In maritime commercial law, where two or more vessels strike one another, Article 1286 of the Turkish Commercial Code No. 6102 characterises the event as a collision. For the Code’s provisions on collision to come into play, the craft which strike one another or cause one another damage must qualify as vessels. Where that condition is met, not only the damage arising to the vessels but also the compensation of the loss suffered by the persons and the goods on board is resolved according to the provisions on collision.
By contrast, where a vessel strikes an object that does not count as a vessel — a structure on the shore, for example — the collision regime does not apply. In such an event, compensation for the loss may be claimed within the framework of the provisions on tort of the Turkish Code of Obligations No. 6098.
One point should be underlined: the Turkish Commercial Code No. 6102 regulates collision only in its civil-liability dimension, that is, in terms of damages. Where the casualty has resulted in death, injury or damage to property, criminal liability may additionally arise under the Turkish Penal Code No. 5237. In the same way, criminal liability may arise under the Act on the Protection of Life and Property at Sea for those who breach the obligations relating to keeping a vessel seaworthy. In this briefing note we address the civil, and not the criminal, consequences of collision.
Scope of Application of the Collision Provisions
Since Art. 1286 of the Turkish Commercial Code No. 6102 defines collision as the striking together of two or more vessels, the application of the provisions depends first of all on the craft involved being vessels. It is not required, however, that those vessels be merchant vessels. The provision speaks only of vessels and draws no distinction between them. The craft involved may therefore be a merchant vessel, but it may equally be a special-purpose vessel, a yacht or a warship.
A second limit arises from the legal relationship between the parties. For the provisions on collision to apply, there must be no contractual bond between the colliding vessels. Where, for example, a towage contract exists between them, the dispute is resolved primarily according to the provisions of that contract; the collision regime recedes into the background.
Finally, it is not a condition that the vessels be actually under way at the moment of impact. There is no obstacle to the application of the provisions on collision in incidents involving vessels at anchor or moored in port.
Types of Collision and the Allocation of Liability
Liability arising from collision takes its shape from the position of the parties as to fault. Each of the possibilities must therefore be examined separately. The Code and the legal literature group collision under four headings: collision without fault, in which fault can be attributed to no one; collision resting on the fault of one party alone; collision through common fault, in which all the colliding vessels are at fault; and collision by analogy, which is made subject to the provisions on collision although no actual striking has taken place.
Collision Without Fault
Art. 1287 of the Turkish Commercial Code No. 6102 characterises as collision without fault those impacts which arise from a fortuitous event or from force majeure, or whose cause cannot be established. In this case fault can be attributed to none of the colliding vessels. Under the statutory provision, collision without fault takes three distinct forms:
- A fortuitous event denotes occurrences which, although due care and diligence have been exercised, cannot be detected and averted in advance. Whether an occurrence is to be regarded as of this nature is determined by assessing the circumstances in which it came about. The sudden collapse of the helmsman during a manoeuvre, or the seizing of the rudder including its back-up systems, may be assessed within this category, since such a development cannot be expected to be foreseen in advance and guarded against.
- Force majeure covers events which, as is most often the case with natural phenomena, occur outside the parties’ sphere of control and command and which cannot be predicted or prevented in advance. It should not be overlooked that, with the development of technology, weather conditions have become capable of accurate prediction long in advance. Whether a meteorological occurrence may be treated as force majeure therefore depends either on its not having been foreseen or on the collision having taken place despite every effort made by the parties.
- The impossibility of establishing the source of the collision likewise gives rise to collision without fault. So long as the cause of the casualty cannot be demonstrated, no fault can be attributed to the parties.
For collision without fault to arise it is of no importance whether the vessels were under way or at anchor. Even in incidents in which a vessel under way strikes a vessel at anchor, one speaks of collision without fault if the impact rests on one of the three causes set out above. It would not be correct in such a situation to treat the moving vessel as being at fault from the outset.
In collision without fault the result is clear: the loss sustained by the vessels, by the persons on board or by the goods is borne by the party who suffers it. The damage arising to a vessel is assumed by the shipowner of that vessel, while the loss arising to the cargo is borne by the owner of the cargo. This allocation is the inevitable consequence of fault being attributable to no one.
Collision Through the Fault of One Party
Art. 1288 of the Turkish Commercial Code No. 6102 designates as collision through the fault of one party those incidents which rest on the fault of the shipowner or of the crew of only one of the colliding vessels. In this case the shipowner of the vessel at fault is obliged to make good the loss which arises. In maritime terms, fault means the omission of what ought to be done, or the doing of what ought not to be done, in the navigation and management of the vessel. A faulty manoeuvre, excessive speed, the setting of a wrong course or a failure to give the required signals may be cited as examples of fault of this kind.
Fault does not arise from navigation and management alone; it may also stem from a failure to keep the vessel seaworthy. The shipowner of a vessel whose anchor parts through lack of maintenance and which then drifts and causes an impact may be regarded as at fault for not having had the anchor maintained.
The existence of fault is not on its own sufficient for the shipowner to be held liable. There must also be a causal link between the faulty conduct and the loss which has arisen. Losses which cannot be connected with the fault of the shipowner or of the crew cannot be claimed from the shipowner.
The consequences of a pilot’s fault are separately regulated in Art. 1291 of the Turkish Commercial Code No. 6102. Where a vessel is navigated under the guidance of a compulsory advisory pilot or of an optional pilot, the shipowner is liable for a collision arising from the pilot’s fault. In both forms of pilotage the navigation and management of the vessel remain with the master, who is free to follow or not to follow the pilot’s recommendations. That is the reason why liability is placed on the shipowner in a collision resting on the fault of a pilot acting in an advisory capacity.
By contrast, the shipowner is not held liable for a collision arising from the fault of a compulsory navigating pilot. In this case the management of the vessel must be surrendered to the pilot; the pilot takes the vessel over from the master and personally assumes her navigation and management. Liability for the loss arising from the impact therefore falls on the compulsory navigating pilot and on the body which employs him.
Collision Through Common Fault
Art. 1289 of the Turkish Commercial Code No. 6102 defines as collision through common fault those incidents which arise from the fault of the shipowners or of the crews of all the colliding vessels. In this type, damage to property and personal injury are made subject to different principles.
As regards damage to property, the shipowners are liable in proportion to the gravity of their fault for the loss sustained by the vessels or the goods on board as a result of the collision. If the degree of fault cannot be determined, or if the conclusion is reached that the fault of the parties is of equal weight, liability is apportioned equally. The point to be noted here is that, in cases of damage to property, the liability of the shipowners towards third parties is not joint and several. An injured third party must therefore proceed against each shipowner only to the extent of that shipowner’s fault. The towing of the damaged vessel into port and her repair, the wages paid to the crew during the period of repair, and loss of profit are examples of losses of this kind.
Personal injury in collision through common fault is dealt with in Art. 1290 of the Turkish Commercial Code No. 6102. Under that provision, the shipowners of the vessels at fault are jointly and severally liable for the loss arising from the death or injury of, or the damage to the health of, the persons on board. Since joint and several liability is provided for, the injured parties may claim the whole of their loss from any one of the shipowners involved in the collision. As between themselves, the shipowners are liable in proportion to their fault; a shipowner who has paid the whole of the loss may have recourse against the others for the amount paid, in proportion to their fault. If, at the recourse stage, the degree of fault cannot be determined or the faults are found to be of equal weight, liability is once again apportioned equally.
Collision by Analogy
Art. 1286(2) of the Turkish Commercial Code No. 6102 contains the following provision:
Turkish Commercial Code No. 6102, Art. 1286(2)
“Where a vessel, by making or by failing to make a manoeuvre, or by failing to comply with the rules of navigation, causes damage to another vessel or to the persons or goods on board her without a collision occurring, the provisions on collision shall likewise apply.”
Accordingly, even where vessels do not actually strike one another, the provisions on collision may be relied upon if one has caused damage to the other. In the legal literature this situation is called collision by analogy. Holding the vessel which executed a faulty manoeuvre liable for the loss of a vessel which runs aground, or strikes another vessel, while taking avoiding action is an example of this. Although there is no physical contact between the two vessels, a real loss has been caused; placing liability on the vessel which made the manoeuvring error constitutes a solution consistent with equity.
Preservation of Evidence Before the Action for Damages
It is possible to apply for the preservation of evidence before an action is brought, and in collision incidents resorting to this course without loss of time is of great importance for establishing both the loss and the position as to fault on a sound footing. Mindful of this need, the legislature has included provisions on the preservation of evidence before an action in Art. 1292 of the Turkish Commercial Code No. 6102.
The first paragraph of the article determines the court with subject-matter and territorial jurisdiction. The application is made to the commercial court of first instance charged with maritime commercial matters at the place where the collision occurred. If there is no court vested with that charge, the commercial court of first instance at the same place has jurisdiction, and if there is none, the civil court of first instance charged with commercial actions.
Upon the application for preservation, the court notifies the master or the representative of each vessel involved in the collision that the preservation is to be carried out. The preservation is effected on the day and at the hour notified and a report is drawn up. That report does not, however, state the degrees of fault of the vessels; the allocation of fault may be made the subject of argument only at the trial stage. Even so, the fact that the evidence has been preserved before the action makes an important contribution to the correct determination of fault in the action to be brought.
The Action for Damages Arising from Collision
An action for damages may be brought in respect of the losses which arise as a result of the impact. The capacity of claimant belongs to the person who has suffered the loss; the shipowner, the cargo owners, the passengers and the crew may be in that position. The respondent party is the shipowner of the vessel at fault together with the crew members at fault. Where the collision has arisen from the fault of a compulsory navigating pilot, the action may be directed against the pilot and against the body which employs him. The burden of proof rests on the party which alleges that it has suffered loss.
Limitation of Liability in Collision
Art. 1296 of the Turkish Commercial Code No. 6102 states that the provisions relating to the limitation of the shipowner’s liability are reserved. On that basis, the shipowner of the vessel at fault may limit the liability arising from the collision within the framework of the 1976 Convention on Limitation of Liability for Maritime Claims.
Statute of Limitations in Collision
Under Art. 1297 of the Turkish Commercial Code No. 6102, claims for damages based on collision become time-barred two years after the day on which the impact occurred. The period is shorter for the recourse claims which shipowners bring against one another: the limitation period runs out within one year from the date on which payment was made.
Independent Legal Assessment
What determines the outcome of collision disputes is not so much the legal characterisation as the state of the evidence. The allocation of fault is most often established through navigation records, radio traffic, logbook entries and the findings made at the scene of the casualty; a failure to secure these records in the first days produces consequences that are difficult to repair in the later proceedings. The fact that the rule of equal liability comes into play in collision through common fault where the degree of fault cannot be determined is likewise a direct material consequence of a deficiency of evidence.
The shortness of the periods also calls for attention. The two-year limitation period and the one-year period applicable to recourse can easily be overlooked in files conducted alongside insurance processes. The possibility that liability may be limited under the international convention likewise requires the expectation of compensation to be assessed realistically from the outset.
In a file arising from a collision we recommend that the following steps be planned as a matter of priority:
- Applying without delay after the casualty for the preservation of evidence, and placing the vessel’s records in safe keeping
- Examining whether a contractual relationship such as towage exists between the vessels, in order to determine the regime to be applied
- Establishing whether the pilotage service is advisory in nature or one of compulsory navigation
- Calculating damage to property and personal injury separately, on account of the difference as to joint and several liability
- Recording the starting dates of the two-year limitation period and of the one-year period relating to recourse
- Assessing in advance the possibility that the other side may limit its liability, and the insurance cover in place
Independent Legal provides legal advice and litigation services in claims for damages arising from collision and other maritime casualties, from the preservation of evidence through to the proceedings and recourse stages.