Ulgener

Gül Alpay
Associate Lawyer

The Supreme Court Assembly of Civil Chambers put an end to a dispute between The Court of First Instance and 11th Civil Chamber of the Court of Appeal, in a case regarding the compensation of the damage suffered by the claimant due to the cargo being completely lost as a result of the fire on the ship.

Pursuant to Turkish Commercial Code (TCC), the carrier is liable for the loss or damage due to fire only if the fire is caused by his own fault; however, if the fire occurred due to the fact that the seafarers did not take due care to ensure that the ship was seaworthy at the beginning of the voyage, the carrier cannot escape liability.

The carrier can prove the seaworthiness of the ship with the certificates obtained from the classification societies and the inspections made by the independent institutions. Since the certificates and documents presented constitute a prima facie evidence in favour of the carrier, the burden of proof passes to the other party (cargo owner). Accordingly, cargo owner must prove that the ship was not initially seaworthy despite these documents. If the cargo owner proves the unseaworthiness, the burden of proof passes back to the carrier. In such a case, the carrier must prove that it was not possible to discover the unseaworthiness at the beginning of the voyage in order to escape liability.

In the concrete case, the dispute between The Court of First Instance and 11th Civil Chamber of the Court of Appeal is whether the seafarers were inadequate in responding to the fire and whether this incident should be regarded as an unseaworthiness that entails the liability of the carrier.

It was determined in the expert reports that the technical equipment of the ship complied with the legislation and that there was no defect in the machinery and this was accepted by The Court of First Instance. The issue was whether the seafarers were sufficient to respond to the fire or not.

The Court of First Instance decided that the ship was unseaworthy at the beginning of the voyage due to the fact that seafarers could not respond to the fire as needed and were insufficient to activate the necessary equipment. Accordingly, the carrier was held liable.

The defendant (carrier) appealed this decision. 11th Civil Chamber of the Court of Appeal overturned the decision and stated that the certificates and documents which were submitted to the file proved that the seafarers were trained and had sufficient knowledge regarding responding to fire. This created a prima facie evidence in favour of the carrier that the ship was seaworthy, and that the contrary could not be proven by the claimant.

The Court of First Instance did not agree with the decision of 11th Civil Chamber of the Court of Appeal and resisted on the first decision, which held the carrier liable; therefore, the file was sent to The Supreme Court Assembly of Civil Chambers, which is the competent court in case of conflict between the courts.

The Supreme Court Assembly of Civil Chambers decided that a fire of this magnitude is the most dangerous event that can be encountered at sea, and that the seafarers were trained and had knowledge regarding responding to fire according to the certificates which were submitted to the file and the contrary could not be proven by the claimant.

The seafarers’ failure to intervene in the fire was due to purely human emotions that could occur in such an extraordinary situation such as fear of life and panic. The Supreme Court Assembly of Civil Chambers decided that such a situation does not mean an unseaworthiness of the ship at the beginning of the voyage; therefore, the carrier was not held liable.1

1 The Supreme Court Assembly of Civil Chambers decision numbered E. 2019/317, K. 2019/628, dated 30.5.2019