Provisions regarding Maritime Trade Law are regulated in the Fifth Book of our Turkish Commercial Code.
The lawmaker made the definition of the ship in the first paragraph of Article 931 as follows. "Every vehicle whose purpose it is assigned is to move in water, has a swimming feature and is not very small, is considered to be a" ship "in terms of this Law, even though it is not possible to move by itself." In the second paragraph of the same article, the definition of the merchant ship is made as follows. "Any ship allocated for the purpose of economic interest in the water or actually used for such a purpose is considered a " merchant ship " by regardless of whom and on whose behalf or account it is used."
According to the Law of States, the ship is accepted as a legal entity and business, and important duties and responsibilities are assigned to the carrier in the transportation of passengers and cargo.
The carrier must first make its ship suitable for sea and cargo in accordance with the provisions of the "SOLAS" Life and Property at Sea Convention.In addition to this, it should be equipped for sea travel and have certificates of suitability for navigation as required by the flag state to which it is affiliated and international rules.Merchant ships that do not have these documents are prohibited from making commercial voyages.
Ships are considered as movable property in terms of the implementation of both the Turkish Commercial Code and other Codes, regardless of whether they are registered in the registry in terms of movables-immovables separation.However, there are exceptions to this rule.
The provisions of movables do not apply to ships that are clearly stated to be subject to the provisions regarding immovables in the Execution and Bankruptcy Law.
It is stated in the article 429/2 of our Turkish Civil Code that in cases of purchase, sale, pledge and any other real rights on them, the ship will be subject to the immovable provisions and the ship registry will be evaluated within the scope of the provisions regarding the land registry. In the article 444 sale of immovables and article 523 limited heir and assurance, the ship will be subject to immovable provisions. Again, Article 635 states that in cases of liquidation of the inheritance through the ordinary procedure, regardless of whether the construction of the ship has been completed or not, it will be subject to the immovable provisions and the ship registry will be evaluated within the scope of the provisions regarding the land registry.
AUTHORIZED AND COMPETENT COURT IN DISPUTES ARISING FROM MARITIME TRADE LAW
In the determination of the court in charge of the disputes arising from the Maritime Trade Law, paragraph 2 of Article 5, which is regulated in our Turkish Commercial Code No. 6102, will be taken into consideration. Lawsuits that are under the scope of the court of general juricdiction and deemed to be commercial under the provisions of article 4 of the same law and other matters to be held in the commercial court in accordance with special provisions will be dealt with in the commercial court of first instance. If there is more than one commercial court of first instance in one place, one or more of the commercial courts of first instance may be assigned by the Council of Judges and Prosecutors to deal exclusively with legal cases related to maritime trade and maritime insurance arising from the Turkish Commercial Code and other laws.
Therefore, if there is no specially authorized commercial court of first instance, civil courts of general jurisdiction is competent.
Shipman
Shipman include captains, officers, crew and other persons employed on board.
SHIP NAME
The first Turkish owner of the ship registers the name of the ship.
The name of the ship can be freely determined.However, it should be noted that it should not be allowed to have the same name as another ship.Changing the name of the ship after its registration and approval is subject to the permission of the Ministry.
In addition to the name of the ship, the port of registry must also be written on the board.Otherwise, a penalty of imprisonment or a fine has been stipulated against the captain.
In addition, it is obligatory to write the name of the ship on its hull in indelible, indestructible and easily readable letters.
TURKISH SHIP AND THE RIGHT OF A TURKISH FLAG
It is regulated in Article 940 of the Turkish Commercial Code that every Turkish ship will fly a Turkish flag.The right to fly the Turkish flag is documented and proven with the ship’s certificate of registry. If the certificate of the ship has not been received yet, it cannot fly the Turkish flag.
The ship's certificate or its copy certified by the registry office or the flag certificate are mandatory documents to be on ship during the voyage.
Ships of less than 18 gross tonnages, yachts, and sailor training vessels, etc., which are for the purpose of excursion, sports, education, training and science, are not obliged to obtain a flag certificate.These ships can fly the Turkish flag without a certification.
The ships considered as Turkish ships are as follows:
Ships belonging only to Turkish citizens,
Ships where the majority of shares belong to Turkish citizens in case of shared ownership,
Ships in which the majority of the owners are Turkish citizens in case of joint ownership,
Ships established in accordance with Turkish laws in which the majority of the persons constituting the governing body of organizations, institutions, associations and foundations with legal personality are Turkish citizens and the majority of the people have the vote rights are Turkish partners according to the articles of association,
In joint stock companies and commandite partnerships divided into shares, ships belonging to persons whose majority of the shares are registered and the transfer to a foreigner is subject to the approval of the company's board of directors,
Ships belonging to the Turkish registry, where more than half of the stakeholders are Turkish citizens and the majority of the stakeholders who are authorized to manage the association of shipowners are Turkish citizens,
After the above is arranged, exceptional circumstances are counted in article 941 of the TCC.
If the right to fly the Turkish Flag is lost, the situation must be reported to the Ministry without delay.The Undersecretariat may allow the Turkish flag to be hoisted for a maximum of 6 months, depending on the situation.
For ships purchased from abroad, it is mandatory to obtain a flag certificate from the Turkish Consulate where the ship is located before starting the journey.Otherwise, they cannot fly the Turkish Flag.Although the flag certificate can be given for a maximum of one year, it is possible to extend the period in case of force majeure.
Masters of the ship flying the Turkish flag without a certificate are sentenced to imprisonment and judicial fines according to their conditions.
SHIP REGISTRATION
Ships are mainly registered with the registry office to which the port of registry is subject. However, if the ship voyages are managed from a foreign port or a land city or from a ship itself, the owner of the ship can register it in the registry of any place.
The ship owner who has not a residential place in turkey or has not a commercial enterprise, must present a person who lives in the same area with the registry office as a representative in order to use the rights and powers arising from the law.
A separate and special registry is kept for ships under construction.
To the special registry in the registry office to which the shipbuilding place is affiliated;
At the request of its owner,
If a mortgage right is required to be established on the ship,
For the precautionary or final attachment of the building,
In order to guarantee the right of claim of the shipyard owner for the establishment of a ship mortgage,
It can be registered for the reasons listed above.
REGISTRATION OF SHIP'S OWNERSHIP WITH THE REGISTRY, CANCEL AND CORRECTION
The ship registry is open and the principle of trust in the registry prevails. Everyone can examine the registry records and take certified or unapproved copies provided that they pay the expense.
The person who is registered as owner in the ship registry is deemed to be the owner as presumption. Those who have registered a ship mortgage, a right on the mortgage or usufruct right are also deemed to be owners of that right.
For the transfer of a ship registered in the ship registry, first of all, the owner and the acquirer must agree on the transfer of the ownership to the acquirer. With the transfer of possession of the ship, a written agreement regarding the transfer of ownership must be made and the signatures of the parties must be notarized.
The parties can also conclude the agreement directly at the ship registry office if they wish.
Claims arising from registered real rights are not subject to statute of limitations as long as the registration continues.
The concept of ownership of the ship and the concept of ownership regulated in article 683 of our Turkish Civil Code is the same.However, special provisions have been regulated in the maritime law regarding the acquisition and loss of ship ownership. For the assignment of a ship registered in the ship registry, the agreement of the owner and the acquirer regarding the transfer of ownership to the acquirer is required and sufficient. Unlike the land registry, this agreement is not subject to any form conditions.
If the ownership is transferred outside the registry, correction of the registration can be requested by applying to the registry. Those concerned can object against the transaction to be made and the decision made by the registry manager.
The legal provision of the ownership change to be made in the registry by the registry office is deemed as the correction of the registry. In the registration, cancellation and correction procedures to be made to the ship registries, the relevant person must apply with a request.
A request can not be made from the court with a request for the registration of any relevant ship ownership.
However, the rights of the concerned parties to object to the decisions of the registrar as described in Article 864 of the TCC are reserved according to Article 36.
THE IMPORTANCE OF DETERMINING THE RIGHT OF SHIP'S OWNERSHIP IN TERMS OF THE CASE
The determination of the law according to which the ownership right of the ship should be determined is important in ships with foreign elements and in legal disputes. It must first be handled by the court at the trial stage.
In accordance with the first article of the Law No. 5718 on International Private Law and Procedural Law, the law to be applied in private law transactions and relations with foreign elements in terms of the parties (subjects) of the legal relationship is determined.
The judge shall ex officio apply the Turkish conflict Laws and the foreign law authorized according to these rules. (ARTICLE 2/1)
According to articles 22/1 and 22/2 of MÖHUK, real rights on air, sea and rail transportation vehicles are subject to the law of the country of origin.
The country of origin is the place of registration where real rights are registered in air and sea transportation vehicles. In sea transport, this is the place of registration, otherwise it is the port of registry. It is a license place for rail transport vehicles.
The 8th Civil Chamber of the Court of Cassation ruled as follows in its decision numbered 2015/19341 E., 2017/12867 K. " The work to be done by the court; First of all, the parties should be given time and opportunity to submit to the court the translated articles of law, relevant information and documents and all documents required for the resolution of the case, which are in their national law. If necessary, the provisions of the european convention on information on foreign law should also be used. Considering the relevant articles of MÖHUK numbered 5718 in the solution of the case, the necessary information and documents according to the national law of the parties and Turkish samples of the articles of the law should be provided. Then, a report should be obtained by submitting to an expert expert on State Private Law, Enforcement and Bankruptcy Law and Maritime Trade Law together with the file. The clear report should be obtained for the inspection of the reasoned parties and the Court of Cassation in accordance with the resolution of the case and the law of the country of origin, and a decision should be made according to the situation that will occur after that.Making a decision by ignoring the country of origin law is against the procedure and the law. "
SHIP MORTGAGE AND PERIOD OF LIMITATION
Registration of the mortgage of the ship prevents the lapse of time about the receivable.(Turkish Commercial Code article 984/3)
The statute of limitations does not stop in terms of claims for compensation with accumulated actions that need to be performed at a certain time.
Provisional Remedy AND Attachment PROCEDURES ON THE SHIP
First of all, the creditor must have taken a decision regarding the attachment from the authorized executive office or the court authorized to apply precautionary procedures.
With a letter to be written to the ship registry office based on this decision, attachment and precautionary procedures are recorded in the registry.
Derelict ship
A Derelict ship is a ship whose owner cannot be identified from the registry records or whose ownership has been duly abandoned.
Under Article 998 of our Turkish Commercial Code, the right to own a Derelict ship belongs solely to the State.
Ordinary lapse of time
ARTICLE 999- (1)There may be a person registered as the owner of the ship registry, although not the owner of a ship registered in the registry. In this case, the ownership of the ship is acquired provided that the registration lasts for at least five years and that it holds the ship as the absolute owner without trial and without any action.
Extraordinary lapse of time
ARTICLE 1000- (1)A person who has possession of a ship which has not been registered in the registry for at least ten years without a trial and continuously as a absolute owner, may request that the ship be registered as its own property.
(2) There may be a ship that has been registered in the name of a person who died at least ten years ago or was decided to be absent, and anything has not been recorded for ten years subject to the approval of the owner. Under the conditions specified in the first paragraph, the person who hold the ship may request that this ship be registered as the owner. The calculation, interruption and suspension of the possession period are subject to the provisions of the Turkish Code of Obligations regarding the prescription of receivables.
(3) Registration can only be done by court decision. Registration case are filed against the registry office where the ship is registered or to be registered. The court invites the relevant persons to submit their objections by setting a period of three months at most, with an advertisement to be made in a newspaper with a circulation of over fifty and distributed at the dormitory level. If the objection is not made or the objection is rejected, the registration is decided.
(4) Before the registration decision is made, if a third party is registered as the owner or if an objection is given to the registry that the ship registry is not correct due to the ownership of the third party, the registration decision shall not be valid for the third party.
(5) The absolute owner acquires the ownership of the ship as soon as register themself in the registry based on the registration decision given by the court.
Shipowner and Association of shipowners
The shipowners who use their ship in the water in order to benefit from it are called the shipowner.
As can be understood from this definition, the ship is not required to be used only in seas.Ship owners are also named as ship owner for commercial use on rivers and lakes.
The law maker has stipulated that the person who uses the ship personally or through the captain for the purpose of gaining benefits even though the ship does not own the property rights will be deemed to be the owner of the ship against third parties.
Association of ownership is established by signing a contract to use a ship owned by more than one person in the water on behalf and account of all in order to benefit.
Association of shipowners is registered within 15 days from the establishment of the association.
Articles 1067 and 1087 of the TCC will be applied if the stakeholders do not make a provision in the contract regarding the legal relationship between themselves and how the Association of shipowners will be represented.
THE SCOPE OF THE CAPTAIN'S AUTHORITY TO WITHDRAW CREDIT
As a rule, if the captain is under a condition that make obliged to protect the ship or make the voyage, it is accepted that she/he is authorized to borrow money or borrow goods and similar loan transactions in the amount required to meet these needs.
However, in the validity of these transactions, it is not considered whether the transaction made by the captain is suitable for the purpose or whether the money or other things provided by this transaction were actually used for the protection of the ship or for the voyage.
If the third person knows that the captain is unauthorized or that intends to use the credit provided for other purposes, or if the third person's ignorance constitutes a gross negligence, the captain's transactions with the third party will not bind the ship owner.
In the case of foreign exchange commitments, the captain must be clearly authorized by the owner. Otherwise, the exchange commitments made by the captain do not bind the ship owner.
Turkish Commercial Code article 1109- (1)The shipowner acquires rights and becomes indebted to third parties for the legal actions she/he has made within her/his legal powers as the person who manages the ship, with or without notifying the third parties that the captain acts on her/his behalf.
The captain can make extraordinary repairs and purchases only in case of necessity, even if she/he has sufficient funds of the ship owner.
If the captain's need for money originates from a general average and is able to apply one of different measures to meet this, she/he has to choose the one that will cause the least harm to those concerned.
SHIP LEASE CONTRACT.
It is a contract in which the rights to use the ship by the lessor for a certain period of time are left to the tenant in return for the rental fee.
Seamen may also be included in the content of the SHIP LEASE CONTRACT. Even this situation does not change the nature of the contract.
The tenant obtains the right to use the ship as she/he wishes in accordance with the purpose and provisions stated in the lease.
One of the most important issues to be considered in ship lease contract is that the liability of insuring the ship belongs to the tenant.
The tenant is obliged to insure the maritime and liability risks for the period from the moment the lease is leased until the return of the ship, and to inform the lessor the insurance contract.
Another important issue is that the name of the lessor should be stated in the policy. In addition, the insurance must be made in favor of whoever will have.
The lessor's right of retention regarding the rent receivables has been specially regulated.
Contract of affreightment
As it is known, affreightment contracts are the name given to contracts issued due to the legal relationship established to transport goods at sea and are divided into two.
One is charter and the other is a contract of carriage of goods.
The following are required for a contract to be considered a affreightment contract.
Transport must be by sea,
Freight transport must be committed,
The freight to be transported can not pass into the property of the carrier person,
Freight cost must be paid for transportation work.
In all kinds of affreightment contracts, the carrier is obliged to ensure that the ship is suitable for sea, road and cargo.
If the shipper wishes to load other goods on the ship for the same port of arrival instead of the agreed goods, the carrier is obliged to accept this unless her/his situation becomes difficult. If the goods are determined individually in the contract, this provision is not applied. (TCC article 1144/1)
The carrier cannot load the goods on another ship without the consent of the shipper. If it loads, will be responsible for the damage. However, if she/he proves that the damage would occur even if she/he did not load the goods on another ship, she/he is relieved of the liability.
A preparatory notice is made for the ship ready to load. Although there is no formal requirement for the validity of the preparatory notice, it is important that it is made in writing in terms of the burden of proof.In addition, the notifying party must prove that the notification has reached the addressee.
The carrier is obliged to show the attention and care expected from a cautious carrier in the execution of the affreightment contract, especially in lading, stacking, transporting, protecting, monitoring and unloading the goods.
If the damage arises from the following reasons, the carrier and its men are not deemed to be at fault.
a) Dangers and accidents of the sea or other waters suitable for the operation of the ship.
b) War incidents, riots, actions of public enemies, orders of the authorities or quarantine restrictions.
c)Confiscation orders of the courts.
d) Strikes, lockouts or other work obstacles.
e) The acts or negligence of the shipper and the owner of the goods and their representatives and men.
f) Self-decrease in volume or weight or hidden defects of the goods or the natural type and quality of the goods.
g) Insufficiency of packaging.
h) Insufficiency of signs.
Loading time can be decided in the contract. If not agreed, it is assumed that the loading will be performed continuously for 24 hours. The time is calculated by taking into account the port to be loaded, the characteristics of the cargo, the ship performing the transport, the loading facility and vehicles.
The parties may decide in the contract that the carrier will wait longer than the loading time. The additional waited time is called demurrage time. If there is no determination as to how long the duration of the demurrage will be, but it is mentioned, this period is 10 (ten) days.
The debtor of the demurrage money born at the loading port is the shipper. The carrier is not obliged to set out the ship without the payment of demurrage money or adequate assurance.For this reason, the carrier for the extra waiting period may request the incurred entire damage from the shipper. (TCC article 1155/4)
Termination of the contract before the voyage begins
ARTICLE 1158-(1) The shipper may terminate the voyage charter contract until the ship completes its loading in accordance with that contract and starts the journey.
(2) As termination indemnity, the carrier may claim the gain that she/he has been deprived of due to the termination of the contract and the receivables that have arisen up to that time.In case of doubt, thirty percent of the total agreed freight is considered as lost gain. Within the time required for the execution of the terminated contract, the earnings obtained by the carrier by making new freight contracts are deducted from the compensation amount.
(3) In case the right of termination is used after the goods are taken to the ship, the carrier has to wait for the time required to unload the goods. This time is not counted from the loading or demurrage time. The carrier may claim all expenses and damages caused by the shipper due to the unload of the goods from the ship; In any case, this loss cannot be less than the demurrage fee for the lost time.
(4) If more than one voyage is to be made pursuant to the contract, the right of termination may be used separately for each or all of the journeys that have not started yet.
If the loading period has ended and the loading has not started yet although if agreed demurrage time has expired;
a) the carrier may consider the contract terminated
b) It may continue to wait for the lading to be done.
TIME CHARTER CONTRACT
The contract under which the commercial management of a ship is undertaken to be allocated to another person for a certain period of time and for a fee is called the time charter contract.
In this case, the person in charge of the technical management of the ship continues to be the possessor.
Allotter;???
a) is obliged to Keep the ship ready on the agreed date and place,
b) It is obliged to keep the ship suitable for sea and suitable for the purpose specified in the contract during the contract period.
Other party;
It is the person who undertakes the commercial management of the ship.The captain is also obliged to comply with the orders of the person allocated according to the provisions of the time charter contract.
It bears all expenses of the ship including fuel.
At the end of the contract period, it is obliged to return the ship to the allotter??? in the place and state agreed in the contract.