Ulgener

- 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.