2021/1

Ulgener LC/LO was founded in 2000 with the aim to serve the maritime industry and still continuing on the same track, not only with the same excitement but also with daily enhanced knowledge and experience.
Our main fields  of expertise:
P&I matters, such as cargo claims / disputes arising from bills of lading, crew claims, pollution; as well as accidents, such as collisions, salvage, wreck removal and general average matters, etc.
FD&D matters, such as disputes arising from voyage and time charter-parties, including but not limited to forced freight & demurrage collection, liening on cargo, etc.
H&M matters, such as salvage, general average, etc., Assisting Turkish Chamber of Shipping and Turkish Ship Owners Association also representing Turkish shipping at the Bimco Documentary Committee.

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In this issue:
1. Update- P&I LOUs are Acceptable in Pollution Cases in Turkey
2. The Liability of the Carrier in Respect of Unseaworthiness

T. Duygu Yazıcı
Senior Assc.Lawyer

As we have announced previously, for the past few years, meetings on the acceptance of Club Letters of Undertaking have been organized by the Turkish Chamber of Maritime. These meeting were held by a commission whose members are the officers from the Ministry of Environment and Urban Planning, environmental departments of municipalities, Turkish P&I, some correspondents in Turkey and Ulgener Law Office. After long discussions between the parties in these meetings, the authorities finally agreed to accept Club Letters of Undertaking as security in pollution cases and the commission drafted a letter wording acceptable to both the P&I Clubs and the authorities.

In Turkey, it’s the municipalities’ duty to deal with pollution and impose fines (except some cases where the port authority is authorized to impose fines). Accordingly, the Club Letters of Undertaking should be submitted to the municipality where the pollution occurred. However, we must say that only the IG group members’ P&I Club Letters will be accepted by the municipalities.

In addition to IG Group requirement, some conditions were set by the Authorities regarding the content of the Club Letters. According to these, the Clubs should undertake to pay the fine within 30 days without the need for a court judgement. Accordingly, the main purpose of submitting a Club Letter is to release the vessel from arrest immediately without paying the fine. It is especially useful in cases where the fine amount is quite high and the fine decision issued just before the weekends or public holidays.

Since the acceptance of letters is not a well-established practice yet, it would not be correct to say that the letters will be accepted by all municipalities. However, we have personally experienced that the Club Letters were accepted by the Municipalities of Kocaeli, Mersin and Istanbul.

The Authorities only accepts the letters in Turkish. Therefore, the letters should be issued both in English and Turkish or the letters in English should be translated into Turkish by a sworn translator of a notary.

You may see below the translation of the Club LoU wording drafted by the commission and used previously in our cases for the release of the vessels;

LETTER OF UNDERTAKING

Date
TO :
NAME OF THE VESSEL:
FLAG :
IMO NUMBER :
CALL SIGN :
DATE :
INCIDENT :
PLACE:

Prof. Dr. M. Fehmi Ülgener

I. Regulation as per Turkish Commercial Code (TTK)

The seaworthiness issue has been dealt within the article 1141 under two sub-sections.

The sub-article (1) puts forward the obligation of the carrier to make the vessel sea, voyage and cargoworthy. According to Turkish Law the “worthiness issue” covers three topics:

-“seaworthiness” refers to the general navigation ability and safety of the vessel, also including the particulars of the intended voyage
-“voyageworthiness” refers to any other subject which refers to the ability for the vessel to complete the intended voyage, which would include her crew, certificates, maps and firefighting capacity, etc.
-“cargoworthiness” refers to the ability of the vessel to carry the particular cargo safely to its destination, therefore this covers the holds, hatch-covers, ventilation, etc.
Sub-article (2) stipulates the liability of the carrier. In line with the old code and Hague-Visby Rules and unlike Hamburg and especially Rotterdam Rules, the new regulation in respect of the seaworthiness is for the commencement of the voyage and does not require a continuing obligation for the carrier.

(1) the carrier is under the obligation to make the vessel sea, voyage and cargoworthy for any kind of contract of affreighment.

(2) The carrier is liable for the losses arising out of unworthiness of the vessel for sea, voyage and cargo aspects, unless it cannot be able to get discovered until the commencement of the voyage even the carrier acts like a prudent carrier.

II. Practical issues

According Turkish Law, the burden of proof for a claim based on unseaworthiness is as follows:

•Normally both parties will present their evidences during the dedicated stage; the defendants (the owners of the vessel) will submit all kind of evidences, which are showing the seaworthiness of the vessel at the commencement of voyage. Class certificates, safe manning certificates, hold inspections, etc. are all serving this purpose. With those documents, the defendants will create a prima facie evidence that the vessel was seaworthy.

•The claimants’ duty is to challenge this, in other words they have to prove the unseaworthiness, their loss or damage and the causation between.

•Later on the defendants have several possibilities to escape from liability, even if there is an established unseaworthiness of the vessel, they have to show that the causation is resting with another issue rather than the unseaworthiness;

-To prove that the cause of the loss or damage was something which the carrier cannot be liable. For example wrongful stowage when loading, in this dispute there are some technical expert reports showing that the cause was inherent vice of the cargo, improper ventilation, faulty stowage, handling the cargo negligently during the voyage, all showing that the cause was not the unseaworthiness, to remind it, the carrier is only liable when there is an the actual fault or privity by himself.

-Alternatively, the defendants can escape liability even when there is seaworthiness, but which even a prudent carrier cannot discover.