In the Maritime industry, the discussions regarding the delivery order / good delivery form has arisen again. These discussions are based on the fact that, the decision numbered 2019/2250 E., 2020/812 K. of the Council of State, Plenary Session of the Chambers for Administrative Cases has been misinterpreted by both the Administration and some of the companies in the maritime trade. In this bulletin, we kindly inform you the latest circumstance of this process which may lead to serious consequences for the administration and transportation authorities in the maritime trade.

THE CURRENT DEVELOPMENTS REGARDING THE DELIVERY ORDER

  • THE LETTER OF THE DIRECTORATE GENERAL OF MINISTERY OF CUSTOMS AND TRADE DATED 03.11.2017.

In brief, it has been stated that the delivery order shall not be required by the Customs Directorates in any phase of customs proceedings since no provision on the delivery order has been provided in the Custom legislation.

  • THE DECISIONS DATED 17.12.2018, NUMBERED 2016/2991 E., 2018/5551 K. AND DATED 02.06.2020, NUMBERED 2019/2250 E., 2020/812 K. OF THE COUNCIL OF STATE, PLENARY SESSION OF THE CHAMBERS FOR ADMINISTRATIVE CASES

The Council of State, Plenary Session of the Chambers for Administrative Cases has declined the request of revision of the decision dated 17.12.2018 and numbered 2016/2991 E., 2018/5551 K. with the decision numbered 2019/2250 E., 2020/812 K. as follows:

"...the authority of making a regulation and/or legislation concerning the delivery of goods in the customs bonded area have been clearly given to the Under secretariat of Customs and also if some unexpected problems arise, it is clearly regulated in the Article 559 of the Customs Regulations that the aforesaid Under secretariat of Customs is authorised to inspect and conclude these problems. In addition, there has not been any given authority to the Administration in the abrogated Legislative Decree numbered 491 for the Establishment and Tasks of the Under secretariat for Maritime Affairs, concerning the documents which have to be presented at the time of the delivery of the goods that are imported by sea and put in the temporary storage or warehouse. Therefore, the Directorate General of Maritime Commerce of the Maritime Under secretariat's transaction dated 17.05.2011, numbered 14765, which the "Delivery order" is regulated, has been reversed for this reason."

The Council of State, Plenary Session of the Chambers for Administrative Cases has decided its decision in jurisdiction with the Administration by not conducting substantial examination.

  • THE LETTER OF THE GENERAL DIRECTORATE FOR MARITIME AFFAIRS OF THE MINISTRY OF TRANSPORT AND INFRASTRUCTURE DATED 24.09.2020

Upon the decision, it has been notified that the practice of the delivery order has been cancelled with the verdict of the General Directorate for Maritime Affairs of the Ministry of Transport and Infrastructure dated 24.09.2020. It has been stated as, ".the delivery of the goods to the Consignee is a bilateral legal transaction in the law of transportation. For that, the Carrier has to conclude the possession of the goods by his/her own will and make the Recipient the holder. If the Carrier does not attend the delivery process or at least take place with the approval or order of the Carrier, this process will be nationally and internationally contrary to law. For this reason, the document, which is known as "Delivery Order Form" or "Delivery Order Document" or "Labelled Bill of Lading", which is signed by the Carrier specifying that the delivery of the good is approved, will be a valid document for the delivery of the goods in the national and international transportation."

  • MINISTRY OF TRADE DIRECTORATE GENERAL OF CUSTOMS' LETTER DATED 30.07.2021 IN RESPONSE TO THE ISTANBUL CUSTOMS ASSOCIATION'S APPLICATION

In summary, it is stated that the Customs Administrations are not responsible for the physical delivery of the cargo, and the practice of not delivering the goods without a delivery order falls within the scope of private law. The relevant part of the Decision is as follows:

"The regulation to be made on the subject of delivery order does not have an aspect of "related to customs business and transactions." specified in Article 218 of the Customs Law, the aforementioned authorization clause is intended for operators and temporary storage operators, however, the delivery order, which is a document issued or a fee collected by the carrier, agency or broker, is applied as a result of the actions performed between the agent, the importer and the temporary storage operator in accordance with the provisions of private law, and within the scope of the contracts established in accordance with the provisions of private law,"

and the response has been given to avoid misinterpretation of judicial decisions. Within this context, together with being evaluated that there is no action to be taken by the Ministry of Commerce Directorate General of Customs regarding the delivery order, it is also stated that a legislative study has been commenced on the subject of "physical delivery from temporary storage places of the goods whose customs procedures have been completed"

EVALUATION AND CONCLUSION

The statement that the delivery order is not a legal document just because it is not provided in the Customs legislation and that the cargo delivery instruction document or similar documents cannot be sought in the delivery of cargo, constitutes an unlawfulness. It is one of the fundamental principles of the law that it is ultimate and it cannot be limited with just one legislation.

In practical life, carriers will first end the possession authority on the goods subject to transportation, and then they will have to determine the legal consignees and make them the possessor. Removal of carriers from this delivery process, not including them during the procedure, delivery of the goods without carriers' consent and instructions will deem to the usurpation of possession of carriers by means of unlawfully taking the goods from carriers' possession. Moreover, with this process, the carrier will not only be held unjustly and unlawfully responsible, but will also be deprived of using its legal rights.

In the related response letter of the Ministry of Commerce, Directorate General of Customs, a legitimate statement has been made in order to prevent misunderstanding of judicial decisions and practice by the actors in the maritime trade. The Council of State, Plenary Session of the Chambers for Administrative Cases has stated that there is no legal ground regarding the administrative action due to its being taken by non-competent administration. We would like to state that the  commencement of legislative studies regarding "physical delivery from temporary storage places of the goods whose customs procedures have been completed" by administration is a positive progress for the maritime trade.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.