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. P&I Share Of Salvage Administritive Investigation And Fines
P&I Share Of Salvage Administritive Investigation And Fines
Gül Alpay Associate Lawyer
Transit through Bosphorus and Dardanelles is generally considered as not risk-free and each year there are several salvage operations performed in these waters. This area is the monopoly area (including the Sea of Marmara) and the state-owned Coastal Safety Administration is privileged to conduct salvage operations within such area. The legal aspects of those salvage operations are covered by Dr Ulgener’s various articles; therefore, we will not scrutinize in this article on the salvage and the related remuneration aspects. It is enough to emphasize that salvage costs, including the salvors’ remuneration falls under the hull policy and does not concern the P&I insurer. However, as per the conditions of each case, explained here below, the harbour master may initiate an administrative investigation, which is totally independent from the salvage aspect and could have the same potential to delay the ships’ departure from the port after the incident, i.e. if the investigation is not closed, the ship will be detained even though the remuneration for the salvage has been paid to Coastal Safety Administration. The consequences of the incident (which gave rise to the salvage operation) this time falls on the P&I insurer, which is usually regulated under the section titled Enquiry Expenses within the club rules. (1)
In accordance with the Article 39 of the Ports Regulation, every vessel which is in one of the Turkish Ports’ administrative areas must fulfil the requirements of the law aimed at ensuring the safety and security of navigation, life, property and the environment.
If the harbour master is of the opinion that an incident which occurred in the administrative area of the port, violates the provisions of the legislation and puts the safety of navigation, life, property, and the environment at risk, he initiates an administrative investigation. The file prepared as a result of this investigation is sent to the related department of the Ministry of Transport.
The vessel subject to the administrative investigation is not allowed to sail until the investigation is completed. The crew and the coastal facility officials are obliged to provide the necessary convenience and cooperation during the port authority’s examination.
Below are, some of the documents which are usually requested for the investigation file:
-Incident scene sketch which is drawn by the master
-Nautical map of the incident site
-Sea protest which is taken by the Court.
-P&I and H&M insurance policies
After all the documents are delivered to the Port Authority, the master and the two other crew members are asked to go to the Port Authority to give statements regarding the incident.
After the documents to be taken from the vessel are collected, an application is made to the court for a sea protest with the power of attorney given by the Master.
According to the Turkish Commercial Code, issuing a sea protest is one of the works that should be examined immediately by the court. In practice, courts usually give the date for the sea protest hearing to the next day of the application. The master and two other crew members who are related or saw the incident are called to the hearing.
During the hearing, important events of the voyage, the reason for the occurrence of the incident and the measures which were taken to prevent or reduce damage are tried to be determined fully and clearly by the court.
At the end of the hearing, no sanctions or penalties are applied to the crew or the owner by the court. Accordingly, the sea protest can be considered as an official recording of the event that occurred.
Procedures at the Port Authority
As stated above, after all documents, including the sea protest, are delivered to the Port Authority, an appointment is given for the master and two other crew members to give statements at the Port Authority.
Similar to the one in court, the incident that took place is told by the crew members and is recorded by the Port Authority officials.
After this procedure, the crew generally do not need to go ashore again. However, in some cases, the harbour master may request the master one more time for additional questions.
Fines are also covered by the P&I policy, but under a separate rule(2).
According to Article 39 of Ports Regulation, administrative fines are applied to those who violate the provisions of legislation regarding the safety of navigation, life, property, and the environment, pursuant to the Ports Law No. 618 and Law on Protection of Life and Property at Sea No. 4922.
The implementation of administrative fines in case of violation of the articles of the Ports Regulation does not prevent the implementation of other penalties and measures stipulated in other national legislation and international conventions.
According to the Misdemeanour Law, the administrative fine must be paid to the authorized finance cashier within 15 days from the date of the notification. This decision can be appealed at the administrative court.
The sum shall be collected at once in cash or shall be paid in 4 equal instalments, provided that the first instalment is paid in advance. In case the entire administrative fine is paid in advance, a 1/4 reduction is applied. Paying the administrative fine in advance does not prevent the application to the judiciary.
Although it may vary according to the nature of the incident, the procedures usually end within 5 to 7 days.
1. Enquiry expenses
Costs and expenses incurred by an Owner in defending itself or in protecting its interests before a formal enquiry into the loss of or into a casualty involving the entered ship but only to the extent and on such conditions as the Members’ Committee in its discretion may determine.
A. Fines as set out in paragraphs (B) to (F) below when and to the extent that they are imposed in respect of an entered ship by any court, tribunal or authority and are imposed: upon the Owner, or upon any person whom the Owner may be legally liable to reimburse (other than under the terms of a contract or indemnity) or reasonably reimburses with the approval of the Managers, or upon any person whom the Owner may be legally liable to reimburse under the terms of a contract or indemnity, but only if and to the extent that such terms have previously been approved by the Managers in writing;
B. Fines for short or overlanding or over delivery of cargo, or for failureto comply with regulations relating to declaration of goods or to documentation of the entered ship in respect of its cargo (other than fines or penalties arising from the smuggling of goods or cargo or any attempt thereat);
C. Fines for contravention of any law or regulation relating to immigration;
D. Fines in respect of an accidental discharge or escape of oil or other substance, or the threat thereof;
PROVIDED ALWAYS that:
There shall be no recovery from the Association in respect of fines arising out of
a) the overloading of an entered ship or
b) infringements or violations of or non-compliance with the provisions regarding construction, adaptation and equipment of ships contained in the International Convention for the Prevention of Pollution from Ships, 1973, as modified or amended by the Protocol of 1978 and any subsequent Protocol, or such of those aforesaid provisions as are contained in the laws of any State giving effect to that Convention or to such Protocol.
E Any fine to the extent that the Owner has satisfied the Members’ Committee that it took such steps as appear to the Members’ Committee to be reasonable to avoid the event giving rise to such fine and the Members’ Committee in its discretion and without having to give any reasons for their decision, decides that the Owner should recover.
F Notwithstanding the terms of Rule 5(G)(i), the Members’ Committee in its discretion may authorise the payment, in whole or in part, of an Owner’s claim for loss of an entered ship following confiscation of the ship by any legally empowered court, tribunal or authority by reason of the infringement of any customs law or customs regulation:
PROVIDED ALWAYS that:
a) the amount recoverable from the Association shall under no circumstances exceed the market value of the ship without commitment at the date of the confiscation;
b) the Owner shall have satisfied the Members’ Committee that it took such steps as appear to the Members’ Committee to be reasonable to prevent the infringement of the customs law or regulation giving rise to the confiscation;
c) any amount claimed under this paragraph (G) of Section 22 shall be recoverable to such extent only as the Members’ Committee in its discretion may determine without having to give any reasons for its decision.