Turkey: A Brief Guide To Turkish Maritime Law

INTRODUCTION

Seventy percent of the economic value of the cargo transported around the globe is conveyed by sea vehicles, and maritime transportation contributed to ninety percent of global trade. Ships conduct the vast majority of maritime transportation.

With the intention of providing an introductory summary of the Turkish approach to Maritime Law, this article will address concerns pertaining to "Maritime Trade" that are governed by the Fifth Book of the Turkish Commercial Code. Practical issues that are frequently encountered will also be touched upon.

1. BASIC CONCEPTS

1.1. The Ship (Gemi)

To qualify as a ship, a watercraft must possess the following characteristics: it cannot be overly small, it must be designed for an activity that necessitates movement in the water, it must be capable of swimming, and it is unimportant whether the vehicle has the ability to move on its own or not. Because, as stated in Article 931 of the Turkish Commercial Code, for the purposes of this Law, any vehicle that is not exceedingly small, is capable of swimming, and is specifically designed for a purpose that necessitates its movement in water is deemed a ship, notwithstanding its inability to propel itself.

Every ship must have a different name from other ships. The ship's name must be saved in the ship registry and must be written on both sides and the stern. It is the designation given to the registry that houses the records of ships. The Ship Registry Regulation designates ten registry offices along the Turkish coast: Iskenderun, Mersin, Antalya, İzmir, Çanakkale, Bandırma, Istanbul, Zonguldak, Samsun, and Trabzon. With the exception of public and war vessels, merchant ships surpassing 18 gross tons (50.94 cubic meters) in volume are obligated to undergo registration in the ship registry. Additionally, rights and limitations about the ship, including ownership, mortgage, and usufruct, are recorded in the registry. The following are the prerequisites for enrollment in the Turkish ship registry: 1. Possession of the authorization to fly the Turkish flag; 2. Non-registration in a foreign ship registry; 3. Registration as a registered vessel. In the event that a ship descends irreparably or beyond repair, its classification as a ship is lost.

Not all vessels qualify as merchant ships. According to 931/2 of the Turkish Commercial Code, a "merchant ship" is defined as any ship specified or utilized with the intention of generating economic advantage in the water.

1.2 The Turkish Ship (Türk Gemisi)

As per Article 940 of the Turkish Commercial Code, a ship that is possessed exclusively by a Turkish national qualifies as a Turkish ship. When shared ownership is in place, ships owned by multiple individuals are classified as Turkish ships on the condition that the majority of the shares are held by Turkish citizens, and in the case of joint ownership, the majority of the owners must be Turkish citizens in order to determine as a Turkish ship.

To satisfy the criteria outlined in the Turkish Commercial Code, a ship possessed by a legal entity can be classified as a Turkish ship if a majority of the members comprising the management body are citizens of Turkey.

1.3. The Flag (Bayrak)

Article 940/1 of the Turkish Commercial Code mandates that the Turkish flag be flown by all Turkish ships. Certification of the ship demonstrates, under Article 43 of the Turkish Commercial Code, the ship's authority to hoist the Turkish flag. In order to exercise the privilege of flying the Turkish Flag, one must first get a ship certification.

Following the provisions outlined in Article 941/1 of the Turkish Commercial Code, if, to be operated in their name and benefit for at least one year, a Turkish ship is taken over by those who cause the ship to lose the right to fly the Turkish flag, and upon the request of an owner, The Ministry of Transportation, Admiralty, and Communication may grant the ship to fly a flag of a foreign nation, when the legal order of that nation allows.

1.4. The Shipowner (Donatan)

To qualify as a shipowner according to Article 1061/1 of the Turkish Commercial Code, one must possess a ship, operate it in his or her own name and on his or her own account, utilize the ship for commercial purposes, and operate the vessel in water.

1.5. The Association of Shipowners (Donatma İştiraki)

As Article 1064/1 of the Turkish Commercial Code defines the association of shipowners, there is an association of shipowners if more than one person uses a ship that they own in the form of shared ownership, in the situation to use on the water in the name and on account of all of them, according to the contract they have made between them in order to provide benefit.

The elements that pertain to an association of shipowners are as follows:

1. The "Person" Component: The association of shipowners is a conjunction of persons.
2. Shared ownership of the ship,
3. Operation of the vessel on behalf of all shareholders,
4. Contractual element,
5. Purpose of the ship that necessitates its movement on water,
6. Commercial operation of the ship on the water.

1.6. The Disponent Shipowner (Gemi İşletme Müteahhidi)

Elements associated with the disponent shipowner can be displayed as follows:

1. Employing a ship that does not belong to him or her;
2. Operating the ship in water;
3. Operating the ship under his own name and account, either directly or via the captain.

Debts incurred during the ship's operations may also be subject to compulsory enforcement against the ship that is not owned by the disponent shipowner. Clearly, the legislator has rendered a solution regarding this exceptional circumstance. The regulation stated in Article 1061/2 is as follows: Unless the operation of the ship is unjust and the creditor is acting in bad faith to the owner, the shipowner is not permitted to impede the claimant from exercising his rights as a ship creditor.

1.7. Port of Registry (Bağlama Limanı)

As per the provisions outlined in Article 946 of the Turkish Commercial Code, the port of registry denotes the location where the ship's voyages are supervised. When a vessel's voyages are supervised by a foreign port, land, or the vessel itself, the port of registry is identified as the location where the ship owner intends to register the vessel.

The port of registry shapes the captain's authority to act on behalf of the owner, which makes it an essential detail. Outside, the captain's authority is expanded, whereas inside the port of registry, it is constrained.

Cases brought against the shipowner and co-owners may also be brought before the courts of the jurisdiction where the port of registry is situated.

As stipulated in Article 955 of the Turkish Commercial Code, the registry office that oversees the port of registry is responsible for the registration of the vessel.

1.8. Collision (Çatma)

Collision is a subject that is regulated by Article 1286 and the subsequent provisions of the Turkish Commercial Code. The aforementioned measures are put into effect before the provisions of Article 49 and the following articles of the Turkish Code of Obligations, which establish the comprehensive guidelines for tort liability.

A "collision" is defined as the occurrence in which two or more ships collide with one another. It symbolizes a distinctive type of tort. The classification of collisions consists of three different types: fortuitous negligent and "analogous." Negligent collision categories consist of those caused by a single party's error and those caused by a joint fault. When one ship causes damage to another ship or more than one ship without an actual collision, this is referred to as an "analogous" collision. This may have occurred in the form of an "analogous" collision due to the fault of one party, or due to mutual fault.

2. MORTGAGE OF SHIP (GEMI REHNI)

To establish a ship mortgage in accordance with Article 1015/1 of the Turkish Commercial Code, the creditor and the shipowner must reach an agreement regarding the mortgage's establishment and the mortgage must be recorded in the ship registry.

As per the provisions outlined in Article 1015/2 of the Turkish Commercial Code, mortgage establishment contracts are required to be documented in writing and notarized. Additionally, this agreement may be executed at the ship registry office. A valid mortgage agreement requires that the contract for the mortgage be executed in compliance with one of the following formats.

Hence, the conditions must be fulfilled in order to establish a ship mortgage:

1. Promissory Transaction: Presence of a contractual agreement between the involved parties; and
2. Dispositive Transaction: Enrollment of the relevant agreement in the ship registry.

As stipulated in Article 1015/4 of the Turkish Commercial Code, a subsequent limitation on the proprietor's ability to dispose will not result in the nullification of the notification of the approval or registration request to the registry. Additionally, an annotation on the flag certificate is valid for registration purposes on vessels acquired in a foreign country that have not yet been registered in the Turkish Ship Registry or the Turkish International Ship Registry, per the fifth paragraph of the same article. Such mortgages are recorded ex officio during the registration of the ship.

Article 1030/1 of the Turkish Commercial Code confers upon the mortgage creditor the following rights and authorities: In the event that the ship's condition poses a risk to the security guaranteed by the mortgage, the creditor may grant the owner a suitable period of time to rectify the situation. In the absence of appropriate actions within this specified time frame, the creditor shall promptly obtain the authority to convert the mortgage into cash.

The court, exercising the jurisdiction granted in Article 1353 of the Turkish Commercial Code, renders a decision to provisionally seize the ship. If the court deems it necessary, it may transfer the ship to a trustee in lieu of the captain. The owner is obligated to undertake the required actions within a one-month timeframe commencing from the date the provisional seizure is executed. If, by the conclusion of this period, it is determined that the aforementioned actions have not been executed or have been inadequate, the court will grant the creditor an additional month to commence legal proceedings through the conversion of the mortgage into cash.

While the fundamental characteristics of a ship mortgage and a movable mortgage remain consistent, variations exist in the applicable provisions. Article 1014 and subsequent sections of the Turkish Commercial Code govern ship mortgage provisions exclusively for ships that are duly registered in the ship registry.

Ships not currently registered in the ship registry can be mortgaged in compliance with regulations on the mortgage of a movable property outlined in Article 939 of the Turkish Civil Code and subsequent provisions. Nevertheless, for the pertinent mortgage right to be established, delivery of the movable property in question ("a non-registered ship" under Turkish maritime law) to the creditor is obligatory.

3. SALE OF SHIP (GEMI DEVRI)

The sale of registered ships necessitates the execution of two procedures, as outlined in Article 1007 of the Turkish Commercial Code: the drafting of a sales contract and the transfer of the possession of the ship. The sale contract constitutes a commitment transaction (promissory), whereas the transfer of the ship's possession constitutes a dispositive transaction.

The sales contract for registered ships has been explicitly formalized by the legislator. Therefore, it is necessary to form the agreement on the transfer of ownership in writing, with notarized signatures.

A unique form requirement does not exist in the context of commitment transactions involving the sale of unregistered ships.

4. CONTRACT OF AFFREIGHTMENT (NAVLUN SÖZLEŞMESI)

The regulations pertaining to the contract of affreightment in the Turkish legal system are outlined in Turkish Commercial Code articles 1138-1246. However, the legislation does not provide an explicit definition of the contract of affreightment. Nevertheless, the contract of affreightment can be defined as follows, under Article 1138 of the Turkish Commercial Code, which enumerates the various types of contract of affreightment, simply:

"A contract of affreightment is an agreement between two parties wherein the charterer agrees to pay the affreightment (transportation fee) and the carrier agrees to transport the goods at sea in exchange for freight."

These are the components of the contract of affreightment according to the understanding of Turkish maritime law:

1. Transportation of Goods (Cargo): It is not possible to transport individuals and their accompanying cargo as per the terms of a contract of affreightment. Goods create the subject of transportation.
2. Maritime Transportation (Transportation Mainly By Sea): As a rule, means of transportation are limited to the sea. Notwithstanding the fact that a portion of the multimodal transportation is executed via river systems and another portion is conducted at sea, this component remains deemed to have been fulfilled. However, the stipulations outlined in the contract of affreightment are inapplicable as this component is not satisfied when products are transported exclusively via lakes and rivers.
3. Transportation of Goods via Ship: The conveyance of goods must be facilitated through a watercraft in the legally designated form of a ship.
4. The Situation in Which The Carrier Has The Possession of the Goods: For the goods to be conveyed, they must have transitioned from the charterer's possession to the carrier's possession.
5. Freight: In order to proceed, it is essential to execute transportation in exchange for a fee. Free transportation performed for its own sake does not qualify as a contract of affreightment.

4.1. Types of Contract of Affreightment

Article 1138 of the Turkish Commercial Code specifies two subtypes of the affreightment contract, namely the "kırkambar (lump-sum) contract" and the "voyage charter". Furthermore, these subspecies are classified into distinct sections. As an illustration, a voyage charter agreement is delineated into two distinct categories: a full voyage charter and a partial voyage charter, under the Turkish Maritime Law.

According to the simple definition of Article 1138, the carrier, in exchange for freight, undertakes the following: a) By allocating the goods, the whole or part of the ship or a certain part of the ship to the charterer in the voyage charter contract; b) to transport the goods specified in the (Lump-sum) Kırkambar contract by sea.

The term "Lump-sum/kırkambar contract" refers to a specific category of affreightment contract, in which the carrier agrees to transport the products that have been reserved for the voyage at sea in exchange for the freight specified in the agreement. The primary distinction is that a voyage charter contract is established on the components of the ship, whereas a lump-sum/kırkambar contract specifies the products to be transported as the basis for the contract of carriage. As a general rule under the Turkish Maritime Law, the lump-sum contract prohibits the carrier from transporting the products on deck. The carrier may only transport the goods on deck when doing so is clearly permissible under the terms of the contract between the carrier and the charterer, per standard commercial practice, or if it is required by legislation.

4.2. The Carrier's Responsibility

The liability of the carrier for detriment arising from the loss or damage of the goods delivered to him for transportation or late delivery is determined by the mandatory provisions of the Turkish Commercial Code Article 1178.

The liability of the carrier concerning the affreightment contract is considered a contractual liability. In this regard, in accordance with general principles, if the carrier fails to accomplish its contractual obligations in full or as specified, it should be held liable for all ensuing damages, unless the carrier can establish that it was not at his fault. In the absence of explicit regulations, the carrier's liability shall be governed by general provisions such as Article 112 of the Turkish Code of Obligations. However, it should be reiterated that the carrier bears the burden of demonstrating its "faultlessness", that is to say, that he cannot be held responsible. In fact, in accordance with the aforementioned general provisions, the provision of Article 1179 of the Turkish Commercial Code attributes the carrier's liability to its fault, reaffirms the carrier's presumption of fault, and places the burden on the carrier to demonstrate that it he is not responsible for failing to fulfill the affreightment contract in its entirety or as specified. To avoid responsibility in the event of a potential liability claim, the carrier must refute the ordinary presumption that we mentioned.

In two instances, the liability of the carrier under an affreightment contract is generally governed by the Turkish Commercial Code. The initial liability pertains to any damages, including delays, caused by the ship's initial unsuitability for the voyage in terms of road, sea, and cargo, as stipulated in Article 1019 of the Turkish Commercial Code and the subsequent liability concerns the carrier's responsibility for any loss or damage to the cargo resulting from a failure to discharge the duty of care towards the cargo or items received for transportation, as outlined in Articles 1061 and 1062 of the Turkish Commercial Code.

Briefly, according to those rules, the carrier is considered to have received the goods when, in preparation for transportation, the goods are transferred to his control, or in a more legal sense, into the carrier's possession. From the moment they are received by the charterer, an agent acting on his behalf or account, the authorities, or third parties that are required to deliver the goods for transportation in accordance with the laws and regulations in effect at the port of loading until they are delivered to the sender, the goods are deemed to be in the possession of the carrier. During the execution of the affreightment contract, the carrier is obliged to exercise the care and attention that would be expected of a prudent carrier, particularly regarding the loading, stowing, checking, transportation, protection, supervision, and unloading of the goods. Therefore the carrier becomes responsible for the loss, damage, or late delivery of the goods transported within this time period, on the grounds that he did not show the expected care and attention.

In the context of the Turkish Commercial Code, damages resulting from loss or damage to goods, along with all events associated with the commodities, are also governed by Article 1061. Alternatively stated, the duty of care encompasses all necessary measures to guarantee the safe and secure transportation of the goods to the designated delivery location. The standard by which the carrier should exercise care towards the goods or cargo is as much care as an impartially prudent and cautious carrier ought to demonstrate. The objective criterion established in this context is satisfied when a carrier, who is reasonable, experienced, prudent, and cognizant of the responsibilities deriving from transportation conducted under identical conditions, fulfills its transportation obligation. When deciding in this regard, it is necessary to consider various factors including transportation conditions, the nature of the goods being transported, whether the goods are being transported together, packaging and stacking characteristics, weather conditions, maritime practices, mandatory regulations, and any other pertinent information that may impact the transportation process. Per Article 1061 of the Turkish Commercial Code, the carrier may only be absolved of liability for damage resulting from its duty of care for the transported goods by providing evidence that the damage was caused by a factor beyond its control, a deficiency or defect in the goods, an error in the nature of the goods or its packaging, or that a cautious and prudent carrier could have caused the damage. One way to safeguard him is to prove that the incident was brought about by a circumstance (force majeure) that, despite exercising reasonable care towards the object, was beyond his control to prevent. The carrier must additionally show that none of his personnel or sailors were negligent in causing the damage. Furthermore, as stated in Article 1063 of the Turkish Commercial Code, the carrier is not liable for damages that may result from reasons listed in the aforementioned article. Furthermore, the carrier is entitled to a rebuttable presumption of liability in this regard.

4.3. FIO and FIOS Clauses

By utilizing the clauses included in affreightment contracts, it is possible to determine who is responsible for the labor and costs. For instance, in affreightment contracts containing the FIO (Free In and Out) clause, the charterer is responsible for loading and offloading expenses. In accordance with a FIO clause in the affreightment contract, the carrier is considered to have received the products upon completion of loading. For the purposes of this record, delivery is also presumed to have taken place prior to unloading. The actual legal ramification of the term FIO in freight contracts containing this clause is that the charterer shall henceforth be responsible for expenses of loading and unloading. When the affreightment contract contains the FIOS (Free In and Out Stowed) clause, the charterer takes on the responsibility of storing the cargo on the ship, in addition to the expenses associated with loading and discharging.

4.4. Layday and Demurrage (Starya ve Sürastarya)

The time period during which the carrier is legally obligated to wait for the goods he is transporting to be carried onto the ship is referred to as "layday/starya", or loading time, in voyage charter contracts. The duration of anticipation that follows the layday/starya period is referred to as the demurrage/sürastarya period, which is longer than the layday/starya period. The demurrage/sürastarya period, which is the additional waiting period agreed upon by the parties to the affreightment contract in consideration of the prospect that loading cannot be completed within the deferment period, is applicable in this instance. The demurrage/sürastarya period is typically charged, whereas the layday/starya period is typically provided at no cost. The layday/starya time, or loading time, is continuously computed in accordance with the calendar. Therefore, holidays are also considered. The days during which the products cannot be loaded onto the ship for fortuitous circumstances arising from the carrier's operational domain are perpetually taken into account in the sürastarya/demurrage calculation. Nevertheless, days during which the carrier's line of work coincidentally prevents the goods from being loaded onto the ship are not incorporated in the determination of the starya/layday period.

5. GENERAL AVERAGE (MÜŞTEREK AVARYA)

The following characteristics are desired in the general average:

1. The ship and its cargo have commenced a joint maritime expedition;
2. The ship and its cargo have confronted a joint danger;
3. The intention is to safeguard the ship and its cargo from the joint danger;
4. The sacrifice is voluntary;
5. The sacrifice produces advantageous outcomes.

General average expenses include those incurred when entering the harbor of safety to repair the ship and transferring a portion of the cargo to a secure location for this purpose. In the event that an accident, sacrifice, or extraordinary circumstance hinders the ship from continuing its journey and both the ship and its cargo are threatened by the same danger, the ship seeks shelter in a port to avert further harm or returns to the loading port, incurring entry fees to that port or location.

A "substituted expense" would be, for instance, the cost of repairing the ship in a different port at a lower rate while avoiding the queue. Incurring a "substituted expense" serves to decrease the overall average charge. When one measure or expense is substituted for another that is accepted as the general average, the substituted measure or expense is to be considered as the general average to the extent that it provides the benefit obtained. A specific provision pertaining to "substitute expenses" can be found in Article 272/2 of the Turkish Commercial Code. Consequently, insofar as other parties benefit from these excess expenses, they are included in the general average, up to the extent of the expense that was incurred in order to avoid it. This holds true even if the expense in question was intended to be included in the general average.

CONCLUSION

This article provides an overview of the Turkish approach to Maritime Law, explains the fundamental concepts outlined in the "Maritime Trade" section of the Turkish Commercial Code, and illustrates how commonly encountered legal issues are addressed and resolved in practice in accordance with Turkish law. Enhancements could be made to this study, which intends to serve as an initial resource for individuals seeking comprehensive insights into Turkish Maritime Trade Law, by incorporating more extensive legislative analysis and reviews of significant case law. Without a doubt, research and examination efforts ought to be intensified by the particular circumstances of each specific case.

(Heartfelt gratitude and respect to our esteemed master, Prof. Dr. Şaban KAYIHAN...)

Primary Sources of This Study and Further Reading:

1- KAYIHAN, Şaban: Deniz Ticareti Hukuku (Maritime Law), Umuttepe, Kocaeli 2022 ( https://www.hukukmarket.com/deniz-ticareti-hukuku-32364.html ).

2- Turkish Court of Cassation, General Assembly of Civil Chambers, E. 2017/3080 K. 2021/1312 T. 2.11.2021.

3- Kaner, Deniz İnci: Deniz Ticareti Hukuku I-II, İstanbul 2018.

4- İzveren, Adil; Franko, Nisim; Çalık, Ahmet: Deniz Ticaret Hukuku, Ankara 1994.

5- Çağa, Tahir; Kender, Rayegân: Deniz Ticaret Hukuku II, Navlun Sözleşmesi, İstanbul 2004.

6- Doğanay, İsmail: Türk Ticaret Kanunu Şerhi III, İstanbul 2004.

7- Değirmenci, Nil Kula: Maritime Law in Turkey, On İki Levha Yayıncılık, İstanbul 2017.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.