Liability Regulations in Cargo Damage During Sea Transport: A Comparative Analysis of Turkish and English Maritime Law

A comparative analysis between English and Turkish maritime laws reveals nuanced differences in their respective approaches toward cargo damage liability. English maritime law leans heavily on common law principles and judicial precedents, while Turkish law is largely codified in the Turkish Commercial Code (TCC). English law relies on case law to develop nuanced, situation-specific rules that reflect the complexities of maritime operations. For example, in England, the charter-party and customary practices at specific ports often shape the obligations and liabilities of carriers and shippers.[1] In contrast, the TCC has articles like 1188 and 1063 that prescribe detailed rules and obligations for the carrier, thereby reducing room for contractual freedoms and variations.[2]

This codification in Turkish law and reliance on case law in England bring different pros and cons. English law's flexibility allows for more tailored agreements, where parties can negotiate terms to suit their needs. This flexibility often leads to evolved and specialized contracts, benefiting from historical cases that have set precedents. On the downside, this can also lead to uncertainty and expensive litigation to interpret ambiguous terms. Turkish law, with its codified statutes, offers predictability and uniformity. Carriers and shippers know what to expect in terms of procedures and liabilities. However, this rigidity can also be a disadvantage when dealing with unique situations that haven't been envisaged by the TCC.[3]

One significant divergence in assigning liability lies in how each jurisdiction treats the burden of proof and exemptions for the carrier. In Turkish law, particularly Article 1063, a presumption de juris tantum is established; meaning if a loss occurs under circumstances that could correspond to any events outlined in the TCC, it is presumed to have arisen from such events.[4] The carrier must then demonstrate a causal link between the exempted event and the loss to escape liability. English law, however, does not use such presumptions but relies on judicial interpretations to assess causation and exemptions, such as those found in Article 4(2) of the Hague Rules.[5]

Another point of divergence is the treatment of exemptions in relation to the carrier's agents or servants. Article 4(2) of the Hague Rules, followed by English law, offers broader exemptions.

These rules are more lenient in exempting carriers from liabilities arising from the faults of their servants or agents, whereas Article 1062(II) of the TCC is more stringent and limits such exemptions.[6]

Lastly, the inconsistency in Turkish law's application represents a significant drawback, especially when the TCC and international conventions like the Hague-Visby Rules conflict. According to Article 90 of the Turkish Constitution, international conventions should take precedence over domestic laws. However, Turkish courts have often prioritized the TCC over international conventions, thus creating confusion and unpredictability in liability matters.[7] On the other hand, Carriage of Goods by Sea Act, 1971 specifically gives the Rules “the force of law” as it is provided under sections 1(2), (3), (6) and (7). The Rules clearly provided that when the contract of carriage falls within one of the cases set out in Article X of the Rules, then the Rules must apply whatever be the proper law of the contract.[8]

In summation, Turkish law emphasizes the importance of effective communication between carriers and consignees, in contrast to English jurisprudence. Court decisions underpin the complex terrain of burden of proof and prerequisites for carrier liability, with Article 1063 imposing a dual burden on carriers in Turkish law. The comparative analysis between English and Turkish laws unveils nuanced differences in their approaches to cargo damage liability. English law relies on common law principles, judicial precedents, and flexible case-by-case developments, while Turkish law is codified in the TCC, providing predictability but limiting contractual freedoms. While English law benefits from its flexibility and evolutionary nature, driven by case law, but suffers from potential uncertainty; Turkish law offers predictability through its codified statutes but at the expense of flexibility. Divergences in burden of proof, exemptions, and the consistent incorporation of international conventions further distinguish the two legal frameworks. Despite their respective merits and demerits, English and Turkish maritime laws contribute distinct perspectives to the complex landscape of cargo damage liabilities.

[1] Article 1063(1) of Turkish Commercial Code

[2] Hakan Karan, The Carrier’s Liability for Breach of The Contract of Carriage of Goods by Sea Under Turkish Law, Journal of Maritime Law & Commerce, Vol.33, No.1, January, 2022.

[3] Ibid.

[4] Article 1063(1) of Turkish Commercial Code

[5] Hakan Karan, The Carrier’s Liability for Breach of The Contract of Carriage of Goods by Sea Under Turkish Law, Journal of Maritime Law & Commerce, Vol.33, No.1, January, 2022.

[6] Ibid.

[7] Ibid.

[8] Zulkifli Hasan, Nazli Ismail @ Nawang, The Weaknesses of the Hague Rules and the Extent of Reforms Made by the Hague-Visby Rules