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Maritime Trade Law

Maritime Trade Law in Turkey: A Comprehensive Guide

Maritime trade plays a crucial role in the global economy, and Turkey, with its strategic location between Europe and Asia, has a long-standing history of maritime activity. In Turkey, maritime trade law is regulated by the Fifth Book of the Turkish Commercial Code. This article aims to provide a comprehensive guide to the provisions, regulations, and key aspects of maritime trade law in Turkey.

Definition of a Ship and Merchant Ship

The Turkish Commercial Code defines a ship as any vehicle designed to move in water, with swimming capabilities, and of a certain size. Even if a ship is unable to move by itself, it is still considered a ship under the law. On the other hand, a merchant ship is defined as a ship allocated for economic purposes or actually used for such purposes, regardless of the owner or user.

Ship Requirements and Certification

Before a ship can engage in commercial voyages, it must comply with various requirements and obtain the necessary certifications. The ship must be suitable for sea travel and cargo transportation according to the provisions of the International Convention for the Safety of Life at Sea (SOLAS). Additionally, the ship must have the required navigation certificates from the flag state and comply with international rules. Failure to meet these requirements can result in a prohibition on commercial voyages.

Treatment of Ships as Movable Property

In terms of implementation, ships are considered movable property under the Turkish Commercial Code and other relevant laws, regardless of whether they are registered in the registry. However, there are exceptions to this rule. In cases explicitly stated in the Execution and Bankruptcy Law, certain ships may be subject to the provisions regarding immovable property.

Court Jurisdiction for Maritime Trade Disputes

In disputes arising from maritime trade law, the court with jurisdiction is determined by Article 5 of the Turkish Commercial Code. Lawsuits falling under the jurisdiction of commercial courts and considered commercial under Article 4 of the same law will be dealt with in the commercial court of first instance. If multiple commercial courts exist, one or more can be designated exclusively for cases related to maritime trade and maritime insurance.

Shipman: Roles and Responsibilities

Shipman refers to the collective term for the captain, officers, crew, and other individuals employed on board a ship. They play vital roles in ensuring the safe and efficient operation of the vessel. The captain, in particular, holds significant authority and responsibilities, including making decisions for the protection of the ship and its cargo.

Ship Name and Turkish Flag

The first Turkish owner of a ship is responsible for registering its name. The ship's name can be freely chosen, as long as it is not already in use. Changing the ship's name after registration requires permission from the Ministry. Additionally, the port of registry must be clearly displayed on the ship's hull. Every Turkish ship is required to fly the Turkish flag, and this right is documented and proven through the ship's certificate of registry.

Ship Registration and Ownership

Ships are primarily registered with the registry office of the port of registry. However, if the ship's voyages are managed from a foreign port or a land city, the owner can register it in any registry office. Ship owners without a residential place in Turkey or a commercial enterprise must appoint a representative residing in the same area as the registry office to exercise their rights and powers. Special registries are also maintained for ships under construction.

Ship Ownership, Correction, and Lapse of Time

The ship registry is considered open, and anyone can examine the registry records and obtain certified or unapproved copies upon payment of the necessary fees. The person registered as the owner in the ship registry is presumed to be the owner, along with those who have registered ship mortgages or other rights on the ship. Transfer of ship ownership requires a written agreement between the parties, which can be notarized or concluded directly at the ship registry office.

In cases where ownership changes occur outside the registry, the affected parties can request correction of the registration by applying to the registry office. However, interested parties have the right to object to such requests, and the final decision rests with the registry manager. The process of lapse of time allows for the acquisition of ship ownership through continuous possession without trials or actions for a certain period, depending on the circumstances.

Ship Mortgage and Limitation of Liability

Registration of a ship mortgage prevents the lapse of time regarding the associated claims. The statute of limitations does not apply to claims for compensation with accumulated actions that have specific timeframes. The Turkish Commercial Code also provides for the limitation of liability for maritime claims. Shipowners may limit their liability for certain claims through the 1976 Convention on Limitation of Liability for Maritime Claims or equivalent domestic legislation. However, the scope and conditions for invoking this limitation of liability may vary.

Detention of Ships, Arrest, and Security for Claims

In cases of delayed, lost, or damaged cargo, the receiver has the right to secure their claim. Turkey is party to the 1952 Arrest Convention, which allows for the detention of a ship in certain circumstances. However, the detention of a ship must be supported by a "maritime claim," which is defined under the law. It is also possible to arrest a ship to obtain security for a claim in another jurisdiction or in arbitration.

The arrest of a ship requires compliance with specific procedural requirements, including the provision of a power of attorney to authorize the arresting party to act. Turkey recognizes maritime liens and privileges, and the recognition of these rights depends on various factors such as the law of the forum, the law of the place where the obligation was incurred, or the law of the flag of the vessel. The liability for a claim may extend to the owner or demise charterer of the vessel, and sister ship or associated ship arrests are possible under certain conditions.

Release of Arrested Ships and Judicial Sale

Owners can secure the release of an arrested ship by providing acceptable security for the claim, such as a Club Letter of Undertaking (LOU). The procedure for the judicial sale of arrested ships involves a court-ordered sale, with the proceeds distributed according to the priority ranking of claims. The ranking of claims depends on various factors, including the nature of the claim and the applicable laws.

Liability under Bills of Lading and Applicable Laws

The liability under a bill of lading depends on various factors, including the identification of the carrier. The proper law of the bill of lading may also be relevant, and its determination depends on the applicable legal principles. Turkey is a party to international conventions concerning bills of lading, such as the Hague Rules and Hamburg Rules, which have been adopted through ratification or accession.

Recognition and Enforcement of Foreign Arbitral Awards

Turkey is a party to the 1958 New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards. This convention provides a framework for the recognition and enforcement of foreign arbitral awards. If the country is not a party to the convention, other rules and procedures apply, and there may be available grounds to resist enforcement.

Time Limits for Commencing Legal Actions

Various time limits apply to different types of legal actions in Turkey. These include time limits for claims in contract or tort, personal injury and passenger claims, cargo claims, salvage and collision claims, and product liability claims. It is essential to be aware of these time limits to ensure timely legal action.

Conclusion

Maritime trade law in Turkey is a complex and comprehensive legal framework that governs various aspects of shipping and maritime activities. Understanding the provisions, regulations, and key considerations is crucial for ship owners, operators, and other stakeholders involved in maritime trade. By staying updated with the latest developments and adhering to the applicable laws and conventions, the maritime industry in Turkey can continue to thrive while ensuring the safety, security, and efficiency of maritime operations.