Turkey: Shipping Comparative Guide

1 Legal framework

1.1 Which legislative and regulatory provisions govern the shipping sector in your jurisdiction?

Turkish maritime law is domestically regulated under the Fifth Book of the Turkish Commercial Code 6102 (TCC). The TCC was approved by the Turkish Parliament on 13 January 2011 and has been in force since 1 July 2012. The Fifth Book is divided into eight chapters which deal with, respectively:

• ships (Articles 931-1060);
• owners and joint ownership (Articles 1061-1087);
• masters (Articles 1088-1118);
• maritime contracts – this chapter is divided into five sections:
• • bareboat charter agreements (Articles 1119-1130);
  • time charter agreements (Articles 1131-1137);
  • contracts for the carriage of goods (Articles 1138-1245);
  • time for suit (Article 1246); and
  • carriage of passengers by sea (Articles 1247-1271);
• maritime causalities:
• • general average (Articles 1272-1285); and
  • collision (Articles 1286-1297);
• salvage (Articles 1298-1319);
• maritime liens (Articles 1320-1327);
• limitation of liability and compensation of oil pollution claims (Articles 1328-1349); and
• enforcement of maritime claims (Articles 1350-1400).

When drafting the TCC, the drafting committee decided that the new provisions should be in line with international conventions. Accordingly, if one area of maritime private law is already regulated by an international convention, regardless of whether Turkey is a party to it, the provisions of that latest international convention will be adopted in domestic law. Pursuant to this decision, the provisions of the following international conventions have been adopted into the TCC:

• the International Convention on Maritime Liens and Mortgages 1993;
• the Athens Convention relating to the Carriage of Passengers and their Luggage by Sea;
• the Convention for the Unification of Certain Rules of Law with respect to Collisions between Vessels, 1910;
• the International Convention on Salvage, 1989;
• the International Convention on the Arrest of Ships, 1999;
• the Convention on Limitation of Liability for Maritime Claims, 1996;
• the International Convention on Civil Liability for Oil Pollution Damage, 1992; and
• the International Convention on the Establishment of an International Fund for Compensation for Oil Pollution Damage, 1992.

In the field of carriage of goods by sea, although the Hague-Visby Rules are not the last dated convention, the drafting committee took into consideration their wide application and acceptance by leading maritime countries and directly adopted the provisions of the Hague Rules as amended by the Visby Rules and the 1979 Protocol.

Apart from the TCC, the other relevant domestic legislation is as follows:

• the Code of Implementation and Enforcement of the TCC Cabotage Act;
• the International Ship Registry Act;
• the Maritime Labour Act;
• the Enforcement and Bankruptcy Code;
• the Act on Protection of Life and Property at Sea;
• the Environmental Act; and
• the Customs Act.

Turkish law also contains numerous guidelines and regulations pertaining to the maritime industry.

The Fifth Book of the TCC is dedicated to maritime law.

1.2 Which bilateral and multilateral instruments on shipping have effect in your jurisdiction?

According to Article 1 of the Code of Private International Law and International Civil Procedure Law, international conventions to which Turkey is a party have priority over domestic law. If a dispute is filed before the Turkish courts, the provisions of any such conventions will apply instead of corresponding provisions of the TCC. A similar outcome is described in Article 90/5 of the Constitution regarding the application of international conventions in the field of public law. Relevant provisions of Turkish domestic regulations are replaced in most cases by direct application of a superseding convention.

Turkey is a signatory to numerous bilateral and multilateral international conventions. In the field of maritime private law, Turkey is already a party or currently becoming a party to the conventions mentioned in question 1.1. The most important relevant conventions include:

• the International Convention for the Unification of Certain Rules of Law with Respect to Vessel Collisions;
• the International Convention for the Unification of Certain Rules of Law Relating to Bills of Lading and Protocol of Signature; and
• the Convention on Limitation of Liability for Maritime Claims.

Turkey is a signatory to the following international conventions drafted by the International Maritime Organization:

• the International Convention for the Safety of Life at Sea, 1974;
• the Protocol of 1978 relating to the International Convention for the Safety of Life at Sea, 1974;
• the International Regulations for Preventing Collisions at Sea, 1973;
• the International Convention for the Prevention of Pollution from Ships, 1973;
• the Convention on Facilitation of International Maritime Traffic, 1965;
• the International Convention on Load Lines, 1966;
• the International Convention on Tonnage Measurement of Ships, 1969;
• the International Convention for Safe Containers, 1972;
• the Convention on the International Mobile Satellite Organization, 1976;
• the Operating Agreement on the International Mobile Satellite Organization;
• the International Convention on Standards of Training, Certification and Watchkeeping for Seafarers, 1978;
• the International Convention on Maritime Search and Rescue, 1979;
• the Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation;
• the Protocol of 2005 to the Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation;
• the Protocol for the Suppression of Unlawful Acts against the Safety of Fixed Platforms Located on the Continental Shelf;
• the Protocol of 2005 to the Protocol for the Suppression of Unlawful Acts Against the Safety of Fixed Platforms Located on the Continental Shelf;
• the International Convention on Oil Pollution Preparedness, Response and Cooperation;
• the Protocol on Preparedness, Response and Cooperation to Pollution Incidents by Hazardous and Noxious Substances, 1990;
• the International Convention on the Control of Harmful Anti-fouling Systems on Ships, 2001;
• the International Convention for the Control and Management of Ships' Ballast Water and Sediments, 2004;
• the Protocol of 1992 to amend the International Convention on Civil Liability for Oil Pollution Damage, 1969;
• the Protocol of 1992 to amend the International Convention on the Establishment of an International Fund for Compensation for Oil Pollution Damage, 1971;
• the Protocol of 2003 to the International Convention on the Establishment of an International Fund for Compensation for Oil Pollution Damage, 1992;
• the Convention on Limitation of Liability for Maritime Claims, 1976;
• the Protocol of 1996 to amend the Convention on Limitation of Liability for Maritime Claims, 1976;
• the International Convention on Salvage, 1989; and
• the International Convention on Civil Liability for Bunker Oil Pollution Damage, 2001.

1.3 Which bodies are responsible for enforcing the applicable laws and regulations? What powers do they have?

The General Directorate of Maritime Affairs ensures that maritime and inland waterway activities are performed in an economic and safe way.

The General Directorate of Shipyards and Coastal Structures plans the location of shipyards and vessel recycling facilities, guided by the principle of protecting the sea and coastline.

The Transportation Safety Review Centre investigates and examines accidents or incidents that occur during transport and prepares reports to improve transportation safety.

The Chief Engineer of Submarine Scanning issues seabed dredging authorisation certificates and gives preliminary dredging permission within the framework of relevant legislation.

Port authorities supervise and ensure that all maritime-related activities are carried out in accordance with national and international standards, all relevant regulations and the efficiency principle.

1.4 What is the regulators' general approach in regulating the shipping sector?

The regulators take global trends and current issues in commerce into account when enforcing the law. The bounds of regulation are determined using international conventions as a guide, as mentioned in question 1.1.

2 Registration

2.1 What types of vessels may be registered in your jurisdiction? What requirements and restrictions apply in this regard? Is dual registration permitted?

The National Ship Registry (NSR) registers vessels that meet the Turkish Commercial Code's (TCC) standards for flying a Turkish flag

Only commercial ships can register with the Turkish International Ship Registry (TISR). Imported ships are subject to a tonnage restriction. The Ministry of Transport and Infrastructure maintains a list of special purpose ships and other craft, which is updated on a regular basis. The same rules that govern the NSR also apply to the TISR. The shipowner must be a real person residing in Turkey or a judicial person founded or incorporated under Turkish law in order for a ship to be eligible for registration at the TISR. The real person's nationality and the company's structure are irrelevant. As a result, ships that would not be allowed to register with the NSR because the shipowner is a foreign national or most of the board of directors is made up of foreigners can nevertheless register with the TISR. The Turkish flag must be flown by all ships with this registration. However, the extra requirements for the NSR must be met in order to be eligible for cabotage rights. The benefits of registration include:

• income tax and corporate tax exemptions for earnings from the sale or transfer of registered vessels; and
• an exemption from stamp duty, among a variety of other fees, for purchase, sale, mortgage, registration or loan contracts.

Ships under construction are registered with the New Building Registry. In practice, ‘ships under construction' are commonly referred to as ‘new buildings' and the unique register set up for them is known as the ‘New Building Register'. Aside from ownership, the only right in rem that can be recorded in this register is a mortgage on a new building.

A ‘Special (Flag In) Register' keeps track of foreign ships that are temporarily allowed to fly the Turkish flag. The TCC allows flag-in and flag-out in Article 941. However, this special registry is not deemed a registry in the sense of private law. Therefore, no rights in rem can be generated or transferred by its use. This kind of registry is sometimes referred to as a ‘bareboat registry' in Turkish practice, because the bareboat charter is often believed to be the principal agreement under which a ship may be handed to Turkish interests.

Commercial vessels with a gross tonnage of less than 18 tons and non-commercial vessels should register with the Home Port Registry. This registry was intended primarily for pleasure craft, yachts and other watercraft, as well as all ships and vessels of inland navigation used for inland sea transportation.

To be registered with either the NSR or the TISR, a Turkish ship that was previously registered with a foreign ship registry must submit documents proving that it is no longer registered with the foreign ship registry. If a ship requiring registry is already registered abroad, the shipowner must cancel that registration and explain the circumstances. If this is impossible, the requirement can be waived.

2.2 What entities may register a vessel in your jurisdiction? What requirements and restrictions apply in this regard?

The TSR registers vessels that meet the TCC's standards for flying a Turkish flag. If the ship is owned by:

• one real person, that person must be a Turkish national;
• several real persons, the majority of partners must be Turkish nationals;
• legal persons in the nature of associations and foundations, the majority of the board of directors must consist of Turkish nationals;
• legal persons in the nature of commercial companies:
• • the majority of the board of directors must consist of Turkish nationals and the voting majority must be in the hands of Turkish nationals; and
  • joint stock companies must demonstrate that the majority of shares are issued to Turkish nationals, with transfer subject to approval by the board of directors; or
• a maritime partnership, the majority of the shares must be in the hands of Turkish nationals and the majority of the board of directors must consist of Turkish nationals.

According to the registry's strict nationality rules, only vessels owned by Turkish citizens or corporations with a Turkish majority in both shareholding and board participation are eligible to be registered with the NSR. The following are not permitted to register in the NSR:

• foreign vessels;
• Turkish vessels registered with a foreign ship registry;
• navy warships;
• auxiliary vessels; and
• vessels dedicated solely to performing a public service belonging to the state, special provincial administrations, municipalities, villages or other public legal entities.

2.3 What body administers the shipping register in your jurisdiction?

Under Turkish law, the Ministry of Transport and Infrastructure is the primary body that administers the shipping registry. Registry offices are overseen by the Harbour Master's Office. For Turkish vessels, a ship registry is kept in places deemed appropriate by the Ministry of Transport and Infrastructure. There are registry offices in the following cities: Antalya, Bandırma, Çanakkale, İskenderun, İstanbul, İzmir, Mersin, Samsun, Trabzon and Zonguldak.

The authorised registry office is determined according to a vessel's home port log. The TISR has its headquarters in Istanbul and a liaison office in Izmir. The Harbour Master's Office maintains the home port log registry; whereas the mayor's office of the relevant city maintains the home port log registry for boats in inland waterways.

2.4 What information is included in the shipping register? Is this publicly accessible?

• The name of the vessel;
• The type and main material used in its construction;
• The home port log;
• The place where it was built;
• The year it was built;
• Its machinery;
• Its owner and history of holders of real rights on the vessel (eg, ownership, mortgage and usufruct rights); and
• Annotations, objections and restrictions on dispositions.

Anyone can examine the records in the registry and get copies of them because the ship registry is available to the public.

2.5 What are the formal and documentary requirements for registration of a vessel? What is the process for registration? What is the effect of registration? What is the effect of deregistration?

Ship registration applications should be made with the relevant ship registry at the Harbour Master's Office. Some of the following documents may be requested by the authorities:

• a building certificate;
• a tonnage certificate;
• an apostilled and translated bill of sale;
• the shipowner's signature circular;
• the shipowner's articles of association;
• shareholder information;
• the shipowner's tax registration certificate;
• a customs clearance certificate;
• the original deletion certificate;
• a free of encumbrances certificate;
• a delivery and acceptance protocol; and
• a flag certificate.

The records in the ship registry constitute legal presumptions that facilitate proof of existence of rights on the ship. If a right is removed from the registry, that right is considered non-existent.

2.6 What are the formal and documentary requirements for registration of a shipping mortgage? What is the process for registration? What is the effect of registration? What is the effect of deregistration?

Under both the NSR and the TISR, in order to establish a ship mortgage:

• the shipowner of the vessel and the creditor must agree on the establishment of a mortgage; and
• the mortgage must be included in the ship register (TCC, Article 1015).

The mortgage agreement must be executed in writing and the signatures must be notarised. In terms of the degree of mortgage, the regulations of the TCC on immovable pledges apply, as stated in Article 1017 of the TCC. In this situation, the TCC's fixed degree system also applies to ship mortgages. Under Turkish law, the first degree first rank system is invalid. Contracts for a mortgage in relation to a vessel that is registered with the TISR are exempt from stamp duty and some other tax duties. An agreement on the establishment of a mortgage can also be made by the registry office. An agreement that is not made in accordance with one of these forms is void.

Mortgage rights arise at the time of ship registration. When a mortgage is recorded in the registration, it is deemed to be public information. When a mortgage is deregistered, it is deemed to no longer exist.

3 Port state control

3.1 Which body is responsible for port state control? What powers does it have?

Port state control is conducted by port state control officers (PSCOs), who are employed by and under the control of the Maritime Authority's supervision. According to the Regulation of Port State Control, the Maritime Authority has the authority to refuse certain non-compliant vessels with standard entrance to Turkish ports; and the authority may conduct various onboard inspections to ensure compliance.

3.2 What penalties may be imposed for breach of the applicable laws and conventions?

In the event of a breach, a PSCO may:

• order the detention of the vessel and deprive it of commercial activities;
• send the vessel to the shipyard;
• change the crew if necessary;
• detain the vessel or halt operations; or
• enable the vessel to rectify defects discovered by an inspection.

A detention order or stoppage of operations will not be revoked until the identified deficiencies have been rectified.

3.3 Can decisions of the port state control authority be appealed? If so, what is the process for appeal?

The shipowner, operator or agents of a vessel in Turkey have the right to object to a detention decision or a decision to refuse port entry made by PSCOs. An appeal will not result in suspension of detention or refusal of entry. An objection application should be made to the administration within one month of the vessel's date of detention, at the latest. The relevant PSCO should inform the shipowner, operator or agents of a vessel about the right to object.

4 Marine casualty

4.1 What key domestic and international provisions apply to marine casualties in your jurisdiction, and what specific considerations should be borne in mind with regard to the following? (a) Collisions; (b) Pollution; (c) Wreck removal; and (d) Salvage.

(a) Collisions

The liability of shipowners arising from a collision of ships is covered by the International Regulations for the Avoidance of Collisions at Sea and the International Convention for the Unification of Certain Rules of Law with Respect to Collision between Vessels (CollCon), to which Turkey is a party. According to CollCon, it extends to restitution of damages which a vessel has caused to another vessel or to goods or persons on board either vessel, either by execution or non-execution of a manoeuvre, or by non-observance of regulations, even if no collision took place. The Turkish Commercial Code's (TCC) provisions relating to collision are directly in line with CollCon and are applicable if the prerequisites for application of CollCon are not met. The TCC states that the collision provisions of the code will apply in cases where two or more vessels collide and compensation is sought for:

• physical damage to the vessels;
• loss by or damage to the respective shipowners; or
• loss of or damage to people and cargo on board either or both vessels.

Turkey is also a signatory to the International Convention for the Safety of Life at Sea and the Protocol of 1978 relating to the International Convention for the Safety of Life at Sea, and the International Regulations for Preventing Collisions at Sea, which are directly applicable as explained in question 1.2.

(b) Pollution

The main laws regarding pollution are:

• the Turkish Environmental Code; and
• the Law on the Principles of Emergency Action and Indemnification of Losses in the Pollution of the Marine Environment by Oil and Other Hazardous Substances.

Turkey is also a party to several international conventions concerning pollution, such as:

• the International Convention for the Prevention of Pollution from Ships;
• the International Convention on Oil Pollution Preparedness, Response and Cooperation;
• the Protocol of 1992 to amend the International Convention on Civil Liability for Oil Pollution Damage;
• the Protocol of 1992 to amend the International Convention on the Establishment of an International Fund for Compensation for Oil Pollution Damage; and
• the International Convention on Civil Liability for Bunker Oil Pollution Damage.

Since these conventions are applicable without requiring a foreign element, they have priority over the aforementioned domestic legislation.

(c) Wreck removal

The Nairobi International Convention on the Removal of Wrecks (‘Wreck Removal Convention') is not currently ratified by Turkey. Article 7 of the Turkish Port Code specifies that the harbour master has the authority to order the removal of a wreck from the port. Wreck removal is the joint responsibility of the shipowners, masters and agents. If the wreck is not removed by the harbour master's deadline, the harbour master may arrange for removal and then sell the vessel to recoup the costs. Wreck removal is also covered by the TCC.

(d) Salvage

Turkey has acceded to the International Convention on Salvage 1989 (SalCon) and lodged a reservation to its Article 30. SalCon came into force in Turkey on 27 June 2015. The relevant articles of the TCC are directly in line with SalCon.

4.2 Which parties may bring a marine casualty claim in your jurisdiction, and against whom?

In the event of an accident, the party responsible for damages is held liable and must compensate the shipowner or the other party. The shipowner is held accountable for polluting substances that escaped or were discharged. In salvage operations, shipowners must pay a salvage award to those responsible for performing salvage.

4.3 What limitation of liability regime applies to marine casualty claims and who may avail of it? What types of claims may be limited?

The limitation of a shipowner's liability is regulated by:

• the Convention on Limitation of Liability for Maritime Claims (LLMC), as amended by the 1996 Protocol;
• the International Convention on Civil Liability for Oil Pollution Damage (CLC); and
• the International Convention on the Establishment of an International Fund for Compensation for Oil Pollution Damage (FUND).

The LLMC is applicable as the lex fori and is thus directly applied by the Turkish courts. The application of the LLMC by state parties does not extend to persons:

• which, at the time of limitation invocation by courts of that state:
• • do not have their habitual residence in a state party;
  • do not have a principal place of business in a state party; or
  • do not have any ship in relation to which the right of limitation is invoked; or
• whose release is sought and which are not flying the flag of a state party at the time specified above.

For all direct demands of guard ships, the responsibility limits established by the LLMC amount to a total of 1,500 Special Drawing Rights (SDR). The liability limit for recourse requests submitted to a guard ship by the owner is 1,500 SDR, according to the protocol. For ships under 300 gross tonnage, the liability limit to be used is 83,500 SDR.

In accordance with the rules of the LLMC, shipowners and salvors may limit their liability for the following claims:

• claims in respect of loss of life or personal injury, or loss of or damage to property (including damage to harbour works, basins and waterways, and aids to navigation) occurring on board or in direct connection with the operation of the ship or with salvage operations, and consequential loss resulting therefrom;
• claims in respect of loss resulting from delay in the carriage by sea of cargo, passengers or their luggage;
• claims in respect of other loss resulting from infringement of rights other than contractual rights, occurring in direct connection with the operation of the ship or salvage operations; and
• claims of a person other than the person liable in respect of measures taken in order to avert or minimise loss for which the person liable may limit his liability in accordance with the LLMC, and further loss caused by such measures.

As per the CLC, the shipowner and its liability insurer are entitled to limit their liability in respect of any one incident.

4.4 How is the limitation fund constituted? What requirements and restrictions apply in this regard?

A limitation fund may be constituted in accordance with the LLMC and the CLC/FUND. According to Article 11 of the LLMC, anyone alleged to be liable may constitute a fund with the court or other competent authority in any state party in which legal proceedings are instituted in respect of claims that are subject to limitation. As the LLMC stipulates, the fund is constituted according to the total amounts specified in Articles 6 and 7. Any fund constituted in this manner must be used to cover claims for which a limitation of liability can be raised.

According to the LLMC, a limitation of liability may also be invoked without constituting a fund.

Since the CLC constitutes the applicable lex fori, the relevant articles of the CLC will apply to the constitution of the fund.

4.5 Under what circumstances is the limitation of liability unavailable?

Under the LLMC, the claims listed below are excluded from limitation:

• claims in respect of the removal, destruction or rendering harmless of the cargo of the ship;
• claims of a person other than the person liable in respect of measures taken in order to avert or minimise loss for which the person liable may limit its liability in accordance with the LLMC, and further loss caused by such measures (to the extent that they relate to remuneration under a contract with the person liable; and
• claims for salvage, including, if applicable, any claim for special compensation under Article 14 of SalCon, as amended, or contribution in general average.

The shipowner cannot rely on a limitation of liability if the damage or loss occurs as a result of its personal act or omission. The shipowner will be liable if it behaves:

• with an intent to cause loss;
• with reckless intent; or
• with knowledge that loss would result.

4.6 What defences are available to marine operators in the event of a marine casualty claim?

According to the LLMC, the following claims are subject to the limitation:

• claims for loss of life or personal injury, or loss of or damage to property (including damage to harbour works, basins, waterways, and aids to navigation);
• claims for loss resulting from delay in the carriage by sea of cargo, passengers or their luggage; and
• claims for other loss resulting from infringement of rights other than contractual rights occurring in direct connection with the operation of the ship or salvage operations.

Marine operators have the right under the CLC to restrict their liability in the event of a single incident, as described in Article 1/6 of the CLC. Under Turkish law, no amendments to these rules are made.

4.7 Which bodies are responsible for investigating and responding to marine casualties? What powers do they have?

As commercial tribunals specialising in maritime concerns, the 17th Commercial Court in Istanbul and the Fifth Commercial Court in Izmir handle these cases. In general, before filing a lawsuit, a marine accident investigation is carried out. According to Article 1292 of the TCC, the defective part of the parties involved in the collision is not specified in the marine accident investigation report. The primary purpose of obtaining a maritime accident report is:

• to make recommendations that will contribute to the development of legislation and practices regarding the safety of navigation, life, property and environment at sea; and
• to prevent similar accidents and events that may occur in the future by determining the real causes of marine accidents.

The public prosecutor also has the authority to investigate criminal proceedings.

4.8 What reporting requirements apply in relation to marine casualties and what are the consequences of non-compliance?

In accordance with the Maritime Accidents and Incidents Investigation Regulation, the duty and responsibility to report a maritime accident or incident rests with:

• the master or the officer representing the master;
• the shipowner, operator or agency;
• the relevant port authority; and
• the relevant local administration in the case of accidents and incidents in inland waters.

The first notification of maritime accidents and incidents must be made to the Main Air Search and Rescue Coordination Centre as soon as possible.

If pollution is detected, provincial directorates for environment and urbanisation (ie, the Coast Guard line, the Port Authority and the Environment and Urbanisation Line) should be notified.

4.9 What remedial measures may be ordered in the event of a marine casualty (eg, wreck removal, clean-up)?

In the event of a wreck, the oil from the vessel is first defuelled. The wreck's iron components are then transported to a platform. The iron pilings carried to the platform are then cut and returned to the shipyards for reuse.

Environmental spills can be cleaned up in a variety of ways. Water hoses are used to rinse the oil from the shoreline into the water. To keep the oil from spreading, long, floating barriers are deployed. Oil is then suctioned from the water's surface and the coastline using vacuums.

4.10 Who may conduct salvage operations in your jurisdiction and what other requirements and restrictions apply in this regard?

The Turkish Directorate General of Coastal Safety has monopoly rights on salvage operations in the Turkish Straits (the Istanbul Strait and the Dardanelles), and within the Marmara Sea. Salvage operations in Turkish territorial waters are allocated to Turkish flagged vessels, according to the rules of the Cabotage Act.

Salvors do not obtain ownership of the property in exchange for a salvage operation. Salvage operations that are successful are entitled to a salvage reward under the TCC.

According to Article 14 of SalCon:

If the salvor has carried out salvage operations in respect of a vessel which by itself or its cargo threatened damage to the environment and has failed to earn a reward under Article 13 at least equivalent to the special compensation assessable in accordance with this article, the salvor is entitled to special compensation from the owner of that vessel equivalent to incurred expenses as defined (in the Article).

If, in the circumstances set out in (the previous paragraph), the salvor...has prevented or minimized damage to the environment (as a result of the salvage operation in question), the special compensation payable by the owner to the salvor (in paragraph 1, Article 14) may be increased up to a maximum of 30% of the expenses incurred by the salvor. However, the tribunal, if it deems it fair and just to do so and bearing in mind the relevant criteria set out in Article 13, paragraph 1, may increase such special compensation further, but in no event shall the total increase be more than 100% of the expenses incurred by the salvor.

The debtor of the salvage reward is the owner of the salvaged vessel at the time the salvage operation is concluded. There must be a vessel or property that needs to be preserved; and there must be a threat to the vessel or its contents or both. The salvor is not under any legal obligation to provide salvage services. Finally, the salvor must be successful in order to receive an award.

5 Cargo claims

5.1 What key domestic and international provisions apply to cargo claims in your jurisdiction?

The Turkish Commercial Code's (TCC) provisions relating to the liability of the carrier are incorporated mainly from the Hague-Visby Rules. The deficiencies in the rules are made whole by articles incorporated from the Hamburg Rules. According to the TCC, the carrier is liable for loss or damage to cargo or delay in delivery. The carrier is responsible for any loss or damage to cargo while it is in the carrier's control. The carrier is held accountable for the following:

• unseaworthiness;
• cargo being carried on deck without the shipper's permission or instructions;
• cargo being loaded or transferred to another vessel; and
• cargo being transported via a route other than that determined prior to the voyage.

Cargo claims are named as maritime claims, which enable the consignee to arrest the vessel.

5.2 Which parties may bring a cargo claim in your jurisdiction, and against whom?

The conditions of the carriage contract govern the relationship between the contracting shipper and the carrier. The right to bring a claim against the carrier belongs to the rightful holder of a bill of lading. In the event that no bill of lading is issued, the named consignee in the waybill or shipper which entered into contract of carriage with the carrier may file a lawsuit. The lawsuit may be brought against both the carrier and the actual carrier, which are jointly and severally responsible.

5.3 What limitation of liability regime applies to cargo claims and who may avail of it? What types of claims may be limited? What is the procedure for limiting liability?

The carrier (or the actual carrier) is responsible for any loss or damage to the cargo, as well as any delays in delivery, that may occur during the time the cargo is in the carrier's possession.

The carrier is liable for any acts or omissions of the actual carriers' servants and agents, as well as the fault or negligence of its servants and agents. If the loss, damage or delay in delivery is caused by any act or omission in the vessel's navigation or technical management, or by fire, the carrier cannot be held accountable unless the unseaworthiness of the ship is the cause of the damage.

Following the Hague-Visby Rules, the TCC limits the responsibility of the carrier to a specified amount. According to Article 1186/3 of the TCC:

where a container, pallet or similar article of transport is used to consolidate goods, the number of packages or units enumerated in the bill of lading as packed in such article of transport shall be deemed the number of packages or units for the purpose of this paragraph as far as these packages or units are concerned. Except as aforesaid such article of transport shall be considered the package or unit.

Therefore, the liability of the carrier for the cargo claims is limited to 666.67 Special Drawing Rights (SDR) per package or unit or two SDR per kilogram of the goods, whichever is higher. Claims about loss or damage of goods may be limited accordingly.

5.4 Under what circumstances is the limitation of liability unavailable?

According to the TCC, the carrier cannot rely on the limitation of liability stipulated in the TCC if:

• the cause of the loss, damage or delay of the cargo is due to wilful misconduct or gross negligence of the carrier; or
• there is an act or omission of the carrier with an intention to result in such loss, damage or delay.

The carrier's servants and agents are also subject to the same rules.

5.5 What defences are available to (a) carriers and (b) shipowners in the event of a cargo claim?

The shipper must provide a complete and accurate cargo declaration. If the shipper has deliberately misrepresented the value of the goods, the carrier will not be liable for the goods themselves or for loss or damage of the goods. This provision is also applied to claims against the shipowner and prevents liability of the shipowner.

If the loss occurs from an act, neglect or default of the master, mariner, pilot or the servants of the carrier in the navigation or management of the ship or fire, unless caused by the actual fault or privity of the carrier, the carrier is only responsible for its own fault.

According to the TCC:

Neither the carrier nor the ship shall be responsible for loss or damage arising or resulting from: act, neglect, or default of the master, mariner, pilot, or the servants of the carrier in the navigation or in the management of the ship; fire, unless caused by the actual fault or privity of the carrier; perils, dangers and accidents of the sea or other navigable waters; act of God; act of war; act of public enemies; arrest or restraint of princes, rulers or people, or seizure under legal process; quarantine restrictions; act or omission of the shipper or owner of the goods, his agent or representative; strikes or lockouts or stoppage or restraint of labor from whatever cause, whether partial or general; riots and civil commotions; saving or attempting to save life or property at sea; wastage in bulk of weight or any other loss or damage arising from inherent defect, quality or vice of the goods; insufficiency of packing, insufficiency or inadequacy of marks; and latent defects not discoverable by due diligence.

6 Passenger claims

6.1 What key domestic and international provisions apply to passenger claims in your jurisdiction?

Turkey is a party to the 1974 Athens Convention of the Carriage of Passengers and their Luggage, as amended by the 2002 Protocol. Turkey ratified the 2002 Protocol on 9 March 2017. The articles of the convention are also incorporated in the Turkish Commercial Code (TCC) in Articles 1247 to 1271.

6.2 What limitation of liability regime applies to passenger claims and who may avail of it? What types of claims may be limited? What is the procedure for limiting liability?

Under Turkish law, following the 2002 Protocol, the carrier is liable for death or injury to passengers and luggage claims. Any agreement between the carrier and the passenger eliminating and/or reducing the limit of liability or reversing the carrier's burden of proof is considered null and void.

The carrier and the actual carrier are liable without requiring fault for passenger claims arising from shipping incidents, up to 250,000 Special Drawing Rights (SDR) per passenger, per incident. However, in any case, the limit cannot exceed 400,000 SDR. Passenger personal injury and death claims are time barred within 10 years. All other claims are subject to a two-year limitation period. If the damage is visible, the passenger must notify the carrier before or at the time of disembarkation of the passenger. If the damage is not visible, then the passenger must notify the carrier in writing within 15 days of disembarkation or redelivery, or from the time when such redelivery should have taken place. The liability of the carrier for the loss or damage of cabin baggage may not exceed 2,250 SDR per passenger for carriage. The liability of the carrier for the loss of or damage to vehicles, including all luggage carried in or on the vehicle, is limited to 12,700 SDR per vehicle, per carriage. The liability of the carrier for the loss of or damage to other luggage is limited to 3,375 SDR per passenger, per carriage.

6.3 Under what circumstances is the limitation of liability unavailable?

According to the TCC, if the cause of damage is due to wilful misconduct or gross negligence of the carrier, or if there is an act or omission of the carrier with an intention to result in such damage, then the carrier cannot rely on the limitation of liability.

7 Ship arrest

7.1 What key domestic and international provisions apply to ship arrest in your jurisdiction?

Turkey has ratified the International Convention on Maritime Liens and Mortgages and the International Convention on the Arrest of Ships (Geneva, 12 March 1999) but is not a party yet. They each came into force in Turkey on 25 March 2017. The 1999 convention was fully accepted in the Turkish Commercial Code (TCC) before it was ratified and became the principal source of the Turkish ship arrest regime.

Turkey is a party to the 1999 Arrest Convention. As this convention constitutes the applicable lex fori, the provisions of the convention have priority over domestic regulation. On the other hand, as stated in question 1.1, its provisions are directly incorporated in Article 1350, among others, of the TCC. Therefore, the provisions applicable to ship arrest under international and Turkish law are aligned.

Turkish law differentiates between ‘conservatory arrest' and ‘arrest in fulfilment of an enforceable title'. Any detention or restriction on removal of a ship by court order to secure a maritime claim is characterised as an arrest; although this does not include the seizure of a ship in execution or satisfaction of a judgment or other enforceable document. As a result, the term ‘arrest' is limited to circumstances in which security is sought for a maritime claim. Maritime claims equivalent to those outlined in the 1999 Arrest Convention are listed in Article 1352 of the TCC.

Ship arrest is governed by the TCC; and if a deficiency occurs, the provisions of the Turkish Enforcement Code will apply.

7.2 For which types of claims is ship arrest available? What requirements and restrictions apply in this regard?

The maritime claims listed in Article 1352 of the TCC are equivalent to those listed in the 1999 Arrest Convention. A claimant may use Article 1352's right of arrest to secure:

• maritime claims;
• claims arising from general average, towage, pilotage, salvage operations or fuel supply; and
• other claims.

‘Ship arrest' refers to the custody, restriction or removal of a ship by a court order in order to secure a maritime claim. The rules only allow for the precautionary attachment of a ship in the event of a maritime dispute. A counter-security deposit of 10,000 Special Drawing Rights (SDR) is required before an arrest application can be processed. For seafarers who require financial protection, a counter-security exemption has been introduced. Seafarers benefit from the counter-security exemption when it comes to maritime liens.

A court may order the arrest of a ship if the court has jurisdiction. Ships flying foreign flags should file precautionary attachment applications with the relevant court to where they are anchored, moored, berthed, or docked. A precautionary attachment application for ships flying the Turkish flag can be filed with the court where the ship is registered if it is registered with the TSR, in addition to the other authorised courts. A precautionary application should be made to the court where the charterer resides if their ship is registered with a private registry.

7.3 Are maritime liens recognised in your jurisdiction? If so, what claims give rise to maritime liens? What is the difference (if any) between arrest of a ship for a maritime claim and a maritime lien?

Turkey has commenced domestic legal process to become a party to the International Convention on Maritime Liens and Mortgages, 1993. However, as indicated in question 1.1, the articles relating to maritime liens are already directly attached to the convention. A maritime lien:

• is a lien in rem;
• takes precedence over all other contractual liens and charges; and
• can be asserted against anyone in possession of the ship.

According to the TCC, each of the following claims against the owner, demise charterer, manager or operator of the vessel may be secured by a maritime lien on the vessel:

• claims for wages and other sums due to the master, officers and other members of the vessel's complement in respect of their employment on the vessel, including the costs of repatriation and social insurance contributions payable on their behalf:
• claims in respect of loss of life or personal injury occurring, whether on land or on water, in direct connection with the operation of the vessel;
• claims for reward for the salvage of the vessel;
• claims for port, canal and other waterway dues and pilotage dues;
• claims based on tort arising out of physical loss or damage caused by the operation of the vessel other than loss of or damage to cargo, containers and passengers' effects carried on the vessel.

No maritime lien will attach to a vessel to secure claims as set out in the second to fifth bullets above which arise or result from:

• damage in connection with the carriage of oil or other hazardous or noxious substances by sea for which compensation is payable to the claimants pursuant to international conventions or national law providing for strict liability and compulsory insurance or other means of securing the claims; or
• the radioactive properties or a combination of radioactive properties with toxic, explosive or other hazardous properties of nuclear fuel or of radioactive products or waste.

Claims rendering maritime liens are also listed in Article 1352 of the TCC as maritime claims. Therefore, if a claim enables a maritime lien, the claimant may arrest the ship whether the debtor is the owner or operator.

7.4 Under what circumstances is the arrest of sister ships and associated ships available? What requirements and restrictions apply in this regard?

The debtor must be the shipowner of the ship that is being arrested. The sister ships cannot be arrested for claims secured by in rem rights (eg, mortgages and statutory or contractual liens) or claims involving ship ownership or possession. Arrest is permissible of any sister ships and associated ships owned by the person that was:

• liable for the maritime claim at the time the arrest is made; and
• the shipowner, demise charterer, time charterer or voyage charterer of the ship at the time the claim originated.

In disputes regarding ownership or possession of the ship, an arrest may be enforced only on the ship that is the subject of the dispute.

7.5 Under what circumstances can bareboat and time-chartered vessels be arrested?

If a ship is registered in the bareboat registry, the court has jurisdiction in the charterer's place of registration. The applicant may appeal to the court where the ship has come to a halt, the court of the registry or, in the case of bareboat chartered ships, the court where the charterer is located. According to Article 1369 of the TCC, the arrest of chartered ships is not possible in principle. However, if the claim involves a maritime lien or originates from ownership, or a right in rem, the arrest of chartered ships is possible.

7.6 What are the formal and documentary requirements for arresting a vessel? What is the procedure and how long does this take? Must a countersecurity be provided? What other costs are incurred?

If the vessel is flying a foreign flag, the arrest application must be made in the district:

• where the ship has anchored, moored, berthed or docked; or
• where the repair yard is located if the vessel is in a repair yard.

If the vessel is a Turkish-flagged vessel, the courts in the province where the vessel's port of registration is located will be competent, in addition to the courts in the relevant district.

In order to obtain the arrest of a ship, the applicant must file a written application to the court that has jurisdiction over the ship. The applicant must submit efficient documents to prove that the maritime claim exists. All documents in a foreign language must be submitted with Turkish translations. The court will attend to such applications as a matter of priority. Before an arrest application can be considered, the applicant must deposit 10,000 Special Drawing Rights (SDR) as a countersecurity. The amount of the countersecurity can be increased or decreased. Apart from the countersecurity, fees and costs are also incurred. The arrest order must be executed within three days of its issuance by the enforcement office in the district of the court. The enforcement officer, the applicant or its attorney at law will attend the ship to follow the process of enforcement. A master for a foreign ship or even a Turkish ship may be served the arrest order. The shipowner, operator or one of its agents may also be served the arrest order. The enforcement officer must notify the Coast Guard, the Police Department, the Harbour Master's Office and the Customs Authority at the place where the ship is located. Within 30 days of the arrest, the applicant must file substantive proceedings in the competent jurisdiction on the merits of its claim. The arrest order will lapse if it is not enforced or if substantive proceedings on the merits are not started within the timeframes specified.

7.7 What is the procedure to release a ship from arrest and how long does this take? What security must be provided and how is this calculated?

The shipowner, charterer, manager or mortgagee may file objections against the arrest order. The time limit to file an objection is seven days from the date on which the objecting party receives information about the arrest. The court may set aside, uphold or modify the order. If the court so decides, the objecting party must provide suitable security covering the claim, interests and costs in order to release the ship from arrest. The vessel may be released within two days, although the precautionary lien on the ship will continue.

7.8 What is the test for wrongful arrest in your jurisdiction?

The Turkish court which grants the arrest also has jurisdiction to determine the extent of the applicant's liability, if any, for loss or damage caused by the ship's arrest, including loss or damage caused as a result of:

• the arrest being wrongful or unjustified; or
• excessive security being demanded and provided.

If the case's merits are to be decided by a court in another state or an arbitral tribunal, the case will be stayed pending that determination. The applicant may be held liable for damage by third parties (charters, cargo interests, mortgagees, port authorities and others that could show that they have sustained damages attributable to the arrest. In these cases, strict liability rules apply).

7.9 Are any alternatives to ship arrest available in your jurisdiction?

In a trial, a temporary legal protection measure regarding the subject of the case constitutes precautionary attachment. However, in the TCC, precautionary attachment regarding maritime claims is not mentioned. Ship arrest is the only legal protection against a maritime claim.

8 Judicial sale of a vessel

8.1 What key provisions apply to the judicial sale of vessels in your jurisdiction?

The requirement that the claim qualify as a maritime claim is no longer applicable. A ship may be seized to enforce judgment or other instruments even if the claim itself was a non-maritime claim. If a Turkish-flagged ship is sold abroad because of enforcement:

• the auctioning institution or those involved must notify the Turkish Ship Registry where the ship is registered, the owner of the ship registered in the registry and the owners of other rights and receivables registered to the ship registry; or
• the sale must be announced in a newspaper with circulation of over 50,000 and distributed to the public at least 30 days before the sale.

If a ship is sold overseas without this notification or announcement:

• the ship's registration cannot be deleted; and
• the rights and receivables on the ship registered in the Turkish Ship Registry remain reserved.

8.2 What is the procedure for judicial sale of an arrested vessel and how long does this take? What costs are incurred?

The sale must be requested within three months of the debtor's notification of the enforcement order. Bailiffs' offices execute judicial sales of vessels. The vessel's value must first be estimated by appointed experts. All creditors, owners, mortgagees or other parties concerned have the right to object to the estimated value after the court survey report is issued. In these circumstances, another court survey must be conducted. The auction will be announced in a national newspaper. The vessel may be auctioned for no less than 50% of its estimated value; and the sale price must be enough to cover the bailiff's fees as well as the claims of those creditors with priority over the creditor requesting the auction. All expenses incurred are deducted from the sale price, such as the fees and expenses paid to the court for the precautionary lien and enforcement proceedings. According to the Enforcement and Bankruptcy Law, sales are usually done by auction; although in exceptional instances specified in Article 119, movable property (eg, ships) may also be sold by negotiation.

8.3 How are the proceeds of sale distributed?

After the sale, the enforcement office will provide a prioritised list of creditors that indicates the ranking of all claims. According to the Turkish Commercial Code, the priority ranking of claims is as follows:

• all costs and expenses relating to the vessel's maintenance and preservation during the enforcement proceedings, as well as wages and other sums due to the crew members during the time of arrest, from the date of the vessel's arrest to the day that payment is made;
• costs incurred by a public authority stranded or sunken vessel following its removal by a public authority in the interest of safe navigation or the protection of the marine environment;
• maritime liens that are not governed by the preceding rankings, such as:
• • crew claims;
  • loss of life or personal injury claims;
  • salvage claims;
  • claims for port, canal, waterway and pilotage dues; and
  • claims based on tort arising from physical loss or damage caused by the operation of the vessel;
• shipyard claims;
• vessel-related customs duty and other taxes;
• claims protected by a contractual or legal right of pledge that is not governed by the preceding rankings;
• maritime claims that are not governed by the preceding rankings; and
• other claims against the owner.

8.4 What is the legal effect of the judicial sale of a vessel?

If the enforcement officer conducting the public auction or private sale proclaims that the ship is awarded, the title to the ship will pass to the buyer. As a result, the judicial sale extinguishes all claims against the ship, regardless of their nature, and grants the buyer absolute title to the ship. However, if the proceeds of sale are deposited with the enforcement office, all registered mortgages or charges, as well as any liens or other encumbrances of any kind, will cease to attach to the ship, except those taken by the purchaser with approval of the holders.

9 Environmental issues

9.1 What key domestic and international provisions apply to shipping emissions in your jurisdiction?

The International Maritime Organization adopted amendments to Annex VI of the International Convention for the Prevention of Pollution from Ships on 17 June 2021, including the Efficiency Existing Ship Index and the requirement to reduce operational carbon intensity using the Carbon Intensity Indicator. It will enter into force on 1 November 2022. Affected vessels must fully comply by their next annual, intermediate or renewal survey for the International Air Pollution Prevention Certificate, or by the first survey for the International Energy Efficiency Certificate before the ship enters service, whichever comes first on or after 1 January 2023.

9.2 What key domestic and international provisions apply with regard to the sulphur content of marine fuel in your jurisdiction?

According to International Maritime Organization regulations, from 1 January 2020 the global upper limit on the sulphur content of ships' fuel oil will be reduced to 0.5%.

Turkey signed the Protocol of 2010 to the International Convention on Liability and Compensation for Damage in Connection with the Carriage of Hazardous and Noxious Substances by Sea, 1996 on 15 May 2009, but the effective date has not yet been determined.

9.3 What key domestic and international provisions apply with regard to ship recycling in your jurisdiction?

The EU Ship Recycling Regulation entered into force in December 2013 and concerns all EU-flagged ships, as well as ships from third countries calling at a European port or anchorage of 500 gross tonnages or above. Apart from this, Turkey has no domestic regulations on ship recycling. The Hong Kong International Convention for the Safe and Environmentally Sound Recycling of Ships, 2009 was signed on 15 May 2009, but has not yet entered into force.

9.4 What other environmental issues and concerns should shipowners and operators be aware of in your jurisdiction? What best practices should they follow?

Although designation of the Marmara Region as an emission control area (ECA) is in consideration, there is not yet an ECA in any Turkish territorial seas. Shipowners must begin to control their emissions. Also, to protect the marine ecosystem, shipowners must prohibit the disposal of garbage produced by their ships.

10 Employment issues

10.1 What key domestic and international provisions apply to the health and safety of maritime workers in your jurisdiction?

The Maritime Labour Law (MLL) applies to:

• seafarers operating on vessels with a tonnage of 100 gross tons or more; and
• seafarers with a contract of employment in order to work on Turkish-flagged vessels.

The MLL and the Turkish Labour Law do not apply to employment relations on foreign-flagged vessels. The Turkish Code of Obligations is applicable to employment relations on foreign-flagged vessels.

Turkey is a party to the following International Labour Organization conventions:

• Convention 53 on the Minimum Requirement of Professional Capacity for Masters and Officers on Board Merchant Ships;
• Convention 55 on the Liability of the Shipowner in Case of Sickness, Injury or Death of Seamen;
• Convention 58 Fixing the Minimum Age for the Admission of Children to Employment at Sea;
• Convention 68 on Food and Catering for Crews on Board Ship;
• Convention 69/344 on the Certification of Ships' Cooks;
• Convention 73 on the Medical Examination of Seafarers;
• Convention 92 on Crew Accommodation on Board Ship;
• Convention 108 on Seafarers' National Identity Documents;
• Convention 133 on Crew Accommodation on Board Ship (Supplementary Provisions);
• Convention 134 on the Prevention of Occupational Accidents to Seafarers;
• Convention 146 on Annual Leave with Pay for Seafarers;
• Convention 152 on Occupational Safety and Health in Dock Work;
• Convention 164 on Health Protection and Medical Care for Seafarers; and
• Convention 166 on the Repatriation of Seafarers.

10.2 What other employment issues should shipowners and operators be aware of with regard to maritime workers in your jurisdiction?

Most Turkish ships fly foreign flags to avoid paying taxes. The MLL does not apply to seafarers operating on vessels sailing under foreign flags; but the Turkish Code of Obligations (TCO) does. Unlike the MLL, the TCO does not adequately protect the rights of seafarers.

Shipowners typically hire seafarers on six-month, fixed-term contracts. The main reason for this is because it prevents them from obtaining severance and notice pay. However, the Supreme Court's General Assembly of Civil Chambers has declared that more than one fixed-term contract between a shipowner and a seafarer is regarded as an indefinite-term employment contract, and the seafarer will be paid.

11 Disputes

11.1 In which forums are shipping disputes typically heard in your jurisdiction?

Disputes relating to all areas of maritime law are heard by chambers of the Commercial Court designated exclusively for Maritime Law. The 17th Commercial Court in Istanbul and the Fifth Commercial Court in Izmir handle disputes as commercial courts specialising in maritime cases. If a contract between parties contains special provisions, those provisions may also be examined in arbitration; although these issues are usually resolved in commercial courts.

If a bill of lading contains a reference to a voyage charter party, a copy of the charter party must be submitted at the time the bill of lading is assigned. In this situation, the charter party's clauses can be used against the bill of lading holder if the qualifications allow.

Consumer protection courts also hear disputes arising from contracts for the carriage of passengers by the sea.

11.2 What issues do such disputes typically involve? How are they typically resolved?

Generally, disputes arise from:

• loss of a ship;
• loss of goods;
• a collision;
• cargo claims;
• partial damage to goods;
• accidents;
• collisions;
• loss or destruction of freight at sea;
• piracy;
• explosions;
• salvage operations; or
• entry into another country's territorial waters without permission or prior notice.

11.3 Have there been any recent cases of note?

In one prominent case, a shipment that was shipped overseas incurred a demurrage cost at the discharge court. When the buyer declined to pay the demurrage cost, the charterer was asked to pay it. The charterer refused to pay, since the Turkish Commercial Code (TCC) specifies that the charterer is responsible for the cargo until it is delivered to the buyer. Since there was a provision on the back of the bill of lading stating that the charterer was responsible for the demurrage cost, the carrier claimed it from the charterer. The charterer claimed that the charter party's provisions would apply between the charterer and the carrier; and that if there was no charter party, the TCC should apply. The court agreed that the TCC applied to the parties' relationship, and the suit for demurrage fees was dismissed.

12 Trends and predictions

12.1 How would you describe the current shipping landscape and prevailing trends in your jurisdiction? Are any new developments anticipated in the next 12 months, including any proposed legislative reforms?

The Turkish Commercial Code, which governs shipping law, was established in 2012 and there have been no significant legal developments since then. The Turkish shipping legislation has been aligned with international norms as a result of the code's enactment and the ratification of many international treaties.

13 Tips and traps

13.1 What are your top tips for shipowners and operators in your jurisdiction and what potential sticking points would you highlight?

Working with an experienced professional is strongly advised. If even one provision in a contract is written improperly, irrevocable future consequences can result.

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.