Ulgener

- Tuba Duygu Yazıcı, LL.M.

As maritime trade disputes are often international in nature, it is common practice to refer disputes to arbitration for dispute resolution. Disputes arising from cargo and passenger transportation, cargo damage and loss, carrier’s liability and charter parties are often referred to arbitration because the arbitrators who are experts in their field are trusted and the disputes are often resolved more quickly than in court.

For this reason, the parties to the charter party prefer to specify arbitration in their contracts for dispute resolution. However, there are of course certain conditions for this preference to be legally valid.

According to Turkish Law, the arbitration clauses in the charter party must have the following characteristics:

(1) The arbitration concent shall be clear and the agreement shall be in writing. (2) The parties to the arbitration agreement shall be authorized to make this choice. (3) The arbitration agreement shall be valid according to the law chosen by the parties.

Arbitration clauses that meet the above conditions will be valid and binding for the charter party parties. Accordingly, if the bill of lading holder is one of the parties to the charterparty (charterer), it is clear that the arbitration clause will bind him. However, the dispute generally arises in cases where the bill of lading holder is a third party, and in this case, it is discussed whether the bill of lading holder, who is not a party to the charter party, is bound by the arbitration clause inserted in the charter party.

The requirement that the arbitration agreement to be in writing can be met in two ways in maritime trade;

An arbitration clause can be added to the bill of lading together with the other existing terms and conditions.

The charter party containing the arbitration clause can be incorporated into the bill of lading by refence and a copy of the charterparty can be delivered to the holder of the bill of lading together with the bill of lading.

According to the relevant article of the Turkish Commercial Code, if there is a reference to the charter party in the bill of lading, a copy of the charter party must be presented to the bill of lading holder when the bill of lading is transferred. In this case, the provisions of the charter party can also be enforced against the holder of the bill of lading to the extent possible.

Therefore, in order for the provisions of the charter party incorporated into the bill of lading to bind the bill of lading holder, both the charter party must be referred to in the bill of lading and a copy of the charter party must be delivered to the bill of lading holder.

If all these conditions are met, the arbitration clause in the charter party should be considered binding for the bill of lading holder too. Despite this, we have previously encountered cases where the court ruled that that the arbitration clause in the charter party/ bill of lading shall be considered void because it was contrary to the ‘general terms and conditions’ of the Turkish Code of Obligations. The provisions of the Code of Obligations on general terms and conditions principally aim to regulate terms and conditions included in commercial agreements. In the article 25 of Turkish Code of Obligation it is regulated that “Provisions that are contrary to the rules of honesty (good faith) and against to the other party or that aggravate the situation of the other party can not be included in general terms and conditions”.

Based on this, in some of the cases we were involved in, the courts were of the opinion that in the event of damage to low-cost goods, the bill of lading holder's freedom to seek justice was hindered since he would not be expected to apply for arbitration in foreign countries, and for this reason, they considered the aforementioned arbitration clauses invalid since it violates the ‘general terms and conditions’.

However, in its recent decision dated June 2024, the Istanbul Maritime Court accepted the arbitration clause written in the charter party as valid and binding for the bill of lading holder and ruled that the Turkish courts did not have the jurisdiction to hear the dispute. In the case in question, the remark "to be used with the charter party" was written on the front of the bill of lading and there was also the remark "see back page for carriage conditions". Due to these remarks, it was accepted by the court that the charter party referred to was an annex to the bill of lading. Since it was clear that the bill of lading holder has received the goods by presenting the said bill of lading, the court decided that the arbitration clause in the charter party referred to in the bill of lading is valid and binding for the bill of lading holder and the dispute should be resolved through arbitration. (Istanbul Maritime (17th) Court, Case No 2023/460, Decision No, 2024/282, Decision Date 26 June 2024).

-Gül Alpay

Vessels calling at Turkish ports are required to declare their onboard bunkers to the Customs Directorate as per the regulations. If a discrepancy is detected between the declared amount and the actual onboard amount (a difference of up to 3% is usually tolerated depending on the size of the vessel), customs officials will mandate the discharge of the excess bunker. Additionally, the case may be referred to the Public Prosecutor, who could initiate an investigation under the Anti-Smuggling Act, summoning the vessel’s Master and Chief Engineer for statements.

Legal Framework

Under Article 3 of the Anti-Smuggling Act No. 5607:

“Anyone who brings goods into the country without subjecting them to customs procedures is punishable by imprisonment from one to five years and a judicial fine of up to ten thousand days. If goods are brought from outside the customs gates, the penalty is increased by one third to half.”

In cases involving fuel, the penalties are more severe:

“For goods such as fuel, tobacco, and alcoholic beverages that constitute smuggling, penalties are increased from half to twice the standard amount. The minimum penalty is three years.”

When these provisions are interpreted together, the Master and Chief Engineer who misdeclare bunker to Turkish Customs face the risk of prosecution, with potential prison sentences ranging from 3 to 10 years.

Judicial Process and Court Evaluation

If, as a result of the investigation, the prosecutor concludes that there is reasonable doubt that a smuggling offence has been committed, he prepares an indictment. If the court accepts this indictment, prosecution process begins.

In the prosecution process, crew member will no longer be in Turkey; therefore the court will request the authorities in the place of residence of the defendant, to make the necessary arrangements for the questioning of the defendant. This request, includes a summary of the facts, a description of the offence, the applicable legal provisions and specific questions to be asked. In practice, this correspondence between the relevant authorities often takes months to finalise.

According Turkish Law, a conviction can only be made, after questioning of the defendant takes place. Hence, if questioning cannot take place due to the fact the crew member cannot be reached at his/her address or fails to appear to testify despite being notified to do so, the Turkish court will issue an arrest warrant to ensure that the defendant is brought directly to court upon arrival in Turkey. Accordingly, It should be considered that the return of a crew member with an arrest warrant to Turkey, may disrupt the vessel’s operations.

During the proceedings, the court examines the specific details of the case to determine whether the offence of smuggling has been committed. In other words, excessive bunker alone does not prove the existence of a smuggling offence. The court takes into account factors such as whether the fuel was intended for an external voyage, whether any part of it was attempted to be removed, or whether there was an attempt to transfer it to another vessel.

If, after evaluation, the court concludes that that no smuggling was attempted/intended, despite the excess bunker, the defendants will be acquitted. but administrative penalties for declaration discrepancies will continue to apply.

- 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.

- Alperen Barut

1. Introduction

Throughout human history, maritime activities have played a crucial role in trade, transportation, and exploration, and they continue to do so. One of the most critical elements in this field is the seafarers. Seafarers work on vessels, ensuring the continuity of a safe and efficient transport process and taking on vital functions such as maritime safety, cargo handling, maintenance, and repair. Some of them can sometimes commit the crime of abuse of trust. In this article, we will first examine the position of seafarers in Turkish legislation, then analyze the elements of the crime of "abuse of trust due to service" under Article 155 of the Turkish Penal Code, and finally consider the consequences of the seafarers committing this crime in terms of criminal liability.

2. Definition of Seafarers and Their Duties

The definition of "seafarer" is made in paragraph B of Article 2 of the Maritime Labor Law No. 854. According to the article, a seafarer is defined as a master, officer, crew, or other person working on a ship under a service contract.

Another legislation defining a seafarer is the Turkish Commercial Code ("TCC"). According to Article 934 of the TCC, "seafarers" include the master, ship officers, crew, and others employed on the vessel. Based on the definition provided in the TCC, the common elements of masters, ship officers, and other crews are the existence of a service contract between them and the owner, their employment on the vessel, and their active participation in vessel voyages.

judicial decisions, "seafarers" are defined as those who work on a vessel or, as an exception, on a tugboat towing a vessel under a fixed-term labor contract. The technical nature of the job is not a requirement. Cooks, waiters, cabin stewards, musicians, barbers, etc., employed on passenger ships are also considered seafarers.

To summarize the characteristics of seafarers under Turkish law:

• There must be a labor contract between the seafarer and the owner.
• The seafarer must work on the vessel.
• They must possess the qualifications specified in the legislation.

3. The Crime Of Abuse Of Trust Due To Service

The crime of abuse of trust due to service is regulated in Article 155 of the Turkish Penal Code No. 5237. Article 155 reads as follows:

(1) A person who, for their own benefit or for the benefit of another, disposes of a property entrusted to them to preserve or use in a specific manner, or denies the act of entrustment, shall be punished with imprisonment from six months to two years and a judicial fine upon complaint.

(2) If the crime is committed in relation to property entrusted and delivered due to a professional or artistic, commercial, or service relationship, or for any reason involving the authority to manage another person's property, a sentence of one to seven years of imprisonment and a judicial fine of up to three thousand days shall be imposed.

The crime of abuse of trust occurs when a person, entrusted with a property for preservation or specific use, disposes of it in a manner contrary to the purpose of the entrustment or denies the act of entrustment.

The legal value protected by this crime is the trust and contract relationship. It aims to prevent the abuse of trust in interpersonal relationships in social life and to maintain that trust. Another legal value protected is the right to property. The victim transfers possession of the property, and the perpetrator fails to return it in violation of the trust relationship.

The elements of the crime of abuse of trust are as follows:

· Transfer of Possession: For the crime of abuse of trust to occur, the property must be transferred by the owner or derivative possessor to a third party. If the owner or derivative possessor retains control over the property after the contract, derivative possession is not established, and the crime of abuse of trust will not be committed.

· Disposal Contrary to the Purpose of the Transfer of Possession: The act of disposing contrary to the purpose of the transfer can include actions like selling, donating, or pledging the property. These actions can be performed either actively or passively.

· Denial of the Act of Entrustment: The act of denying the transfer refers to the perpetrator claiming that the property was never transferred to them or that no such legal relationship exists between the parties.

· Perpetrator: In the basic form of the crime of abuse of trust, anyone can be the perpetrator. In the qualified form, the perpetrator will be the person to whom the property was entrusted due to a service contract.

· Victim: The victim of the crime of abuse of trust is the person who transfers possession of the property to another for preservation or specific use.

4. Criminal Liability Of Seafarers In Terms Of The Crime Of Abuse Of Trust Due To Service

For the crime of abuse of trust under Article 155 of the Turkish Penal Code to apply to seafarers, a labor contract must exist between the seafarer and the owner. If there is no valid contract, the crime's elements will not be met.

For the crime of abuse of trust to occur in the context of seafarers, the owner must transfer the possession of items on the vessel, such as life rafts, maneuver ropes, barbed wire, etc., to the seafarers. This is, in fact, realized through the labor contract established between the owner and the seafarer, as the owner agrees to transfer possession of the vessel’s inventory to the seafarer for the purpose of fulfilling the contract.

If a seafarer uses the entrusted property in a manner other than its intended purpose, such as selling, pledging, consuming, altering, or damaging the property as if it were their own, the crime of abuse of trust under Article 155/2 of the Turkish Penal Code will be committed. An example of this would be seafarers selling items from the vessel’s inventory, such as life rafts or barbed wire, on the black market without the owner's knowledge.

In light of the above explanations, seafarers who abuse the trust of the owner will be subject to imprisonment from one to seven years and a judicial fine of up to three thousand days under Article 155/2 of the Turkish Penal Code.

- Aybike Kopuz

Wreck removal is of critical importance for safety, environmental protection, and maritime traffic, making it a primary topic in both national and international regulations. When it comes to wreck removal, the first thing that comes to mind is the 2007 Nairobi International Convention on the Removal of Wrecks (the “Convention”). This Convention was adopted by the International Maritime Organization in 2007 and entered into force in 2015.

Under the Convention, the owner is responsible, within certain limits, for the costs associated with locating, marking, and removing the wreck. Owners of vessels over 300 gross tons are required to obtain insurance or provide financial security up to a certain amount. This financial security can be provided through a bank guarantee or similar collateral, followed by a document issued by the contracting states certifying compliance with the Convention’s terms. The most notable feature of the Convention is that those affected by the wreck can claim expenses directly from the owner’s insurer or financial security provider. In this situation, the insurer or financial security provider can raise defenses similar to those available to the owner (excluding insolvency or liquidation).

Turkey is not a contracting state to this Convention. Therefore, the purpose of this study is to examine how wreck removal activities are regulated under Turkish law.

The scope of the owner's liability is generally defined under the Turkish Commercial Code No. 6102 (“TCC”), but the main framework of liability is outlined in the Ports Law No. 618.

According to Article 1003 of the TCC titled “Loss of Vessel”, “In the event a vessel registered in the registry is lost due to sinking, destruction without leaving usable wreck, explosion, or other forms of ruin, the ownership rights over the vessel terminate. However, the owner’s obligations and liabilities regarding, wreck removal, environmental protection, and other related matters continue.”. All claims arising from the removal of wreckage are subject to a two-year statute of limitations from the date the wreck removal is completed. However, this period may be extended one or more times by a statement made by the person against whom the claim is made to the claimant (Art.1319 of TCC).

Under Article 7(1) of the Ports Law, the owner or master of a vessel that is grounded, semi-submerged, submerged, abandoned, or left derelict in a manner that poses risks to life, property, or the environment, or obstructs the safety of navigation within the administrative responsibility area of the Port Authority, must remove the vessel and her goods within a period specified by the Port Authority. The period specified by the Port Authority may not exceed 45 days but may be extended up to 45 additional days due to technical or meteorological necessities if requested by the relevant parties.

If the vessel is foreign-flagged, the relevant period is notified to the authorities of the state where the vessel is registered, the owner, and the master; if their addresses are unknown, it is announced in an international maritime bulletin. If the vessel is Turkish-flagged, notification is made to the owner or master; if their addresses are unknown, it is announced in a nationwide newspaper with a circulation of over one hundred thousand copies.

If, within the specified period, those notified do not respond or refuse to remove the vessel, the question arises as to what happens next. The continuation of the article states that in such cases, “The Port Authority is authorized to remove, have removed, lift, have lifted, have destroyed, sell, and have sold the vessel and her goods.” The third paragraph of the relevant article of the Ports Law stipulates that in situations that pose serious threats to navigation, life, property, or environmental safety, the Port Authority is authorized to take all necessary measures without adhering to the timeframes set in the first paragraph, with the cost borne by the owner.

In this case, if the owner refuses to carry out the wreck removal activities, who will be entitled to claim the expenses for the activities tendered by the Port Authority, and on what legal grounds?

Expenses for the salvage, wreck removal, and environmental cleanup of a vessel that broke apart in severe weather off the coast of Florya became the focus of a legal dispute. After the vessel partially grounded and partially sank with her bunker, the claimant undertook the wreck removal and subsequently sought to recover these costs from the vessel’s owner. The court of first instance dismissed the claim, holding that the claimant acted under public authority orders and found no grounds for liability based on contract, tort, unjust enrichment, or unauthorized action.

On appeal, however, the Court of Cassation deemed the dismissal unjust and reversed the decision, reasoning that the claimant’s compliance with public authority orders did not preclude recovery of costs from the owner (Court of Cassation 4th Civil Chamber, E. 2016/5629, K. 2016/12397, 21.12.2016). This ruling suggests that, when wreck removal activities are mandated by a public authority, the party performing them may still have grounds to seek reimbursement from the vessel’s owner.