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Responsibilities of the Carrier in Relation To RESPONSIBILITIES OF THE CARRIER IN RELATION TO LOADING OPERATIONS FOR THE CARRIAGE OF GOODS BY SEA Cevizli Mahallesi Mustafa Kemal Paşa Caddesi Seyit Gazi Sokak Hukukçular Towers No:66/B Ofis No: 31 34865 Kartal/İstanbul Tel: +90 (216) 510 67 89 – Fax: +90 (216) 510 67 90 – Web: www.veliogluerbay.av.tr Table of Contents A) GENERAL INTRODUCTION a.1.) Who is the carrier under the Turkish Commercial Act? a.2.) Who is the carrier under the Hamburg and the Hague – Visby Rules ? a.3.) Contract of affreightment a.3.1.) A brief information about Charterparties and Kirkambar B) LOADING OPERATION PERFORMED BY THE CARRIER FOR THE CARRIAGE OF GOODS BY SEA b.1.) Responsibilities of the shipper in relation to loading b.2.) Responsibilities of the carrier in relation to loading b.2.1.) Responsibilities of the carrier before loading b.2.1.1.) Seaworthiness b.2.1.2.) Nature of the obligation b.2.2.) Laytime b.2.2.1.) Calculation of laytime b.2.3.) Responsibilities of the carrier “At” loading b.2.3.1.) Properly and carefully b.2.3.2.) From and to a fit place b.2.3.3.) Responsibilities of the carrier under the contract of carriage with FIO(S) clause C) COMPLETION OF LOADING AND CONCLUSION Cevizli Mahallesi Mustafa Kemal Paşa Caddesi Seyit Gazi Sokak Hukukçular Towers No:66/B Ofis No: 31 34865 Kartal/İstanbul Tel: +90 (216) 510 67 89 – Fax: +90 (216) 510 67 90 – Web: www.veliogluerbay.av.tr RESPONSIBILITIES OF THE CARRIER IN RELATION TO LOADING OPERATIONS FOR THE CARRIAGE OF GOODS BY SEA A) GENERAL INTRODUCTION a.1.) Who is the carrier under the Turkish Commercial Act? The fourth book of the Turkish Commercial Act 1 ( TTK ) is dedicated to maritime law. In Turkish maritime law, the concepts of 'owner' and 'carrier' differ from each other. If the owner undertakes to carry, and the bill of lading is issued in the name of the owner, this party will be the carrier. If the bill of lading is issued in the name of the charterer, the carrier will be the charterer. In this context, bill of lading is the essential document to figure out who the carrier and/or shipper is. Because, bill of lading is a kind of document which evidences a contract of carriage by sea and taking over or loading of the goods by the carrier, and by which the carrier undertakes to deliver the goods against surrender of the document. A provision in the document that the goods are to be delivered to the order of a named person, or to order, or the bearer, constitutes such an undertaking. a.2.) Who is the carrier under the Hamburg and the Hague – Visby Rules ? The official title of the Hague Rules is International Convention for the Unification of Certain Rules of Law Relating to Bills of Lading, signed at Brussels, August 25, 1924 and in force as of June 2, 1931, better known as the “Hague Rules”. 2 Although the Convention was adopted in Brussels in 1924, it was based on an earlier draft adopted by the International Law Association at the Hague in 1921 (the “Hague Rules of 1921”), as amended at a diplomatic conference held in Brussels in 1922 (a text known as the “Hague Rules of 1922”), and at meetings of a subcommission of that conference in Brussels in 1923. For this reason, while the final 1924 Convention is generally referred to in French as the “Convention de Bruxelles”, it is generally called the “Hague Rules” or the “Hague Rules 1924” in English. As it mentioned above the Hague Rules were adopted in 1924, the Hague/Visby Rules in 19683 and 19794 and the Hamburg Rules in 19785. 1 Turkish Commercial Act, numbered 6762, dated 29/06/1956, entered into force on 09/07/1956. 2 Turkey is a party to this Convention as of 4th January 1956. 3 The term “Hague/Visby Rules 1968” refers to the Hague Rules 1924, as amended by the “Protocol to Amend the International Convention for the Unification of Certain Rules of Law Relating to Bills of Lading”, adopted at Brussels, February 23, 1968”, which Protocol entered into force June 23, 1977 4 The Hague Rules 1924, as amended by the Visby Protocol of 1968, were further amended by the “Protocol Amending the International Convention for the Unification of Certain Rules of Law Relating to Bills of lading (August 25, 1924, as Amended by the Protocol of February 23, 1968), adopted at Brussels, December 21, 1979, which Protocol came into force on February 14, 1984. The 1979 Protocol changed the basic unit of account of the Cevizli Mahallesi Mustafa Kemal Paşa Caddesi Seyit Gazi Sokak Hukukçular Towers No:66/B Ofis No: 31 34865 Kartal/İstanbul Tel: +90 (216) 510 67 89 – Fax: +90 (216) 510 67 90 – Web: www.veliogluerbay.av.tr After giving historical backrounds of the rules and before considering the responsibilities of the carrier, it is also essential to establish the identity of the carrier under the Hamburg6 and the Hague – Visby Rules7. Under article 1 (1) of Hamburg Rules of 1978, carrier is defined as; “ Any person by whom or in whose name a contract of carriage of goods by sea has been concluded with a shipper.” Under article 1 (a) of Hague – Visby Rules of 1979, carrier is defined as the owner or charterer who enters into contract of carriage with the shipper.8 a.3.) Contract of affreightment Contract of affreightment is defined under article 1016 of Turkish Commercial Act. According to article; a shipowner, either directly or through an agent, undertakes to carry goods by sea, or to provide a vessel for that purpose, the arrangement is known as a contract of affreightment. Such contracts may take a variety of forms although the traditional division is between those embodied in charter parties and those evidenced by bill of lading.9 Where the shipowner agrees to make available the entire carrying capacity of his vessel10 for either a particular voyage11 or a specified period of time12, the arrangement normally takes the form of a charterparty. a.3.1.) A brief information about Charterparties and Kirkambar Charter contracts are contracts of affreightment. In charter contracts, the shipowner undertakes to carry the goods and therefore becomes the carrier. In charter contracts the carrier does not let the ship or does not place the ship to the disposal of the other party, but simply undertakes to carry the goods. Hague/Visby Rules 1968 from poincaré gold francs to Special Drawing Rights (“S.D.R.’s”) of the International Monetary Fund (I.M.F.). For this reason, the 1979 Protocol is sometimes called the “Visby S.D.R. Protocol”. 5 United Nations Convention on the Carriage of Goods by Sea, signed at Hamburg on March 31, 1978, and in force November 1, 1992. 6 United Nations Convention on The Carriage of Goods By Sea, signed in Hamburg, 1978 7 Protocol Amending the International Convention for the Unification of Certain Rules of Law Relating to Bills of lading (August 25, 1924, as Amended by the Protocol of February 23, 1968), adopted at Brussels, December 21, 1979. 8 CARR, Indira, Principles of International Trade Law, Second Edition, London 1999, Cavendish Publishing Limited, page 139 9 Almost all shipping lines have their own bill of lading. These serve as a) documents of title to the goods; b) a receipt for the goods delivered to the shipowner or carrier; c)evidence of the contract which has been entered into force between the shipper of the goods and the shipowner. 10 Or occasionally only part of the vessel, e.g. where liner companies charter space on each other’s vessels. 11 Voyage-charter 12 Time-charter Cevizli Mahallesi Mustafa Kemal Paşa Caddesi Seyit Gazi Sokak Hukukçular Towers No:66/B Ofis No: 31 34865 Kartal/İstanbul Tel: +90 (216) 510 67 89 – Fax: +90 (216) 510 67 90 – Web: www.veliogluerbay.av.tr Charter Party and Kırkambar are defined under article 1016 of the Turkish Commercial Act. According to this article, in Kirkambar, you don’t see the master, the shipowner, and even the ship. Because, there is an agent, and the owner of the goods or someone else who is entitled to do that, sends the goods to the agent or the agent wants you to bring the goods to the port or his office at a fixed time. Because, your goods are not as much as the charterer’s goods. “ For instance; You have 1000 kg bananas. ”13 As it mentioned above, there are, as typical models, four types of charter contracts: 1. Time charter : The carrier undertakes to carry the goods of the charterer for a specified period of time. Under a time charter, the owner retains the management and control of the vessel, but the charterer designates the ports of call and the cargo carried. The vessel owner provides the crew, equips and maintains the vessel, makes repairs, and pays for normal operating expenses related to, and the damages generated by his functions.14 The parties may agree that the length of the time charter will be measured by the duration of one or more voyages. 2. Voyage charter : The carrier undertakes to carry the goods of the charterer for a specified number of voyages. Under the voyage charter the owner provides a ship, master and crew, and places them at the disposal of the charterer for the carriage of cargo to a designated port. The voyage charter may lease all of the vessel for a voyage or series of voyages, or he may lease only a part of the vessel.
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