Ulgener

-T.Duygu Yazıcı

As it’s known, the carrier will be liable for loss or damage to the goods that occurs while the goods are under his control unless the damage or loss caused by an error in the navigation or technical management of the ship or a fire. However, the carrier has the right to limit his liability.

Similarly with the Hague Visby Rules, the Turkish Commercial Code (“TCC”) states in its article of 1186 that unless the nature and value of such goods have been declared by the shipper before shipment and inserted in the bill of lading, neither the carrier nor the ship shall in any event be or become liable for any loss or damage to or in connection with the goods in an amount exceeding 666.67 SDR per package or unit or 2 SDR per kilogram of gross weight of the goods lost or damaged, whichever is the higher.

Accordingly, the carrier’s liability due to loss or damage to the goods is limited under Turkish Law in line with the provisions of the Hague-Visby Rules. However, as in the Hague-Visby Rules, article 1187 of TCC stipulates that the carrier shall not be entitled to benefit of the limitation of liability if it is proved that the damage resulted from an act or omission of the carrier done with intent to cause damage, or recklessly and with knowledge that damage would probably result. The burden of proof is on the party (cargo interests) seeking to break the limitation.

The liability of the carrier arising from the loss or damage to goods will end one year after the delivery of the goods (or after the date on which the goods should have been delivered if the goods are not delivered).

- Gül Alpay

In order for foreign court or arbitral awards (together referred to as the “foreign judgment”) to be valid in Turkey, a recognition and enforcement action must be filed. This article aims to provide the legal framework, procedures, and challenges associated with the recognition and enforcement actions in the Turkish jurisdiction.

Conditions for Recognition and Enforcement

The conditions for recognition and enforcement proceedings are divided into two as "prerequisites" and "substantive conditions". According to Article 50 of the Law No. 5718 on Private International Law and Procedural Law (IPPL), the prerequisites for a recognition or enforcement foreign judgment are as follows:

- The existence of a judgment issued by a foreign court or arbitrator.

- The foreign judgment must be related to civil proceedings.

- The foreign judgment must be finalized.

The substantive conditions required for the recognition and enforcement request to be accepted are regulated under Article 58 of the LPCL. These are;

- The existence of reciprocity between Turkey and the country where the foreign judgment was rendered (This condition is not sought in recognition actions).

- The foreign judgment must have been rendered in a matter that does not fall within the exclusive jurisdiction of Turkish courts, or, provided that the defendant objects, the foreign judgment must not have been rendered by a court of a state that recognizes jurisdiction over the subject matter of the case or the parties, even though it has no real relationship with the parties.

- The foreign judgment must not be contrary to public order.

- The foreign judgment must be made in compliance with the defendant's rights of defence.

Documents Required for Recognition and Enforcement

The following documents are required for the lawsuits to be filed for the recognition and enforcement of foreign judgments;

- The original copy of the judgment issued by the foreign court or arbitrator. (wet signed, sealed).

- A certificate or document showing that the foreign judgment has been finalized (wet signed, sealed).

- Apostille Commentary.

- Notarized Turkish translation of the judgment by a sworn translator.

Court Fees in Recognition and Enforcement Proceedings

The lawsuits to be filed for the enforcement of the foreign judgments are subject to a fee in accordance with the relevant tariff. In disputes that are related to a certain value, a proportional fee is charged (1/4 of 68.31 per thousand of the amount of the claim). In cases that are not related to a certain value, a fixed fee is charged (fixed fee for 2023 is TRY 595.00).

Preventing the Debtor from Evading Property During the Proceedings

It is possible to request the court to impose a precautionary seizure on the debtor's assets in order to prevent the debtor from evading property during the procedures. The precautionary seizure request can be filed before the Recognition and Enforcement case is launched or with an additional submission while the case is being launched or even during the pendency of it.

As a rule, the creditor requesting a precautionary seizure is obliged to deposit collateral in order to cover the debtor's loss in the event that this seizure is unfair. In practice, the amount of collateral is usually determined as ten percent of the claim amount; however in some cases, the court may determine a higher amount. The collateral can be submitted to the court in the form of a bank letter of guarantee issued by a Turkish bank or it can be deposited in cash into a bank account to be opened in the name of the court.

If the conditions specified in the law are present in the case, the court establishes a precautionary seizure on the assets of the debtor until the case is concluded. Depending on the outcome of the case, the creditor can retrieve the debt through executing the procedures of confiscation on debtor’s assets and the liquidation proceedings.

Duration of Recognition and Enforcement Proceedings

It may take approximately one year for the Court of First Instance to grant a decision. In case of appeal, the appellate review may take approximately 1 year to 1.5 years for the The Court of First Instance’s recognition and enforcement decision to become final.

Conclusion

The recognition and enforcement of foreign court or arbitral awards in Turkey entail a well-defined legal framework with specific conditions and procedures. Parties seeking to validate foreign judgments within the Turkish jurisdiction should ensure that they meet the prerequisites and substantive conditions stipulated by the law. Seeking legal assistance can be invaluable in navigating these processes, ultimately safeguarding the interests of the parties involved.

-Yağızalp Kırca

In maritime transportation, situations are frequently encountered in which the original bill of lading is lost by the courier company before it can be delivered to the consignee or cannot be preserved after delivery. As a result of such undesirable events, the carrier does not deliver the cargo to the consignee who cannot present the bill of lading and disputes occur between the parties. Although these disputes are mostly resolved by delivering the cargo to the consignee after the conditions offered by the carrier are accepted by the consignee, it is also possible to take the dispute to court. In this article, we will explain the delivery of cargo against security, in accordance with the Turkish Commercial Code (TCC) and the practices of Turkish Courts, without the need to submit the original bill of lading.

Cancellation of Negotiable Instrument

In Turkish Law, negotiable instruments are deeds in which the right written on it is closely linked to the deed, and therefore the right can only be requested and transferred with this document. Pursuant to Article 1230 of the TCC, a bill of lading is considered a negotiable instrument since it entitles the bearer to take delivery of the cargo. When a negotiable instrument is lost, the first recourse is to file a lawsuit for the cancellation of the negotiable instrument. Article 651 of the Turkish Commercial Code gives the person who has rights on the negotiable instruments the right to request the cancellation of the negotiable instruments from the court in case the negotiable instruments are lost.

Article 651 of the TCC: "If the negotiable instrument is lost, the court may decide to cancel it. The person who has rights on the negotiable instrument at the time the negotiable instrument is lost or the loss occurs may claim the cancellation of the the negotiable instrument."

The second paragraph of Article 831 of the TCC regulates that the provisions regarding cancellation of a policy shall apply to the cancellation of a bill of lading. This issue is important for our newsletter. Article 765 titled "Security" regarding the cancellation of the policy provides the opportunity for those who claim the cancellation of the bill of lading from the court to take delivery of the cargo against security until the cancellation decision is made.

Article 765 of TCC: (1) Before deciding on cancellation, the court may impose an obligation on the acceptor to deposit the policy amount and pay it against sufficient security.

(2) The security shall constitute an compensation against the loss that may be suffered by the person who acquired the policy in good faith. If the deed is canceled or the rights arising from the deed are extinguished for any other reason, the security shall be withdrawn.

In the light of the above information, the Turkish Commercial Code allows the consignee, who is unable to present the original bill of lading to the carrier due to the loss of the bill of lading, to take delivery of the cargo against a security to be determined by the court. The consignee who wishes to take delivery of the cargo against security without waiting for the decision on the cancellation of the bill of lading must claim the cancellation of the bill of lading from the commercial court of first instance and the delivery of the cargo subject to the bill of lading against security until the cancellation decision is made.

While the consignee filing a lawsuit for the cancellation of the negotiable instrument, submits to the court documents such as a copy of the bill of lading, sales contract, invoice, customs declaration, etc., which demonstrate that it is the buyer of the goods and that the bill of lading left its possession against its will. We have already stated that the provisions of the law regarding the cancellation of the policy shall apply to the cancellation of the bill of lading. If The court is convinced that the person requesting the cancellation of the bill of lading is the bearer of the bill of lading, an announcement shall be made in the Trade Registry Gazette. The content of this announcement is an invitation to the holder of the bill of lading to bring the bill of lading within a certain period of time and a warning that the bill of lading will be canceled if it is not brought.

Article 760 of TCC: If the court finds the applicant's explanation of the loss of the policy inits possession credible, the court shall invite the person who took possession of the policy to return the policy within a certain period of time and shall notify that otherwise it will order the policy to be canceled by announcement.

Pursuant to Article 761 of the TCC, the period given to the holder of the bill of lading for the delivery to be specified in the announcement cannot be less than three months and more than one year. Pursuant to Article 762, this announcement shall be made three times in the Trade Registry Gazette.

Carrier's Right of Lien and Determination of Security

During the proceedings for the cancellation of the bill of lading, the court also considers the issue of delivery of the cargo against security. Article 1201 of the TCC regulates the carrier's right of lien over the cargo in dispute. The right of lien is intended to secure all claims of the carrier arising from the freight contract. The carrier has the possibility to exercise the right of lien on the cargo, limited to the claims arising from the voyage during which the cargo was transported and the amount of cargo that will guarantee the claims.

Article 1201 of TCC: (1) The carrier has the right of lien on the goods pursuant to Articles 950 to 953 of the Turkish Civil Code for all receivables arising out of the freight contract. The right of lien continues as long as the cargo is in the possession of the carrier; even after delivery, it is possible to exercise the powers arising from the right of lien, provided that an application is made to the court within thirty days and the goods are still in the possession of the consignee.

(2) The right of lien secures only the claims arising from the voyage in which the goods on which the right of lien is exercised are transported.

(3) The right of lien may only be exercised over the goods in the amount sufficient to secure the claim; however, the carrier may exercise the right of lien over the whole of the goods for the claims for common average and salvage.

Upon the claim to take delivery of the cargo against security, the court sends a notice to the carrier and gives a deadline for the carrier to submit its statements on whether it has exercised its right of lien on the cargo subject to the lawsuit and whether it has any claims arising from the carriage of the cargo subject to the bill of lading. The carrier who wishes to exercise the right of lien may request a security for the damages carrier may suffer if the cargo is delivered to the applicant without presenting the original bill of lading. In addition, the carrier may also request that its claims arising from the carriage are secured. If the amount declared by the carrier is accepted by the consignee, the court shall designate the place of deposit. This is only possible if the parties agree on the amount.

In the event of a dispute between the parties as to the amount, the amount of the security shall be determined by the court. The relevant issue is regulated under Article 1202 of the TCC.

Article 1202 of TCC: (1) If there is a dispute about the carrier's claims, the carrier is obliged to deliver the goods as soon as the disputed amount is deposited in a place to be determined by the court.

In the event that the entire cargo is delivered against security without presenting the original bill of lading, the damages that the carrier may incur if the original bill of lading is presented by a third party must be covered. Therefore, the amount of security to be set by the court can be expected to be the invoice value of the cargo or more.

After the dispute over the amount has been resolved, the court shall make a decision on the delivery of the cargo to the consignee upon the deposit of the specified security at the designated place.

Execution of an Injunction on Delivery of Cargo

The court shall determine the place of deposit and the amount of security in line with the practices explained above by an interim decision to be issued by the court. If the security is deposited, an injunction is issued for the delivery of the cargo. The consignee, who receives the interim injunction decision, applies to the enforcement office where the cargo will be delivered and takes delivery of the cargo through seizure, by the enforcement officer.

Cancellation of Bill of Lading and Return of Security

After examining the statements and evidence regarding the loss of the bill of lading without the will of the consignee, if the court is convinced that the bill of lading has been lost, if it is determined that three announcements have been made in the Trade Registry Gazette regarding the bill of lading and no application has been made to the court regarding the bill of lading despite the announcements made, the bill of lading shall be canceled. Following the finalization of the decision to cancel the bill of lading, the court shall order the return of the security deposited by the consignee claiming cancellation of the bill of lading.

-Canberk Tuygan

With the development of technology, vehicles such as crates, sacks, boxes in which the cargo is placed have also diversified and developed. Over time, with the design and construction of container ships, a period called containerisation has started in which carriers attach importance to container transport and liner transport has developed further. Container trade has reached a volume of 775 million TEU (twenty-foot equivalent unit) today.

As a result of the easy transfer of cargo from transport vehicles to each other, combined transport was born, and container transport has become the most widely used type of transport in the world today due to the ease of loading-unloading operations and the reduction of transport costs.

Nowadays, the entire container can be filled with only one person's goods, or it is also possible for the shipper to request that part of the goods be loaded into the same container on condition that it is sent to the port at another time. In particular, if a customer who wants to export his goods has space left when the goods are loaded into the container, forwarders collect more than one customer for the remaining space, organise their goods and load the goods. This type of container is called LCL (Less Container Load) or Partial Container. If there is only one shipper's goods in the container, the container is called FCL (Full Container Load) container. In a transport with FCL clause, it is accepted that the container approaches a type of packaging rather than a ship's hold.

If the shipper can only use part of a container, he/she will take his cargoes to the container terminal and the cargoes brought in will be stowed in a container by the carrier, together with cargoes brought in by other carriers in a similar position. A contract on this basis is known as 'partial carriage' (LCL).

The use of containers causes significant proof problems for cargo creditors in proving that the goods placed in the container were damaged in the carrier's custody. If the shipper loads them into the container and then seals it, the carrier has no way to verify what is inside the container. Accordingly, when the carrier issues the bill of lading or sea waybill, it will protect itself by qualifying any statement as to the contents of the container with wordings such as 'said to contain'. The effect of these words would be to oblige the cargo creditor to prove by independent evidence exactly what was in the container at the time of the carrier's receipt and the condition it was in at that time. In most cases, this will be an insurmountable burden of proof.

Pursuant to Article 1239 of the Turkish Code of Commerce (TCC), if the bill of lading contains declarations as to the general type, markings, number of parcels or pieces, weight or quantity of the goods, but the carrier knows or suspects with good reason that these declarations do not accurately and completely represent the goods actually received or, if a bill of lading has been issued, the goods actually loaded, or if he does not have sufficient means to check these declarations, he is obliged to make a reservation in the bill of lading explaining that these declarations do not correspond to the truth, the reasons justifying his suspicion or the lack of means of control. Therefore, if the cargoes are delivered to the carrier in sealed containers (FCL) or packed, the carrier must insert a said to contain clause. In this case, the bill of lading shall not constitute a presumption in respect of the entries mentioned in the bill of lading. Almost every bill of lading contains the phrase said to contain. This phrase means that the carrier approves the shipper's inclusion of the number and condition of the goods in the document while loading, without any control. In other words, the carrier does not open the container in order to check its contents and compare its accuracy with the bill of lading. This clause gives the carrier the right of defence that it is not liable for any damage caused by the incomplete goods in the container at the end of the carriage and the shipper's failure to stow the goods properly in the container. For all these reasons, removing the seal of the container for any control purpose will deprive the carrier of the defences provided by this clause and will give the shipper the right to attribute the stowage problem in the container to the carrier. Once the seal is removed, the burden of proving that this act has no effect on the damage to the container will shift to the carrier who removed the seal.

Based on the relationship between the carrier and the shipper, there is a complex burden of proof, also known as the shifting of the burden of proof like a ping-pong match. In case of cargo damage, of course, the claimant is the cargo owner; therefore, the initial burden of proof is on him. However, this burden of proof is only on proving that the carrier received the cargo clean and in good condition at the beginning of the journey (which can be seen in a clean bill of lading) and that the damage occurred during the period of carriage, which is the carrier's area of responsibility. After this point, the burden of proof passes to the carrier. The carrier may pass the burden of proof to the shipper only under certain conditions. These are the presence of an error in the packaging of the shipper and the existence of a force majeure (Act of God, compulsory state quarantine) or unseaworthiness despite all efforts of the carrier to make the ship seaworthy (cases where the carrier and the ship owner are different). Even if the carrier, for security reasons, unseals and inspects a shipping container, the carrier will find it difficult to discharge the burden of proof, as the carrier will be the last person to open the container. In the US, it is clear that the carrier is under no obligation to open and inspect a container supplied by the shipper, and it is probably accepted that an English court would reach the same conclusion on the same issue. Therefore, breaking the seal for security reasons cannot be considered as an excuse.

Containers are sealed and delivered to the carrier after the goods are stowed by the shipper in FCL clause carriage. As it is fixed in the decision of the Court of Cassation (11th circuit, numbered 1984/2187, decision numbered 1984/2760, dated 11.05.1984), it can be said that the carrier, who does not have information about the nature of the cargoes, will not be liable for damage and loss, unlike conventional transports, upon the carrier's placing the mentioned clauses. Again, the SLSC (Shipper's Load, Stow and Count) clause in container transport also supports this view. This clause may also be imposed when the carrier is not present during stowage. As in the decision of the 11th Civil Chamber of the Court of Cassation dated 27.06.2019 and numbered 2018/3460, 2019/4978, the issues of by whom and in whose presence the container is stowed and when the sealing procedures are carried out are very important.

It is vitally important for the shipper or consignee that the carrier uses accurate and clear wording in the bill of lading to indicate the quantity and condition of the goods to be carried. If these statements are missing from the bill of lading, the consignee will bear the burden of proving the number and condition of the goods at the time of loading due to incomplete delivery of the goods or damage during unloading. As a natural reaction, the carrier's agent may add clauses such as 'weight, quantity and condition unknown' or 'shipper's load, count and stow' before signing the bill of lading prepared by the shipper. Therefore, the carrier will be able to prevent the presumption of the accuracy of the description of the condition and quantity of the goods in the bill of lading with clauses appropriate to the facts.

The interpretation of the courts regarding these clauses is that if the amount stated by the shipper in the bill of lading contradicts the actual situation, the parts written by the shipper in the bill of lading will remain only as a declaration since the carrier cannot approve what is written in the bill of lading from the beginning. It should not be forgotten that the validity of the clauses will be discussed in detail according to the facts. For example, in one of its decisions, the 11th Civil Chamber of the Court of Cassation ruled that the damage to the commodity (glass) transported in open-top containers occurred during carriage since it could not be determined in the bill of lading but was included in the container exchange report, and the defence of delivery of the container to the carrier in sealed form (FCL) was not accepted since the carrier did not stretch the container during carriage and held the carrier liable for the damage. Since the carrier cannot know the condition of the goods inside the container, it is difficult to hold the carrier liable by proving that the goods were damaged during carriage; however, it may be possible to hold the carrier liable in cases where the seal of the container has been removed or it is determined that the goods have been damaged by sea water or it is proved that the refrigerated container was transported in an improper way. In cases where there is no impossibility of control, i.e. where the container is stowed by the carrier (as in LCL), such a clause will not be included. Nevertheless, if the cargoes stowed in the container are packaged, a (said to contain) clause may be included for each package. In this scenario, the bill of lading will be presumed only with respect to the number of packages. It will not constitute a presumption in terms of the type of cargo.

As a result, although the Turkish Court decisions have uniformly stated that "if the maritime carriage is carried out with a container (e.g. standard container, high container, tank container, reefer container, etc.) which cannot be seen from the outside, the carrier cannot be held liable for the damage caused by the goods which he cannot control the stacking, packaging and binding inside the container due to the closed delivery". ), the carrier cannot be held liable for the damage caused by the goods that he cannot control the stacking, packaging and binding of the goods in the container due to the closed delivery", the carrier's obligation to observe whether the container is suitable for a safe maritime transport in terms of its visible elements and to stack the container appropriately for the safety of carriage continues in such cases. [General Assembly of Civil Chambers numbered 2017/3080, decision numbered 2021/1312, dated 02.11.2021]

The "Directive on Anchoring Fees for Ships" has been published by the Ministry of Transport and Infrastructure, amending the provisions related to the determination, collection, inspection, and follow-up of anchoring fees for ships anchoring in Turkey's maritime jurisdiction areas. This directive, which will come into effect on January 1, 2024, replaces the anchoring provisions in the 2003 tariff and all references to anchoring in this tariff.

The 6th article of the new directive specifies the principles to be applied to anchoring fees. The first change addressed in this article is the differentiation in fees between Turkish-flagged and foreign-flagged vessels. According to the new directive, foreign-flagged vessels will be subject to fees twice the amount applied to Turkish-flagged vessels.

The second change introduced by the new directive is the application of a separate tariff for vessels with anchoring durations exceeding 168 hours.

The final change in the principles of fee application is related to the difference in fees applied to anchoring areas within the scope of the Turkish Straits Vessel Traffic Regulations (TSVTR) and anchoring areas outside the scope of this regulation.

The new directive sets the tariff based on daily fees and allows optional monthly and yearly payments. Monthly fees are determined as 25 times the daily fee, while yearly fees are set at 6 times the monthly fee. The only exception to monthly and yearly payments is for the Istanbul Strait South Entrance Anchoring Areas, where anchoring fees must be paid on a daily basis, and monthly or yearly payments are not accepted.

Regarding the daily fee calculation per gross tonnage (GT) under the new directive:

For anchoring areas outside the scope of TSVTR:

a) For Turkish-flagged vessels with anchoring durations up to 168 hours: USD 0.002 per GT, and for foreign-flagged vessels: USD 0.004 per GT.

b) For Turkish-flagged vessels with anchoring durations exceeding 168 hours: USD 0.003 per GT, and for foreign-flagged vessels: USD 0.006 per GT.

For anchoring areas listed in TSVTR:

a) For Turkish-flagged vessels with anchoring durations up to 168 hours: USD 0.004 per GT, and for foreign-flagged vessels: USD 0.008 per GT.

b) For Turkish-flagged vessels with anchoring durations exceeding 168 hours: USD 0.006 per GT, and for foreign-flagged vessels: USD 0.012 per GT.

Another new issue is related to the special provisions regarding the anchorage areas within the scope of TSVTR. Vessels transiting within the scope of TSVTR will not be charged anchoring fees in the anchorage areas in Annex-2 of TSVTR as long as their transit passage is not disrupted.

It is also included in the Directive that if the anchoring time exceeds 72 hours, a fee will be charged as of the anchoring hour if the anchoring time exceeds 72 hours for the ships whose transit passage is disrupted or the ships that make a stopover passage within the scope of TSVTR.

The "Sample Calculation Table" is provided in the directive for reference.

Sample Calculation Table for Anchoring Fees

* A 50% discount is applied to Turkish flagged ships making cabotage voyages that meet the conditions in the second paragraph of Article 6.