TÜRKIYE Law and Practice Contributed by: Türker Yıldırım, Semih Sander, Gülistan Baltacı Hatay and Selçuk Sencer Esenyel, Esenyel|Partners Lawyers & Consultants
the cargo was in the carrier’s custody. The cargo is deemed to be in the carrier’s custody from the time it
plete information regarding the cargo. Accordingly, the shipper is liable to the carrier for any damages arising from misdeclaration. Two recent judgments on Article 1145, both by the Istanbul Maritime Court, confirm that carriers’ claims against shippers on the ground of misdeclaration of cargo are approved and accepted by the Turkish courts. 4.5 Time Bar for Filing Claims for Damaged or Lost Cargo Pursuant to Article 1188 of the TCC, any rights to claim compensation from the carrier for damage to or loss of cargo or late delivery will be limited to within one year as of the complete or partial delivery of the cargo and, where the cargo was never delivered, the date the cargo should have been delivered. This is a prescription period; however, it can be extended by an agreement between the parties, provided such agree - ment is executed after cause of action has arisen. With reference to Article 1297, claims in the nature of a liability in tort, such as those arising from collision, are subject to a time bar of two years. This is a statute of limitation and can be suspended or interrupted in certain situations. 5. Maritime Liens and Ship Arrests 5.1 Ship Arrests Türkiye ratified the 1999 International Convention on the Arrest of Ships (the “1999 Arrest Convention”) and the 1993 International Convention on Maritime Liens and Mortgages (“1993 MLM Convention”). As for domestic law, vessel arrest procedures in Tür - kiye are governed by the TCC, which incorporates the principles of the 1999 Arrest Convention and sets out the rules on maritime claims. 5.2 Maritime Liens Türkiye differentiates between maritime lien claims and maritime claims.
has been received by the carrier until: • the delivery to the cargo receiver;
• where the cargo receiver refuses delivery, the cargo is put at the cargo receiver’s disposal in accord - ance with the contract or the law; and • if it is mandatory for the cargo to be delivered to authorities, delivery to such authorities. The carrier can be excluded from liability in accord - ance with Articles 1179, 1180, 1181 and 1182, in par - ticular where: • the damage did not occur due to the carrier’s or its employees’ intent or neglect; • the damage results from an act relating to the navi - gation or other technical management of the ves - sel, or from fire – in which case the carrier’s liability shall be limited to its own fault; • except in cases of general average, the damage results from salvage operations or attempts at salvage of life or property at sea; or • specific cases apply, such as compliance with court orders, occurrences of strikes or lockouts, etc. Limitation of Liability According to Article 1186 of the TCC, the liability of the carrier is limited. For any loss of or damage to the cargo, the carrier shall, in any event, not be liable for an amount exceeding the higher of SDR666.67 per package or unit, or SDR2 per kilogram unless the value of the cargo has explicitly been stated on the bill of lading. Further, limitation of liability would not apply in certain cases, such as the carrier causing the loss of or damage to the cargo on purpose. Liability of Actual Carrier Pursuant to Article 1191 of the TCC, if the carriage is partially or entirely performed by an actual carrier, the contractual carrier shall remain liable together with the actual carrier on a joint and several basis. 4.4 Misdeclaration of Cargo Pursuant to Article 1145 of the TCC, the shipper is obliged to declare to the carrier accurate and com -
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