Overview on Maritime Law in Turkey

Overview on Maritime Law in Turkey

The Law of Sea has been formed depending on the economic and commercial needs of humankind. After mankind has recognized all of its discoveries on land for centuries, people have tended to explore the seas and take advantage of the seas as much as possible. Humanity benefits from the seas for two main purposes. The first one is transportation and communication, the other one is the use and operation of the natural resources and wealth of the sea. In accordance with the economic and technological developments, the rise in the research and operation possibilities of the maritime areas and the rise in the maritime transport activities necessitate the reorganization of the maritime law in national and international arena. Since Turkey is surrounded by seas three sides and has more than 7,000 kilometres long coastline, maritime law is of the essence for Turkey.

Content and General Classification of Maritime Law in Turkey

Maritime Law deals with disputes concerning The Law of Sea and includes regulations governing some issues such as the legal regime of maritime areas, their different utilisations and the navigation of the ships. It is generally divided into four main sections: Maritime Law, Admiralty Law, Marine Insurance Law and Marine Labour Law. Although etymologically, “Maritime Law” and “The Law of Sea” are identical, the former term is generally applied to private shipping law, whereas the latter, usually prefixed by “international,” has come to signify the maritime segment of Public International Law[1].

Maritime Law deals with the disputes and regulates the relations that mostly derives from contracts about marine commerce and it may be comprehended as a part of Private Law. Admiralty Law includes the disagreements between states about the subjects such as high seas, exclusive economic zones(‘‘EEZs’’). This branch is considered within the scope of Public Law. In this area of law, the main dispute occurs from uncertainty of freedom of transportation in terms of law. The qualifications of merchant ships and national ships, and legal regime in the sea and fundamental issues, such as which state’s authority is dominant and the nationality of the ships, comprises the content. On the other hand, Marine Insurance Law contains regulations about the relationships that occurs between the insurer and the insurant or the aggrieved third party, such as cargo insurances and protection and indemnity insurances. This field of law is deemed to be in Private Law’s sphere. Lastly, Marine Labour Law manages the conflicts between the seamen and owner or charterer of ships. It is also one of the sub-branches of Private Law.

Related Sources of Maritime Law in Turkey

The main source of Turkish maritime law is the fifth book of Turkish Commercial Code(‘‘TCC’’) that regulates marine commerce comprising of eight main sections. The drafting committee of the TCC adopted the principle that domestic law must be brought into harmony with modern international conventions.[2] Although Turkey is not the contracting state to some international conventions such as United Nations Convention on the Law of the Sea, Hague- Visby Rules and Hamburg Rules, some of the articles of these conventions were considered while governing the related articles of TCC. In addition, the main principles of German Law on maritime trade and modern codes of European countries were considered in the preparation process of TCC.[3]

Some Definitions and Implementation of Related Laws of Maritime in Turkey

Several significant aspects, regulations and notions about Maritime Law exist whilst the range of disputes and application of some rules increasing day by day. Some fundamental concepts and their implementation in Turkey will be mentioned in this title, starting with the crucial term of “Ship”.

There is no straight definition of a ship valid for all situations under International Maritime Law. In a general definition, a ship indicates a transportation vehicle that carries people and goods at sea (under or above) depending on the supply and will of parties.[4] From the aspect of Maritime Law in Turkey, a ship is defines as a craft that is designated for movement on water. According to TCC, self-propelling is not criteria for ships. ‘Swim facility’ and ‘not being too small’ are stated criterias (TCC Art.931, para.1). According to TCC art. 931, para.2, if there is a purpose of economic benefit on water, or the ship is used for aforesaid purpose; without considering the person who used it or the usage is made for whose name or account, the ship shall be deemed to be a ‘‘Commercial Ship’’.

The owner is a person who uses his/her own ship to gain advantage on water. According to regulations and applications, the person who uses another person’s ship to provide benefit on water in that person’s name is deemed to be owner when there is a relationship with third person. In Turkish doctrine, that person is called ‘‘Bareboat Charterer’’. According to TCC, liabilities of the Owner and the Bareboat Charterer are based on the same regulations in relationships with third person. With the provisions of Turkish Code of Obligations (Art. 49, Art. 112, Art. 66 and Art. 116) and TCC (Art. 1062, Art. 1103, Art. 1104, Art. 1274, Art. 1288, Art. 1306 and Art. 1336) the owner is liable for his own and servants’ acts and omissions; his seamen’s and pilots’ faults; legal transactions performed by the master; general average contribution; faulty collision and salvage reward; marine pollution.[5] Sending his/her ship on a voyage is taking great risk of capital for owner. Because of this situation, international agreements have been made since the former times to limit the liability for the owner's debts in the maritime trade legislation.[6] The liability of the owner shall be limited according to 1976 Convention on Limitation of Liability for Maritime Claims(‘‘LLMC’’) and its 1996 Protocol, says TCC Art.1328.

A shipping partnership is defined as a partnership of several real or judicial persons, who employ a jointly owned ship in marine commerce (TCC Art. 1064). The provisions about shipping partnership are complementary in TCC, which means they can be implemented when there is lack of contractual provision concerning the issue.

The scope of Maritime Law is wide and variable. There are several regulations and customary practices on this aspect. Above, the content and main parts of The Law of Sea have been evaluated and the definition and applications of the basic concepts of Maritime Law in Turkey have been explained.

                                                                                                                                     

[1] Healy, N.J.,Maritime Law, Encyclopædia Britannica, January 22, 2020 ; https://www.britannica.com/topic/maritime-law

[2] DEĞİRMENCİ KULA, N: “Maritime Law in Turkey”, 1th Edition, İstanbul 2017, p.11

[3] DEĞİRMENCİ KULA, N: “Maritime Law in Turkey”, 1th Edition, İstanbul 2017, p.15

[4] KURAN, S: “Uluslararası Deniz Hukuku”, 3rd Edition, İstanbul 2009, p.13

[5] DEĞİRMENCİ KULA, N: “Maritime Law in Turkey”, 1th Edition, İstanbul 2017, p.70

[6] ENDER, R., Deniz Ticareti Hukukunda Donatanın Sınırlı Sorumluluğu (TTK Tasarısındaki Hükümlerin Değerlendirilmesi ile), Yeditepe Üniversitesi Hukuk Fakültesi Dergisi, Cilt: 2, Sayı: 2, Aralık 2005, p. 115- 138