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.
In this issue:
1. Liability of the Carrier for the Cargo
Liability of the Carrier for the Cargo
Gül Alpay Associate Lawyer
Generally speaking, the carrier (who undertakes to carry goods with the vessel he owns or charters) is obliged to deliver the cargo at the port of discharge, in the same condition which the vessel received them at the port of loading and the prime evidence of the condition of the cargo at the port of loading is the bill of lading. This is the global summary of the carriage of goods by the sea, regardless of if the contract of carriage refers a matter of jurisdiction or not and Turkey is no exception to that; however it has its own peculiarities, to which we would like to draw attention to.
The liability of the carrier due to loss or damage to the cargo is regulated in the Turkish Commercial Code (TCC) dated 01.07.2012 in line with the Hague-Visby Rules, but with some differences; such as the damages for delay (“economic damages”) are also included within the responsibility of the carrier. In this respect, TCC also bears some resemblance to the Hamburg Rules.
TCC regulates carrier's liability under two categories:
- loss or damage to cargo due to lack of care or negligence
- loss or damage resulting from unseaworthiness (at the commencement of the voyage) (want of due diligence on the part of the carrier to make the ship seaworthy)
In this issue, carrier’s liability arising from the loss or damage to cargo due to negligence will be studied. The liabilty for unseaworthiness will be evaluated in the next Eurasian.
1. Lack of Care or Negligence
Carrier must carefully and diligently load, stow, trim, carry and discharge the cargo. The treshold regarding the carrier’s duty of care is determined as “due diligence of a prudent carrier” which is interpreted strictly by the courts.
According to the Article 1178/3, the goods shall be deemed to be under the liability of the carrier from the moment they are received from the shipper or a person acting on his behalf or from the mandatory authorities at the port of loading which the cargo must be handed over for carriage in accordance with the law and regulations applied at the port until:
a) the date on which the goods are delivered to the consignee by the carrier or
b) In cases where the consignee refrains from receiving the goods, the moment which the goods are at the disposal of the consignee in accordance with the contract or the law or the commercial practice at the port of discharge or
c) the moment the goods are delivered to the mandatory authorities or third parties in accordance with the applicable law and regulations at the port of discharge.
The parties can agree in the contract that the loading, stowing and discharging will be performed by the shipper or the consignee. (i.e. FIO clauses). However, it is important to mention that such a situation does not eliminate the duty of care of carrier during loading and discharge.
2. Exceptions of Liability
2.1.Cases which cannot be attributed to the Carrier
a.Fault in the Technical Management or Fire
As per article 1179 of TCC, the carrier shall not be liable for the losses which do not arise from the actions of himself or his servants; however the burden of proof lies with the carrier.
If the damage or loss occur due to a fault of vessel’s navigation or technical management or fire, the carrier is solely liable for his own negligence. In other words, in such cases, he will not be liable for his servants’ negligence. In case of doubt, it is assumed that the damage is not the result of technical management.
b. Saving Lives or Property at Sea
As per article 1181, the carrier, saving lives and property at sea is not liable for any damages resulting from the rescue or the attempt; except from general average. If the attempt is solely for the goods, the course of action must be reasonable.
2.2. Prima Facie Evidence in favour of the Carrier
TCC article 1182 states that below mentioned circumstances create prima facie evidence that the carrier is not liabile:
1-Perils and accidents which occur at sea or on waters which the vessel operate upon
2-Acts of war, commotions, riots, act of public enemies, orders by authorities or quarantine restrictions
4-Strikes, lock-outs or other labour restrains
5-Acts or omisions of the shipper or the owner of the goods and their agents or their represantatives
6-Wastage in volume or weight by itself or an inherent defect of the goods or the natural type or quality of the goods
If it is proven that the carrier is responsible for the occurance of above mentioned circumstances he cannot be excused from liability.
3. The Burden of Proof
The burden of proof is primarily lies with the claimant with some exceptions as mentioned above. The claimant has to prove the following items:
a.The right to sue: That the claimant is the bill of lading holder or the cargo underwriter suing the carrier based on the right of subrogation.
b.The right to be sued: That the opponent party is the carrier or to be considered as a carrier.
c.The condition of the cargo at the time of loading: That the cargo has been delivered to the vessel in sound condition. The bill of lading with a “clean on board” remark will be enough for proving that issue as a prima facie evidence.
d.The condition of the cargo at the time of / or before discharging: That the cargo is in a damaged condition. For this purpose, a court ordered expertise or a joint survey with the attendence of both parties needed.
e.The amount of claim: That the damage regarding the cargo has been in a certain amount. This can be proved usually with an invoice showing the sound market value of the cargo.
If the above-mentioned conditions are proved by the claimant, the burden of proof passes to the carrier. The carrier can avoid liability by proving two conditions;
a.The cause of the loss or damage,
b.The loss or damage which occured could not have been avoided even by the diligence of a prudent carrier.
In the next issue of Eurasian we will be evaluating loss or damage to cargo due to unseaworthiness!
1. In a case subject to the decision numbered E. 2013/15039, K. 2014/17925, and dated 19.11.2014 of 11th Chamber of the Supreme Court, the claimant claimed that the cargo got damaged during loading and stowage and that the carrier was liable for not showing the necessary care and diligence during the loading and stowing operations. Supreme Court decided that the carrier has a duty of care even though there is a FIOS clause in the bill of lading. Accordingly, It was decided that the parties were jointly liable for the damage.
2. According to a decision numbered E.2018/11-624, K. 2018/1566 and dated 25.10.2018 of General Assembly of the Supreme Court, If the fire is a result of a technical fault of the seafarers, that is, not paying due attention to the cargo (i.e. lighting matches or candles in the hold), the carrier is not liable. However, if the fire is due to the fact that the carrier did not take due care to ensure that the vessel was seaworthy or cargoworthy at the beginning of the voyage he is liable for the damages.
3. In accordance with a decision numbered E. 2020/691 K. 2020/5087 and dated 16.11.2020 of 11th Chamber of the Supreme Court, If there is a FCL shipment, carrier has no obligation regarding the stowage of the goods inside the container. However in a decision numbered E. 2016/10471 K. 2018/4700 dated 31.05.2018, 11th Chamber of the Supreme Court decided that, containers which are supplied by the carrier, are continuation of the vessel’s hold. Therefore an unworthiness regarding containers equals to unworthiness of the vessel. Accordingly the court held carrier liable for the damage.
Prof. Ulgener's new book "The liability of the Marine Insurer and Causa Proxima" is out!
In the first part of the book, the rule of Causa Proxima and the theories in this field in general and in marine insurance are analysed. In the second part, which is mainly focused on practice; global topics on maritime trade and insurance, English Law and legislation are examined in detail.
The book sheds light on all types of marine insurances such as hull insurance (h&m), freight and loss of profit insurance and cargo insurance as well as liability insurance, more commonly known as club (P&I) insurance. Also the importance of companies which are the members of “The International Group” is underlined.
The following are some of the topics covered in the book;
- the meaning of force majeure in terms of marine insurance,
- third party's right to apply to the club,
- the payment of insurance indemnity where there is more than one cause giving rise to the damage,
- problems caused by the difference between the value of the ship stated in the policy and the current value in the market,
- the effects of inaccuracy of information provided to the insurer prior to the contract
Legal issues arising from such practices are examined and explained in parallel with English Court Decisions.
For your questions, ideas and inputs please contact us at email@example.com