SOUTH KOREA Law and Practice Contributed by: Choon Won Lee and Dahee Kim, Jipyong LLC
5. Passenger Claims 5.1 Laws and Conventions Applicable to the Resolution of Passenger Claims South Korea is not a member state of the Athens Convention relating to the Carriage of Passen - gers and their Luggage by Sea. The Commercial Act of Korea has provisions on the carrier’s liabil - ity with regard to the carriage of passengers. The time limit for filing passenger claims is not specifically provided in the Commercial Act of Korea, except for luggage claims (a one-year time bar applies to luggage claims). Therefore, the time limit shall be in accordance with general principles under South Korean law – in the case of commercial claims, five years, and in the case of tort claims, three years. The Commercial Act of Korea does not stipu - late the carrier’s liability limitation per passenger. However, a global liability limitation is applicable. The limitation amount shall be similar to those under the 1996 Protocol to the 1976 Convention on Limitation of Liability for Maritime Claims, ie, 175,000 SDR (special drawing rights) multiplied by the number of passengers that the ship is authorised to carry, according to the ship’s cer - tificate (see also 2.4 Procedure and Require- ments for Establishing a Limitation Fund ). Under South Korean law, a claim for personal injury of a passenger incurred due to collision of the ship or other navigation accident is secured by a maritime lien (see 4.2 Maritime Liens ).
4.11 Insolvency Laws Applied by Maritime Courts
A rehabilitation proceeding under the Debtor Rehabilitation and Bankruptcy Act of Korea is generally understood to be similar to one under Chapter 11 of the United States Bankruptcy Code. When the rehabilitation proceeding has been commenced, the enforcement of claims against the debtor company’s assets is not allowed, including the arrest and judicial auction sale of a vessel owned by the debtor company. 4.12 Damages in the Event of Wrongful Arrest of a Vessel Under South Korean law and practice, when the debtor/respondent files an objection to a ship arrest and it is eventually found that the ship arrest was made without due grounds and as such is cancelled, and it is also found that the debtor/respondent was at fault in applying for that ship arrest without due grounds (meaning that the debtor/respondent did so with intention or negligence), the applicant/creditor shall be liable to compensate damages sustained to the debtor/respondent due to the groundless ship arrest. In the case of a pre-judgment attachment, when it is eventually found that the applicant/credi - tor’s alleged claim against the debtor/respond - ent does not exist, whether in part or in whole, in the relevant lawsuit or arbitration, the South Korean courts have ruled that the applicant/ creditor’s fault, for the part of the claim that does not exist, shall be prima facie recognised, and the applicant/creditor will need to prove that it was actually not at fault.
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