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Recent Developments in Maritime Law

Papers Submitted to the Joint Seminars

of the German and Turkish Maritime Law Associations

Held in Hamburg on 25 August 2011 and in Istanbul on 6 October 2011

TURKISH MARITIME LAW ASSOCIATION &

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Recent Developments in Maritime Law

Papers Submitted to the Joint Seminars of the German and Turkish Maritime Law Associations February 2012

Publisher: Deniz Hukuku Derneği (Turkish Maritime Law Association)

Printing House: Özdil Basımevi, Galip Dede Cad. 77/1 Beyoğlu 34420 İstanbul, Tel: 0212 251 83 13 TURKISH MARITIME

LAW ASSOCIATION

GERMAN MARITIME LAW ASSOCIATION

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Recent Developments

in Maritime Law

Papers Submitted to the Joint Seminars

of the German and Turkish

Maritime Law Associations

Held in Hamburg on 25 August 2011 and in Istanbul on 6 October 2011

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Contents

Some Aspects of Maritime Law in the New Turkish Commercial Code ...9

Dr. Samim Ünan

Liability of the Carrier for Loss,

Damage and Delay According to the New Turkish Commercial Code ...17

Dr. Ecehan Yeşilova Aras

Bareboat and Time Charters in the New Turkish Code of Commerce

(a short comparison to German Draft dated 2011) ...25

Dr. Samim Ünan

Außervertragliche Haftung und Haftungsbeschränkung im Seehandelsrecht-Ein Vergleich zwischen türkischem

Handelsgesetzbuch und deutschem Referentenentwurf ...33

Duygu Damar

Non-contractual Liability and Limitation of Liability in Maritime Law – A Comparison between

the Turkish Commercial Code and the German Draft Bill ...48

Salvage in Turkish Straits Under Turkish Law and Practice ...50

Dr. Samim UNAN

Salvage in Turkish Straits Under Turkish Practice ...55

Captain Oguz CEBECI

Highlights of the German Government’s

Draft Legislation on Maritime Law ...60

Carsten Grau

Ship Finance and Ship Mortgages ...65

Christoph Zarth

New Turkish Law of Ship Mortgages and Enforcement ...75

Dr. Kerim Atamer

The Liability for Loss of or Damage to the Goods and for Delay in Delivery of the Goods according

to Art. 17 Rotterdam Rules with comparative views

on the Hague Visby Rules and the Draft German Shipping Law...94

Dr. Dieter Schwampe

The Rotterdam Rules v. the Hague and Hamburg Rules ...107

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Preface

Turkish Private Law belongs to the Continental Law Group and in the field of Maritime law has been under the direct influence of German Law since 1929. Then in 1956, the German HGB provisions regulating the private maritime law were again adopted and transposed in the Turkish Code of Commerce, this time together with the rules regulating the rights on registered vessels and vessels under construction (Gesetz über Rechte an eingetragenen Schiffen und Schiffsbauwerken). Since then Turkish scholars are continuously referring to German sources to comment on the Maritime law issues. It suffices to have a look at the books written by Prof. ÇAGA, Prof. OKAY, Prof. AKINCI, Prof. İZVEREN, Prof. KENDER, Prof. ÇETİNGİL, Prof. KALPSÜZ, Prof. YAZICIOGLU and Dr. ATAMER where eminent German authors are cited on almost every page. SCHAPS, PAPPENHEIM, PRÜSSMANN, SCHLEGERBERGER-LİESECKE, WÜSTENDÖRFER, ABRAHAM, HERBER, RABE and many others are all well known even to non-German speaking Turkish maritime lawyers.

Unfortunately the relations between the Maritime Law Associations of both Countries were not on a satisfactory level until recent times. In 2011, however, this unhappy situation came to an end, and we very much hope not temporarily! Two joint seminars took place in maritime capitals: The first was in Hamburg in August on a beautiful late summer day and the second in İstanbul in October 2011 just one day before Turkish national football team hosted the unbeaten Germans, who largely deserved to remain so. As in both Countries Maritime law reforms are envisaged, the seminars concentrated on the new Turkish provisions that will enter into force on 1 July 2012 and the German Draft law (HGB- Entwurf). This publication contains the papers of the Turkish jurists presented at both the Hamburg and İstanbul seminars, and those of the German jurists who made presentations in İstanbul.

Hoping that the collaboration between the respective Associations will continue in the future, we wish that the publication will be useful to the readers.

Dr. Samim ÜNAN

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Preface

In August and October 2009 the Turkish Maritime Law Association and the German Maritime Law Association held joint seminars in Hamburg (25 August 2011) and Is-tanbul (6 October 2011). Both seminars were a huge success and attracted many at-tendants. The seminar in Hamburg focused on the ministerial draft for a new German shipping law. The German Association’s views were presented by the members of a Working Group established under the lead of Dr. Klaus Ramming. From the Turkish Association Prof. Samim Ünan, Prof. Ecehan Yesilova Aras and Dr. Duygu Damar ad-dressed aspects of non-contractual liability and limitation of liability of the ship owner, liability of the carrier and regulations on bareboat charter and time charter in the new Turkish shipping law, allowing most valuable comparisons of the Turkish and the Ger-man provisions.

The Istanbul seminar picked up the theme of the developments in the Turkish and Ger-man maritime law, but also addressed ship finance as well as the Rotterdam Rules. The German Association is particularly grateful for the efforts of the Turkish Associa-tion to allow this volume to be published. It contains the contribuAssocia-tions of the Istanbul seminar as well as the Turkish contributions of the Hamburg seminar. The two Associ-ations have agreed to publish this volume in Turkey in printed form and in Germany in electronic format, available on the website of the German Association (www.seerecht. de). No separate papers were prepared by the German speakers of the Hamburg seminar, as their presentations will form part of the German Publication series B. As a member of the German Maritime Law Association who has attended both semi-nars, in Hamburg and in Istanbul, I can say that these events were a major step to a closer cooperation of the two Associations which, so I hope, will intensify over the years. Personally still remember the overwhelming hospitality we were given by our Turkish colleagues. After the two seminars we can say: We met as colleagues, and we parted as friends.

Hamburg, 30 January 2012 Dr. Dieter SCHWAMPE

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Some Aspects of Maritime Law

in the New Turkish Commercial Code

Dr. Samim Ünan

The new Turkish Commercial Code, no. 6102, (TCC 2011= Turkish Handels- gesetzbuch 2011=Turkish HGB 2011) is scheduled to enter into force on July 1, 2012. Until that date the existing Turkish Commercial Code, no. 6762, (TCC 1956) shall remain solely applicable.

After TCC 2011 enters into force, the provisions of both texts will be applicable simultaneously during a certain period. “The Turkish Commercial Code Entry into Force and Application Act” is enacted in order to regulate the simultaneous application of both codes and the transition period. General information regarding the new law and our thoughts thereto is to be given here below.

I. Fundamental Choices

Since 94% of the loading and unloading operations from and to Turkish ports are related to foreign trade (importation, exportation or transit), the first equation that was taken into account at the time of drafting the new code was “carriage of goods by sea= international carriage”. To this end, the main source of legal provisions was chosen as the international conventions.

On the other hand, Turkey is a candidate for the membership to the EU. Therefore, it was decided to harmonize the new Turkish legislation with the EU law by adopting the most recent international conventions that have been either already adopted or will be adopted by the EU Member States.

“Absolute fidelity to the international convention text” served as the basic principle in the process of adopting the chosen international conventions to the domestic law. At the time of preparation of the new code, Turkey was a party to some of the international maritime conventions and, the provisions of some others were already inserted into the TCC 1956. But there are still many other international maritime conventions to which either Turkey has not acceded to date, or the provisions of which have not been implemented.

During the preparatory work, the provisions of the international conventions •

that were indirectly transported into domestic law earlier by the TCC 1956 (through the adoption of German HGB) were revised (for example 1910 collision convention and 1924 Brussels convention) in order to achieve utmost compliance with international provisions.

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10 Dr. Samim Ünan

International conventions to which Turkey is a party and, which should be •

applied as “lex fori” (international conventions duly ratified and when necessary approved by the Parliament have force of domestic legal provisions) were not repeated in the TCC 2011 (for example 1976 LLMC, 1992 CLC, 1992 FundC) but some complementary provisions were provided to facilitate the practice. The provisions of the international conventions to which Turkey is not a party •

and which are not applied as lex fori were incorporated in the TCC 2011. The provisions of the TCC 1956, that are

contrary to the international

conventions were discarded (for example the old solution of “liability limited to particular assets” - “beschraenkte dingliche Haftung”=responsabilité réelle limitée)

The existing provisions of the German HGB served as a model in the areas, which are not regulated either by international conventions (for example flag, proprietary rights, dingliche Rechte, freight...) or where the international conventions leave the national law free to provide complementary rules (for example sharing of the salvage remuneration). Since, German law was adopted twice in Turkey (in 1929 and 1956), preservation of this “acquis” was believed to be a good solution (80 years of experience in the field of jurisprudence and scholarship were therefore attributed value). This solution has been also advised by all of the interested parties (such as TMLA, Universities).

II. Changes made

First of all, translation errors that were made in the TCC 1956 are corrected, therefore full compliance with the selected provisions of the international conventions and German HGB has been achieved.

The provisions of the German HGB that were not taken into the TCC 1956 and the reasons behind cannot be clarified from the Turkish Groundings (Begrüdung) (example: certain rules about average adjustment) are inserted into the new code. Some old rules (such as notification for the commencement of demurrage, partnership for ship building, bottomry =Bodmerei = prêt a la grosse) are eliminated. However, the abolition of joint ownership (copropriété de navire= Partenreederei) could not be achieved. It was ascertained that a few number of vessels were still subject to that kind of management and this led to keep the relevant provisions in the new code [TCC 2011 Art. 1064-1087]. However, it would be better to apply the provisions of the Turkish Code of Obligations relating to joint venture rather than re-regulating the joint membership in the TCC 2011.

The harmonization of the provisions of the TCC with both Turkish Civil Code and Turkish Code of Obligations was also one of the main concerns. To this end, efforts were made especially with regards to the following:

The provisions relating to the right of property and mortgage over vessels are •

revised.

The provisions on demurrage are harmonized with the provisions on default of •

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Some Aspects of Maritime Law in the New Turkish Commercial Code

The provisions regarding the rights of the carrier are harmonized with the •

performance of the contractual commitments (“Erfüllung”= Fulfillment of the Obligations = exécution des obligations)

The rules relating to the obligation of the consignee for the debts arising from •

the carriage are harmonized with the rules concerning the contract for the benefit of a third party (Vertrag zugunsten Dritten = stipulation pour autrui) The legal right of lien of the carrier (Retentionsrecht = droit de retention) is •

harmonized with the Turkish Civil Code

Harmonization with the Turkish Labor Law is also achieved: Rules concerning •

the “Master’s employment contract” that were contrary to Turkish Marine Labor Act as well as the rules about the “Master’s power of discipline on board” that were conflicting with ILO conventions to which Turkey is a party, are abolished.

It was thought that the existing provisions of the TCC 1956, that were adopted from international instruments, which do not have the force of international conventions (rules on international maritime sales taken from INCOTERMS 1950 and rules on general average taken from YAR 1950) should be eliminated, since they both became old fashioned under the international practice and are not mandatorily applicable. The new code refers simply to the latest version of the YAR where the parties would not have opted for another edition [TCC 2011 Art 1273(1)]. In the area of international maritime sales, contractual freedom is accepted. Therefore, the new code includes no provisions relating to this area.

In the fields that are regulated neither by an international convention nor by any German rule (such as bareboat charter and time charter contracts, new rules have been provided. French, Dutch and Norwegian laws as well as English court decisions and standard international contracts such as Barecon 2001 were taken into account in the preparation of the new provisions on bareboat charters [TCC 2011 Art 1119-1130] Concerning the provisions of time charter contracts, the same foreign •

legislations cited above as well as English court decisions and standard international contracts such as NYPE 93 have inspired the Turkish legislator [TCC 2011 Art 1131-1137].

With respect to the carriage contract, the provisions of the Hague/Visby rules were transposed into the TCC 2011. In addition, the provisions of the 1978 Hamburg Rules that do not conflict with Hague/Visby Rules are incorporated to the TCC 2011. They relate especially to

Deck cargo [TCC 2011 Art. 1151], •

LOU (Letter of Undertaking or Indemnity) signed by the shipper in order to get •

a clean B/L (reine Konnossement gegen Revers) [TCC 2011 Art. 1241], Period of liability of the carrier [TCC 2011 Art. 1178],

Liability for delay and limits for that liability [TCC 2011 Art. 1178, Art. 1186(6)] •

Liability of the

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12 Dr. Samim Ünan

In the areas, where no model law exists, some solutions in conformity with the private law are envisaged. In that respect we can enumerate the following:

Obligations of the consignee [TCC 2011 Art. 1203], •

Incorporation clause (TCC 2011 contains now a clear provision on incorporation): •

According to Article 1237 (3) “If the B/L refers to a voyage charter, when transferring the B/L, a copy of the relevant charter party should also be submitted to the new holder. In that case, the carrier can rely on the provisions of the charter party, to the extent that they are applicable, against the new holder” [TCC 2011 Art. 1237(3)].

If C/P provisions are

• not applicable to the B/L holder, the consignee would be bound only by the B/L clauses. “Charterers to pay freight/ disputes between owners and charterers….” are examples of clauses that are not applicable to the B/L holder since they do not relate to him. If C/P provisions

• are applicable, the consignee would be bound by both the charter party provisions and B/L clauses.

Both to blame collision clause [TCC 2011 Art. 1289(2)], •

The burden of proof in collision cases and especially apportionment of fault •

[TCC 2011 Art. 1292]. III. New rules on enforcement

Since the general rules on enforcement or a few provisions of special nature drafted for maritime claims revealed to be insufficient, it was necessary to have special rules concerning the enforcement of maritime claims. In that area, the provisions of the 1999 Geneva Convention served as a model. The basic rules adopted in the TCC 2011 are as follows:

Maritime claims are enumerated exhaustively [TCC 2011 Art. 1352], •

In the event a claim is categorized as a maritime claim, the only way to invoke •

is “arrest”[TCC 2011 Art. 1353(1)], Arrest is

• not possible for claims other than “maritime claims” [TCC 2011 Art. 1353(1)],

The fundamental rule concerning the vessels is regulated by article 1377 •

of the TCC 2011 according to which mortgages or liens (“Pfandrechte” and “Retentionsrechte”) over a vessel cannot be solely subject of a separate legal action or enforcement independently of the credit secured by the mortgage or lien,

The enforcement of a mortgage or lien on the basis of a court decision can •

only be made if both the mortgage or the lien and the credit secured by the said “rights” are determined in a court decision or a document having the same value or in the official mortgage deed [TCC 2011 Art. 1377(2)],

Article 1398(3) of the TCC 2011 stipulating that liens (Retentionsrechte) over •

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Some Aspects of Maritime Law in the New Turkish Commercial Code

independently of the credit secured by the said “right”, has been enacted as a basic rule for cargo.

The abovementioned rules [TCC 1377 and 1398(3)] are provided in order to •

bring an end to long term practice (wrong one) concerning - the precautionary measure decisions, and

- the decisions establishing liens

The new rule stating that “mortgages or liens cannot be alone subject to a •

separate and an independent legal action” should not (and cannot) be interpreted as abolishing the legal actions concerning the validity of a mortgage or lien. Examples: the validity of a mortgage is challenged on the ground that the mortgagor did not have the legal capacity required when the mortgage was established or the related parties have dissenting positions not as to the validity of a loan, but as to the fact that it grants a “lien”

IV. Transfer of ownership over a registered vessel

TCC 2011 provides a strange solution for the transfer of property over registered vessels. According to article 1001 of the TCC 2011, the related parties must agree on the transfer of property (such agreement must be in writing and the signatures must be duly approved by the notary public) and the possession over the vessel shall be also passed to the acquirer. So far, according to article 868 of the TCC 1956, only the agreement (not subordinated to any form requirement) was sufficient. The transfer of the possession is required on the ground that the vessels are legally categorized as “movables” in respect of which the usual way of transferring the property is the transfer of possession. However, concerning the vessels this requirement does not seem convenient. Such requirement is not compatible with the rule indicating that a“bone fide” purchaser, who trusts in the accuracy of the registry records, acquires the ownership of the vessel. Concerning the registered vessel, the “publicity” is provided not by the possession but by the mentions of the registry. Bona fide acquisition of a vessel from the possessor is not possible. The presumptions deriving from the possession don’t apply in respect of a registered vessel. As a result of the new provision, in the event of a bona fide acquisition of a vessel, the good faith of the acquirer must last until he gains the possession over the vessel.

Another problem that may arise is whether the so called “surrogates of delivery” (delegatio possessio, constitutum possessorium) would be sufficient for the transfer of possession under the new law. If the answer is affirmative (and we believe this to be the right approach), it will be totally superfluous to require the transfer of the possession in addition to the agreement of the parties. In cases where the parties wished an immediate transfer of property, the agreement could be deemed to include also the transfer of the possession by way of “delegatio”.

In our opinion, it would be a better solution if the relevant article would require registration for the transfer of the ownership over the vessels. In that case, the property would be transferred upon annotation of the new acquirer to the registry after the written agreement concluded between the parties.

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14 Dr. Samim Ünan

V. Dual legislation (coexistence of the provisions on actual carrier and on the liability of the shipowner vis à vis the cargo interests)

TCC 2011 has “not” removed the corresponding provision to the second sentence of HGB § 485 [=TCC 2011 Art. 1062(1)] (concerning the liability of the shipowner towards the cargo interests) but has introduced a new rule relating to the liability of the “actual carrier” (Ausführender Verfrachter = transporteur réel) -as does the German Draft HGB § 509 [TCC 2011 Art. 1191]. However, the relevant “second sentence” has been deleted from the German Draft.

VI. Ship-owner’s liability (Haftung für)

The new TCC 2011 did not bring to an end the on-going discussions about the nature and the extent of the ship-owner’s vicarious liability (for the negligent acts of the crew). Following the German scholars, the liability instituted in article 947 of the Code of Commerce 1956 (HGB § 485) is regarded as “additional” (adjectizisch) liability, which means that all of the conditions required for the liability would be determined by only taking into account the crew member as if the ship-owner were totally absent. Thus, ship-owner’s liability would arise only if the crew member could be held liable according to another provision of law and the ship-owner’s liability arises to the extent of the liability of the crew member (ship-owner, who is liable as a “guarantor”, would also benefit from all the factors causing the reduction of the indemnity). Turkish Court of Cassation has described the liability under the article 947 of TCC 1956 (HGB § 485) as a “legal guaranty”. The ratio behind this solution was that the crew member, who is liable for the indemnity, is in most cases insolvent due to lack of personal assets. Therefore, in order to fulfil this financial gap, liability is also imposed on the ship-owner. The aim of article 947 of the TCC 1956 (HGB § 485) was not to replace the general vicarious liability under the Civil Code. On the other hand, here, other conditions that are required for the application of the principle “lex specialis derogat legi generali” are not fulfilled. The view that it is eligible to the victim to claim on the basis of general rules instead of basing his claim on article 947 (HGB § 485) was spread amongst the maritime law experts. However, two contradictions must be emphasized:

• In practice the need for the additional character of the liability arising out of article 947 of the TCC 1956 (article 1062 Turkish Code of Commerce 2011 and HGB § 485) seems to have disappeared. Since a considerable time, it is generally accepted that this liability should also comprise the negligence of the pilot on board and the negligence of the stevedores when they are instructed by the ship-owner. But the financial strength of the employer of the pilot and of the stevedore company (at least in Turkey) is far above of the crew members. Besides, there are liability insurance schemes, which protect them against third party claims. The prevailing approach that the additional liability of the ship-owner is still required, does not seem convincing.

• It seems unjust to accept on the one hand that the liability towards the cargo interests is lex specialis whilst on the other hand the liability towards others is not. But this second contradiction is now rectified: The liability of the actual carrier is held subject to the same rules as the contractual carrier and therefore, the actual carrier can avail himself of the exonerations mentioned in

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Some Aspects of Maritime Law in the New Turkish Commercial Code

the provisions of the TCC 2011 relating to the contract of carriage even when sued in tort. This means that contractual liability regime is now “lex specialis” vis à vis the extra contractual provisions. The same is also valid in respect of the contract concluded with passengers.

There is no valid reason for regulating the liability of the ship-owner in the TCC [TCC 2011 Art. 1062(1)], if this liability would not be exclusive or broader than the general rules of the Civil Code.

VII. Limitation of the liability (Haftung mit)

TCC 2011 stipulates that the liability for maritime claims can be limited in accordance with the international conventions to which Turkey is a party (LLMC 1996) [TCC 2011 Art. 1328]. The liability for claims arising from oil pollution is to be limited pursuant to CLC 1992 [TCC 2011 Art. 1336].

VIII. Basis of the consignee’s liability (towards the carrier)

Article 1203 of the TCC 2011 supposes that the contract of carriage or the B/L or another transport document stating that “freight, demurrage and other charges are to be paid by the consignee” creates a relationship of assignment (“Anweisung”), whereby the consignee is only “empowered” to make payment. However, as soon as the consignee claims for the delivery of the goods, he will become the debtor of all the sums he was empowered to pay according to the contract of carriage or B/L or other transport document. So far the legal construction was slightly different: The consignee’s right to demand delivery of the goods was subordinated to the “condition” that he assumes the debts mentioned in the contract of carriage or B/L (the fact of claiming the delivery would mean a legal transfer of debt).

IX. Time bar (Verjaehrung)

Article 1270(1) of the TCC 2011 accepting a ten years’ time-bar for the claims arising from passenger contracts is contrary to the international convention that was taken as a model in this area. However, the intention of the drafters was not in this way. Although the relevant provision of the Draft TCC 2011 was in line with the Athens 2002 Convention, last minute amendment was made during the discussion of the Draft in the Turkish General Assembly. Such amendment may be named as a Turkish solution.

The time-bar period for general average claims [TCC 2011 Art. 1285] will commence to run from either the arrival of the vessel to the destination or if the maritime expedition ends earlier than at destination, from the end of the expedition (and not from the publication of the average adjustment). On the other hand, the TCC 2011 does not provide any time bar for the application for adjustment.

The TCC 2011 seems to have kept the time bar by adhesion (Anschlussverjaehrung): The maritime liens would be forfeited within one year.

The same period will also apply in respect of personal claims secured by •

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16 Dr. Samim Ünan

X. Clean Bill of Lading in exchange for a LOU (Reine Konossement gegen Revers)

The contract granting to the carrier the right to have a recourse claim against the shipper in case of potential liability of the carrier towards the consignee for incorrect declarations on the B/L (Reversvertrag) is invalid under the new provisions [TCC 2011 Art. 1241(3)]. Does this mean that the carrier shall be liable alone for the consequences of a clean B/L against LOU? If the answer is affirmative, we will face with the following problem: Is recourse action (of the carrier) on the ground of general provisions (as recourse between jointly liable persons) possible? We see no obstacle for that. Why would the instigator (shipper) be free? Why would the carrier be the sole person to be held liable? In our belief, it was not necessary to regulate this issue in the TCC 2011. The general provisions would suffice.

XI. Persons liable for GA contributions

According to article 1274(1) of the TCC 2011, the persons to be held liable for GA contributions are:

The ship-owner (Reeder)

at the moment of GA act

The owner of the cargo and other property on board

at the time of

discharge

Creditor of the freight

at the time of discharge

Under the German Draft HGB the solution is different: “Beteiligte im Zeitpunkt des Havereifalls (Eigentümer des Schiffes, Eigentümer der Treibstoffs, der die Gefahr traegt dass die Ladung oder die Frachtforderung untergeht)”

XII. Collisions (reactionary rules)

In respect of collisions, in addition to the provisions of the 1910 Collision Convention, the new provisions of the TCC 2011 contain a number of reactionary rules: When a related party applies to a Court for the so called “determination (or gathering) of evidences” to be used in a future legal action, it is prohibited to have the proportion of respective faults established (TCC 2011 Art. 1292(3)).

There is no requirement of summoning or complying with another formalism before starting legal action (TCC 2011 Art. 1293)

No presumption of whatever nature can be taken into consideration when establishing the fault in a collision case (TCC 2011 Art. 1294)

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Liability of the Carrier for Loss,

Damage and Delay

According to the New Turkish Commercial Code

Dr. Ecehan Yeşilova Aras

1

1. Introduction

It would not be so wrong to say that, the new Commercial Code’s treatment of the carrier’s liability builds on four main features:

(i) The provisions under the liability of the carrier, have the main pattern of Visby Rules. Hamburg Rules had the role of filling the gaps of Hague-Visby.

(ii) The fault of the carrier is presumed ( vermutetes Verschulden).

(iii) There is compulsory minimum liability (zwingende Mindeshaftung), with a limited exceptional cases.

(iv) Finally, there is not freedom of contract as regulated under § 512 HGB-Draft. 2. The Period of Responsibility

Under current Turkish Commercial Code, the carrier’s compulsory responsibility for lost and damaged goods runs “from the time when the goods are loaded on to the time when they are discharged from the ship”, which is known as “tackle to tackle” period. Due to the Hamburg Rules (art.4) reflection, article 1178/II of Turkish new Commercial Code extends this period, by including the times during which the carrier has charge of the goods at the ports of loading and discharge, to the so-called “port to port” period.

In practice, it is the mostly experienced case that, the shipper delivers the good to the (loading) port authority and thereafter the carrier has the possession of the goods or in contrast, the consignee receives the good after the carrier delivers the good to the authority of the discharging port. In order to establish whether the goods are under possession and control of the carrier while the goods are in the hands of the port authority, the solution of Hamburg Rules (Art. 4(2)) has guided to the new Code, by determining the moments that the carrier is deemed to be in charge of the goods. Note, though, that in HGB-Draft there is a harmony between sea carriage and land

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18 Dr. Ecehan Yeşilova Aras

carriage relating to the formulation of the responsibility period of the carrier. In both models of transport, the carrier’s liability starts with taking over the goods and ends with delivery (§ 498 HGB-Draft and § 425 HGB/-Draft). However the Turkish new Commercial Code re-designed the period of responsibility of sea carrier unlike the land carrier’s. Since, the land carrier’s liability starts with taking over the goods and ends with delivery. This is a period which is determined different from the concept of being under possession and control of the carrier.

3. Delay as a Fact Causing Responsibility

Actually, a main common improvement about the facts causing responsibility between the Turkish new Commercial Code and the HGB-Draft is to accept “delay in delivery”. Delay in delivery occurs when the goods are not delivered at the place of destination provided for in the contract of carriage within any time expressly agreed upon, or in the absence of such agreement, within the time it would be reasonable to expect of a diligent carrier, having regard to the circumstances of the voyage. This definition of “delay in delivery” is identical to HGB-Draft’s related provision (§ 494). The only difference is the definition of “presumption of loss” (Verlustvermutung). According to the Turkish new maritime regime, the goods are treated as lost if they have not been delivered within 60 consecutive days following the expiry of the time for delivery (Art. 1178(5)). Under HGB-Draft, this time has to be equivalent to two times the period of delivery but in any case, should be minimum 30 days (§ 511(1)).

4. The Obligations of the Carrier

In contrast to HGB-Draft, the obligations of the carrier are again expressly and clearly designed under the Turkish new Commercial Code. These obligations are split into two articles, as

(i) duty of care of the goods (art. 1178) (ii) sea(-and cargo) worthiness (art. 1141)

4.1. Duty of Care of the Goods

Unlike article 11 of Rotterdam Rules, the Turkish law maker does not explicitly declare the carrier’s most basic obligation simply to perform the core contract, instead impose some specific obligations about how the carrier must perform its contract. Article 1178/I of Turkish new Commercial Code, which still carries the same idea of § 606 HGB, declares that

“The carrier is under obligation to serve care and attention as of a diligent carrier, by performing the contract of carriage, in essence, by loading, stowing, handling, caring for, keeping and discharging the goods.”

In very general terms, the carrier has to perform every aspect of the contract –from loading to discharging- properly and carefully. Unlike HGB § 606 and article 1061 of current Turkish Commercial Code, the words of “by performing the contract of carriage, in essence” are included to the new version of the provision. The purpose of this addition is to make it clear two points, firstly that, the carrier has to be in a manner

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Liability of the Carrier for Loss, Damage and Delay According to the …

of a diligent carrier during the acts which only undertaken by contract of carriage. And secondly, these new words declares that, the acts written at the end of the sentence are included to the performing obligation of the carrier if not otherwise is agreed. By this way, the new version of the article stresses on that, these acts are subject to the “commercial management” of the vessel. However, the parties may agree in the contract that some of these actions, namely the loading, stowing, handling or unloading of the goods, is to be performed by shipper or consignee.

Article 1178/I of Turkish new Commercial Code (art. 1061 of current Turkish Commercial code), has its origin in article III rule 2 of Hague and Hague-Visby Rules. That’s why, the two concepts “keep and care for the goods” are also included to the list of the carrier’s specific obligations under the new version of article 1061 of current Turkish Commercial Code, without taking into consideration the text of § 606 HGB.

4.2. Duty of Sea(-and cargo)worthiness

The new article about this obligation (Art. 1141) has again the same content of current § 559 HGB. So, the obligation of sea-and cargoworthiness does not impose a going-on duty of due diligence. The carrier has to exercise due diligence before and at the beginning of the voyage.

An important question comes to mind about whether the carrier should be able to escape from his cargoworthiness obligation as a result of using containers. According to the article 14(c) of Rotterdam Rules, the carrier is under the cargoworthiness obligation only for he “containers that supplied by itself”. But, unfortunately there is nothing new about this subject under the provision of sea(-and cargo)worthiness of Turkish new Commercial Code.

5. Presumed Fault of the Carrier; Prima Facie Case

5.1. Beginning of the case

Carrier’s liability is based on fault. And due to the presumed fault of the carrier, the marine cargo case begins with “prima facie case”. For a cargo claimant seeking to recover from the carrier for lost or damaged cargo or for delayed delivery, it is enough to prove 2 sub-claims: (i) the carrier received the goods undamaged (clean bill of lading will help to prove this); (ii) the goods were subsequently damaged during the period of responsibility of the carrier (timely notice is the tool in order to prove this). When the prima facie case starts, which means that the claimant can show that it suffered a loss and this relevant event took place during the period which carrier had the charge of the goods, then the carrier –as an initial matter- is liable for the loss.

5.2. The Carrier’s Burden to Prove Absence of Fault

Once the prima facie case begins, the carrier is able to rebut this case by establishing why it should not be (fully) liable. Under 3 provisions (Arts. 1179, 1180 and 1181) the Turkish new maritime law offers alternative routes to meet that burden:

(i) Prove of lack of fault of itself and of its “agents and servants”: The liability of the carrier is “fault-based”, meaning that the carrier has no liability in the absence of any fault which it is responsible. Nevertheless, the mechanism determining the liability

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20 Dr. Ecehan Yeşilova Aras

of the carrier employs what has often been described as “reversed burden of proof”, meaning that the defendant carrier must disprove its fault in order to escape liability. Because at the beginning of the prima facie case, it is presumed that the carrier has fault.

The carrier must prove not only that it was at fault but also that no person for whose actions it is responsible was at fault. The scope of the “agents and servants” (“Taşıyanın adamları”) of the carrier is treated identical in both Turkish new Commercial Code (Art. 1179/II) and HGB-Draft (§ 500). These people are: master or crew of the ship

(Schiffsbesatzung), employees of the carrier (Leute) and the other persons that are used for performing the carriage undertaken (andere Personen,..bei Ausführung der Beförderung bedient). Not only the lack of fault but also, the burden of proving the reason of loss, damage or delay is on the carrier.

(ii) Prove of error in navigation or fire: The most obvious different point between the Turkish new liability system and HGB-Draft is to excuse the carrier from liability if it proves that navigation error or fire has not caused by its actual fault. In other words, the Turkish new maritime law still excuses the carrier from liability for fire and for nautical fault even it had been caused by the negligence of its employees, so long as the carrier had not been personally at fault. This provision displays the main distinguishing point of Turkish new maritime law from HGB-Draft.

(iii) Saving or attempting to save life and property at sea: The carrier is not liable for the losses that are resulting from this event. Reasonable measures are required for saving property.

5.3. The Catalogue of Defenses

The burden of proof is eased in favor of the carrier by laying down a presumption for the events enumerated in a catalogue, stating that there is no fault attributable to the carrier, its servants and agents. Meaning that, the carrier must prove the cause of the loss (one of the events or circumstances listed in the catalogue) thereafter it benefits from the presumption that it is not at fault. This catalogue relieves the carrier from burden of proving its (and its servants’ and agents’) lack of fault.

When we compare the both catalogues, here are the events which are not in the catalogue of Turkish new Commercial Code but existing in the HGB-Draft:

-carriage of living animals: The aim of the Turkish law-maker for not including this in the catalogue is to bind this case to a special provision in order to give carrier freedom of contract.

-measures to rescue human life or property: As said above, the carrier is not liable for the losses resulted from saving or attempting to save life and property at sea. -measures to prevent or limit environmental damages: There is no think about it in the carrier’s liability system of the Turkish new Commercial Code.

However, here are the events which are not in the catalogue of HGB-Draft but exist in the Turkish new Commercial Code:

-perils, dangers and accidents of the sea or other navigable waters -Act of war, act of public enemies

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Liability of the Carrier for Loss, Damage and Delay According to the …

-Arrest, legal process -Quarantine restrictions

-Strikes or lockouts or other labor obstacles

-Act or omission of the shipper or owner of the goods, his agents and representative 6. Calculation of Damages

The full extent of the claimant’s injury, in other words the compensation payable by the carrier for lost or damaged goods is calculated by reference to the value of such goods at the place and time of delivery (Art.1186/II). The value of the goods is fixed according to the commodity exchange price or if there is no such price, according to their market price or if there is no such price, too, by reference to the normal value of the goods of the same kind and quality. Despite 2 different calculation formulations for each loss and damage situations under current Turkish Commercial Code (Art.1112 and 1113), the new law treated this issue under one common reference.

Actually, under § 501(1) and (2) HGB-Draft, the calculation style is stated for loss and damage situations separately like §§ 658-659 of current HGB.

7. Limitation of Liability

Unless the value of the goods has been declared by the shipper and has been included in the bill of lading, the liability of the carrier is limited. Once it had been determined that the carrier is liable to pay the damages, it may be entitled to limit its liability to a lower amount than the actual damage suffered. But if such a declaration has been made the liability of the carrier is not limited.

7.1. Limitation of Liability for Lost or Damaged Goods

The carrier’s liability is limited to 666,67 units of account (SDR) per package/other shipping unit or 2 units of account per kilogram of the gross weight of the goods that are subject of the loss or damage, whichever amount is the higher. Both package/ unit limitation and weight-based limitation are alternative means of the carrier. In this formulation, the problematic sentence of Art. IV(5-a) of Hague-Visby Rules saying that “any loss or damage to or in connection with the goods” does also still exist in the new limitation of liability provision of Turkish Commercial Code (art. 1186/I).

However, HGB-Draft § 503 establishes these two alternative means of carrier pursuant to the approach of Rotterdam Rules. Whether the inspection or survey costs included to the limitation formula of the Turkish new maritime law is actually not clear yet, in contrast to HGB-Draft. On the other hand, the common improvement in both laws, is regarding the container clause. When goods are consolidated in or on a container, pallet or similar article of transport, the packages/shipping units enumerated in the bill of lading are deemed packages/shipping units. Otherwise, the goods in or on container or such article of transport are deemed one package/shipping unit (art. 1186/III; § 503(1) ) .

In contrast to § 503(2) HGB-Draft, under Turkish new Commercial Code, there is no special provision for goods existing of several packages.

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22 Dr. Ecehan Yeşilova Aras

7.2. Limitation of Liability for Delay

Once a delay in delivery causes economic loss, the limit of compensation is based on the amount of the freight. This amount is almost identical in both Turkish new Commercial Code and HGB-Draft, which is fixed to an amount equivalent to two and a half times the freight payable for the goods delayed, but not exceeding the total freight under the contract of carriage. The difference is, according to the HGB-Draft the maximum amount payable may not exceed the limit in respect of the total loss of the goods concerned. (art. 1186/VI; § 503(3)).

In some cases, a delay in delivery causes both physical damage and economic loss. In that situation each form of damage is subject to its own limitation but according to article 1186(7) of Turkish new Commercial Code, the overall total cannot exceed the limitation amount established for the total loss of the goods. This principle is also established identical under § 503(3) HGB-Draft.

7.3. Limitation of Liability for Damages of Other Assets (Sonstigen Vermögensschäden)

According to § 504 HGB-Draft, if carrier is liable for the damages, due to breaching the contractual duty relating to the performing the carriage of the goods, which do not originate from lost, damaged or delayed delivery of the goods, and concern about other damages relating to personal and pecuniary asset, the liability is limited to three times as much of the amount which would be to be paid with loss of the goods. However, the Turkish new maritime law does not regulate the limit of liability of the carrier for such kind of damage.

7.4. Loss of the Benefit of Limitation of Liability

The basic rule for breaking limitation of liability is set out under article 1187/I of Turkish new Commercial Code and under §507 HGB-Draft. The principle established under these provisions applies to the carrier as well as its servants and agents, since the claimant is indeed entitled to bring an action to those servants and agents due to non-contractual demands. It is worth to compare these two provisions.

According to the Turkish new maritime law, the carrier is not entitled to the benefit of the limitation of liability if the claimant proves that the loss, damage or delay resulted from an act or omission of the carrier (itself) done with intend to cause such loss or delay or recklessly and with knowledge that such loss or delay would probably result. This provision (art. 1187/I) is identical to the content of § 660(3) of current HGB. The distinguishing point of §507 HGB-Draft is the addition of the sentence of

“Provisions relating to limitation of and derogation from liability under this sub-title and contracts of liner trade” (Die in diesem Untertitel und im Stückgutfrachtvertrag vergesehenen Haftungsbefreiungen und Haftungsbegrenzungen). The important point is, contractual agreements via the opportunity of §512 HGB-Draft are also included to the scope of the provision relating to the losing its rights of the carrier. 8. Notice Requirements

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Liability of the Carrier for Loss, Damage and Delay According to the …

must be given latest at the time of delivery. This provision is identical to §510(1) HGB-Draft. On the other hand, for non-apparent damages the Turkish new maritime law provisions, unlike HGB-Daft, follow the same approach of Hague-Visby by determining the notice deadline as consecutive 3 days from the time of delivery. HGB-Draft has preferred to follow the Rotterdam Rules approach with a small difference, as 7 days from the time of delivery. Actually, Rotterdam Rules, states this time as 7 “working” days. In both Turkish new Commercial Code and HGB-Draft, it is required that the notice should indicate the general nature of such loss and damage.

Joint inspections: Notice is unnecessary when that loss or damage ascertained in a joint inspection by court or official experts in which both cargo and carrier interests participated. Relating to this subject, there is no provision in §510 HGB-Draft.

Presumption: By a failure to give notice of loss or damage, there is no change in the Turkish maritime law. The related provision (art. 1185/IV) is still treated pursuant to current HGB §611(3). The failure to give the notice shall not affect the right to claim compensation for loss of or damage to the goods but 2 rebuttable presumptions arise:

The goods have been properly delivered as described in the bill of lading 1)

The cause of the loss or damage cannot be attributed to the carrier 2)

Regarding these presumptions, there is a reduction in HGB-Draft that is by failure of the notice, only 1 rebuttable presumption arises. The only penalty for a late notice is to give the carrier the benefit of a rebuttable presumption that the goods were properly delivered as described in the contract.

Notice of delay: The Turkish new maritime law establishes the rule that a notice in writing must be given to the carrier within 60 consecutive days after delivery. HGB-Draft reduces this time to 21 days. However, the penalty for failing to give timely notice is not creation of presumption. In both regulations, if the notice is late the claim for damages is completely extinguished.

Form of notice: Under HGB-Draft it is stated that, after delivery, all notices should be in written form however the Turkish new maritime law requires the notice in written form also at the time of delivery.

9. Time Limit of Actions

The time-for-suit period and commencement: Compensation claims against the carrier due to lost, damaged and delayed cargo are subject to the 1 year time-for-suit period. The period commences on the day on which the carrier delivers the goods (wholly or partly) or the last day on which the carrier should have delivered the goods.

Claims subject to the time limitation: Although the current Turkish Commercial Code (art.1067) contains the same limitation period, the provision of new Commercial Code provides this period for asserting claims that applies to both judicial and arbitral proceedings. In other words, the new provision adopts a broader approach that covers a wider range of claims.

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24 Dr. Ecehan Yeşilova Aras

The nature of the Limitation: The nature of the time limitation of Turkish new maritime law is still treated as “extinguishment” (Ausschlussfrist). Parallel to §612 HGB, the carrier will be discharged from all liability in respect of the goods, unless suit is brought within 1 year of their time of delivery. On the other hand, HGB-Draft changed this idea and treated the time limitation as time-bar. According to the declaration of the §607 HGB-Draft which has “Verjährungsfrist” title, claims arising from the bill of lading and contract of carriage “verjähren” in 2 years. However, regarding the Turkish new maritime law, the title of the article 1188 is “Ausschlussfrist” and states that the right to claim against carrier for compensation due to loss, damage and delay will be extinguished, unless suit (broad meaning) is brought within 1 year from the date of delivery.

10. Contractual Stipulations

As a rule, the provisions relating to liability and obligations (including seaworthiness, and deck cargo) of the carrier are compulsory. They indicate the minimum degree of liability, this means the carrier is at liberty to increase its responsibilities. However, despite HGB-Draft maintains a mandatory regulation for the carrier’s liabilities and obligations, it also introduces the possibility of an important improvement under §512 for the exceptional contractual arrangements like –but also beyond- article 80 of Rotterdam Rules, which is known as “volume contracts” exception.

The treatment of freedom of contract under § 512 HGB-Draft and article 1244 of Turkish new Commercial Code is completely different.

Under Turkish new maritime law provisions relating to the carrier’s freedom of contract, which are not so much different from prior Code’s (which is current till 1.7.2012) provision, the carrier has freedom to contract,

1) If the subject of the carriage is live animal or deck cargo, provided that it should be written on the bill of lading that the goods can be carried on deck and it should actually be carried on deck.

2) When a non-ordinary shipment which is made in the ordinary course of trade where the character or condition of the property to be carried or terms and conditions under which the carriage is to be performed are such as reasonably to justify a special agreement, embodied in the bill of lading and shall be marked as “non-negotiable”.

3) Over the obligations of the carrier which shall be done prior to the loading and subsequent to the discharge.

Relating to voyage charter contract, HGB-Draft is totally dispositiv, since there is no reference to §512. On the other hand, according to Turkish new Commercial Code all liabilities and obligations of the carrier are non-compulsory, unless the bill of lading is in the hand of a third party, who is not sender.

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25

Bareboat and Time Charters

in the New Turkish Code of Commerce

(a short comparison to German Draft dated 2011)

Dr. Samim Ünan

The new Turkish Commercial Code (TCC 2011) enacted in 2011, contains specific provisions concerning bareboat and time charter contracts (Art. 1119-1130). This is for the first time that these contracts are regulated under Turkish law. The situation will soon be the same in Germany when the new draft on maritime law will be enacted by the German Parliament. We will briefly explain the new articles on bareboat and time charter contracts in comprasion with the Draft German HGB here below.

TCC 2011 regulates both the bareboat and time charter contracts under the heading of “Maritime Commerce Contracts”.

In the new code instead of “bareboat charter” the expression “hire of vessels” (“Schiffsmiet”) is used (Since according to article 1119 of the TCC 2011, the vessel can be hired with the existing crew, the word “bareboat” was perhaps deemed not very convenient).

In the codification process of the bareboat and time charter contracts, French law (loi française de 18 Juin 1966 sur les contrats d’ affretement et de transport maritime) was served as a model. It appears from the preparatory work that the relevant provisions of Dutch and Norwegian laws were also taken into consideration.

I. Bareboat Charters

A. The Provisions of TCC 2011 concerning the bareboat charter contracts Bareboat charter contract has been regulated between the articles 1119 and 1130, however, the said articles are not mandatory.

The relevant provisions, are only applicable to “merchant ships” [Art. 935(1)]. Therefore, as an indirect result of article 931(2) of the TCC 2011, “earning through navigation” (“Erwerb durch Seefahrt”) is a requirement for the application of the bareboat charter provisions. In other words, a vessel, that is not used in sea trade (for commercial purposes) shall not be the object of the bareboat charter contract.

The articles of the TCC concerning the bareboat charter contracts are applicable to both registered (either in Turkish or foreign register) and non-registered vessels . Therefore, both the vessels registered in a foreign State and non-registered vessels (either Turkish or foreign vessels) are subject to these provisions.

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The main distinctive characteristics of the bareboat charter contracts are [Art. 1119(1)]:

The

delivery of the vessel to the charterer For its

use by the charterer (in sea trade) during a defined period

against remuneration

Therefore, according to article 1119(1) of the TCC 2011, the duration of the contract shall be specified. Such requirement constitutes a difference from the German Draft. The TCC 2011 does not contain any provision as to whether a hire contract “without complete fitting out” (“ohne vollstaendige Ausrüstung” = armement incomplet) should also qualify as bareboat charter contract. However, a vessel may also be subject to a bareboat charter contract in the event the vessel is hired with the existing crew (“mit Besatzung”) [Art. 1119(2)]. In that respect Turkish law differs from the German Draft under which the vessel that is subject to a bareboat contract may only be hired without crew (“ohne Besatzung”).

Either party of the hire contract may require from the opponent party to issue a charter party delivery of which is a legal requirement [Art. 1120(1)]. The charter party will only serve as an evidence and shall not have a constitutive effect (However, the situation under French Law -according to which the bareboat charter contract concluded for a period longer than one year shall be in written form- is different.

The bareboat charter contract can be registered in the ship’s register (in case of a foreign vessel, the registration is to be made in the bareboat charter register) [Art. 1121(1)]. Following the registration, if the vessel is acquired by a third party, the new acquirer shall permit the charterer to use the vessel in accordance with the terms of the bareboat contract (Should we say therefore that the TCC 2011 admits that “Kauf bricht Miete” (sale breaks the hire)?- (This question will be discussed later below) One could say as an argumentum a contrario “in the event the new acquirer is bound with the terms of the bareboat charter contract that is registered in the ship register, he may not be requested to respect the charter as long as the contract is not registered. However, such outcome is not compatible with the relevant provision of the Turkish Code of Obligations according to which the new acquirer will be a party to the contract. (The discussion on this matter is to be made later below too).

The charterer is under the obligation of paying the third-party claims set forth against the owner (Eigentümer) arising from the use of the vessel by the bareboat charterer.

As a general rule (unless the law imposes responsibility on him) the owner

is not responsible to third parties (no Haftung für), the responsibility arising from the use of the vessel in sea trade shall be on the bareboat charterer [Art. 1121(1)]

However, if the vessel that is in the possession of the bareboat charterer,

causes third party loss enabling a lien on the vessel, the owner may become liable (Haftung mit). Such circumstance may cause a worsening in owner’s patrimony. The liability in question will be covered by the P&I cover (to be taken

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Bareboat and Time Charters in the New Turkish Code of Commerce …

by the bareboat charterer).

On the other hand, the third party’s claim may derive from a cause that is

attributable to the owner (i.e. defect of the vessel) and in such case the owner may be sued directly by the third party. Under these circumstances, the bareboat charterer is not obliged to relieve the owner from liability.

The owner, at the agreed place and time, must deliver the vessel to the bareboat charterer “in a seaworthy condition” and “in a state appropriate for the intended use”. [Art. 1123(1)]

Here the main question is to know whether “seaworthy condition” is something •

different from “appropriate for the intended use”? In any case, seaworthiness logically does

not embrace voyage worthiness

(Reisetüchtigkeit) but may have intersection with cargo worthiness (Ladungstüchtigkeit)

The owner shall bear the expenses required for remedying the (latent) defects of the vessel (including the cost of the necessary spare parts) [Art. 1124(1)].

The relevant provision defines the content of the owner’s obligation to deliver the vessel to the bareboat charterer in a state appropriate for the intended use. However, such obligation shall not be understood as imposing an obligation on the owner to maintain the vessel in a seaworthy condition throughout the charter period. To this end, the bareboat charterer shall bear the expenses necessary for the maintenance and repair of the vessel (not due to latent defects).

If the vessel due to its latent defect is immobilised for more than 24 hours hire shall cease from the beginning of the 25th hour [Art 1124(2)]. Hence, “off-hire” provision

that is generally accepted under the time charter contracts, has been provided as a special provision under TCC 2011 for the bareboat charter agreement.

The bareboat charterer must conclude an insurance contract that covers marine risks and obtain P&I cover until redelivery of the vessel to the owner. The insurance contracts must be concluded for whom it may concern (“für wen es angeht” =pour le compte de qui il appartiendra) [Art. 1126(1)]. The mortgagee is ex lege covered under a hull insurance contract that secures the owner’s interest.

The bareboat charterer is at liberty to use the vessel for the intended purpose pursuant to the contract provisions [Art. 1125(1)]. The bareboat charterer shall have the use of the equipment on board the vessel. Such equipment shall be returned to the owner on redelivery at the end of the contract [Art. 1125(2)].

The charterer shall bear the crew wages. In the event the vessel is hired with the existing crew in accordance with the article 1119/2 of the TCC, owner and charterer are jointly liable for such amount. However, there occurs a gap in the provision. TCC 2011 is silent in determining which party will be finally responsible from the crew wages (owner or charterer?).

The charterers shall pay the hire in accordance with the terms of the bareboat charter contract. In the event the contract does not include a specific provision, the hire must be paid monthly in advance, the first instalment being payable on the day the possession of the vessel is delivered to the bareboat charterer [Art. 1128(1)].

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28 Dr. Samim Ünan

In the event the vessel is not redelivered at the end of charter period, unless a higher amount of loss is proved, the bareboat charterer shall pay at least an indemnity equivalent to [Art. 1129]:

- the rate of agreed hire for the first 15 days of the delay - the double rate of hire for the subsequent days of delay

The owner shall have, for all sums payable to him under the bareboat charter contract [Art. 1128(2)]:

A

lien (Retentionsrecht) upon the movables and negotiable instruments (Wertpapiere) of the bareboat charterer

A

pledge upon the freight and other sums payable to the bareboat charterer (Forderungspfandrecht)

As security for the freight payable to the charterer, a

lien (Retentionsrecht)

upon the goods

The solutions adopted in the TCC 2011 in respect of the rights conferred to the owner do not seem appropriate for the following reasons:

- The Retentionsrecht (upon the goods and negotiable instruments of the bareboat charterer) by its definition requires the possession; however, the owner is not directly possessor of the goods on board belonging to the bareboat charterer,

- The right of lien (again Retentionsrecht) of the owner upon the goods carried on board does not seem legally possible since the possessor upon the goods is charterer, not the owner.

Since TCC 2011 only contains 11 provisions regarding the bareboat charter contract, the relevant articles may not be sufficient. Therefore, according to article 1130 of the TCC 2011, when there is no explicit provision in the bareboat contracts chapter of the TCC 2011, the provisions of the Turkish Code of Obligations relating to the hire contract shall be applicable to the extent that they are “appropriate”. Although, article 1130 of TCC 2011 refers to the relevant provisions of the Turkish Code of Obligations concerning the hire of movables (adi kira), the new Turkish Code of Obligations that will enter into in force on July 1, 2012, does not contain such chapter anymore . Such reference shall be deemed to have been made to the “General Provisions” (applicable to all hire contracts) (Genel Hükümler) of the Turkish Code of Obligations.

According to article 301 of the Turkish Code of Obligations one of the main obligations of the owner is to keep the vessel in good condition throughout the entire hire period. This rule is mandatory and therefore, the parties cannot depart from this obligation. However, this provision is not in line with article 1124(3) of the TCC 2011 that requires the bareboat charterer to ensure the maintenance of the vessel and its repair when necessary. The provision in TCC 2011 should prevail.

B. Some relevant rules of the Turkish Civil Code applicable to the Bareboat Charter

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Bareboat and Time Charters in the New Turkish Code of Commerce …

commenced by the third party against the bareboat charterer and must compensate all losses of the bareboat charterer resulting therefrom.

Turkish Code of Obligations-(Art. 310) provides that in case of change of ownership after the conclusion of the hire contract, the new owner will become a party to the contract. Therefore, third parties acquiring property rights other than ownership after the conclusion of the hire contract (“beschraenkte dingliche Rechte”), shall abide by the hire contract. The rights constituted by the owner can be “mortgage” or “usufruct” – However, “maritime liens” arising from the use of the vessel in sea trade by the charterer, shall not fall within the scope of this provision.

Turkish Code of Obligations provides, at the same time

the sale does not break hire (“Kauf bricht nicht Miete”) principle (new owner or •

the acquirer of a proprietary right other than ownership -beschraenkte dingliche right shall be bound with / by the hire agreement concluded by the parties prior to the acquisition)

and the possibility of annotating the hire contract in the land registry •

(Grundbuch).

It transpires from the legal reasoning of the provision (“Begründung”) of the Code of Obligations that the annotation will not have any constitutive effect in respect of “sale does not break hire” (Kauf bricht nicht Miete”) principle (the new acquirer being already bound by the hire by virtue of another clear provision) but will provide the tenant (“Mieter”) additional rights (such as the right to resist to the evacuation demand of the new acquirer based on personal need). However, it seems questionable to reach the same conclusion under the TCC 2011. Article of 1121(2) of the TCC 2011, providing that the new acquirer shall be under the obligation to abide by the bareboat charter contract after the contract is annotated to the ship register, seems to introduce, unlike the Turkish Code of Obligations, the principle of “sale breaks hire” (Kauf Bricht Miete). In other words, such provision may be regarded as a lex specialis” vis à vis the general hire law (Mietrecht) rule in the Turkish Code of Obligations. The legal reasoning of the TCC 2011 clearly supports this conclusion since it has been clearly indicated that unlike the Dutch Law, the solution that the new acquirer is bound by the existing hire contract is not found acceptable by the Turkish Legislator.

According to Turkish Code of Obligations, subhire (subchartering= Untervercharterung) is possible. However, TCC 2011 contains no specific provision, although the French law, that is the main source of the provisions, expressly allows subchartering. In the event charterer redelivers the vessel before the agreed date, his obligation to pay hire will continue until such date when the owner could conclude another similar contract.

It is forbidden to waive in advance the right of setting off in respect of the claims arising out of the contract.

C. Main differences between Turkish Code of Commerce and the German Draft in respect of bareboat charters

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30 Dr. Samim Ünan

German Draft does not provide any provision concerning subordination of the vessel with the existing crew to the charterer.

TCC 2011 requires that the duration of the contract must be determined.

German Draft does not impose on the charterer the obligation of concluding the relevant insurance contracts for the vessel.

TCC 2011 does not attribute to the charterer any specific obligation to secure the rights of the owner against third parties. Such obligation has been previously introduced by the SHSG (Seehandelschiffahrtgesetz) of the DDR: The legal reasoning of Article 555 of German Draft TCC clearly refers to the said principle in the SHSG. To give an example, if the hull insurance contract has been concluded by the owner and the vessel is required to be repaired, the bareboat charterer shall do his best to safeguard the rights and interests of owner against the repairer.

German Draft provides that the hire is payable each half month (“halbmonatlich”). The owner does not benefit from right of lien in German Draft.

D. Turkish Code of Commerce provisions: Danger of being “lettres mortes” in most cases

Most of the bareboat charter contracts determines English Law as the applicable law. Hence, it will be rare to witness a bareboat charter contract to which Turkish law is applicable (especially when the owner is foreigner).

II. Time charters TCC 2011 provisions

A. Definition of the Time Charter: A contract by which the owner (Zeitvercharterer) leaves the commercial management of a fitted out (properly equipped and manned= ausgerüsted) vessel for a defined period, to the time charterer against remuneration [Art. 1131(1)].

The duration of the charter must be “defined” under Turkish law. The owner who detains the technical management of the vessel is the “possessor” of it [Art. 1131(2)]. Either party may require the issue of a charter party [Art. 1132(1)]. Only merchant vessels used in sea trade can be subject to time charter contract [Art. 935(1)]

The main obligations of the owner in the context of a time charter contract can be summarized as follows:

He must keep the vessel ready at the agreed time and place [Art. 1133(1)(a)] •

He must, during contract period, keep the vessel in a seaworthy, voyageworthy •

(except for the fuel) and cargoworthy condition and suitable to the purpose of the contract [Art. 1133(1)(b)]

The time charterer gains the commercial management of the vessel [Art. 1134(1)]. The master must obey “all” of the instructions given by the charterer to the extent that they relate to the commercial management of the vessel. (Does that provision comprise

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31

Bareboat and Time Charters in the New Turkish Code of Commerce …

also issuing of transport documents? A clear provision is lacking) [Art. 1134(2)]. The time charterer must bear all of the costs arising from the commercial management of the vessel (including the fuel cost) [Art. 1135(1)]. Contrary to the German Draft, TCC 2011 does not split the expenses into two categories (fixe Kosten- variable Kosten). TCC 2011 does not contain any specific provision relating to the expenses incumbent on the owner (fixe Kosten), whereas such expenses are explicitly regulated under the German Draft (crew wages, fitting out expenses, insurances).

The expenses (excluding

References

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