• The ship is initially unseaworthy, roadworthy and unfit for cargo

The carrier is under the obligation to keep the ship in a seaworthy, roadworthy and cargo-worthy condition. The liability of the carrier arising from the violation of this obligation is regulated by Article 1141 of the Turkish Commercial Code. According to this provision, the carrier; is liable to the cargo parties for damages resulting from the ship’s initial unsuitability for sea, road and cargo. However, if the carrier has not had the opportunity to discover the deficiency until the beginning of the journey, despite showing the care and attention that a prudent carrier is obliged to show, he will not be responsible for the damage caused by the said unfitness.

The defect or defect that renders the ship unfit need not be due to the fault of the carrier or his crew; Unfavorability may also result from an unexpected situation or any natural event.[1] Regardless of the reason why the unfitness has arisen, the carrier will be responsible if a deficiency that could have been detected if a prudent carrier had exercised the care required was not discovered until the beginning of the journey, or if it was not corrected even if it was discovered.

It should be noted that unfitness varies for each item transported. For example, a ship that is navigable for the cargo it picks up at port A may become unfit for voyage before the start of the voyage for the cargo it picks up at port B. In such a case, since the ship becomes unfit for sailing after the voyage has started, the liability provision regulated by Article 1141 of the Turkish Commercial Code will not be applicable.

The person related to the cargo who claims to have suffered damage due to initial unfitness; It is mandatory to prove the deficiency or defect that caused the ship to be unfit, the damage suffered and the causal link between the unfitness and the damage. In this case, the carrier must prove that the person related to the cargo has not suffered any damage, that there is no unfitness, or that there is no causal link between the damage and the unfitness.

In cases where it is not possible to prove these, the carrier; He may be relieved of liability by proving that the unseaworthiness, roadworthiness or cargo unfitness was not discovered until the beginning of the voyage despite the diligence expected from a prudent carrier, or that the unfitness occurred after the voyage began.

In addition, documents proving that the ship is seaworthy, roadworthy and cargoworthy constitute a presumption in favor of the carrier. Therefore, the burden of proving the contrary of this presumption belongs to the person concerned with the cargo. If the contrary of this presumption is proven, the carrier will not be held responsible if he proves that the unfitness was caused by a deficiency that could not be discovered despite the necessary care. It should be noted that the liability here is not a warranty liability, but an aggravated defect liability.

• Loss or Damage of Goods or Late Delivery

In accordance with Article 1178 of the Turkish Commercial Code, the carrier is obliged to show the care and attention expected from a prudent carrier in the execution of the freight contract, especially in the loading, stacking, handling, transportation, protection, supervision and unloading of the goods. The carrier is responsible for damages arising from loss or damage or late delivery of the goods, provided that the loss, damage or delay in delivery occurred while the goods were under the control of the carrier.

While loss is the carrier’s permanent lack of power to partially or completely deliver the goods received, damage is any material deterioration that causes a decrease in the value of the goods. Late delivery is the failure to deliver the goods within the clearly agreed upon time at the discharge port specified in the freight contract or, if there is no expressly agreed upon time, within the time within which a prudent carrier could reasonably be requested to deliver the goods, depending on the characteristics of the case. As can be understood from the statement, in order for late delivery to occur, the goods must be delivered, even partially. In addition, the person who may claim compensation for the loss of the goods may consider the goods that are not delivered within 60 consecutive days from the expiry of the delivery period as lost.

It should be noted that the carrier can be relieved of this responsibility by proving perfection. In other words, the carrier is not responsible for any loss, damage or late delivery caused by any reason not caused by the intent or negligence of the carrier or his men. In this case, the burden of proving that the carrier and his crew are not at fault for the loss, damage or late delivery is on the carrier.

In addition, if the fault of the carrier or his staff causes loss, damage or delay in delivery along with any other reason, the carrier; He will be responsible for any loss, damage or delay in delivery only to the extent of his own fault and that of his crew.

Another issue that should be emphasized is the reasons for absolute irresponsibility regulated in the Law. In accordance with Turkish Commercial Code article 1180; If the damage is the result of an action related to the navigation or other technical management of the ship or a fire, the carrier is responsible only for his own fault. As can be understood from the provision, the carrier is only responsible for the damages arising from the fault in the technical management of the ship or the damage caused by fire, and is not responsible for the fault of his crew. In addition, if there is doubt whether the damage is a technical defect or not, it is assumed that the damage is not caused by a technical defect and is a commercial defect (commercial defect: defect in the measures for the maintenance and preservation of the cargo).

Another reason for absolute irresponsibility in the Law is rescue at sea. In accordance with the relevant provision, the carrier is not responsible for damages arising from the rescue of life and property at sea or the rescue attempt, except in the case of general average. In addition, if the attempt is only aimed at recovering goods, it must also constitute a reasonable course of action.

The last reason for absolute irresponsibility is the deliberate misrepresentation of the type or value of the goods. Accordingly, if the shipper deliberately misrepresents the type and value of the goods, the carrier will not be responsible for the loss or damage of the goods. Please note that there is no regulation regarding late delivery here. In other words, deliberately misrepresenting the type or value of the goods is not a reason for absolute liability in terms of damages arising from late delivery.

The law regulates the possible causes of irresponsibility as well as the reasons for absolute irresponsibility. In accordance with Article 1182 of the Turkish Commercial Code;

1) The carrier and his crew are considered blameless if the damage occurs due to the following reasons:

• Dangers and accidents of the sea or other waters suitable for the operation of the ship.

• Acts of war, disturbances and riots, acts of public enemies, orders of competent authorities or quarantine restrictions.

• Confiscation decisions of the courts.

• Strike, lockout or other work obstruction.

• Acts or omissions of the shipper, shipper, owner of the goods and their representatives and servants.

• Spontaneous decrease in volume or weight, or hidden defects of the goods, or the inherent nature and quality of the goods.

• Inadequacy of packaging.

• Insufficient signs.

2) If it is proven that the emergence of the reasons in the first paragraph was caused by an event for which the carrier is responsible, the carrier cannot be relieved of responsibility.

3) If the damage is likely to arise from one of the reasons stated in the first paragraph, depending on the requirements of the situation, it is assumed that it has occurred due to this reason; However, it can be proven otherwise.

According to this provision, it is sufficient for the carrier to prove the existence of one of these reasons in order to be exempt from liability. Thus, a presumption is created in favor of the carrier that the phenomenon causing loss, damage or late delivery is due to the proven reason. However, it is possible for the person concerned with the cargo who demands compensation from the carrier to refute this presumption. Person concerned with the load; It may prevent the carrier from being freed from liability by proving that the fact that caused the loss, damage or late delivery is not the proven cause or that the emergence of the proven cause was caused by an event arising from the carrier’s responsibility.

For example, if compensation is requested due to loss or damage to the goods as a result of getting wet, the carrier can avoid liability by proving that the cargo got wet due to a severe storm. However, if it proves that the cargo got wet because the hatch covers were not fully closed, in other words, if it proves that there was a commercial fault on the part of the seafarers, the carrier will be responsible for the damage that occurred as a result of getting wet.[2]

Right to Limit Carrier’s Liability

Article 1186 of the Turkish Commercial Code limits the carrier’s liability arising from loss, damage and late delivery of goods. According to the provision, it is a right that can be enjoyed by those with limited liability. In other words, since limited liability is a defense, it must be asserted at the latest when the second response petition is filed in cases filed for compensation for damages arising from loss, damage or late delivery of goods. Otherwise, limited liability cannot be automatically taken into account by the court.

Due to any loss or damage suffered by the goods or to the goods, the carrier is entitled to 666.67 Special Drawing Rights per parcel or unit or two Special Drawing Rights for each kilogram of the gross weight of the goods that have been lost or damaged, provided that the higher limit is applied. will not be liable for damage exceeding the covered amount. However, if the type and value of the goods are declared by the shipper before loading and written on the sea transport bill, then the carrier’s responsibility continues. The carrier’s liability arising from exceeding the transportation period is limited to two and a half times the freight to be paid for the delayed goods. However, this amount cannot be more than the total freight amount to be paid according to the freight contract.

In addition to regulating the carrier’s right to limit his liability, the law also provides for the loss of the right to benefit from limited liability. Accordingly, there are two types of faults that cause the loss of the right to benefit from limited liability: the first of these is intent, the other is causing damage through reckless behavior. In other words, the carrier and his crew will not be able to benefit from the limited liability provision for damages arising from loss, damage or late delivery of goods due to intentional or reckless action.

REFERENCE

Yazıcıoglu, Kender, Cetingil, Deniz Ticareti Hukuku, Filiz Kitabevi, Istanbul, 2020

Turkish Commercial Code and Related Legislation

[1] Yazıcıoglu, Kender, Cetingil, Deniz Ticareti Hukuku, Filiz Kitabevi, Istanbul, 2020, p.391

[2] Yazıcıoglu, Kender, Cetingil, Deniz Ticareti Hukuku, Filiz Kitabevi, Istanbul, 2020, p.402