Ulgener
Eurasian 2022/2
EXCESS BUNKER LIABILITY
An Inconvenient Practice!
According to the Turkish Customs Regulations, vessels are obliged to declare the bunkers quantity on board to the customs authorities before entering to Turkish Ports. If more bunker is found on board during the random inspections carried our by the customs officers, the authorities may confiscate the excess bunker, they may charge taxes for the excess bunker and initiate criminal proceedings against the crew or owners. You may find below the consequences of excess bunkers in detail.
Introduction
In parallel with the practice all over the world, foreign-flag vessels calling at Turkish Ports are obliged to declare the items on board such as oils (fuel oil, diesel oil and lubricating oil) and bonded store(cigarettes, etc.) to the Customs Directorate in accordance with the Turkish Customs Regulations. Errors in fulfilling this these requirements will result in penalties in accordance with customs and criminal laws and regulations as excess bunker situations are associated with smuggling in Turkiye.
In this article, the processes of fuel measurement, declaration and inspection of fuel by customs officials will be explained in detail as well as the provisions of criminal law, tax law and administrative law to be applied as a consequence of under or over declaration of fuel as we have frequently witnessed in this period.
In order to examine the occurrence of bunker smuggling, the Turkish government takes strict precautions by conducting random inspections by the police force and customs officers on vessels calling at Turkish ports. A Presidential Circular about this topic, published in the Official Gazette dated 06.11.2021, serves as the reconfirmation of the Government’s determination for the continued enforcement of the anti-smuggling precautions against the crime of bunker smuggling. The new circular asserts that a board of ministers (consisting of the Ministers of Commerce, Energy and Natural Resources, Internal Affairs and Industry and Technology) is being setup to lead the operation against bunker smuggling and ensure a healthy coordination between different state departments. Article 8 under the circular also specifies that the Port Authority and the Coastal Safety will also provide maximum technical support for the operations to be conducted on board. This circular has to be interpreted as a supplementary resource to reference Anti-Smuggling Law No. 5607, law of criminal procedure no. 5271, customs law no. 4458, customs regulation and also tax procedural law no. 213.
The main purpose of mentioned circular is to detect attempted fuel smuggling events. In other words, it is obvious that the number of the random inspections on vessels and criminal investigations against crew members will increase.
Inspections that we mentioned above are based on the customs regulation Art. 9/2 which indicates “persons suspected of hiding smuggled goods in customs halls and customs gates may be searched by customs officers for customs control purposes.” In addition, Article 481/1 of the same regulation is a slightly more specialized article and explains the determining fuel quantities by saying “Since the amount of fuel purchased from foreign ports by the vessels to enter cabotage is shown in the vessels' logbooks and fuel logbooks, the amount to be taxed is determined by finding the difference between the amount purchased according to the logbook and the amount consumed according to the logbook and fuel logbook.”
Vessels are usually expected to inform the amount of the bunkers on board to the relevant Turkish port authority before calling at a Turkish port. Certain vessels make declarations through their agents and while the others submit the relevant vessel documents directly to the inspectors boarding the vessel in order to inspect upon her arrival to the relevant port. In case of the customs officers decide to conduct an inspection on board the vessel they will most likely carry out a proper bunker survey by sounding the bunker tanks. Thus, making declarations considering the electronic systems (without conducting an actual bunker survey with the sounding pipes) revealing information about the vessel’s daily bunker consumption is not safe since in most cases the results of the actual bunker surveys conducted with a sounding pipe and the figures obtained from the electronic systems contradict each other and this conflict forces the inspectors to consider the probability of an intentional misdeclaration and gives them an opportunity to report the incident to the Public Prosecutor for the initiation of a criminal investigation. As described in detail below, the relevant investigation will be initiated against the master and chief engineer and the excessive bunker will be confiscated as an administrative implication. The vessel is not allowed to depart during the undeclared fuel discharge procedures. This process; the arrangement of the road tankers, the discharge of the fuel causes a delay in the vessel's schedule. This period may take three days. In practice, it is determined that delays are experienced in some ports due to the supply of tanks or barges where the fuel will be discharged.
In addition, if excessive fuel is detected, the teams return to the vessel and take samples from the bunker tanks. The sample taken is transferred to the Scientific and Technological Research Council of Turkiye (TUBITAK) for analysis and it is investigated whether this sample complies with the values given for category ISO-F type RME, RMG and RMK grades in ISO 8217:2017 Fuel Standard for marine distillate fuels. In practice, the fact that the fuel does not comply with international fuel standards does not affect whether an investigation will be initiated or not since excess causes different breaches in tax and administrative law; however, if a case is opened after investigation, there will be a presumption that the fuel misdeclaration act was not malicious.
Without making further explanation about the custom fines and criminal proceedings, the club cover against the fines for smuggling and breach of the custom regulations needs to be addressed.
Fines issued by Turkish customs authorities as a consequence of ‘excess bunkers’ may be located in the category of ‘fines for smuggling and breach of customs regulation’ depending on how they are classified by the customs authorities. This could be a key difference-maker as fines concerning the misdeclarations may be covered as of right under related article of the rulebook that contains the expression of “failure to comply with regulations..”, save in respect of smuggling of goods or cargo, which would be interpreted as an exclusion in the following article of almost all rulebooks. Thus the indemnity of the loss by the P&I Club would be discretionary since the event may have a chance to be evaluated as a malicious act by the customs authorities. The club board will decide whether to compensate the loss according to the facts or not. On the other hand, it is even less likely that they will be able to afford the fine and/or expenses imposed as a result of the criminal proceedings.
Confiscation of Excess Bunker
According to the current practice, if more fuel is detected than declared in the inspection, the excess bunker will be confiscated.
The confiscation decision is implemented in accordance with the procedures set out in Article 127 of the Criminal Procedure Code (CPC). Pursuant to the aforementioned article, the decision to confiscate is given by the judge. As an exception (in cases where a delay is not acceptable) it can also be given by the Public Prosecutor or the Chief of Police. The decisions not taken by the judge must be submitted to the approval of the judge within 24 hours and it should be approved by the judge within the 48 hours after the decision is made. Otherwise, the confiscation decision will automatically be annulled.
After the confiscation decision is made, the excess bunker on the vessel must be discharged. The vessel will not be allowed to continue her voyage until excess bunker discharge is completed. After the discharge, the confiscated fuel will be transferred to the warehouses of the General Directorate Of National Real Estate.
During the discharge process, technical difficulties are frequently encountered due to the fact that the tanks of the vessels are not usually suitable for discharging oils. Accordingly, it takes at least two days to get the oils off the vessel and to procure the barges that will carry the oils. In some cases, this process can even take a week. As you can imagine, the discharge process causes serious financial losses and incurs other costs such as an anchorage fee.
The only way for a vessel with excess bunker to continue her voyage without waiting for the bunker to be discharged is by depositing security. According to article 132/5 of the CPC, a security can be deposited for the return of the bunker for which the confiscation decision has been made. Of course, it’s important to deposit the security before the discharge process has been commenced. As for the deposit fee, the customs authorities determine the customs value of the excess bunker.
The customs value of the excess bunker is the CIF value of the goods plus Special Consumption Tax (ÖTV), Value Added Tax (KDV) and customs tax (according to the customs tariff). The relevant customs authority issues a letter titled "Identification Document for Smuggled Goods" showing the customs value of the good and how the calculation was made. If the amount specified in this letter is paid, the excess bunker will not be discharged from the vessel and the vessel will be allowed to carry on her voyage.
It is highly likely that criminal proceedings brought against the crew members simultaneously with the confiscation procedure. In that case, the final decision about the confiscation will be made by the criminal court. The judge may decide to liquidate the confiscated fuel at any stage of trial. The liquidation process is carried out according to the procedures determined in Article 16/A of the Anti-Smuggling Law No. 5607. Pursuant to this article, the confiscated fuel is liquidated free of charge for the use of public institutions and organizations or sold, provided that it complies with the technical regulations mentioned in the introduction part above. If the confiscated fuel does not comply with the technical regulations, it will be disposed of by being sold to the nearest refinery. Upon the request of the administrative institution where the fuel is stored, the judge may decide on the liquidation of the excess bunker. We must say that it is unusual for the fuel to be returned to the vessel and it is highly probable that the judge will decide to liquidate it after the criminal proceedings have commenced.
In case that the criminal proceedings are concluded in favor of the crew/owners the issue of returning the confiscated excess bunker will come up. In order to the confiscated fuel to be recovered or the deposit to be returned, the criminal proceedings must have concluded that the crime of smuggling had not been committed. In case where the criminal case ends in favor of the owners or the crew, either the deposit shall be returned or the value of the excess bunker shall be paid to the owners (if the bunker was liquidated as stated above). However, according to article 16/A-(4) of the Anti-Smuggling Code, the taxes will not be returned to the owners and only the CIF value of the excess bunker shall be paid to the owners together with the accrued legal interest.
Usually, in cases where excess bunker is physically confiscated (discharged from the vessel), the customs authorities ask the owners to pay the taxes for the excess bunker as it will be explained in detail below. Accordingly, if the excess bunker was discharged from the vessel and liquidated and the criminal proceedings concluded in favor of the crew/owners afterwards, the CIF value of the excess bunker will be paid to the owners, but not the taxes (see next chapter). In case that a security was provided by the owners and the excess bunker was not discharged from the vessel then the security will be returned to the owners after the taxes are deducted.
Customs Aspects
In the event that the Customs Officials detected excess bunkers in a vessel’s tanks, a concern arises about “possible customs fine”. Unlike the misdeclaration of cargo cases, the customs authorities do not impose customs fine in excess bunker situations. Misdeclaration of the bunker in vessels’ tanks are subject to different provisions of customs law than misdeclaration of vessels’ cargo (dry cargo or oil), as it’s associated with smuggling.
Therefore, the customs authorities do not impose a fine equivalent the CIF value or multiple values of the goods. However, they determine the CIF value of the excess bunker in any case in order to calculate its special consumption tax, value added tax, customs tax. Normally the bunkers purchased abroad by foreign flag vessels is not subject to tax in Turkiye. However, in excess bunker cases, the authorities usually ask ship owners to pay special consumption tax (OTV) , value added tax (KDV), customs tax of the excess bunker calculated on the CIF value of the goods.
As mentioned in the previous section, upon the notification of the customs authority/ public prosecutor, the court orders confiscation of the excess bunker. In cases where the customs authorities discharge the excess bunker from the vessel, the authorities usually require the owners to pay the above mentioned taxes of the excess bunker. If security is provided by the owners in order not to discharge the excess bunker from the vessel, it will consist of the CIF value of the excess bunker and plus the taxes. Even if the criminal proceedings ends in favor of the crew/owners, the taxes are not refunded to the owners.
Criminal Proceedings
Excess bunker on the vessels calling at Turkish Ports will also lead to criminal proceedings against the crew members (generally the master and the chief engineer) according to the Anti-Smuggling Law No. 5607 Article 3:
“The person who brings the goods into the country without going through proper customs procedures is punished by imprisonment from one year to five years and an additional court imposed sentence of judicial fine up to ten thousand days. If the goods are brought into the country from outside the customs gates, the penalty to be imposed is increased from one third to half.”
According to the sub-paragraph 10 and 11 of the same article:
“In cases the goods which constitutes the smuggling consist of fuel, tobacco, tobacco products, sheets of cigarette paper, ethyl alcohol, methanol and alcoholic beverages, penalties to be imposed according to the above paragraphs are increased from half to twice length. In any case the penalty to be imposed cannot be less than three years.”
“The person who produces, possesses, transports, offers for sale or sells the fuel that is subject to national marker application for commercial purposes, which contains national marker below the level determined by the Energy Market Regulatory Authority or does not contain national marker at all, and who purchases it for commercial purposes knowing this feature shall be sentenced to imprisonment from two to five years and a judicial fine up to twenty thousand days.”
If the value of the goods constituting the subject matter of the offenses defined in the paragraphs above is significant, the penalties to be imposed shall be increased by half to one times. If the value of the goods is not high, the penalties to be imposed shall be reduced by up to half, and if the value of the goods is very light, the penalties to be imposed shall be reduced by up to one third.
In case a criminal investigation is initiated by the public prosecutor, officials would proceed to take statements from the crew. If the prosecutor decides to prepare an indictment based on the above mentioned articles of Anti-Smuggling Law and the court decides to prosecute, the trial period begins.
Fuel smuggling is a public crime and not subject to a complaint. When the prosecutor's office learns that the crime has been committed in some way, an investigation will be automatically started. Although there is no complaint period for the investigation of the crime, the statute of limitations for the crime is 8 years.
Suspension of the Announcement of the Verdict
In Turkish Criminal Law Suspension of the Announcement of the Verdict is a criminal procedure institution that causes the case to be dismissed when certain conditions are fulfilled by the defendant within a certain period of supervision time. Unless the effective remorse provisions are applied[1], Decision for Suspension of the Announcement of the Verdict cannot be granted by the court for the crime of fuel smuggling.
In addition, prison sentence for the crime of fuel smuggling cannot be converted into a judicial fine. During the trial, It is necessary to prove that the difference between the declared amount of bunker and the amount of bunker on board is caused by negligence.
[1] Effective Remorse
Effective remorse is an institution of substantive criminal law that provides for a reduction in the penalty for the perpetrator if the perpetrator regrets the act committed and compensates for the damage caused by the offense. If a person who has participated in the crime of bunker smuggling informs the authorities about the act, the other perpetrators and the places where the smuggled fuel is hidden before being informed by the official authorities, he shall not be punished if the information provided leads to the arrest of the perpetrators or the seizure of the smuggled bunker. The penalty shall be reduced by two thirds for the person who, after being informed, serves and assists in the full discovery of the act.
According to the High Court, in order for the effective remorse provision to be applied, the following conditions must be met together:
-Payment to the State Treasury of a sum of money equal to twice the customs value of the goods subject to the offense until the end of the investigation phase,
-The perpetrator is not a repeat offender for smuggling,
-The act of smuggling was not committed within the framework of the activities of an organization.
Eurasian 2023/1 - Work Accidents on Foreign-Flagged Ships
Work Accidents on Foreign-Flagged Ships
Navigating Jurisdictional Complexities
-Gül Alpay
The Work Accident Concept in Turkish Law
Work accidents are an unfortunate reality in every workplace. These accidents can lead to injuries, disabilities, or even fatalities, leaving workers and their families devastated.
In Turkish Labour Law, work accidents are defined as events that occur in the workplace or during the course of work and cause the death or disability of the worker, either mentally or physically. According to the Turkish case law, diseases such as cerebral haemorrhage and heart attack are also accepted as work accidents when they occur at the workplace.
When such accidents occur, the labour courts in Turkey have the competency to hear appeals related to them. The files are forwarded to the specialized departments of the Court of Appeal that deal with labour cases.
The Competent Court for Turkish-Flagged Ships
In Turkey, ships that are registered under the Turkish flag are subject to the Labour Law, and the labour courts have competency to hear cases related to work accidents that occur on these ships. Therefore, when decisions related to work accidents on Turkish-flagged ships are appealed, the files are forwarded to the specialized departments of the Court of Appeal that deal with labour cases such as the 10th Civil Chamber of the Court of Appeal. According to the established precedents of these departments, a worker's death due to a heart attack while at work on a Turkish-flagged ship is considered a work accident.
The Competent Court for Foreign-Flagged Ships
In the case of foreign-flagged ships, the situation is more complex. These ships are subject to the Law of Obligations in Turkey, and the commercial courts have competency over cases related to work accidents that occur on these ships. When decisions related to work accidents on foreign-flagged ships are appealed, the files are forwarded to different departments of the Court of Appeal, usually the specialized departments of the Court of Appeal that deal with maritime cases such as the 11th Civil Chamber of the Court of Appeal. However, the issue arises from the conflict of laws in such cases.
Differences in Result
To better understand the complexities surrounding work accidents in Turkish maritime law, we need to examine a recent case study. In this case, a Turkish seaman who worked as a "master seaman" on a foreign-flagged ship died of a heart attack due to the intense working conditions and heat. The heirs of the deceased sailor launched a case against the shipowner, claiming material and moral compensation.
The commercial court first examined whether Turkish law could be applied to the incident that occurred on the foreign-flagged ship in question. The court referred to Article 27 of the Law on International Private Law and Procedure, which states that if there is a choice of law, the law chosen shall apply, and if not, the law of the habitual place of work of the employee shall apply. However, if the employee does not habitually perform their work in a single country but does so in several countries, the employment contract shall be governed by the law of the country where the employer's main place of business is located. On the other hand, if there is a law that is more closely related to the employment contract according to all the conditions of the case, that law can be applied to the contract.
Accordingly, the court decided that Turkish courts has jurisdiction over the case since both the employee and the employer were Turkish in the present case. However, upon examination on the merits, the Court decided that the incident that occurred on the foreign-flagged ship was not a work accident under the Law of Obligations. The court concluded that the worker's age and pre-existing conditions played a role in the heart attack, making it inevitable and not a work accident. Moreover, the court found that the employer had not acted negligently or failed to take safety precautions, and therefore, the incident did not constitute fault liability. This decision was upheld by the 11th Civil Chamber of the Court of Appeal, which deals with maritime cases.
On the other hand, in a decision made by the 10th Civil Chamber of the Court of Appeal, which is the specialized department for labour cases, a different ruling was made in a similar case involving a Turkish seaman who worked as a "master seaman" on a foreign-flagged ship and who also died of a heart attack. However, in this case, the 10th Civil Chamber of the Court of Appeal considered it a work accident, based on established precedents. The court reasoned that the worker's death was caused by a heart attack that occurred in the workplace and during the course of work, and therefore, it constituted a work accident.[1]
This decision contradicts the ruling made by the 11th Civil Chamber of the Court of Appeal, which found that a similar incident that occurred on a foreign-flagged ship was not a work accident under the Law of Obligations since the employer did not have a fault; whether the incident occurred at the workplace was not taken into account. The conflicting rulings highlight the complexity and ambiguity surrounding the work accident jurisdiction for foreign-flagged ships.
While the approach to work accidents may differ depending on the flag of the ship, it is essential to ensure fairness and consistency in the treatment of workers and to avoid jurisdictional conflicts.
A more consistent and clear legal framework regarding “work accidents on foreign-flagged ships” which can be set by the General Assembly of Civil Chambers of the Court of Appeal, is necessary to protect the rights of workers in the maritime industry and ensure that they receive adequate compensation and support in the event of a work accident.
[1] In cases of work accidents, the liability of the employer is eliminated only in case of force majeure, gross negligence of the injured party or third party; in case of joint fault, the liability is shared in proportion to the fault of the parties.
Time Bars According to Turkish Maritime Law
Unravelling the Legal Framework
To grasp the nuances of the Time Bar system in Turkish Law and explore the potential for parties to modify time bar periods through agreements, it is essential to first understand the distinctive dual framework, which diverges from the principles found in English Law.
Types of Time Bar Periods in Turkish Law
Turkish Law outlines two distinct types of time bar periods in legal statutes, namely; prescription periods and extinction periods. The differences between these two types of periods lie primarily in when they can be claimed during the trial phase and whether the judge would consider them ex officio.
a) Prescription Periods
The prescription period refers to the period during which a right ceases to be actionable after the expiration of the time specified in the law. The prescription period functions as a defense, the parties can raise an objection regarding the prescription period until the end of the preliminary examination stage. The judge can not initiate an ex officio investigation on this matter, also can not alert the parties about the prescription period, and does not have the right to remind them of its impending expiration. Failure by the defendant (debtor) to raise an objection regarding prescription period compels payment of a debt that could have been avoided due to being time-barred.
b) Extinction Periods
The concept of extinction period, is used for the periods in which the existence of the right ceases to exist after the expiration of the time specified in the law.
Extinction periods are generally envisaged in cases where a legal situation is desired to be resolved more quickly. Therefore, the extinction periods stipulated in the law do not cover very long periods of time.
The objection regarding the extinction period can be raised at any stage of the proceedings. Even if parties neglect to assert it, the judge must ex officio examine it and determine that the right launch a case ceases to exist if the extinction period has lapsed.
Modification of Time Bar Periods
Having clarified the types of the time bar periods in Turkish Law, the following review explores whether the parties can modify time bar periods and, if so, which of them can be modified.
In accordance with the principle of freedom of contract, which is one of the fundamental principles of Turkish Law of Obligations, individuals possess the right to form contracts as they see fit. However, this freedom is subject to some limitations imposed by law. Article 6 of the Turkish Commercial Code (“TCC”) stipulates that the statute of limitations governing commercial provisions may not be amended by contract unless expressly allowed by law.
To draw a comparison with English Law, the Limitation Act 1980 functions as the legal framework regulating time bars in English Law; however, commercial contracts typically reference specific conventions, rendering the 6-year limitation period outlined in this Act irrelevant. In other words, The Limitation Act 1980 in English Law does not apply if a different time frame is specified in the contract, or if another Act or Convention with a distinct time bar is incorporated into the contract. If the limitation period is referenced in a convention to which UK is a party of, the parties may or may not alter the limitation period to the extent permitted by that convention. (e.g. Hague-Visby Rules)
The modification prohibition regulated under Turkish Law applies to both extension and reduction of the time bar periods. The prohibition against extension of the time bar period aims to protect the defendant (debtor) and to prevent the courts from being overloaded with long-standing cases due to the potential extension of time bar through contract. The prohibition against reduction of time bar period through contract on the other hand, aims to prevent the claimant (creditor) from incurring losses and to protect against events that were unforeseen at the time of the conclusion of the contract.
There are some exceptions to the prohibition on modifying the time bars in Turkish Law as set out in article 6 of the TCC. The time bars for the claims which are specified in the law can be amended by the parties. The table below illustrates the time bars that can be modified through contractual agreement and those that can not:
|
Type of the Claim |
Type of the Period |
Regulation |
Time Bar |
Modifiability |
||
|
Charter party or B/L claims including claims for freight and demurrage |
Prescription period. |
TCC Article 1246 |
1 year Commencing from the due date of the claim. |
Can not be modified. |
||
|
Claims against the carrier due to loss or damage to cargo |
Extinction period |
TCC Article 1188 |
1 year Commencing from the date of delivery. |
Can be modified. |
||
|
Recourse action with regards to claims due to loss or damage to cargo |
Extinction period |
TCC Article 1188 TCC Article 855 |
90 days Commencing from the date of payment to the claimant or from the notice received regarding the court/arbitration case commenced against such party. |
Can be modified. |
||
|
Maritime liens |
Extinction period |
TCC Article1326 |
1 year Commencing from the creation of the obligation. |
Can not be modified. |
||
|
General average Contributions claims |
Prescription period |
TCC Article 1285 |
1 year Commencing from the time of unloading at the discharge port or at the port where the voyage ended. |
Can not be modified. |
||
|
Collision claims |
Prescription period |
TCC Article 1297 |
2 years Commencing from the occurrence of the collision. |
Can not be modified. |
|
Recourse action between the owners for collision claims |
Prescription period |
TCC Article 1297 |
1 year Commencing from the occurrence of the collision. |
Can not be modified. |
|
Salvage claims |
Prescription period |
TCC Article 1319 |
2 years Commencing from the completion of services. |
Can be modified. |
|
Wreck removal claims |
Prescription period |
TCC Article 1319 |
2 years Commencing from the completion of the removal services. |
Can be modified. |
|
Passenger injury or death claims |
Prescription period |
TCC Article 1270 |
10 years Commencing from the date of occurrence. |
Can be modified. |
|
Insurance claims |
Prescription period |
TCC Article 1420 |
2 years Commencing from the date on which the claim is due and in any case after 6 years from the date of the occurrence of the risk. |
Can not be modified. |
|
Liability insurance claims |
Prescription period |
TCC Article 1482 |
10 years Commencing from the date of the occurrence of the event. |
Can not be modified. |
2024 Pollution Fine Amounts
Pollution Fine Tariff
(January 1st 2024 – December 31st 2024)
|
CATEGORY A: PETROLEUM PRODUCTS AND DERIVATIVES DISCHARGED BY TANKERS |
2024 TARIFF |
|
Up to 1,000 GT |
TRY 3,184.81 per Gross Ton |
|
Between 1,001 and 5,000 GT |
An additional TRY 796,23 per Gross Ton |
|
Over 5,000 GT |
An additional TRY 79,59 per Gross Ton |
|
CATEGORY B: DIRTY BALLAST DISCHARGED BY TANKERS |
2024 TARIFF |
|
Up to 1,000 GT |
TRY 580,25 per Gross Ton |
|
Between 1,001 and 5,000 GT |
An additional TRY 115,76 per Gross Ton |
|
Over 5,000 GT |
An additional TRY 18,37 per Gross Ton |
|
CATEGORY C: PETROLEUM PRODUCTS, PETROLEUM DERIVATIVES AND DIRTY BALLAST WATER DISCHARGED BY SHIPS OR OTHER VESSELS |
2024 TARIFF |
|
Up to 1,000 GT |
TRY 1,592.40 per Gross Ton |
|
Between 1,001 and 5,000 GT |
An additional TRY 318,49 per Gross Ton |
|
Over 5,000 GT |
An additional TRY 79,59 per Gross Ton |
|
CATEGORY D: GARBAGE, SEWAGE AND GRAY WATER DISCHARGED BY ALL SHIPS, TANKERS OR OTHER VESSELS |
2024 TARIFF |
|
Up to 18 GT |
TRY 17,661 |
|
Between 18 and 50 GT |
TRY 35,325 |
|
Between 50 and 100 GT |
TRY 70,650 |
|
Between 100 and 150 GT |
TRY 105,976 |
|
Between 150 and 1,000 GT |
An additional TRY 796,23 per Gross Ton |
|
Between 1,000 and 5,000 GT |
An additional TRY 159,25 per Gross Ton |
|
Over 5,000 GT |
An additional TRY 18,37 per Gross Ton |
|
FINES REGARDING THE SULPHUR CONTENT IN BUNKERS |
2024 TARIFF |
|
Up to 1,000 GT |
TRY 706,51 TL per Gross Ton |
|
Between 1,001 and 5,000 GT |
An additional TRY 88,31 per Gross Ton |
|
Over 5,000 GT |
An additional TRY 17,67 per Gross Ton |
Ulgener LC/LO, based in Istanbul, with its office right in the Shipping Center, where the most major Turkish ship holding groups have their headquarters, is a law firm dedicated mainly to shipping matters, with a wide scope including all kind of related issues, such as: P&I matters, such as cargo claims - disputes arising from bills of lading, crew claims, pollution, liens on vessels; as well as accidents, such as collisions, salvage, wreck removal and general average matters, etc. FD&D matters, such as disputes arising from voyage and time charterparties, i.e. forced freight & demurrage collection, liens on cargoes, etc. H&M, war and strike clauses and cargo insurance matters, such as salvage, general average adjustment, etc., also representing underwriters and providing legal advice regarding local and international law, collection of outstanding premiums on behalf of P&I Associations, Ship Finance - Sale & Purchase, as well as assisting foreign banks and other financial institutions, covering also mortgages and disputes arising out of mortgages, Enforcement of foreign arbitration and court awards, Advising shipowners and P&I Clubs regarding issues arising from Turkish as well as International maritime law, (legal correspondent of a P&I Club within International Pool) Also assisting owners for protection of their interests and avoiding conflicts on drafting charterparties, bills of lading, MOA's and other documentation, advising leading Turkish steel manufacturers for shipping related issues, Serving as legal advisers to Turkish Chamber of Shipping, also representing the Chamber at the Bimco Documentary Committee.
Reckless Behavior
Meaning under Turkish Maritime Law
Recently we came across a case where the terms “recklessness” was under scrutiny and we had to delve into the subject in detail. The case is that we, as the owners’ lawyers, launched a case to limit the liability as per 1976 LLMC (with 1996 protocol and 2012 Amendment), and the opponent parties were arguing that the right to limit the liability does not attach because the conduct of the crew during the incident was reckless.
Legal Framework
LLMC Article 4 states that “a person liable shall not be entitled to limit his liability if it is proved that the loss resulted from his personal act or omission, committed with the intent to cause such loss, or recklessly and with knowledge that such loss would probably result.”
The Turkish Commercial Code (“TCC”) goes one step further by referring to this article of the Convention and lists in Article 1343 that whose fault must be taken into consideration while evaluating the right to limit liability. The Article regulates that;
“In applying Article 4 of the 1976 Convention and the second paragraph of Article V of the 1992 Liability Convention, the negligence of the following persons shall be taken into account
In the case of persons, the negligence of each person.
In the case of legal entities, the negligence of the organs and the negligence of the persons constituting the organs, which by their acts put the legal entity under obligation pursuant to Article 50 of the Turkish Civil Code.
In companies, the negligence of the partners of the company.
The negligence of the shareholders and the manager in the case of a simple ship owning.
The negligence of the persons legally representing the above-mentioned persons based on a general or special authorization.”
Sub-article “e” of 1343 raises the question of whether the master should also be considered within this scope.
Whose Reckless Behaviour?
Interpreting Article 1343 of the Turkish Commercial Code
The sub-article “e” of the article 1343 which states "The negligence of the persons legally representing the above-mentioned persons based on a general or special authorization." poses a significant risk for the shipowner.
The Turkish Commercial Code regulates in another article that the master has the authority to represent the shipowner when the ship is outside of her Port of Registry;
“When the ship is outside her Port of Registry, the master, is authorized to carry out all actions and dispositions on behalf of the shipowner regarding the ship's outfitting, fuel and provisions, crew members, and maintaining the ship in a condition suitable for the sea and cargo, and generally to ensure the safe continuation of the voyage with third parties.”
When these two articles are evaluated together, there is a risk of the Turkish Courts considering the master within the scope of Article 1343/e of the TCC on the grounds that the master has the authority to represent the shipowner outside of her Port of Registry, and consider the master among the persons who will prevent the limitation of the shipowner's liability with his reckless behaviour.
Alignment with IMO Resolution
IMO which is the organizer of LLMC, has put this issue on its agenda in order to prevent the unfair outcomes in practice due to the different interpretations of the Convention and a resolution numbered A.1164 and dated 15.12.2021 was adopted by the member states. This resolution states that;
“The states parties to the protocol of 1996 to amend the convention on limitation of liability for maritime claims, 1976, present at the thirty-second session of the assembly of the international maritime organization,…
AFFIRM that the test for breaking the right to limit liability as contained in article 4 of the 1976 LLMC Convention is to be interpreted:
(a) as virtually unbreakable in nature i.e. breakable only in very limited circumstances and based on the principle of unbreakability;
(b) to mean a level of culpability analogous to wilful misconduct, namely:
a level higher than the concept of gross negligence, since that concept was rejected by the 1976 International Conference on Limitation of Liability for Maritime Claims;
a level that would deprive the shipowner of the right to be indemnified under their marine insurance policy; and
a level that provides that the loss of entitlement to limit liability should begin where the level of culpability is such that insurability ends;
(c) that the term "recklessly" is to be accompanied by "knowledge" that such pollution damage, damage or loss would probably result, and that the two terms establish a level of culpability that must be met in their combined totality and should not be considered in isolation of each other; and
(d) that the conduct of parties other than the shipowner, for example the master, crew or servants of the shipowner, is irrelevant and should not be taken into account when seeking to establish whether the test has been met;”
Given that Turkey, as a member of the International Maritime Organization, was present and accepted the resolution at the aforementioned 32nd session, it is essential that Turkish courts align with the international standards outlined in IMO Resolution A.1164.
The above mentioned resolution explicitly states that the conduct of the master, crew, or other servants of the owner should not influence the determination of a shipowner's ability to limit liability. Aligning with these standards not only ensures consistency with global maritime practices but also promotes uniformity and predictability in handling maritime liability issues.
We will continue to keep you updated on this matter.