2020/1

     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. Definitive guide to Crew Claims as per Turkish Jurisdiction
2. New tariff and tips for the pollution fines

Duygu Yazıcı, LLM

Crew claims can become rather complicated especially when the dispute involves different nationalities and jurisdictions and could involve significant amounts of funds. From the aspect of Turkish Practice, we felt the need to emphasize some important issues.

As one can imagine, what we will discuss here below is the claims arising out of the employment contract, excluding those in respect of unpaid wages or other benefits, but including injury, loss of life and other compensation demands.

As one can expect, there is a positive tendency towards crew claims in Turkish practice; i.e. some terms are being interpreted in favour of the crew member like;

The above mentioned tendency is important when negotiating the claim with the claimant, (could be crew member himself or the next of kin) since if the matter would go to litigation, the outcome of such will not be a very promising end scenario for the owners.

Before exploring the peculiarities of Turkish practice, we need to draw the borders of Turkish Jurisdiction.

To begin with, we must say that even if there is a reference to a collective agreement (such as ITF Uniform TCC Collective Agreement) in the employment contract, the compensation figures in the collective agreement are not considered as binding by the courts and the material compensation is still being calculated as per the Court of Appeal approved formulas. This approach is not contrary to the provisions of ITF agreement since it has been stated in the agreement that any compensation payment effected under the ITF Agreement shall be without prejudice to any claim for compensation made in law, but shall be deducted from any settlement in respect of such claim.

If the vessel is Turkish flagged and the crew member/decedent was a member of Social Security System, then Social Security Authority also makes a compensation payment to crew member/next of kin. Accordingly, the payment of SSA should be deducted from Owners’ compensation payment.

The time bar for the issues mentioned in this article is ten years.

1. Turkish flagged vessels
Turkish crew member: According to the Labour Courts Act, any claim arising out of or in connection with the contract of employ-ment should be filed at the court where the owners’ office is registered. In case of a work accident, the place (if in Turkey) where the accident occurred will also have the jurisdiction.

Foreign crew member: According to the Turkish International Private and Civil Procedure Law article 44, the crew members are entitled to bring a claim at the court where the owners’ office is registered. If the crew member lives in Turkey, then the court where he lives will also have the jurisdiction. 

Even if there is a jurisdiction clause in the contract of employment, the Turkish courts will still have the jurisdiction as per the Turkish International Private and Civil Procedure Law.

2. Foreign flagged vessels
Turkish crew member: According to the Turkish International Private and Civil Procedure Law article 44, the crew members are entitled to bring a claim at the court where they reside, in which case, owners will be informed of the case through international notification procedure and they should attend the case by appointing a lawyer in Turkey.

Foreign crew member: If both the vessel and the crew member are foreign, it is not possible to file a claim in Turkish courts.

As mentioned above, as long as the claimant complies with the usual practice, a crew claim should be amicably settled. But what is the usual practice ? Below is the formula, simple but efficient:
 

• to obtain an actuary report regarding the material compensation.
• to talk with the claimant for convinc-ing him to accept an amount in line with the actuary report (plus moral compensation, see below) and to sign a settlement protocol.
• to ask the claimant to sue the ship owners to declare during the hearing that the parties reached an  amicable settlement and to waive all rights.
• to submit the protocol to the court.
• DO NOT MAKE PAYMENT IN ANY OTHER WAY, even a notarized settlement does not avoid unexpected further claims.

IV. Compensation Amount

1. Material Compensation

Please find below the new rates for pollution fines for 2020.

Please also bear in mind the following important issues:

1. This increase is averaging the fine amounts in TRY by the USD exchange rate, ie the TRY amount converted to USD as per 1.1.2019 and 1.1.2020 is approximately same.

2. The Environmental Act has been also amended on 28.11.2018, which also provides that if the violation of the code, i.e. the pollution was caused by an organization, institution or a commercial entity, the fines as mentioned below are to be multiplied by three. Therefore, since all vessels are registered on a commercial entity, i.e. a company, one should take into account such fines always as “x 3”.

3. In case the pollution is caused by dangerous goods, the fine will be multiplied by 10 of the amount as per category “C” below.

4. The Owners may take advantage of %25 discount if the fine is paid within 30 days after receipt of the fine letter/decision by the agent. In order to release the detained vessel promptly, provision a club letter (with an undertaking for payment within 30 days) is necessary.

5. Also another important point is that payment of the fine does not mean a waiver of the right to object against the fine (by launching a court case at the administrative court)

6. The issuance of the fine does not mean that it is the sole financial outcome of the pollution; the authority in some cases may also claims damages or asks security for possible damages (including third party damages)

7. According the Environmetal Act, club letter’s are acceptable, however in some cases such acceptance has to be negotiated and / or explained to authority. (rather in smaller ports where daily practice of shipping is less frequent.)

(1 January 2020 – 31 December 2020)