship Personnel Act and Article 6. 2. of Pilotage Act).

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