Land and Sea Trade
At Solmaz Law & Consultancy Firm, we offer you consultancy services such as cargo transportation by sea and land vehicles and all kinds of logistics, warehousing services that can be considered within this scope, certification and contract preparation related to national and international cargo transportation, as well as insurance of land and sea vehicles, accidents and collisions, registration and customs procedures with an innovative and result-oriented approach. In addition to these we provide satisfactory answers in the shortest possible time to requests regarding;
- Examination of ship and yacht construction, repair and alteration contracts
- Ship financing, sale and purchase, registration, abandonment and mortgage transactions
- Vessels banned from navigation
- Commercial management of the vessel
- Voyage charter, full charter, partial charter
- Contract of carriage of goods
- Debts of charterers, pledge of receivables and lien rights, lien rights related to receivables from third parties
- Time charter contract
- Freight contract
- Calculation of loading time
- Surge period
- No or incomplete loading
- Failure of the shipper to give instructions regarding loading,
- Ships owned by trading companies
- Registration, abandonment and amendment of ship registry records
- Acquisition of ship ownership, ship pledge, shipyard owner’s statutory mortgage right, contractual mortgage right
- Ship mortgages, joint ship mortgages, upper limit mortgages, foreign currency mortgages, mortgages on negotiable instruments and construction mortgages, mortgages on ships under construction
- Insurance compensation for mortgaged vessel
- Tort liability of the ship owner
- Liability arising from the fault of seafarers
- Liability of the ship owner for pollution, collision, salvage and common cargo
- Lawsuits against the owner
- Navy subsidiary
- Liability of the master to the ship owner and third parties
- Ship charter agreement
- Responsibility for the defect of the leased property, right to demand the elimination of the defect and right of termination, sublease and transfer of the right of use, securing the receivable in case of default of the lessee
- Issuance of bill of lading, issuance of sea freight bill
- Disputes arising out of loss and damage or late delivery of the goods by the carrier
- Disputes arising from transshipment and loading on another vessel
- Disputes arising from unauthorized deck loading
- Limitation of liability of the bearer of responsibility for wrongful deviation
- Liability of the shipper and shipper
- Distance freight and termination compensation
- Contracts for the carriage of passengers by sea
- Liability for damages suffered by the passenger
- Maritime enforcement and bankruptcy proceedings
- Ship receivables, seafarer receivables, securing ship receivables
- Claims arising from death and injury
- Collective average claims, tort claims
- Precautionary seizure of the ship, sale of ships by forced execution
- Marine insurance
- Marine accidents such as collision, common average, special average, rescue and relief
- Compensation lawsuits for marine and environmental pollution damages caused by any accident or during the normal operation of the ship and objection procedures to administrative fines
- Resolution of cargo loss and damage, compensation claims and other disputes arising from land and maritime transportation
- Preparation and examination of transportation contracts
- Charter party /lay time/demurrage review and disputes
- Bill of lading/cargo and freight disputes
- Land transportation, international and intercity transport
- Liability of the carrier for the carriage of goods by land,
- Liability of the carrier for loss, damage and delay under the CMR; actions for damages for loss, damage or delay
- Reasons for reduction or abolition of compensation in compensation lawsuits
- Transport waybill, transport bill, authorization documents
- Liability insurance
- Customs procedures, customs control, delivery of goods, import and export customs duties
- Legal services on the release of the carrier from liability, limitation of the carrier’s liability, notifications to be made to the carrier.
The most frequently asked questions within the scope of Maritime Law:
What are Maritime Trade Contracts?
In terms of ship acquisition financing: Ship building contracts, ship purchase and sale contracts, ship loan and financing contracts, ship mortgage contracts.
In terms of ship maintenance and repair: ship maintenance and repair contracts, contracts with ship muscle organizations
Other contracts: pilotage service contracts, ship use and exploitation contracts, ship management and representation contracts, agency contracts
What is a Freight Contract?
It is a type of contract where one party undertakes to transport goods by sea in return for freight and the other party undertakes to pay freight. Freight contracts can be diversified as voyage charter contract, goods carriage contract, sub-freight and main freight contracts. There is no formal requirement for the conclusion of a freight contract.
For the performance of the contract, the goods must be received and loaded by the carrier or its representative. In other words, the possession of the goods must pass to the carrier or its representative. The responsibility passes to the carrier upon delivery. The place of loading is the place agreed in the contract. In order for the loading period to start, the carrier must give a preparation notice. This notification is not subject to form. The time caused by the carrier’s own reasons shall not be taken into account in the loading time. Unless otherwise stipulated in the contract or according to the customs; the cost of transportation of the goods to the ship belongs to the carrier and the cost of loading belongs to the carrier.
In the event that the loading is not performed at all; if the loading period and the agreed period of time has expired after the preparation notice and the loading has not started yet, the carrier may consider the contract terminated or continue to wait. If a claim for compensation is to be made, the carrier must be notified. If the carrier continues to wait for the loading to commence, the carrier may claim damages for excessive waiting from the shipper.
In case the loading is incomplete; after the end of the loading period and, if agreed, the expiry of the time period, the carrier may request the ship to set sail with the instruction of the carrier even if not all of the agreed goods have been loaded. In this lawsuit, the carrier may demand the full amount of the freight price specified in the contract, the resulting time delay fee, the expenses and damages he has to incur due to incomplete loading, and additional collateral.
If the shipper has not given instructions regarding the loading; after the end of the loading period and, if agreed, after the expiry of the time period; if the shipper refrains from giving instructions despite being notified, then the carrier may claim compensation by accepting that the contract has been terminated. If there is any doubt in the calculation of the compensation amount, 30% of the freight price shall be considered as deprived earnings.
In the event that the goods are not unloaded or not received; the situation shall be notified to the consignee, depending on the type and condition of the goods, it may be sold at auction with the permission of the judge and the price may be compensated.
What is the Carrier’s Liability for Carriage of Goods?
The carrier is negligently liable in cases of damage, late delivery and loss of the goods. Pursuant to the freight contract, the carrier has a duty of care and diligence. The scope of the duty of care includes the activities of loading, stowing, handling, transportation, protection, supervision and inspection of the goods.
Damage: Damage may occur during transportation. Deterioration in the state and condition of the cargo or decrease in its value requires the acceptance of the occurrence of damage. Temporary deterioration and wetting are also considered as damage. Damage may have occurred to all or part of the goods.
Loss: It is the situation where it is materially or economically impossible to deliver the goods after the carrier has received the goods. The complete destruction of the goods, the complete loss of its economic value, and the physical loss of its essential quality can be exemplified as the loss of the goods.
Delay: The carrier is liable for the late delivery of the goods. However; the provisions regarding the lawsuits where it is not possible to attribute fault to the carrier are reserved.
In case of loss and damage; the carrier must be notified until the moment of delivery of the goods to the consignee at the latest. Again, in case of delay, the delay in the delivery of the goods must be notified to the carrier in writing within 60 days to be calculated continuously from the date of delivery.
What are the circumstances of special liability of the carrier?
- Loading the goods on another vessel without the consent of the shipper
- Carrier’s unauthorized carriage of goods on deck requires special liability of the carrier
What are the Conditions for Limitation of Carrier’s Liability?
It shall not be liable for loss or damage to the goods in excess of 666,67 Special Drawing Rights (SCR) per parcel or unit or two SCRs for each kilogram of the gross weight of the goods damaged or harmed, whichever is higher, provided that the higher limit is applied in each lawsuit. Under the Commercial Code, the limit for liability arising from exceeding the period of carriage is up to twice the amount of the freight to be paid.
Circumstances where the Carrier cannot benefit from Limited Liability:
If the type and value of the goods are notified by the shipper before loading, the carrier cannot benefit from limited liability. However, if this value is deliberately misreported; the carrier shall not be liable for the loss and damage arising.
If the carrier caused the damage with a willful and reckless behavior, in this lawsuit; it will not be able to benefit from limited liability. If the same behavior is performed by the carrier’s men, the carrier cannot benefit from limited liability.
What is a Ship Pledge (Mortgage)?
Ship mortgage is a limited real right that authorizes the creditor to receive its receivable from the price of the ship. The provisions of pledge subject to delivery shall apply to the pledge of Turkish Ships which are not registered in the Turkish Ship Registry. As for the ships registered in the registry; the right of mortgage may arise from the law or the contract.
Shipyard owner’s statutory mortgage right: The shipyard owner has the right to request the registration of a mortgage on the structure or ship for receivables arising from the construction or repair of the ship. For foreigners, this mortgage may be established to the extent that their legislation is compatible. Shipyard mortgages cannot be established on ships that are not registered in the registry and other ships belonging to the ship owner. The shipyard owner may request the registration of the mortgage from the moment he undertakes the work. The registration must be made within a period of three months from the commencement of the work. The period is forfeited.
Contractual mortgage right: It is a mortgage right established on ships based on a contract. A ship mortgage is a collateral mortgage, a type of registered pledge. A mortgage may be established on the basis of future, contingent or negotiable instruments. It is a form-bound pledge and must be annotated in the ship registry. The agreement must be in writing and notarized.
What are the Types of Ship Mortgages?
Ship mortgage, upper limit mortgage, foreign currency mortgage, fixed value mortgage, mortgage on negotiable instruments and construction mortgage are among the types of ship mortgage.
What is the Scope of Ship Mortgage?
The scope of the mortgage includes the ship, ship’s share, integral parts, appurtenances, the sale or expropriation price, lease price, insurance compensation and compensation claims. If there is a danger of deterioration in the condition of the mortgaged ship before the receivable becomes due, the creditor asks the owner to take measures by giving an appropriate period of time; if the improvement is not realized within this period, the creditor may initiate the foreclosure of the mortgage. In addition, the court may also order the precautionary seizure of the ship and, if deemed necessary, the release of the ship to the trustee. Transfer of the ship mortgage is possible.
What is Precautionary Seizure of a Ship?
It is a precautionary attachment remedy that enables all maritime receivables, including contractual or legally secured maritime receivables, to be secured according to the special procedure adopted for ships. Unlike the general attachment remedy, the most important criterion sought in applying for the precautionary attachment of the ship is that the receivable is a maritime claim.
Maritime receivables listed in Article 1352 of the Turkish Civil Code are:
- Loss or damage caused by the operation of the ship.
- Loss of life or other bodily injury occurring on land or in water directly related to the operation of the ship.
- Special compensation to be paid for salvage activity or any kind of salvage contract, salvage activity related to a ship or goods on board a ship that poses a threat of environmental damage.
- Damage or threat of damage to the environment, coastline or related interests caused by the ship; measures taken to prevent, limit or eliminate this damage; compensation to be paid for this damage; the costs of reasonable measures actually taken or to be taken to restore the environment; losses suffered or may be suffered by third parties in connection with this damage and damages, expenses or losses of a similar nature to those mentioned in this subparagraph.
- Costs and expenses incurred for the floating, lifting, removal, disposal, destruction or rendering harmless of a sunken, wrecked, stranded or abandoned ship, including things found or available in the ship, and costs and expenses related to the protection of an abandoned ship and the provision of food for the seafarers.
- Any contract for the use or hire of a ship, whether or not a charter party has been issued.
- Any contract for the carriage of goods or passengers on board a ship, whether or not a charter party has been issued.
- Loss or damage to or related to the goods, including baggage, carried on board the ship.
- General average.
- Goods, materials, supplies, provisions, fuel, equipment, including containers, provided for the operation, management, protection or maintenance of the ship and services provided for these purposes.
- The construction, reconstruction, repair, equipping or modification of a ship.
- Ports, canals, canals, docks, piers and docks, other waterways and quarantine fees and other fees.
- Claims for salaries and other sums due to seafarers for their work on board ship, including repatriation expenses and social insurance contributions payable on their behalf.
- Expenditure incurred on behalf of the ship or its owner, including loans taken out for the ship.
- Insurance premiums, including mutual insurance contributions, payable by or on behalf of the owner of the ship.
- Any commission, brokerage or agency fees to be paid by or on behalf of the owner of the ship in relation to the ship.
- Any dispute concerning the ownership or possession of the ship.
- Any dispute between the co-owners of a ship concerning the operation of the ship or the proceeds from the ship.
- Ship pledge, ship mortgage or a real obligation of the same nature on the ship.
- Any dispute arising out of a contract for the sale of a ship.
Necessary conditions for requesting a precautionary attachment of the ship:
As a rule, the maritime claim must be due. However, if the debtor does not have a specific place of residence in terms of un-matured maritime receivables; if the debtor prepares to hide, smuggle or escape his goods in order to get rid of his debt, or if he makes fraudulent transactions for this purpose, the precautionary attachment of the ship may also be requested in this lawsuit.
Pursuant to Article 1354 of the Commercial Code; a precautionary attachment decision on Turkish flagged ships may only be issued by the court where the ship is anchored, moored, moored to a buoy or tonnage, docked or berthing, or by the courts indicated below. For ships registered in a Turkish Ship Registry, the court of the place of registration, and for ships not registered in a Turkish Ship Registry, the court of the owner’s domicile.
If the ship is at the port; the ships, whose precautionary attachment is decided, shall be banned from voyage and taken under custody by the executive director, regardless of their flag and the registry to which they are affiliated. In case the ship is on voyage; in the lawsuit of Turkish flagged ships, the precautionary attachment decision is notified to the owner, or if there is no owner, to the ship owner or personally responsible person and it is requested to provide collateral within 10 days, otherwise the ship is requested to be delivered to the executive director. If the ship is foreign flagged, the coast guard is requested for assistance.