"8. Arbitration/Choice of Law.
It is specifically agreed that any and all disputes or claims of any nature arising out of, or relating to, this employment agreement or the employee’s employment aboard this Vessel shall be subject to mandatory binding arbitration. Any such arbitration shall occur in, and be subject to the rules of arbitration of, the country of the Crew Member’s nationality as established by his/her current passport. It is intended that this arbitration clause be construed broadly to incorporate any and all claims that can conceivably be arbitrated, including claims for death, personal injury, wages, discrimination, or harassment. Any claims subject to this clause will be governed by the substantive law of the country of the crew member’s nationality.
Any and all claims or lawsuits of any nature arising out of, or relating to, this employment agreement or the employee’s employment aboard this Vessel shall be brought within six (6) months’ time. This provision is intended to be all inclusive and includes claims for wages, personal injury, death, discrimination, harassment, or any such claims that employee may have arising out of, or related to, his employment and this employment agreement."
(1) Declaring that Respondent breached its obligations to provide Mr. Yang with a seaworthy vessel;
(2) Ordering Respondent to pay Claimants all compensatory damages, including loss of future earnings, direct loss and damages in the actual disbursement, pre-death pain and suffering, pre-judgment interest as permitted, attorney’s fees as permitted, costs as permitted, arbitration costs as permitted, and any other relief that the Tribunal deems proper; and
(3) Ordering Respondent to pay Claimants interest on any amount awarded to Claimants at the rate of 15% per annum, from the day following the service of this Request for Arbitration until final payment of any awarded amount.
(i) The existence and extent of Respondent’s liability to the death of Mr. Yang;
(ii) Validity of the 2010 Settlement Agreement;
(iii) Inheritance of Mr. Yang’s estate due to his death;
(iv) Legal effect of the Dongwon Settlement Agreement and its impact on Respondent’s liability; and
(v) The existence and scope of Respondent’s obligation to reimburse the attorneys’ fees and legal costs incurred by Claimants in the United States, if any.
(1) The arbitral tribunal shall decide the dispute in accordance with such rules chosen by the parties. Any designation of the law or legal system of a given state shall be construed, unless otherwise expressed, as referring to the substantive law of that state and not to its conflict of laws rules.
(2) Failing the designation referred to in paragraph (1), the arbitral tribunal shall apply the law of the state which it considers having the closest connection with the subject-matter of the dispute.
A contract shall be governed by the law which the parties choose explicitly or implicitly: provided, that the implicit choice shall be limited to the case which the implicit choice can be reasonably recognized by the terms and conditions of the contract and all other circumstances.
The parties shall be free to agree upon the substantive laws or rules of law to be applied by the Arbitral Tribunal to the merits of the dispute. In the absence of any such agreement, the Arbitral Tribunal shall apply the substantive laws or rules of law which it deems appropriate.
(1) A tort shall be governed by the law of the place where it occurred.
(3) In case the legal relations existing between the tortfeasor and the injured party are infringed by the tort, the applicable law of such legal relations shall govern irrespective of the provisions of paragraphs (1) and (2).
(2) In case the parties do not choose the applicable law, irrespective of the provisions of Article 26, the employment agreement concerned shall be governed by the law of the country where the employee habitually provides his/her service. In case the employee does not habitually provide his/her service within one country, the law of the country, where the business office of the employer who hires the employee is located, shall govern.
(1) In case of an employment agreement, even if the parties choose the applicable law, the protection, given to the employee under the mandatory provisions of the country of the applicable laws designated under paragraph (2), shall not be deprived.
"When the death of an individual is caused by wrongful act, neglect, or default occurring on the high seas beyond 3 nautical miles from the shore of the United States, the personal representative of the decedent may bring a civil action in admiralty against the person or vessel responsible. The action shall be for the exclusive benefit of the decedent’s spouse, parent, child, or dependent relative."
"A seaman injured in the course of employment or, if the seaman dies from the injury, the personal representative of the seaman may elect to bring a civil action at law, with the right of trial by jury, against the employer. Laws of the United States regulating recovery for personal injury to, or death of, a railway employee apply to an action under this section."9
The employer, as an ancillary duty concomitant to an employment contract based on the principle of good faith, bears a duty of care for safety to take necessary measures such as maintaining human and physical environment so as not to harm life, body, health of the employee in the course of providing labor, and shall be liable for any damages suffered by the employee as a result of a violation of such duty of protection.18
• Direct loss and damages (Actual Disbursement): US$29,323.63
• Lost future earnings: US$2,576,681.50
• Pre-death pain and suffering: US$1,000,000.00
• Condolence payments for Claimants: US$400,000.00
• Attorneys’ fees and costs incurred in the US Actions: US$344,652.22
• Subtotal: US$4,321,333.72
• Deduction of Credit of 2010 Settlement Agreement: US$132,035.00
• Net Amount Payable: US$4,189,298.72
• Funeral Expenses: (KRW12,170,600) equivalent to US$10,154.86
• Travel from Peru to Pusan (Flights): (KRW16,773,760) equivalent to US$13,995.63
• Hotel Stay in and Meals Korea: (KRW2,600,000) equivalent to US$2,169.38
• Transportation (within Korea): (KRW600,000) equivalent to US$500.63
• Interpreter’s fee: (KRW3,000,000) equivalent to US$2,503.13
• Total: US$29,323.63
The unfair juristic act provided in Article 104 of the Korean Civil Code purports to regulate profiteering by the stronger party using strained circumstances, rashness, or inexperience of the weaker party. A juristic act is found unfair when objectively there exists a severe imbalance between the payment by one party and the consideration therefor, and subjectively such imbalanced transaction was made using strained circumstances, rashness, or inexperience of the victimized party. Not all of strained circumstances, rashness, and inexperience, which are the requirements for an unfair juristic act, need to be fulfilled, and existence of a few of them will suffice for an unfair juristic act. "Strained circumstance" used herein means "urgent necessity," which may be due to economic, mental, or psychological causes. Whether the party was in a strained circumstance shall be determined by taking into consideration all relevant factors, including the party’s social status, financial status, and degree of urgency of the circumstance he or she was in.
If each of the several obligors has the responsibility to perform the entire obligation, and the performance by one of the obligors discharges the other's obligation, the obligation shall be a joint and several obligation.
|• Debt owed by Respondent:||US$1,536,352.78|
|• Sum received from the 2010 Settlement Agreement:||(-) US$191,214.00|
|• Amount Deducted by Dongwon Settlement Agreement:||(-) US$1,013,513.51|
|• Balance to be Paid by Respondent:||US$331,625.27|
• Mrs. Yang: US$93,875.09 (= US$43,875.09+US$50,000.00)
• Each of the remaining Claimants: US$79,250.06 (= US$29,250.06 + US$50,000.00)
1. Declaring that Respondent breached its obligation to provide Mr. Yang with a seaworthy vessel.
2. Respondent shall pay US$93,875.09 to Claimant Mrs. Yang, and US$79,250.06 to the other Claimants respectively, which is US$331,625.27 in total, together with interest thereon at 6% per annum under the Korean Commercial Code28 from June 15, 2010, the following date of the Marine Accident, until the date of completion of the payment.
3. All other claims of Claimants than the above claims admitted shall be dismissed.
4. Pursuant to Article 52 of the KCAB Rules, the Arbitration Costs shall be equally divided and borne by Claimants for one side and Respondent for the other side. Accordingly, Claimants shall jointly and severally reimburse Respondent for the Arbitration Costs in the amount of KRW229,250 (KRW164,833,000/2 - KRW82,187,250).
5. Pursuant to Article 53 of the KCAB Rules, each party shall bear the legal costs and other expenses including the attorneys’ fees incurred by itself during the arbitration proceedings.
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