European Union has declared a directive with reference 2009/20 on 23.04.2009 on Insurance of Shipowners for Maritime Claims. In the directive, it is clearly stated that the member states adopted a statement in which they unanimously recognized the importance of the application of the 1996 Protocol to the 1976 Convention on Limitation of Liability for Maritime Claims by all Member States and emphasized that the importance of obligation to have insurance is that it will provide better protection for victims.
With this understanding and for the compliance with the laws of the European Union, Turkish Maritime Undersecratary prepared a regulation for compulsory insurance for vessels for maritime claims. The name of the regulation is "Regulation on the Requirement to Obtain Insurance Coverage for Vessels against Maritime Claims and Supervision Thereof" which is published in the official gazete on 14.1.2010 and will be in effect as of 1st July 2011.
The Regulation stipulates that owners of Turkish flagged vessels and all vessels which are governed under this Regulation and entering into any Turkish ports shall ensure that they have insurance against maritime claims subject to the limitation under the 1996 Protocol of the 1976 Convention. Vessels referred to in the Regulation are ships of 300 gross tonnage or more and insurance means the indemnity cover provided by International Group of P & I Clubs and other effective forms of insurance and financial security offering similar conditions of cover.
The vessels should provide a copy of their insurance policy to the nearest Harbour Master through an agent domiciled in Turkey before entering into Turkish territorial waters and if insurance policy terminates before departure of vessel from a Turkish port, same should be renewed by her owners and a copy should be submitted to the relevant Harbour Master before departure. The relevant Port Authorities shall not issue permits for docking/mooring/anchoring and certificates of seaworthiness for vessels which fail to comply with the obligation of notification. A valid original of the insurance policy should be present on board the vessel and this can be controlled by Harbour Master any time. In case original of the insurance policy is not on board, Harbour Master orders the vessel to leave the port terminal, flag state is informed and vessel will not be permitted to berth until original of the insurance policy submitted. The Regulation also provides monetary penalty for the vessel amounting between TL 500 to TL 20.000 in case above rules are violated.
The Regulation has been subject to a few conferences organized nationaly by Universities and by International Bar Association ( IBA) where the procedure followed for preparation and legalization of the Regulation is criticised. It has been discussed in Turkish legal doctrine and supported that compulsory insurance should either be governed by a Code approved by the parliament or by a Decree of the Assembly of Ministers but not by a Regulation. The relevant terms of Turkish Insurance Law is very clear on this point and stipulates that the Treasury, General Secretariat of Insurance is entitled to prepare legal provisions for compulsory insurance. It is also stated that Turkish Maritime Undersecretary has not authority for preparing a regulation providing compulsory insurance. It is stressed that that if this procedural problem is not solved by the government and if the regulation will be subject to an administrative objection in this regard before the Administrative Court of Appeal, same will have to be cancelled and in order to provide a compulsory insurance regime as explained above, the correct proceedural and administrative legal way will need to be followed. However, at present, there is no such application for cancellation of and same will become effective as of 1st July 2011 as is.
Another issue which may be considered is the situation of vessels transit passing the Turkish straits. The regulation is governing Turkish flagged vessels and any vessel regardless of their flags, which are arriving in or sailing out of ports, terminals, anchorages and other ports facilities in Turkish territorial waters. This clear definition demonstrates that the Regulation will not be applicable to vessels which will be transit passing the Turkish straits without calling into any Turkish ports. However, we are in the opinion that in case of an accident within the Turkish straits, if the transit passage regime is terminated by the Port Authority, the regulation will be applicable.
In conclusion, the aim of the regulation is to provide sufficient compliance with the EC directive mentioned above and we will experience the application of the regulation after 1st July 2011.
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