선원재해보상제도의 개선방안에 관한 연구

Abstract

A study on the Legal system improvement

of Seamen's Accident Compensation

Dong-Sig Bang

Department of Maritime Law

The Graduate School of

Maritime Industrial Studies

Korea Maritime University

Busan, Korea

Korea is advancing with a leading country of shipping and distribution, but the number of crew in Korea which has been divided into 3D has decreased for a long time. This short of crew made the law that allow foreigners to board in Korean vessels and imports crew from philippine, china, Indonesia and Thailand, etc. The on board working crew had decreased in 150% that is 60,610 persons in 1996 into 40,176 persons in 2005. The decrease of people who had wanted to work as a crew had been 184%, that is 21,417 persons in 1996 into 11,659 persons in 2005. This Phenomenon is because crew doesn't need like before for vessel automation as well as because crew is less attractive than other jobs. This phenomenon will be continued and at last we may import all crew from abroad.

The reason why crew has lost its attractiveness is the poor working condition and low wage but more major cause can be a crew welfare system lag. The crew welfare system was reinforced by Seamen's Act but its standard has fallen compared to shore-based workers after 1989. Seaman take the vessels which navigate on the perilous sea for the place of labor and the place of life, therefore, they meet with frequent accidents and the vessels which have a small and narrow place restrain Seamen from leading a fundamental human life. Government legislated the Seamen's Act from Article 85 to 98, as Special law of the Standard Labor Act, to compensate the Seaman's accident and this act stipulated the liability of the shipowner for the occupational accidents of the seamen. It is said that this regime is the Compensation Regime for Seamen's Accidents.

In addition, it is to compensate effectively seamen against the accidents which the Seamen's Act, Article 98 provides for that the shipowner must insure a liability insurance for the seamen whom they employ. I have studied the problems and promotion of compensation Regime for Seaman's Accident Comparing with the Seamen's Act, Labor Standards Act and industrial Accident Compensation Insurance Act. So I suggest its improvement measures as the solving way of its problems as follows:

It is the general principles to compensate the occupational accident in the accident Compensation of employers under the jurisprudence of Seamen's Accident Compensation system, and on the other hand, even if the crew is damaged by the reason of out-of-duty as well as of the on-the-duty which relates to the occupational accident due to the speciality of marine labor, the crew must be given the compensation by the shipowner under the general Conditions. Also, there is the legal system for the shipowner to Compensate the crew under the missing of crew or their belongings. Also, the shipowner must insure for seamen in order to perform the Seamen's accident Compensation entirely and the mutual aid by the Korea shipping Association Act fisherman fishing accident compensation insurance and must be included in this insurance, so that there is the social securing scope as well as living securing scope in this insurance. Accordingly, the legal character of Seamen's accident Compensation is mixed with the living securing scope and social securing scope, so that it is thought which it is suitable to be negotiated together with the above stated opinions.

However, in case of Seamen's accident Compensation, the accident Compensation by the out-of-duty during boarding can not be discussed as the legal character of land-based workers. Therefore, the on-the-duty of crew and the accident Compensation is divided as the speciality of marine labor and the crew employment contract and then its legal character can be discussed. Accordingly, the legal character of accident compensation by the out-of-duty during boarding will be considered as the speciality of marine labor and of the crew employment contract. In the contents of Seamen's Accident Compensation,

First, with regard to the medical care compensation, when the crew is injured of sick during on-the-duty, he is compensated for the whole period of employment upon the Seamen's Act, but in case the crew is injured or sick by the reasons of out-of-duty during the boarding (including the embarkation period in the destination and traveling period required for the embarkation and disembarkation), he is medically treated or its paid the expenses required to the medical care within the scope of 3 months at the expenses of shipowner. However, there is the difference on which there is no obligation for the owner to compensate the accident of land-based workers caused by the out-of-duty.

Second, with regard to the complete compensation, the accident by the on-the-duty will be compensated for the whole period and the accident by the out-of-duty for the period of 3 months, and thus there is the difference with the ground worker. However, there is no injury-disease compensation annuity to the crew and on the other hand, the ground worker has the injury disease compensation annuity system.

Third, with regard to the accident compensation, there is no big difference with the seamen's act, labor standard act and industrial accident compensation insurance act about the compensation condition and amount, but the disability compensation annuity system and the regulations of special disability benefits are given to the ground workers, but there is no such the regulation in the accident compensation of Seamen's Act.

Fourth, the shipowner must pay the bereaved compensation and funeral expenses required even if the crew is dead by the accident caused by the out-of-duty as well as by the on-of-duty, and on the other hand, the owner pays the bereaved compensation and funeral expenses only in case the ground worker is dead by the accident caused by on-the-duty. Also, it is the difference on which there is the bereaved compensation annuity system and special bereaved benefits regulations, but there is no such the regulation in the accident compensation of Seamen's Act.

Fifth, with regard to the Compensation in Lump-sum, in case the injury or diseases of ground worker and the crew caused by the on-the-duty is not cured after the passage of 2 years, the owner or the shipowner can be exempted from the responsibility of medical care compensation and injury-disease compensation after the land-based workers is paid the amount equivalent to 1,340 day of average wages and the crew is given the amount equivalent to 1,474 days of boarding average wages. There is no big difference to the ground worker or crew about this point, but when the ground worker who receives the medical care benefits from the industrial accident compensation is not cured in the injury or diseases after the passage of 2 years, or in case his degree by the injury or diseases is related to the medical degree grade standard regulated in the presidential degree (physical disability grade, First class to Third class), there is the injury-disease compensation annuity system to be paid to the land-based workers concerned on be half of the shutdown benefits, but the injury-disease compensation annuity system is not in the Seamen's Act.

With regard to the security of seamen's accidents compensation, the shipowner has secured its effectiveness by all kinds of mutual aid and insurance, making the crew as the insured. So the seamen's accident compensation standard is below the accident compensation standard of land-based workers, so that thus the necessity for improvement of the seamen's accident compensation system is required.

Accordingly, as its improvement ways, first, the tentatively named seamen's accident compensation insurance law to be presented as the law-making under the existing industrial accident insurance law in consideration with the speciality of crew. Secondly, the other improvement way is to amend seafarers insurance Act.

Thirdly, the industrial accident compensation is extensively applied together with the compensation system of the existing seaman's act and then the crew must be made as the object applicable to the industrial accident compensation. I think the best way is the extensive application of the industrial accident compensation.