NOTICE OF LOSS, DAMAGE AND DELAY UNDER THE HAGUE-VISBY RULES - ROTTERDAM RULES - NEW TURKISH COMMERCIAL CODE

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1 İstanbul Ticaret Üniversitesi Sosyal Bilimler Dergisi Yıl:13 Sayı:26 Güz 2014/2 s.1-8 NOTICE OF LOSS, DAMAGE AND DELAY UNDER THE HAGUE-VISBY RULES - ROTTERDAM RULES - NEW TURKISH COMMERCIAL CODE Didem ALGANTÜRK LIGHT Özet Bir navlun sözleşmesinde yükü zıya ve hasara uğraması veyahut gecikme ile teslim edilmesi halinde gönderilen, taşıyan veya bunlar adına kaptan her birinin kendi menfaatlerini koruması bakımından belirli hususları ispat etmesi gereklidir. Bunun sağlanması amacıyla, Hague- Visby Rules, Hamburg ve Rotterdam Kuralları inceleme ve bildirim yükümlülüğüne ilişkin düzenlemeler getirmiştir. Çalışmamızda, inceleme ve bildirime ilişkin ilgili bu hükümler, yeni TTK madde nazara alınarak ve karşılaştırılması yapılmak suretiyle değerlendirilmektedir. Anahtar Kelimeler: Yükün zıya ve hasara uğraması ve gecikme ABSTRACT In case of loss of damage to or delay in the delivery of goods carried under a freight contract is of vital importance for the parties because the evidence may disappear in time and it may be difficult later to obtain. This paper analyses and evalutes the notice of loss damage and delay under Hague Visby Rules, Rotterdam Rules and Articles of Turkish Commercial Code. Keywords: Notice of Loss Damage and Delay Bu makale, İstanbul Ticaret Üniversitesi Hukuk Fakültesi, İstanbul Üniversitesi Hukuk Fakültesi, Deniz Hukuku Derneği nin ortaklaşa düzenlendiği Hague-Visby Rules v. Rotterdam Rules, What s new What s retained What s scrapped? İsimli Uluslararası Konferans ta tebliğ olarak sunulmuştur. Prof. Dr, İstanbul Ticaret Üniversitesi Hukuk Fakültesi Öğretim Üyesi. 1

2 Didem ALGANTÜRK LIGHT I. GENERAL In case of loss of, damage to or delay in the delivery of goods carried under a freight contract; a) the consignee, b) the carrier or c) the master acting on their behalf have to prove certain matters in order to protect their own interest. First of all, let's have a look at the definitions of the terms used herein: Loss: being partly or totally incapable of delivering the cargo for any reason to the consignee who is authorized to take the cargo at the port of destination (e.g. burning of the cargo entirely, loss of the cargo, or delivery of the cargo to an unauthorized person). In some cases, the good's loss of its physical properties, and thus its main characteristics, which results in the total loss of its economic value, may also be deemed to be the loss of the good (e.g. breaking of glass, wetting of cement or sugar). If the carrier failure to deliver the goods for a temporary period of time is not deemed loss. This is regulated by Article 5 of Hamburg Rules, which grants a period of 60 days in this case. Pursuant to the relevant article, goods which are not delivered within 60 days following the expiration of the delivery term are deemed to have been lost, and the carrier may refuse the goods even if they are found after the 60-day period and may claim damages due to loss of goods or may receive the goods and claim damages incurred because of delay. Damage: partial or complete decrease in value which means physical impairment of the goods received by the carrier.natural wear and tear are not deemed as damage. Delayed delivery of the goods: Delayed delivery arises; 1) when the carrier fails to deliver the goods it has received within the agreed delivery time, or 2) if no delivery time has been agreed upon, within the time needed for delivery under normal circumstances. In case goods are delivered to the authorities to which they have to be delivered or to third parties, the laws and regulations applicable at the port of discharge are of importance in terms of determining whether delayed delivery took place or the start of the delivery term. The Hague - Visby Rules do not provide for any regulation with respect to the liability for damages arising from delayed delivery of goods. The first regulation on the issue is Article 5/1 of Hamburg Rules. Rotterdam Rules address the same issue under Article 23/4. 2

3 2014/2 In case of authorities to which the goods have to be delivered (e.g. port administrations) pursuant to the laws and regulations applicable at the port of discharge/destination, the goods are in the control of the carrier until they are delivered to such authorities and are deemed to have been passed to the control of the consignee when delivered. (Article 4/3 of the Hamburg Rules) II. NOTIFICATION LIABILITY Having evidence recorded in a timely manner is of vital importance for the parties because the evidence may disappear in time and it may be difficult later to obtain. The notification liability of the person who is authorized to take delivery of the goods at the time of transfer by the carrier of the title to the goods at the port of destination and the consequences of such liability are governed by Article 3/6 of Hague - Visby Rules, Article 19 of Hamburg Rules and Article 23 of Rotterdam Rules. Article 1185 of the Turkish Commercial Code has been drafted in consideration of Article 3/6 of Hague - Visby Rules, Article 19 of Hamburg Rules and the international practices. Article 1184 of the Turkish Commercial Code is titled Inspection and there is no direct equivalent of this article in Hague - Visby Rules or Hamburg Rules. This provision has been taken from Paragraph 610 of the German Commercial Code. When we compare the regulations of Vague - Visby Rules, Hamburg Rules and Rotterdam Rules with respect to ınspection and notification liability, following points can be summarized; 1. In Case Of Apparent Loss Or Damage Apparent loss or damage refer to the case where the status of the goods can be apprehended or understood during regular procedures without the need for a special inspection and expertise due to the type of the goods. Wetting of tobacco piles, breaking of electronic equipment caused by the tearing of carton packs, wetting of sugar etc. are examples of apparent loss or damage. In this case, the consignee has two alternatives in the event of damage or loss: The first alternative is; Article III/6-1 of Hague - Visby Rules; to give a written notice to the carrier or the carrier's representative at the port of discharge during the delivery of 3

4 Didem ALGANTÜRK LIGHT the goods to the person authorized to take delivery of the goods under the contract of carriage or bill of lading. Pursuant Article 19/1 of Hamburg Rules; the consignee shall give a written notice to the carrier on the damage or loss stating the overall description of such loss or damage within the working day following the delivery of the goods at the latest. The second alternative is; Hague - Visby Rules Article 3/6-2; Hamburg Rules Article 19/3 to have the status, number and weight of the goods determined during the delivery at the latest through a survey or inspection to be attended by both parties. In this case, no further written notices are required. This is because mutual inspection stands for notification. Therefore, inspection needs to be done at the time of delivery at the latest. Both texts do not include any provision governing the manner of inspection, detailed description and calculation of the damage and the quantity. Therefore, the general character of the loss or damage needs to be specified pursuant to Article 19/1 of Hamburg Rules. This is more evident in surveys to be conducted jointly as the quantity of the goods that are the subject of a damage or loss may be determined during such surveys. Article 23/I of Rotterdam Rules includes a similar provision and provides that if there is apparent loss or damage, notice must be given either before the delivery of the goods or during the delivery at the latest. Article 23/3 provides that notification is not needed if an inspection was performed with the participation of the consignee and carrier or the maritime performing party. It is seen that the term maritime performing party has been added to the article to replace actual carrier. On the other hand, the provision included is of a nature similar to those in Hague - Visby Rules and Hamburg Rules. 2. In Case Of Non-Apparent Loss Or Damage Hague - Visby Rules Article 3 /6 (1) provides that notices must be given within three days following the delivery of the goods in case of non-apparent damage or loss of the goods. The days are counted consecutively in this case. 4

5 Article 1185/1 of the Turkish Commercial Code is a similar provision. 2014/2 Hamburg Rules Article 19/2 provides that the carrier must be notified in writing on the loss or damage within 15 days following the date of delivery. This time period is measured without interruption starting from the date of delivery.the contrary to this presumption may be proven on the basis of both texts. Rotterdam Rules Article 23/1 provides that notice must be given within 7 workings days following the date of delivery of the goods in case of nonapparent damage or loss. Expression of the time period in working days instead of consecutive days causes this term to be extended to 9 days together with weekends. 3. In Case Of Delayed Delivery Of The Goods As we have stated before, Hague - Visby Rules do not include any provision governing delayed delivery of the goods. Pursuant to Article 19/5 of Hamburg Rules, in case of delayed delivery of the goods, the notification period is an uninterrupted term of sixty days starting from the date of delivery. There is no explanation as to which specific information must be stated in this notice. However, it would be appropriate to specify the delay here and the damage caused by this delay. Article 1185/5 of the Turkish Commercial Code has a similar provision. Article 21 of Rotterdam Rules provides an explanation as to when a delay arises. According to this provision, a delay arises in case of failure to deliver the goods at the port of destination within the agreed delivery time specified in the contract of carriage. If the contract of carriage does not include any contractual requirement for the delivery to take place on a particular date, will not the carrier be responsible for the delay? There is no clarification on the issue. It may be possible to conclude that the carrier will not be responsible in this case on the basis of this article as is. Besides, it is provided that, in case of delayed delivery of the goods, the damages arising from the delay must be notified within 21 days starting from the date of delivery. (Article 23/4 of Rotterdam Rules) As can be seen here, the notification period which is 60 days pursuant to Hamburg Rules, was decreased to 21 days starting from the date of delivery under Rotterdam Rules. 5

6 Didem ALGANTÜRK LIGHT 4. Form Of Notification Both texts provide that notification on damage or loss must be made in writing. Therefore, verbal notices are not valid. However, Rotterdam Rules just provide for notification, and not clarify the form of notification. On the other hand, written notices are required for evidential purposes. 5. To Whom Notice Will Be Given Hague - Visby Rules Article 6/1 provides that notices to be given must be in writing and be given to the carrier or a representative of the carrier at the port of discharge. Article 19 of Hamburg Rules provides that, if the actual carrier has delivered the goods to the consignee, each notice given to the actual carrier has the same effect as if that notice was given to the carrier, and each notice given to the carrier has the same effect as a notice given to the actual carrier. Notices may be given also to the master or the officer in charge of the ship or the person acting on behalf of the carrier or the actual carrier. Article 23/5 of Rotterdam Rules provides that notice may be given to the carrier or maritime performing party. However, Article 23/4 of Rotterdam Rules provides that notices for delay may be given only to the carrier. Therefore, Article 23/5 does not provide any clarification as to what will happen if notice is given to the maritime performing party. 6. Consequences Of Failure To Give Notice In case of failure to give notice for loss or damage within due time, the suffering party's right to claim damages shall not cease, but the burden of proof shall be reversed in favor of the carrier. The carrier shall be deemed to have delivered the goods in the manner specified in the marine bill of lading. Therefore, the suffering party has to prove that the event causing loss or damage took place during the time the goods were in the custody of the carrier, and that measures that may be reasonably expected to be taken in order to prevent the event and its consequences were not taken by the carrier, the carrier's employees or officers. One more presumption was added under Paragraph 4 of Article 1185 of the Turkish Commercial Code, which provides that if no notice has been given despite damage or loss of the goods, the damage shall be deemed to have been caused by a reason which may not be attributable to the carrier. 6

7 2014/2 Article 23/2 of Rotterdam Rules provides that failure to give notice for damage or loss shall not affect compensation right, as well as the allocation of the burden of proof indicated in Article 17. Therefore, even in case of failure to give notice, the party suffering from damage or loss has to prove that this loss has arisen during the liability period of the carrier. The carrier may be partly or totally relieved of liability if it proves that the reasons of the loss, damage or delay are not attributable to its own or its employees' fault. In case of failure to give notice within due time in the event of delayed delivery of the goods, the carrier's liability to indemnify the damages arising from the delay in delivery shall cease as per Article 19/5 of Hamburg Rules. Article 1185/5 of the Turkish Commercial Code has a similar provision. Rotterdam Rules include a provision governing delayed delivery of the goods, which is similar to that of Hamburg Rules. In case of failure to give a notice to the carrier on the damages arising from delay within 21 days following the date of delivery of the goods, the liability to provide compensation for the damages arising from delay shall cease. 7. The Parties' Mutual Obligations Pursuant to Article 3/6 (4) and Article 19/4 of Hague - Visby Rules, the carrier and the consignee must provide each other with all kinds of facilities for inspecting and tallying the goods. However, both regulations fail to impose a sanction in case of violation of obligations. Article 23/6 of Rotterdam Rules includes a provision similar to those of Hague - Visby Rules and Hamburg Rules, and elaborates on the content of this obligation. The article imposes on the parties the obligation to provide each other with all kinds of facilities for inspecting and tallying the goods, as well as with access to the relevant records and documents. As in the case with Article 23/6 of Rotterdam Rules, Hague - Visby Rules and Hamburg Rules, no sanction is provided for failure to fulfill obligations. 8.Time Limitation for Suits and Claims Article 3/6 of Hague - Visby Rules provides that the right to claim all kinds of damages from the carrier because of loss or damage may be exercised within one year. According to Article 20/1 of Hamburg Rules 62/1 of Rotterdam Rules, this period is 2 years. The period commences on the date of delivery of the goods, or if the goods were partly delivered or were not delivered at all, on the last day on which the goods should have been delivered. Besides, Article 62/2 also provides a clarification as to the fact that the date on which such period starts will not be counted when determining the term. 7

8 Didem ALGANTÜRK LIGHT The parties may agree on extending such term. However this period may not be reduced. (Article 63 of Rotterdam Rules) This period deemed as eliminates the right to sue and make claims under Hague - Visby Rules and Hamburg Rules. It is seen that Rotterdam Rules do not provide a clear provision governing the issue, but we are of the opinion that since Article 62/3 provides that it is possible to exercise the right to make defense or set-offs against claims even after the expiration of the period, Under the Turkish Law it may be concluded that this period may be accepted as prescription period. Since the period eliminates the right to sue and make claims, this right may be introduced only through a clear provision. Thus, since Article 62 of Rotterdam Rules has no clear provision on the issue and the fact that it is also allowed to make defense or set-off even after the expiration of the period, it may be concluded that this period is accepted as prescription period. The interpretation to be made within the scope of national jurisdictions would apply here. 8