Ulgener

- Canberk Tuygan, LL.M.

Introduction

Turkish Commercial Code No. 6102 (‘TCC’) adopted on 13/1/2011 (Art. 1188 f. 1 of the Turkish Commercial Code (‘TCC’), provides a limitation period of one year for claims for compensation to be brought against the carrier for loss, damage or late delivery of the goods carried pursuant to the freight contract. An additional period of 90 days is granted for the right of indemnity to be made by the person who is the subject of such a compensation claim (Art. 1188 f. 3). In this article, together with the general limitation period article, the provision providing for an additional period of 90 days will be analysed.

Source of Article 1188

On 25/8/1924, the ‘International Convention on the Unification of Certain Rules Relating to Bills of Lading’ was signed in Brussels. This Convention is briefly referred to as the ‘Hague Rules’ in international practice. As is known, Turkey is a party to this Convention. Pursuant to Art. III r 6 para 4 of the Hague Rules, ‘claims for damages based on loss of or damage to goods’ are subject to a limitation period of 1 year.

In order to update the Hague Rules, the ‘Protocol Amending the International Convention for the Unification of the Various Civil Rules relating to Bills of Lading, signed at Brussels on 25 August 1924’ was adopted in Brussels on 23/2/1968. This Protocol is abbreviated as ‘Visby Rules’ in international practice. Pursuant to Art. I para. 2 and 3 of the Visby Rules, the rule regarding the limitation period has been rearranged. This new regulation has been translated and transferred to Art. 1188 TCC in four paragraphs.

Firstly, pursuant to Art. 1 para. 2 of the Visby Rules, a new provision consisting of two sentences has replaced Art. III r 6 para. 4 of the Hague Rules. Pursuant to the first sentence of the new provision, the limitation period excludes not only ‘liability for loss of or damage to the goods’, but also ‘any liability in respect of the goods’; thus, it is aimed to include cases such as late delivery of the goods or delivery to the wrong person within the scope of application of the provision. When this rule was transposed into Art. 1188/1 of the TCC, it was translated as ‘the right to claim all kinds of compensation against the carrier for loss of or damage to the goods or late delivery’. In the doctrine; since it is clearly stated in the preamble of the provision that the regulation introduced by the Visby Rules is taken as basis, it is accepted that Art. 1188/1 should be interpreted in accordance with the source rule and that it covers ‘the right to claim all kinds of compensation for the goods’.

Pursuant to Art. 1 paragraph 2 of the Visby Rules, the second sentence added to Art. III b. 6 paragraph 4 of the Hague Rules allows for the extension of the limitation period by an agreement to be concluded after the claim for damages arises. This rule has also been translated and transferred to Art. 1188 para. 4 TCC.

Pursuant to Art. 1 para. 3 of the Visby Rules, Art. III cl. 6bis added to the Hague Rules has been translated and incorporated into Art. 1188 para. 3 of the TCC. The wording of the provision reads as follows: "(3) The indemnity action of the person held liable may be brought after the expiry of the limitation period stipulated in the first paragraph. However, the right to file an indemnity action shall be forfeited unless it is exercised within ninety days from the date on which the person entitled to this right pays the compensation amount requested or receives the notification of the lawsuit petition in the compensation lawsuit filed against him."

Beneficiaries of the Additional Period

The person who may benefit from the additional period is expressed by a passive verb from the source Visby Rules (‘an action for indemnity ... may be brought ...’ = ‘an application for indemnity may be brought’). On the other hand, the first sentence of Art. 1188/3 TCC refers to ‘the person held liable’ and the second sentence refers to ‘the person who has the right to bring an action for indemnity ...’. The first paragraph, to which the provision explicitly refers, only provides for ‘the carrier’; this title belongs to the person who guarantees the carriage and delivery of the goods by sea in return for freight pursuant to the freight contract, which is a contract of exception (Art. 1138/1 TCC). Therefore, at first glance, one may have the impression that the first paragraph regulates the ‘indemnity of the carrier’, which is applied through judgement. This impression is not correct.

Pursuant to Art. 1190/2 and Art. 1191/2 of the TCC, compensation claims against the actual carrier, the servants of the carrier and the servants of the actual carrier are also subject to the rules regarding the ‘liability of the carrier’. Therefore, the principal creditor may apply directly to the actual carrier or to a person of the carrier or of the actual carrier through the judicial proceedings due to the damage suffered by the goods. When a judicial remedy is applied against one of the aforementioned persons, they may also benefit from the rules set forth under Art. 1188 TCC. In this respect, when they are applied to them directly, they will also be able to apply for indemnity within the additional period within the scope of Art. 1188/3 of the TCC.

According to the foregoing, the main persons who may apply for indemnity based on Article 1188/3 of the TCC are the carrier who concluded the freight contract, the carrier's servants, the actual carrier and the actual carrier's servants.

The insurer, on the other hand, acquires the insured's right of claim against the carrier when it pays the insurance amount and becomes a successor due to the damage or delay of the goods transported by sea. Therefore, the insurer is also subject to the 1-year limitation period stipulated under Art. 1188/1 TCC. The period until the moment of subrogation is binding for the insurer; the insurer should apply to the judicial remedy for the claim for compensation against the carrier within the period remaining from 1 year. In this respect, the additional period regulated under Art. 1188/3 of the TCC is not applicable to the insurer's application against the carrier.

In the decisions of the Court of Cassation, it is stated that the insurer cannot benefit from the additional period for the right of indemnity within the scope of 1188/3.

Indemnity Debtor

Article 1188/3 of the TCC does not clearly state to whom the ‘person held liable’ by the creditor who suffered loss, damage or delay of the goods may have right of indemnity within the additional period. The answer to this question is directly derived from the preparatory works of the provision.

The additional time period is valid for indemnity applications against the actual carrier, the carrier's and the actual carrier's servants (e.g. loading, unloading, stowage and lashing, moorer, agent, port operator, pilot). As a matter of fact, the same conclusion can also be reached through the provisions of Art. 1190/2 and 1191/2 of the TCC, because according to these provisions, the rules regarding the ‘liability of the carrier’ also apply to the actual carrier and the servants of the carrier and the actual carrier; therefore, these persons may also been affected from Art. 1188/3 of the TCC both as creditors and indemnity.

Conclusion

Since the relevant article of the Turkish Commercial Code does not explicitly mention those who have the right to file an indemnity action and the debtor of this right, an interpretation can be made by analysing the applicable law or conventions. It should be added that the statute of limitations and limitation periods in Book 5 of the Turkish Commercial Code are interpreted by the local courts together with the limitation periods in the Turkish Code of Obligations. For this reason, the general provisions should also be taken into consideration when evaluating the commencement of the additional period in the relevant subparagraph.