Liability of Maritime Carriers Under the Turkish Commercial Code

According to the Article 1178 of the Turkish Commercial Code ("TCC"), a maritime carrier shall exercise utmost care which is expected from a prudent carrier while performing the contract of affreightment especially in loading, stowing, handling, carrying, keeping and discharging stages of the cargo which is being carried. One should note that such obligation of "care" is not limited to the operations stated in the article. The article listed the stages in an exemplary fashion.

According to the Article 1243 of the TCC, the provisions of Article 1178 are applied mandatorily. Consequently, parties cannot decide otherwise that would constitute a contradiction against it. Because of this, the clauses of a contract that removes the liability of the carrier that regulated Article 1178 of the TCC will be invalid.

However, all the duties provided for the carrier in the TCC for pre-loading and after discharge stages are not formed in a mandatory scope. Hence, the carrier may be relived from these non-mandatory duties only for pre-loading and after discharge stages through a contract.                

According to the paragraph 2 of the Article 1178 of the TCC, a maritime carrier shall be liable for the loss or the damage to cargo or delay in delivery, provided that the loss or damage or delay occurred while the cargo was in carrier's own custody.                

The paragraph 3 of the Article 1178 states that when the cargo is received from the consignor or from another person who acts on behalf or account of the consigner or from the competent offices to whom the cargo is required to be delivered for the carriage or from third persons, it shall be deemed to be under the custody of the carrier until:                

a. the moment that the cargo is delivered to consignee, or                

b. in cases where the consignee does not receive the cargo, the moment that the cargo is ready to transfer to under the management of the consignee in accordance wit the contract or with the law or with the practice of the particular trade, applicable at the port of discharge, or                

c. the moment when the cargo is delivered to an authority or other third party, pursuant to law or regulations applicable at the port of discharge.                

Paragraph 4 of the TCC Article 1178 regulates the carrier's responsible when a delay in delivery has occurred. According to this, delay in delivery occurs when the cargo has not been delivered at the port of discharge within the time explicitly agreed upon or, in the absence of such agreement, within the time which it would be reasonable to require of a diligent carrier, having regard to the circumstances of the specific case.                

According to the last paragraph of the Article 1178 of the TCC, the person who entitled to claim damages for the loss of the cargo can treat the cargo as lost if it has not been delivered within 60 consecutive days following the expiry of the time for the delivery that is agreed upon in the contract.                

In order to hold the carrier liable for the breach of the exercising duty of care for the cargo, cargo interest shall prove the followings:                

a. The cargo has been damaged or lost or a delay has occurred in delivery,                

b. the cause of loss or damage or delay occurred under the custody of the carrier and                

c. The amount of the damage.

Exemptions from Liability                

According to Article 1179 of the TCC, the carrier shall not be liable for the damages which has not stem from the intention or neglect of himself or his servants. The article also states that the burden of the proof that the damages are not arising from the intention or neglect of the carrier or his servant is on the carrier.                

TCC has explicitly defined the term of "servants". According to the definition that is stated in the paragraph 2 of the Article 1179 of the TCC, servants refer to the people who are in the service of the ship, people who are employed under the carrier's incorporation and people who are employed under the carrier's incorporation and people who are assisting the fulfillment of the contract of affreightment, even though they are not employed under the carrier's incorporation. It should be noted this provision is mandatory and if the parties agreed upon an article that constitutes a contradiction of this provision, it will be invalid.                

In addition to this, the TCC states that a maritime carrier can absolutely be relieved from liabilities by proving the existence of one of the following exemptions:   

Damages or delay that is risen from nautical fault or fire 

 Where loss or damage or delay is risen from measures to save life or property or from attempts to save life or from reasonable attempts to save property at sea, the general average is excepted.

If the type or the value has been misstated deliberately by the consignor.

In addition to the above-mentioned exemptions that absolutely relieve the carrier from liability, TCC has stated some probable reasons to admit the faultlessness of the carrier:

Dangers and accidents of the sea or other waters which are suitable for the operation of the ship,
Events of war, riots and civil disturbance, acts of public enemies, orders of the authorized institutions or quarantine restrictions,

Seizure decisions of the courts,

Strike, lock-out or the other obstacles to working, 

Acts or negligence of the shipper or consignor or owner of the cargo, his agents or his representatives, 

Spontaneous decrease on volume or weight of cargo or hidden defects or sui generis nature and quality of the cargo

Insufficient packaging or  Insufficient marking
Author: Abdülkadir Güzeloğlu & Tarık Kurban