A Study on the Draft Convention on Wreck Removal

As an organization under the Charter of the United Nations, the International Maritime Organization(IMO) is the organization competent of the United Nations to adopt maritime regulations and standards dealing with safety of navigation and the protection of the marine environment from international shipping activities. Under the United Nations Convention on the Law of the Sea 1982 (UNCLOS 1982) and the International Convention relating to Intervention on the High Seas in Case of Oil Pollution Casualties (Intervention Convention 1969), as amended by the Protocol of 1973 thereto, they define that the coastal States may limitedly take measures within the exclusive economic zone area beyond and adjacent to the territorial sea to prevent, mitigate or eliminate grave and imminent danger to their coastal area or related interests from any maritime casualty which may reasonably be expected to result in major harmful consequences. Yet, as a ship's size becomes increasingly larger and her speed becomes faster, there have been much more wrecks than expected within the exclusive economic zone, which pose threats to the safety of navigation. IMO's Legal Committee considered how to remove this kind of abandoned wreck but which is not grave and imminent danger to coastal states and their coastal areas and related interests within the exclusive economic zone. To this end, the IMO's Legal Committee took steps to develop the Convention on wreck removal to remove wreck effectively, which haven't been applied by the UNCLOS 1982, Intervention Convention 1969 and its Protocol 1973. The impractical articles regarding the draft Convention on Wreck Removal have long been discussed, since it prepared the draft text at 73rd session of the Legal Committee for the first time. In the wake of a series of meetings, most of articles under the draft Convention on Wreck Removal prepared and is to be reviewed once again at the upcoming 91st session of the Legal Committee to be held in April, 2006 and the Diplomatic Conference to be held in October, 2006 to adopt the Convention on Wreck Removal. In the event this newly adopted Convention enters into force, it would fill an existing gap in the present Maritime Law Regime and would assist coastal States in resolving a difficult problem to deal with wreck to ensure the safety of navigation and to prevent marine pollution. The primary purposes of this study aim to introduce a main contents of the draft Convention on Wreck Removal, to review the deliberated matters of it during sessions of the Legal Committee, to suggest what my findings analyzes, and to propose how Republic of Korea should deal with the newly-adopted Convention on Wreck Removal after it enters into force. The main contents of the draft Convention on Wreck Removal contain the process from a time to consider a ship as a wreck under this Convention, reporting wreck, determination of hazard, locating wreck, marking of wreck. and measures to facilitate the removal of wreck. Furthermore, this Convention establishes the relations among the Affected States, registered owner, State of the ship's registry and nearest coastal States, and introduces the compulsory insurance system to secure financial security for wreck removal. This study reviewed those adoption backgrounds and the main contents of the Intervention Convention 1969 and its Protocol 1973, the Salvage Convention 1989 and the International Civil Liability Conventions like CLC, Nuclear, HNS or Bunker Convention and made comparative analysis between these Conventions and the draft Convention on Wreck Removal. Then this study again analyzed the main issues of the draft Convention on Wreck Removal and the relevant provisions of national maritime law. By this analysis, it revealed main legal provisions that need to be introduced in order to ratify the Convention. Considering 25 European countries including the nations(the Netherlands, Denmark, Belgium, and Germany) which have the exclusive economic zone of low water depth in the north-western European sea will be quite ratify this Convention on Wreck Removal within the realms of possibility. It is expected that the draft Convention on Wreck Removal will entry into force early after being adopted at the diplomatic conference in 2006. Due to the reason that Korean merchant ships are to be directly influenced by the draft Convention on Wreck Removal, It is necessary that the Korean government preview the contents of the Convention prior to adopting it into the contents of the national maritime law regime. There seems to be two ways to proceed : adopting some contents of the draft Convention on Wreck Removal into the national law regime, or legalizing a single enactment. In the case of adopting the first method, it is proper for "the Marine Traffic Safety Act" to be accepted, which coincides with the aim of the draft Convention on Wreck Removal targeting safety of navigation. Yet, it is necessary to deeply consider that "the Marine Traffic Safety Act" covers ships only within the territorial sea and internal waters, the newly proposed national law regime should include the contents of the draft Convention on Wreck Removal that includes the exclusive economic zone. It should also be reviewed to introduce the compulsory insurance system to "the Compensation for Oil Pollution Damage Guarantee Act", which established the similar system as this draft Convention. Japan also amended its "Law on Liability for Oil Pollution Damage" which is similar to the "the Compensation for Oil Pollution Damage Guarantee Act" in Republic of Korea, to cover claims for bunker pollution and expenditures for wreck removal on 14, April 2004. In conclusion, it is necessary to prepare the counter-measures actively considering the influence on ship's owners and the Korean government at 91st session of Legal Committee to be held in April, 2006.Abstract ⅴ 제1장 서론 1 제1절 연구의 배경 및 목적 1 제2절 연구의 범위 및 방법 5 제2장 난파물제거협약안의 제정 및 과제 7 제1절 난파물제거협약안의 제정배경과 IMO의 제정권리 7 제2절 난파물제거협약안의 논의경과 및 쟁점사항 10 1. 난파물제거협약안의 논의경과 10 2. 난파물제거협약안의 쟁점사항 22 제3절 난파물제거협약에 따른 영향 및 과제 22 1. 난파물제거협약안 채택의 영향 22 2. 향후 과제 27 제3장 난파물제거협약안과 관련된 국제협약 31 제1절 선박의 해양사고에 따른 연안국의 개입관련 국제협약 31 제2절 공해개입협약 및 의정서 32 1. 채택배경 및 목적 32 2. 난파물제거협약안과의 관련성 33 제3절 해양사고구조협약 36 1. 목적 36 2. 난파물제거협약안과의 관련성 37 제4절 민사책임협약 및 의정서 40 1. 민사책임협약 및 기금협약의 채택배경 및 목적 40 2. 난파물제거협약안과의 관련성 42 제5절 기타 민사책임협약 44 1. 핵물질손해배상 관련 협약 44 2. 위험·유해물질협약 45 3. 연료유협약 46 제4장 난파물제거협약안의 주요내용 49 제1절 일반원칙 및 적용범위 49 1. 용어의 정의 49 2. 목적 및 일반원칙 61 3. 적용범위 65 제2절 일반의무규정 68 1. 난파물의 보고 68 2. 위태의 결정 72 3. 난파물의 위치 74 4. 난파물의 표시 75 5. 난파물의 제거조치 78 제3절 강제보험제도 84 1. 난파물의 위치지정, 표시, 제거작업을 위한 재정보증 84 2. 강제보험제도 85 3. 제소기간 94 4. 강제보험제도의 도입논의 95 제4절 종결 규정 98 제5장 결 론 99 참고문헌 10

A Study on the Ships' Manning Levels

seafarers' fatigue caused by inferior working circumstances makes watchkeeping in negligence and dozing sailing, that becomes direct and indirect cause of various marine accidents. Moreover, 82.2% of total marine accidents in Korea are occurred by the vessel less than 500 gross tons and 69.7% within Korean domestic coastal areas. As the international regulations for ships' manning levels are applied only to the vessel of 500 gross tons or more, the vessels which accounts for most part of Korean maritime accidents put into legal blind sector still being excluded from applying subject of ships' manning levels, even though ships' manning levels are strengthened by adopting international regulation into national law. Therefore, in order to prevent marine accidents induced by the operational error accounting for 80.7% of Korean domestic marine accidents and the accidents induced by watchkeeper's fatigue on the ship where master performs the navigational watch alone or the ship navigates without officer, this study is to suggest the improvement measures in ships' manning levels as follows63.3% of Korean registered merchant vessels and 99.3% of fishing vessels, and 20.9% of merchant vessels and 87.1% of fishing vessels are being operated without deck officers on board. Particularly, the seafarers on small vessels(vessel of 5 gross tons or more and of less than 25 gross tons), towing ships and fishing vessels are under difficult environmental circumstances not to have sound sleep on the ship caused by noise, engine vibration together with ship's continuous labouring at seaindicating that relative importance of human error in marine accidents is still high. Especially, remarkable matter is that operational error of deck officers indicates 94.1% of the accidents of collision, allision and grounding. Ships' manning levels are decided in consideration of various ship's factors but the reason of high incidence of operational error has some relations with the fact that master performs navigational watch aloneA Study on the Ships' Manning Levels By Chong, Dae-Yul Department of Maritime Law Graduate School of Korea Maritime University ABSTRACT Ships are the means of shipping industry, by which human lives or goods are conveyed so as to achieve the goal of shipping industry through safe navigation. The reason why the ships have to accomplish their safe navigation is connected directly to the profit of shipping industry and to the protection of human lives and goods. For ship's maritime safety and marine environmental protection, IMO has reinforced several standards and procedures on physical elements such as ship's structures and facilities and so on. Despite of it, major marine accidents were occurred continuously and the number of the accidents reported in 1960~1980's shows that 70~80% of those marine accidents were caused by human elements. Hereupon, IMO adopted and enforced the ISM Code. MSC and MEPC of the IMO have concerned with the human elements of marine accidents, and discussed profoundly about the role of human elements. Moreover, IMO has been interested in the fact that recent seafarers' fatigue matter becomes the main cause of marine accidents, and tried to solve seafarers' fatigue matters by enforcing ships' manning levels in accordance with relevant international conventions. As a result of it, resolution A.1047(27) "Principles of minimum safe manning" was adopted in 27th IMO Assembly which held on Nov. 2011 and 「SOLAS convention」 Chapter 5, regulation 14 was amended accordingly. Moreover, reviewing comprehensively「2010 STCW convention」, the standard of watchkeeping was reinforced. In 2006 the International Labour Organization(ILO) consolidated existing seafarers' relevant Convention and Recommendation, and then adopted「2006 Maritime Labour Convention」, which is expected to become effective in 2013. This Convention ordains no favourable treatment clauses, therefore in case of its becoming in force, seafarers' work and living condition will be broadly reinforced. In the analysis of recent 10 years (2002~2011) Korean domestic marine accidents, errors in ship operation account for 80.7% of total marine accidentsFirst, application range of ships' manning levels should be extended. Definition of sea-going ship is amended as "the ship except those sail in shelter area in terms of 「Ship Safety Act」", so that the standards of ships' manning levels are to be applied to the ship which sails near-coastal area or more and officer should be boarded on the ship of 2 gross tonnage or more. Second, the regulations for ships' manning levels of the ship under sea trial and not delivered to shipowner after new building and the SBM(Single Buoy Mooring) should be newly established. These ship and offshore facility are put in highly frequent danger of marine accidents but are not applied to national law. Accordingly, legal basis should be arranged for these vessels and offshore facility and be controlled under the relevant regulations. Third, navigational watch should be fundamentally performed by three shift system, in which officer and rating become a pair of one shift unit. And it could be mitigated to two shift system within the extent satisfying seafarers' work and rest hour requirements. Fourth, navigational watch of towing ship should be reinforced. 99.3% of total towing ships are less than 200 gross tonnage and 74.7% of towing ships less than 200 gross tonnage is under 750kw main engine powermaster alone performs navigational watch through the voyage on these towing ships. And when towing ship is engaged in towing barges, manoeuverability is restricted partially and sailing time become longer due to lower speed under average 5 knots so that danger of master's fatigue-induced marine accident would be increased. Therefore, towing ships which sail near-coastal area or more should additionally place one deck officer on board. And one deck rating for navigational watch should be placed to carry out assisting berthing and unberthing work and tow line handling. Fifth, navigational watch of small vessels(vessel of 5 gross tons or more and of less than 25 gross tons) should be reinforced. Skipper alone boards on small vessel. According to it, skipper may neglect to keep watching in case of engaging other work than navigation for necessity or of being fatigued due to over 8 hour continuous sailing. Therefore, one deck rating for assisting navigational watch of the skipper should be placed. Sixth, the requirements for navigational watch on fishing vessels should be reinforced. 99.9% of all fishing vessels except ocean-going is sized as less than 200 gross tonnage, and skipper alone carries out navigational watch at sea. Skipper hardly can take a rest after departure until arrival at port due to commanding and supervising on crews during fishing operation as well as navigational watch. So, the skipper is compelled to doze during navigation caused by fatigue. Therefore, one deck rating for navigational watch should be placed for assisting skipper's navigational watch. Seventh, computation and renewal procedures for ships' manning levels should be improved. The government, through the port state control, periodical monitoring and supervision on the ship, should make shipowner comply with ships' manning levels and seafarers' work and rest hour requirements. And also adequate number of seafarers should be manned on board. Finally, the government needs to arrange mid and long term marine accident prevention plan by reflecting problems that deduced from statistics analysis of marine accidents into national maritime safety master plan. Especially, in case of being judged that causes of marine accidents are related to human error, the government should positively consider to examine the suitability for ships' manning levels including seafarers' training and qualification systems, so as to arrange appropriate measures.목 차 제1장 서 론 1 제1절 연구의 배경 및 목적 1 제2절 연구의 범위 및 방법 5 제2장 승무기준의 의의 및 입법적 동향 7 제1절 승무기준의 의의 7 1. 승무기준, 선박 및 선원의 개념 7 2. 승무기준의 법적 성질 및 효력 13 3. 승무기준의 결정 시 고려사항 17 4. 승무기준의 달성 방법 및 절차 19 5. 해상근로의 특수성과 피로 23 제2절 승무기준의 연혁 및 입법적 동향 28 1. 국제노동기구(ILO) 28 2. 국제해사기구(IMO) 33 3. 우리나라 46 4. 외 국 63 제3장 선박의 승무기준에 관한 문제점 및 개선방향 78 제1절 관련법령의 정의 상 문제점 및 개선방향 78 1. 승무기준 및 승무정원 개념의 통일화 79 2. 모호한 용어의 명확화 80 제2절 승무기준의 적용범위 확대 86 1.「선원법」상 적용범위의 확대 86 2.「선박직원법」상 적용범위의 확대 90 3. 특수선박의 문제점 및 개선방향 94 제3절「선원법」적용 선박의 문제점 및 개선방향 118 1. 선박직원의 승무정원 산정 상 문제점 및 개선방향 118 2. 부원의 승무정원 산정 상 문제점 및 개선방향 125 제4절「선원법」미적용 선박의 문제점 및 개선방향 132 1. 상선 소형선박과 항해구역이 평수구역인 선박 132 2. 예인선의 승무기준 상 문제점 및 개선방향 134 3. 어선의 승무기준 상 문제점 및 개선방향 140 제5절 기타 승무기준관련 문제점 및 개선방향 150 1. 선박의 승무정원 산정 및 갱신절차 개선 150 2. 선박의 승무기준관련 국내법 개편 151 3. 해양사고 분석결과의 국가해사안전기본계획 반영 156 제4장 결 론 158 [부 록] 163 [참고문헌] 185 [표 1] 우리나라 상선의 톤급별, 선종별 등록현황 50 [표 2] 우리나라 어선의 톤급별, 업종별 등록 50 [표 3] 2009년 부산해심 재결 해양사고 중 어선의 톤수별 항해사면허 소지 현황 92 [표 4] 우리나라 조선소의 시운전 현황 95 [표 5] 시운전선박의 톤수별 현황 96 [표 6] 시운전선박의 주요 해양사고 현황 97 [표 7] 시운전선박의 갑판부 승무기준(일본) 102 [표 8] 시운전선박의 기관부 승무기준(일본) 102 [표 9] 국내 SBM 설치 현황 112 [그림 1] 시운전선박의 주요 시운전 해역 96 [그림 2] CALM방식 SBM의 구성도 11