INTRODUCTION
The Turkish Commercial Code (“TCC“) establishes the carrier’s liability, outlining various cases of absolute non-liability and regulating these situations explicitly. The TCC aims to alleviate the carrier’s burden in certain cases, limiting or even completely eliminating their liability. Some of these absolute non-liability cases are based on events that occur outside the carrier’s fault, while others render the carrier’s liability invalid under certain conditions. Issues such as defects in the vessel’s navigation or other technical management, fire, maritime rescue operations, and intentional misrepresentation of the nature or value of the cargo are among the primary causes of the carrier’s absolute non-liability.
GENERAL LIABILITY OF THE CARRIER
The carrier’s liability arising from the contract of carriage is a contractual liability. If the carrier fails to perform its obligations under the contract or does so inadequately, it will be liable for all resulting damages unless it proves it was free from fault.
The carrier’s liability under the TCC is determined according to the principle of a limited number of cases. The first of these liability cases is regulated under Article 1141 of the TCC, titled “Carrier’s Obligation to Make the Vessel Suitable for Sea, Voyage, and Cargo”. According to this article, the carrier is obligated to make the vessel suitable for the sea, voyage, and the cargo to be transported. This liability can stem from the carrier’s initial lack of fault or from deficiencies occurring during transportation. In other words, if the carrier fails to prepare the vessel appropriately for transport, it can be held liable.
Following Article 1141 of the TCC, the carrier’s liability is further elaborated with detailed regulations. For example, under Article 1150 of the TCC, the carrier is held liable for damages resulting from loading cargo onto another vessel without the shipper’s consent, and under Article 1151 for damages due to the unauthorized transportation of goods on deck, such as losses, damages, or delays. Additionally, the carrier’s liability for damages arising from unjustified deviations from the agreed route is regulated under Articles 1113 and 1220 of the TCC.
Moreover, the carrier’s liability arises from damages caused by failure to make the vessel suitable for sea, voyage, and cargo at the outset, unauthorized transfers of cargo to other vessels, unauthorized deck loading, or deviations from the route without valid reasons, leading to loss, damage, or delayed delivery. All of these liability cases are regulated under Article 1178 of the TCC. According to Article 1179 of the TCC, the carrier is not held responsible for damages arising from reasons not related to the carrier or their agents’ fault, provided that this is proven. In such cases, the carrier is granted the opportunity to be relieved from liability.
ABSOLUTE NON-LIABILITY CASES OF THE CARRIER
A. Defect in the Vessel’s Navigation and Other Technical Management
According to Article 1180 of the Turkish Commercial Code, if damage to the cargo or delayed delivery occurs due to the vessel’s navigation or other technical management, the carrier will only be liable for damages caused by its own fault. However, if the damage is caused by the fault of the carrier’s crew in handling the vessel’s navigation or technical management, the carrier will not be liable for the resulting damages. Defects in the vessel’s navigation or technical management are considered “technical defects,” and the degree of fault does not matter for the carrier’s liability.
Defects in the vessel’s navigation refer to mistakes related to the necessary precautions for the vessel’s departure and voyage. Defects in technical management refer to the failure to take necessary precautions for the safety, security, and maintenance of the vessel, especially regarding ensuring the vessel’s proper condition during the journey. Even when deficiencies can be corrected after the journey has started, they are considered technical defects.
An important point is that the carrier is not responsible for technical defects that arise after the voyage begins. However, if the technical defect is due to the vessel’s initial unsuitability or the carrier’s commercial fault, the carrier will be liable for damages. According to Article 1141 of the TCC, deficiencies in the vessel’s preparation for the journey are not considered technical defects. In short, the carrier is not liable for defects that occur during the voyage unless they stem from the carrier’s fault. These technical defects will be considered part of the vessel’s management, and the carrier’s absolute non-liability will apply. Indeed, in the decision of the 11th Civil Chamber of the Court of Appeals on 12.03.2015, in Case No. 2014/14780, Decision No. 2014/3413:
“(…) the failure to properly close valves and faucets in the machinery section is among the main technical management faults, and the carrier is not liable for damages resulting from such technical management errors, as per Article 1062/2 of the TCC. The purpose of closing the valve is more for maintaining the vessel’s condition than the cargo’s benefit, so the failure to close the valve is classified as a technical fault, not a commercial fault, and based on the 1924 Hague Rules Article 3(a) and Article 1062/2 of the TCC, the carrier is not liable for damages resulting from technical faults, and the cargo loss is not attributed to the initial unsuitability of the vessel.”
B. Fire
The carrier is not liable for damages resulting from a fire that is caused by the fault of the vessel’s crew and is not attributable to the carrier’s fault. According to the principle of absolute non-liability, the degree of fault of the crew in causing the fire does not matter; even if the crew caused the fire intentionally, the carrier will not be held liable. However, a fire resulting from the vessel’s initial unsuitability will not fall within the scope of the carrier’s absolute non-liability, as the carrier is responsible for preparing the vessel for the voyage and ensuring its suitability at the outset. If no causal link is established between the fire and the vessel’s initial unsuitability, the carrier will not be liable for damages caused by the fire. As stated in the decision of the 11th Civil Chamber of the Court of Appeals on 08.02.2016, Case No. 2015/6343, Decision No. 2016/1110:
“Based on the case facts, defense, expert reports, and all case documents, the carrier, who is the party to the main bill of lading, was found not liable for fire damage, as no personal fault was proven, and damages resulting from the fire were not subject to claim under TCC Article 1062.”
C. Maritime Rescue
According to Article 1181 of the TCC, the carrier is not liable for damages arising from maritime rescue operations or salvage efforts, except in cases of general average. However, if the salvage operation is solely aimed at saving the cargo, the operation must be based on a reasonable course of action. In summary, the carrier will be absolutely non-liable for damages arising from rescue operations aimed at saving life or property, regardless of the reasonableness of the actions. Moreover, the carrier’s non-liability does not depend on the success of the rescue operation. However, if the carrier performs the rescue operation for a fee (e.g., cargo salvage), their liability will depend on whether the operation is reasonable.
Additionally, captains and carriers are obligated to follow the agreed route in maritime transportation. However, according to Article 1220 of the TCC, if the captain deviates from the route due to life or cargo-saving efforts, or any other justifiable reason, the carrier will not be liable for damages arising from this deviation.
D. Intentional Misrepresentation of the Nature or Value of the Cargo
According to Article 1186, paragraph 5 of the TCC, if the shipper intentionally misrepresents the nature or value of the cargo, the carrier will be absolved of liability for any damage to or loss of the cargo. However, incorrect statements about the quantity of the cargo will not fall under this rule, and intentional misrepresentation of the cargo’s nature or value will lead to the carrier’s non-liability. The law specifies that this applies only to loss and damage to the cargo, and not to delays. Therefore, this absolute non-liability case does not apply to damages arising from delays.
CONCLUSION
The carrier’s liability is regulated by contract-based fault liability in the Law. TCC provides provisions defining the limits of the carrier’s liability, including situations of absolute non-liability. As explained above, while the carrier is responsible for the faults of their own crew as well as the ship’s crew as if they were their own fault, in cases where there are circumstances of absolute non-liability for damages arising from the loss or damage of the goods, the carrier will not be liable, provided that there is no fault on their part.
REFERENCES
- Tekin, Safa Murat, Navlun Sözleşmesinde Taşıyanın Sorumluluğu, 1st Edition, p. 55.
- Uluğ, İ., (2002), “Taşıyanın Mutlak Sorumsuzluk Halleri”, Ankara Hacı Bayram Veli Üniversitesi Hukuk Fakültesi Dergisi, 6(2).
- Yazıcıoğlu, Emine, Deniz Ticareti Hukuku, 17th Edition, Istanbul, pp. 397-401
