Today, as a result of the combination of developing technology and expanding trade volume, international trade, imports and exports have gained great importance. One of the most used transportation methods for export and import is sea transportation, as it is cheaper. There is almost no one who imports or exports but does not have them transported by sea. Do you know the risks that can be experienced in this type of transportation and your rights in case of a risk? In this article, the stages and legal processes of maritime transportation are written.
- Sea carriage and contractual obligation
One of the most important elements of maritime transport is the contract for maritime transport. Exporter and importer companies also determine how the goods subject to sale should be delivered to the buyer following the commercial sale agreement they have made between them. The delivery of the goods subject to sale by the exporter to the importer can be provided by one of the parties, or it can be done by freight forwarders who are specialized in these matters and have a wide service network.
The party accepting the responsibility for the transport and logistics activities in the commercial sale contract either carries out the transport itself or contacts an expert transport organizer. The transportation of the goods can be done by the freight forwarder or by other carrier companies. If the transport will be made by the transport organizer, the transport contract is made with this company.
If the transport is to be carried out by the transport organizer to the carrier companies, then a service contract, a transport contract between the transport organizer and the carrier is drawn up in order to fulfill the responsibiliites between the exporter or importer and the transport organizer. In this case, a two-structure contractual relationship emerges.
A contract of carriage is a contract that undertakes to transport goods (freight) by sea to one of the Parties (carrier) and to pay a fee to the other party (the shipper). It is a contract between the carrier and the shipper. It is important to pay attention to some issues when drawing up a contract of carriage between the parties. For example, it is useful to specify the properties and details of the goods to be transported in the contract. Because the information about the type and properties of the goods requires care, sensitivity, and experience in carrying. In addition, the cargoes in the ports to be transported vary in terms of both raw materials and products. Because of this diversity, it becomes important how and at what time each load should be transported. This situation requires knowledge and experience in the transportation process.
- Transport Responsibility
The carrier undertaking to transport goods from one port to another by international seaway must comply with the Hamburg Rules. With this contract, the carrier undertakes not only to transport but also to keep the goods received for transport in good condition and to deliver them at the port of destination. As a rule, the carrier is obliged to show the care and attention that a cautious carrier will show during the loading, stacking, handling, transportation, and unloading phases of the goods. Otherwise, he will be responsible for any damages that may occur.
The carrier is responsible for the loss or damage of the goods, or for the event that caused the loss, damage, or a delay in delivery, provided that the goods occurred during the period in which they are under its protection. In the Turkish Commercial Code, the carrier’s strict liability is foreseen for damages arising from the fault and negligence of the carrier’s men or the actual carrier. The said liability period covers the “port to port” period between the loading and unloading port, where the goods are under the control of the carrier. In order to avoid this liability, the carrier must prove that the measures to be taken to prevent the event and consequences that cause damage has been taken by himself or by his officers.
Therefore, if the carrier does not fulfill its ordinary obligations duly, it will be liable for all damages arising from it, according to the general principles, unless it proves that there is no fault.
In order for the carrier to be held liable, the damage must be caused by damage to the goods or delayed delivery.
- Cases in which the Carrier is Released from Liability
Carrying as a rule; is responsible for the loss, damage, or late delivery of the goods, provided that the event that caused the loss, damage, or delay in delivery occurred while the goods were under the protection of the carrier. However, the liability of the carrier for the damages arising from some special circumstances is eliminated and thus a significant benefit is provided to the carrier. In cases of absolute irresponsibility, the bearer is not only freed from contractual responsibility, but also from tortious liability.
In international maritime transport, besides the provisions of national law, there are also provisions of international law. The Hague and Visby Rules, which are among the rules regulating maritime transport, have stated that the carrier will be relieved of responsibility for which reasons.
The reasons listed in these international rules are as follows:
- Acts, omissions or errors of the carrier’s men and their assistants during the voyage or in the management of the ship (The carrier, who is initially responsible for making the ship suitable for sailing, is not responsible for the faults of his assistants and people regarding the management and administration of the next ship.)
- Fire not caused by the fault or negligence of the carrier (including by helpers or men)
- Hazards and accidents occurring at sea or in waters suitable for ship operation
(Especially the cases of piracy, extortion, and force intervention to the goods at sea.) - Incidental and natural disasters (storm, bad sea and weather conditions, waves, drifting in fog, sea water entering the ship, hitting rocks and sand dunes, stranding)
- State of war
- Activities against a public force such as terrorism
- Force or seizure by popular movement and authorized bodies
- Quarantine threats
- All kinds of reasons not arising from the negligence and faults of the carrier, its agents, and employees, the proof of which belongs to the carrier.
In addition, the carrier will not be liable in any way for damage or loss that may occur for the purpose of saving life and property or reasonable route changes.
In the Hamburg Rules, which is one of the other international rules, there is no limitation on whether the damage or loss has caused damage during or through the performance of its business or duties so that the carrier can be held liable for the fault of its own people and officials.
The terms of the carrier’s liability are regulated in the Code of Obligations and the Turkish Commercial Code. Pursuant to Article 100 in the field of law of obligations, it is accepted that the debtor (carrier) is not responsible for any damage caused to the creditor by his assistants, but for the damage suffered by the creditor as a result of the act that violates the fulfillment of the debt for himself.
In the Turkish Commercial Code, on the other hand, it is stated that the carrier is responsible for the faults of its own men and seafarers as if it were his own fault, and the condition that the defective act was committed during the execution of the works is not sought. In order for the carrier to be held liable, the damage does not have to have occurred during the performance of the works or duties.
In this case, the damaged party; must prove that the damage was caused by the fault or negligence of the carrier. The sum of the compensation to be paid by the carrier is calculated according to the value of the goods at the port of discharge and at the date of unloading. If the parties cannot agree on the calculation 3. Reports are requested from experts. The value of the goods is determined according to the stock market price or if there is no such price, the current market price, or in the absence of both, the ordinary value of the goods of the same quality and quality.
However, it should be noted that deliberate and reckless action leads to the loss of the carrier’s right to benefit from limited liability. Pursuant to Article 1187/1 of the TCC, the carrier cannot benefit from the limits of liability if the damage or delay in delivery is caused by an intentional or reckless behavior of the carrier and an act or omission committed with the awareness of the possibility of such damage or delay. This provision also finds an area of application in terms of the persons who carry the provision and the persons it represents.
In summary, if sea transport is preferred for export and import, the sales contract and the contract of carriage must be made with great devotion, and the type, quantity, quality, and transportation conditions of the transported goods must be clearly stated. In addition, determining the conditions related to the transportation with the agency with which an agreement will be reached on the transportation issue, putting them in writing, and making them a contract will create a valid way of proof in order to prevent future negativities.
If you want to learn more about the modes of transportation used in exports and imports, you can follow our current articles at www.kplegal.com.tr (https://kplegal.com.tr/en/) and send your questions and comments to us, K&P Legal lawyers, on our social media accounts.
Aline Braggiotti
Lawyer / K&P LEGAL LAW OFFICE
