TÜRKIYE Trends and Developments Contributed by: Türker Yıldırım, Semih Sander, Gülistan Baltacı Hatay and Selçuk Sencer Esenyel, Esenyel|Partners Lawyers & Consultants
Recent Debates on Limitation of Liability Recently, a debate has arisen before the Istanbul 17th Commercial Court (the “Istanbul Maritime Court”) related to Article 1328 of the TCC, which sets out the rules applicable to limitation of liability arising from maritime claims, as follows. • (1) The liability arising from maritime claims could be limited according to the International Conven - tion on Limitation of Liability for Maritime Claims dated 19 November 1976 that was published in the Official Gazette No 17007 dated 4 June 1980 and the Protocol dated 2 May 1996 that changed this Convention or international conventions that have been prepared to replace it and agreed by the Republic of Türkiye. • (2) This article is implemented so as to include the changes to be made in accordance with Articles 20 and 21 of the International Convention on Limita - tion of Liability for Maritime Claims dated 1976 and Article 8 of the Protocol dated 1996 starting from the date at which they become enforceable in the Republic of Türkiye. • 3) The “Convention dated 1976” that is mentioned in this Section refers collectively to the International Convention on Limitation of Liability for Maritime Claims dated 19 November 1976, the Protocol dated 2 May 1996, and those changes concerning this Convention which have been enforceable in the Republic of Türkiye. The rules referred to in Article 1328 regarding the ship-owner’s limitation of liability are governed by the Convention on Limitation of Liability for Maritime Claims adopted in 1976 (the “Convention”) and the 1996 Protocol (the “Protocol”), which was introduced to amend the Convention in response to the need for updated limitation amounts. The Protocol introduced a simplified mechanism for updating the limitation amounts and, to this end, established the tacit acceptance procedure. In accordance with this procedure, the International Maritime Organization adopted a decision on 19 April 2012 (the “Decision”). Through this Decision, the limi - tation amounts set out under the Convention and the Protocol were increased by 51%.
In a former dispute, the Istanbul Maritime Court briefly decided in their decision dated 15 May 2019 – File No 2018/148, Decision No 2019/232 – that the increased limit of liability under the Decision must be applied to Turkish legislation. One of the parties appealed against that judgment, and the appeal process is pending (the “Former Judgment”). In the meantime, a new dispute arose and recently came before the Istanbul Maritime Court. Briefly, the subject of the dispute concerns an application made to the Istanbul Maritime Court for the establishment of a fund, in accordance with Article 1328 of the TCC, under the Convention and the Protocol in relation to a foreign-flagged vessel that capsized by heeling over while berthed. In the present case, one of the parties has brought before the court the same interpretation issue as in the Former Judgment, but this time by submitting a legal opinion arguing that the Decision cannot be applied since it has not become part of domestic legislation, on the grounds that it has not been duly ratified – even though the Istanbul Maritime Court previously took the position that the Decision is applicable under Turkish law. Considering that the interpretation of Article 1328 may directly affect both the court’s decision and the scope of the fund to be established, and further taking into account that the legal opinion submitted contradicts the Former Judgment, the justification of the TCC and Turkish legal doctrine, the counterparty also submit - ted a counter legal opinion prepared by Prof Dr Kerim Atamer, one of the leading and most respected schol - ars in Turkish maritime law who was also involved in the legislative process of the TCC’s maritime law pro - visions. He argued that the Decision must be applied, as in the Former Judgement, as part of domestic leg - islation, since the legislature intended to incorporate all interpretations and amendments of the Protocol when drafting Article 1328. Therefore, the increased limitation amounts must be applied. Neither the Istanbul Maritime Court nor the Court of Appeal has rendered a decision yet. However, once a decision is issued, it will create a significant prec - edent for similar disputes, particularly since this time
624 CHAMBERS.COM
Powered by FlippingBook