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Carriage of goods
Is your jurisdiction party to any international conventions on the carriage of goods by sea? If so, does the relevant domestic implementing law contain any notable modifications (eg, extensions to the scope of application)?
Turkey is party to the 1924 International Convention for the Unification of Certain Rules of Law relating to Bills of Lading (Hague Rules), but not to the Hague-Visby, Hamburg or Rotterdam Rules. However, the Hague-Visby Rules and parts of the Hamburg Rules have been incorporated into the Commercial Code. In practice, there is some controversy regarding the application of the Hague Rules over the Commercial Code. Several authorities have expressed the view that where applicable the Hague Rules should be applied and the application of the Commercial Code should be limited to cases where the Hague Rules are not applicable. That said, in practice, the Turkish courts apply the Commercial Code.
What is the official extent of the carrier’s responsibility for goods?
Article 1178 of the Commercial Code provides that the carrier will be liable for loss of or any damage to cargo while the cargo is in the carrier’s possession. The carrier would be deemed liable for:
- any loss or damage to the cargo in the event of the vessel being unseaworthy;
- actions in breach of the duty of care to the cargo;
- cargo being carried on deck without any instructions from or consent by the shipper;
- cargo being loaded or transferred to another vessel; and
- cargo being carried by a route other than that determined before the voyage.
On the other hand, the carrier will not be held liable if the damage or loss occurs due to a fault in the technical management of the vessel (ie, error in navigation) or a fire on board if the damage or loss did not arise from the carrier’s fault.
Contractual limitation of liability
May parties contract out of any legal provisions governing cargo liability?
In principle, all terms and conditions within contracts of carriage, bills of lading or other documents for carriage by sea that directly or indirectly limit the carrier’s liability or relieve it of liability in advance are invalid. However, once liability arises, the parties are free to enter into such agreements. There are some exceptions to this rule such as the carriage of livestock and deck carriage. Further, the rule barring contractual limitation and relief does not apply to voyage charterparties, except with regard to the relationship between the holder of the bill of lading and the carrier where a bill of lading has been issued pursuant to the voyage charterparty.
Title to sue
Who has title to sue on a bill of lading?
The lawful holder of a bill of lading has title to sue the carrier. The relationship between the shipper and the carrier is subject to the terms of the contract of carriage.
What is the time bar for cargo claims?
Claims against the carrier arising out of the loss of, damage to or delay in delivery of the goods lapse unless legal proceedings are commenced within one year. An action for recourse may be brought even after the one-year period expires, provided that the proceedings are brought within 90 days of the date on which the person bringing such recourse action has settled the claim or has been served with process in the action against itself. This period may be extended if the parties so agree after the cause of action has arisen.
Definition of ‘carrier’ and ‘goods’
How are ‘carrier’ and ‘goods’ defined in respect of cargo claims? Is there any especially pertinent case law on this issue?
In principle, the person considered to be the carrier is:
- the person who signed the bill of lading; or
- the person on behalf of whom the bill of lading was signed.
On the other hand, there is no detailed definition of ‘goods’ in the Commercial Code and it has been stipulated that every type of cargo will be considered goods.
Defences available to carrier
Under what circumstances may the carrier rely on the perils of the sea defence? What other defences are available to the carrier?
There is no blanket precedent to determine the circumstance under which the carrier can rely on the perils of the sea defence; therefore, the facts of each case should be determined separately. According to Article 1182 of the Commercial Code, the carrier will not be held responsible if the loss or damage arose from:
- perils and accidents that occur at sea or on other waters on which the vessel can operate;
- acts of war, commotions and riots, acts of public enemies, orders by authorities or quarantine restrictions;
- court-ordered seizures;
- strikes, lockouts or other labour restraints;
- acts or omissions of the shipper or the owner of the goods and their agents or representatives;
- wastage in volume or weight by itself or an inherent defect of the goods or the natural type or quality of the goods;
- insufficient packing; and
- insufficient markings.
In addition, the carrier will not be held responsible if the loss is a result of an act related to navigation or technical management of the ship or a fire, unless caused by its own fault. The carrier is also not liable for loss that has arisen while saving or attempting to save life or property at sea.
What legal protections and defences against cargo claims are available to agents of the carrier and other third parties (eg, Himalaya clauses)?
In principle, any Himalaya-type clause is valid under Turkish law. Additionally, the Commercial Code clearly stipulates that save for the exceptions specified above, the carrier will be liable for losses resulting from the fault or negligence of all responsible persons in the performance of the contract of carriage.
In cases where the contractual carrier appoints a sub-carrier as an actual carrier to perform part or all of the carriage, the contractual carrier will remain liable for the acts and omissions of the actual carrier and its employees, agents and servants. However, the parties to the contract of carriage may agree that the contractual carrier will not be liable for any loss, damage or delay while the goods are in the actual carrier’s possession.
Deviation from route
Under what circumstances is deviation from the agreed route allowed?
If the master deviates from the agreed route to save life or property or for another justifiable reason, this will not affect the rights and obligations of the parties and the carrier will not be liable for any loss that may arise as a result of the deviation.
Claims against shipper
What claims can the carrier pursue in respect of the shipper’s failure to meet its obligations?
The shipper will be liable for any loss suffered by the carrier that may arise from damage to or loss of the vessel or any other cause if the loss was caused by the negligence of the shipper or its employees or agents.
The carrier has a contractual right to detain goods for any claims arising out of the contract of carriage for as long as the goods are in its possession and for 30 days after the goods have been delivered, provided that they are still in the receiver’s possession.
Multimodal carriage of goods
How is multimodal carriage regulated in your jurisdiction?
Articles 902-905 of the Commercial Code contain provisions specific to multimodal carriage. The specific provisions and the general provisions of transport law contained in the Commercial Code apply to carriages that are subject to at least two difference modes of transport, unless provisions to the contrary are contained in international conventions which regulate each mode of transport. Turkey is party to:
- the Convention on the Contract for the International Carriage of Goods by Road for carriage by road;
- the Convention concerning International Carriage by Rail and its appendices (eg, Uniform Rules concerning the Contract of International Carriage of Passengers by Rail and Uniform Rules concerning the Contract of International Carriage of Goods by Rail);
- the 1924 Brussels Convention (Hague Rules) for carriage by sea; and
- the Montreal Convention for carriage by air.
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