Collision, Salvage, and Assistance in Turkish Maritime Law

In maritime law, collision refers to the impact between ships. In the past, due to the lack of preventive technical means, collisions at sea were frequent. Nowadays, with advancing technology, collisions at sea have been minimized. However, collisions still occur almost daily, making collisions significant in maritime law. Today, due to the increased size of ships, their construction from iron and steel instead of wood, and their increased speed, collisions cause more substantial damage than before. Furthermore, ships exposed to maritime dangers may need to be secured by other ships or third parties. In such cases, salvage and assistance activities begin. These activities are chargeable and are particularly needed in collision incidents.

What is Collision?

There is no definition of collision in our Turkish Commercial Code. However, various definitions are found in the doctrine regarding collision. According to the general definition, collision is when two or more ships collide. For a collision to be considered a collision, the colliding entities must be “ships.” Otherwise, the elements of a collision will not be formed. For instance, “a ship colliding with a mansion or dock does not constitute a collision”. Both colliding entities must be ships. For collision provisions to apply, there must be no contracts like towing agreements between the colliding ships. Otherwise, contractual liability provisions will apply instead of collision.

What are the Types of Collision?

Collision is divided into faultless and faulty collisions. This is because collision constitutes a special form of tort.

Faultless Collision

Faultless collision generally refers to collisions occurring due to unexpected events or force majeure. Collisions whose causes cannot be determined are also considered faultless collisions. In this context, faultless collision can arise in three ways:

– Due to unexpected events
– Due to force majeure
– The cause is unknown

Situations like heavy fog or severe storms are considered force majeure. However, all necessary precautions must have been taken, and despite this, the collision must occur. A collision caused by the sudden illness of the person at the helm would be considered an unexpected event.

In the case of a faultless collision, the shipowner is not liable. Therefore, in a faultless collision, everyone bears their own damage.

Faulty Collision

In a faulty collision, the collision occurs due to the fault of one of the ships’ crew members. The crew member may have failed to do something they should have done or performed an action they should not have. For instance, incorrect maneuvering, excessive speed, and actions contrary to maritime rules can cause a faulty collision. If there is a causal link between the resulting damage and the collision, it will be considered a faulty collision. For the shipowner to be held liable, it must be proven that the ship acted faultily and that this fault resulted in the collision. In practice, faulty collisions frequently occur, causing significant damage. The shipowner of the faulty ship is obliged to compensate for this damage. The error of a voluntary pilot also results in the shipowner’s liability, but the shipowner cannot be held liable for the fault of a mandatory pilot.

Joint Fault Collision

Joint fault collision is essentially a subcategory of faulty collision. Joint fault collision generally means that all ships involved in the collision are at fault. In this case, the shipowners of the colliding ships are responsible for the damage to the ships and goods according to the severity of their faults. Thus, joint and several liability arises. The shipowner who pays the entire damage can recourse to the other shipowners according to the severity of their faults in the incident. Shipowners in a joint fault collision have limited liability in rem but will have unlimited liability if they have personal fault. In this case, they must also cover other expenses such as removing the sunken ship and towing it to the repair dock.

What is Salvage and Assistance?

Salvage and assistance refer to the services rendered to rescue a ship from maritime danger. Through salvage and assistance activities, both the ship and the items on board are secured. Salvage and assistance activities entitle one to demand payment. In this case, those providing salvage and assistance services can demand payment from this ship.

Elements of Salvage and Assistance

– Salvage and assistance should be for the ship or items on the ship.
– The ship or items subject to salvage and assistance must have faced maritime danger. A potential danger is sufficient.
– Salvage and assistance activities must be carried out by another ship or third parties.
– As a result of the salvage and assistance activities, these items must have been rescued. If not rescued, no payment is due.
– The captain must not have resisted the salvage and assistance.

Reduction or Removal of Salvage and Assistance Fee

In some cases, the fee resulting from salvage and assistance activities can be reduced or removed.

These cases include:
– Those performing the salvage caused the necessity for it through their own fault.

For instance, if the lighthouses under the control of coastal safety do not adequately illuminate, causing a ship to run aground, coastal safety cannot demand a fee for rescuing this ship because it caused the incident through its own fault.

– If those performing the salvage commit theft or conceal goods, the court can reduce or remove the fee.

Salvage and Assistance Fee

Determining the salvage and assistance fee can pose some problems in practice. Therefore, determining the salvage and assistance fee is crucial. If there is a contract regarding the demand for the salvage and assistance fee, the fee will be paid according to this contract. However, in some cases, it is possible to modify or cancel this contract. If the salvage and assistance fee is not determined by contract, it should be determined by a court or arbitrator. This fee will be determined according to justice and equity. The dangers faced, and time spent by those performing the assistance will be considered in determining this fee.

Excerpts from Supreme Court Decisions

“In court, based on the claim, defense, expert report, and all the files, it was determined that salvage assistance was provided to the defendant ship because it could not take command. It was concluded that the necessary payment was made according to the protocol made between the defendant shipowner’s representative and the defendant … However, this case was filed with the claim that the guide captain employed by the plaintiff had assisted in the salvage assistance service. However, according to the existing guide captain report in the file, it was understood that the guide performed his duty without any extraordinary service or sacrifice. As stated in the guide report, all maritime-related instructions were given by the ship’s captain in accordance with the law. In the captain’s report of the rescue ship … belonging to the defendant …, it was also stated that even the radio communication was carried out with the ship’s captain. Therefore, the guide’s participation in radio communication cannot be considered a salvage activity. For the stated reasons, it was decided that the guide captain could not generally claim salvage fees, and if the service provided by the guide was considered salvage, this claim could be made against …, who has the monopoly right of salvage and collects the salvage assistance fee, based on the decision to dismiss the case against the defendant shipowner on the grounds of lack of standing and to dismiss the case against the defendant … on the merits.” **11th Civil Chamber 2012/7035 E., 2013/6813 K.**

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“It was promised that the cargo belonging to the plaintiff would be loaded onto the M/T World Dynasty ship and transported to Turkey according to the bills of lading issued by the defendant carrier. However, while the said ship was anchored at the port

with the cargo loaded, it suffered damage due to a collision with another ship on 19.09.2008. It was understood from the file that the M/T World Dynasty ship, where the cargo was located, was not at fault for the maritime accident. Therefore, although the court accepted that the defendant could not be held liable for the damage caused by the collision, this situation does not eliminate the defendant’s obligation to deliver the undamaged cargo to the plaintiff. Indeed, after the collision, the defendant loaded the undamaged cargo onto its ship M/T World Majesty and fulfilled its transportation commitment to the plaintiff according to the issued bills of lading. There is no record of the transportation period in the bills of lading issued before and after the collision. In this case, a new expert report, including an expert from the maritime sector, should be obtained to determine within what period the undamaged cargo should be delivered after the collision. If it is concluded that the cargo was not transported within a reasonable period after the collision and that the defendant’s fault caused the delay, the defendant, who is both the carrier and the shipowner of both ships, should be held liable for the damages claimed by the plaintiff due to the delay. Therefore, the court should determine the plaintiff’s alleged damages due to the delay and the defendant’s legal status regarding the statutory lien claim by obtaining a report on the reasonable delivery period from a new expert panel, and the decision should not be made based on insufficient examination without addressing the objections to the expert report. The decision was deemed incorrect and should be overturned in favor of the plaintiff.” **11th Civil Chamber 2012/14753 E., 2014/5395 K.**

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