Maritime Law – Marine Casualty
Provisions of the International Convention for the Unification of Certain Rules of Law with respect to Collisions Between Vessels 1910 got into force in Turkey on September 16th, 1955 and the provisions of the said convention are incorporated into the new Turkish Commercial Code numbered 6102 (“TCC”) which has entered into force as of July 1st, 2012.
If the collision occurs due to the fault of the owner or the crew members of one of the vessels, the owner of the vessel being in fault will be liable for the damages. If the collision occurs due to the fault of the owners or the crew members of two or more vessels, the owners of those vessels will be liable in proportion to the degree of the faults respectively committed. If, having regard to the circumstances, it is not possible to establish the degree of the respective faults, or if it appears that the faults are equal, then the liability will be apportioned equally.
If the collision occurs due to the fault of the owners or the crew members of two or more vessels, the owners of those collided vessels may be held liable to the 3rd parties jointly and severally. If, having regard to the circumstances, it is not possible to establish the degree of the respective faults, or if it appears that the faults are equal, then the liability will be apportioned equally.
If the collision occurred by force majeure or by an unexpected circumstance or if the cause of the collision is left in doubt, the damages will be borne by those who have suffered them. This provision applies even if the vessels, or any one of them, were at anchor at the time of the casualty.
All of the actions for the recovery of the damages resulting from a collision will be time-barred after 2 years as of the date of casualty. However, the right to recourse of the owners against each other will be time-barred after 1 year as of the date of the payment.
Pollution matters are regulated by the Environmental Law numbered 2872 and the other related regulations. According to the Environmental Law, direct or indirect discharge of all kind of waste or residuary to the environment, storage, transportation, sending away the waste or residuary or being engaged in similar activities in a way that harms the environment in contrary to the standards and methods stipulated in the relevant regulations are forbidden.
Moreover, the provisions of the International Convention on Civil Liability for Oil Pollution Damage, signed in 1969 and the International Convention on the Establishment of an International Fund for Compensation for Oil Pollution Damage, signed in 1971 that were amended in London by the Protocol dated 1992, came into force in Turkey on August 17th, 2002. The International Convention on Civil Liability for Bunker Oil Pollution is also in force in Turkey. If a pollution incident is caused by a reason that is not covered by any above mentioned international conventions, such collision will be subject to Code For Emergency Response And Indemnification Of The Losses In Case Of Pollution Of Sea By Oil And Other Hazardous Materials numbered 5312.
(iii) Salvage / general average
Turkey is party to International Convention for the Unification of Certain Rules of Law related to Assistance and Salvage at Sea and the Protocol which was signed in 1910 and the International Convention on Salvage which was signed in 1989. In that respect, provision of TCC that are in relation to salvage and general average were enacted in accordance with the provisions of the said 1989 Salvage Convention.
As per provision of art. 1273 of TCC, unless it is agreed otherwise by the parties, general average contribution is subject to the recent York-Antwerp Rules which were issued by Committee Maritime International and translated into Turkish and published. On the other hand, TCC bears some specific provisions which are not regulated under York-Antwerp Rules which are related to guarantee and dispatch.
(iv) Wreck removal
Under art. 7 of Harbors Code numbered 618, it is set forth that the owner, master and agents of the vessel and/or property that have sunk, are obliged to remove the wreck within the specified period that will be granted by the Harbor Master Office; otherwise, Harbor Master Office is entitled to remove the wreck or destroy the same.
(v) Limitation of liability
In accordance with art. 1328 of TCC, the liability can be limited in accordance the International Convention on Limitation of Liability for Maritime Claims (“LLMC”)signed in 1976 and 1996 Protocol, which amends it and other international conventions to which Turkey will be a party.
The liability can be limited with the limitation fund and in line with art. 1335 of TCC, the liability can also be limited without establishing the fund.
In line with art. 1330 of TCC that refers to art. 15 of LLMC, application of limitation of owners liability is extended and if the claimant proves that the liability cannot be limited in the country of the person that is stated under art. 15 of LLMC, liability cannot be subject to limitation in Turkey as well. Moreover, pursuant to art. 1332 of TCC, for the vessels mentioned under art. 15 of LLMC, the limit of liability is SDR 83,500.
(vi) The limitation fund
The competent court for the establishment of the fund is the court which is competent to evaluate the maritime related matters. As it is provided under art.1346 of TCC, in case that there is a limitation fund that has been established as per the LLMC and 1996 Protocol, only claims that are subject to limited liability can be paid from such fund.
While establishing the fund, a cash deposit in Turkish Liras which is calculated as per the SDR unit, shall be accepted as security. If the limitation fund will be established through a bank letter of guarantee in line with art. 1347 of TCC, such guarantee letter has to include an undertaking that provides cover for the interests that shall accrue until the end of apportionment.
The Harbor Master Offices conduct the administrative investigations in relation to the collision/grounding matters and until the finalization of such administrative investigation process, the vessel(s) are not be permitted to the continue her voyage
On the other hand, in the event that any personal injury or environmental pollution occurs, the Prosecution Offices may initiate criminal investigations and pursuant to the criminal investigations, criminal cases can be initiated against the crew members, in general against the masters.