Liability For Pilotage Fees Under Turkish Maritime Law: A Comprehensive Analysis

Introduction

Determining liability for pilotage fees in maritime law presents a complex interplay of contractual obligations, statutory provisions, and practical considerations. This article provides a comprehensive analysis of the legal framework governing pilotage fee liability under Turkish law, with particular emphasis on the rights of pilotage service providers and the obligations of various maritime actors. We aim to elucidate the question, "Who is responsible for pilotage fees?" while exploring the nuances of recovery in different chartering scenarios.

Contracts can be made between agencies and intermediary institutions, adding another layer of complexity to the determination of liability and the process of fee recovery. It should be noted that throughout this article, the term "service provider" is used broadly to encompass both direct pilotage service providers and intermediary institutions facilitating these services.

Legal Framework

Turkish Commercial Code (TCC)

The Turkish Commercial Code No. 6102 (TCC) serves as the primary legislative framework for maritime matters in Turkey. Several key provisions are pertinent to the issue of pilotage fees:

• Article 1321(d): This provision explicitly classifies pilotage fees as a maritime claim.
• Article 1352(1)(k): This article establishes pilotage fees as a claim giving rise to maritime liens.
• Article 1061: This crucial provision does not directly mention pilotage fees, its interpretation suggests that not only the shipowner but also the commercial manager of the ship may be jointly and severally liable for pilotage fees.
• Convention on Arrest of Ships 1999: The International Convention on Arrest of Ships 1999 also plays a significant role in the legal framework governing pilotage fees. This convention provides for the arrest of ships in contracting states for maritime claims, including those arising from pilotage services.
• Convention on Limitation of Liability for Maritime Claims 1976: This convention establishes a system of limiting liability for certain maritime claims, including those related to pilotage services. The incorporation of this convention's principles into Turkish law provides a balance between protecting maritime claimants and limiting shipowners' liability to a predictable amount.

It is worth noting that while Turkey is a signatory to various international maritime conventions, this analysis focuses primarily on the provisions of Turkish law.

Practical Scenarios and Liability for Pilotage Fees

Let us examine various practical scenarios to understand how liability for pilotage fees is determined and potentially shifted under Turkish law:

Scenario 1: Time Charter

In a time charter arrangement, the charterer typically contracts directly with the pilotage service provider. However, the shipowner may still bear ultimate liability for pilotage fees under Turkish law despite this contractual relationship. This is due to the classification of pilotage fees as a maritime claim and maritime lien under the TCC.

Practical Implication: While the charterer may be responsible for payment under the charter party agreement, the pilotage service provider retains the right to claim against the shipowner or the vessel itself.

Scenario 2: Voyage Charter

In a voyage charter, the shipowner generally contracts with the pilotage service provider and bears primary liability for pilotage fees. The charterer's responsibilities are usually limited to cargo-related matters.

Practical Implication: While charterers are not directly liable for pilotage fees, they should remain vigilant. Unpaid fees could lead to vessel arrest, potentially causing delays and breaching the charter party agreement. Some charter parties may include clauses making the charterer responsible for pilotage fees in certain circumstances. Clear contractual terms and proactive communication between parties are crucial to avoid disputes or vessel delays.

Scenario 3: Bareboat Charter

Under a bareboat charter, the charterer assumes many responsibilities typically held by the shipowner, including contracting for and paying pilotage services. However, the registered owner may still face residual liability under Turkish law.

Practical Implication: The maritime lien for pilotage fees attaches to the vessel itself, regardless of who contracted the services, potentially exposing the registered owner to claims.

Recovery Mechanisms for Unpaid Pilotage Fees

Turkish law provides robust protection for pilotage service providers through several mechanisms:

1. Claim Against the Contracting Party: The primary recourse is against the party that directly contracted the pilotage services, typically as stipulated in the charter party agreement.
2. Claim Against the Shipowner or Manager: Given the classification of pilotage fees as a maritime claim and the creation of a maritime lien, the service provider can pursue a claim against the shipowner or manager, irrespective of the contracting party.
3. Vessel Arrest: The maritime lien provides grounds for arresting the vessel to secure the claim, serving as a powerful tool for ensuring payment.
4. Expansive Claim Rights: The holder of a maritime claim for pilotage fees can exercise this right against all vessel possessors.

Inter-Party Recovery and Contractual Allocations

It is crucial to note that while Turkish law may ultimately hold the shipowner liable for pilotage fees, the commercial reality often differs. Charter party agreements frequently contain clauses allocating such expenses between the parties.

Practical Implication: Depending on the terms of their agreement, a shipowner who pays pilotage fees may have the right to recover these costs from the charterer. This highlights the importance of clear contractual drafting and understanding the interplay between statutory liability and contractual obligations.

International Scenarios: Additional Complexities

International Convention on Arrest of Ships 1999 largely resolves many complexities by providing a unified framework for vessel arrest in contracting states. However, challenges may arise when dealing with non-contracting states, which are relatively rare but can cause significant complications.

When dealing with international charters or vessels flying foreign flags, additional considerations come into play:

1. Jurisdictional Issues: Determining the appropriate jurisdiction for claims can be complex, involving considerations of the flag state, the location of the pilotage services, and the domicile of the contracting parties.
2. Applicable Law: Contentious issues may arise regarding which law applies—Turkish law, the law of the flag state, or the law stipulated in the charter party.
3. Enforcement Challenges: Even with a favourable judgment from a Turkish court, enforcing it against foreign entities or assets can present significant hurdles.
4. Strategic Decisions: Pilotage service providers must carefully weigh the costs and benefits of pursuing different parties or seeking vessel arrest in various jurisdictions.

• Assessing the cost-benefit of pursuing claims in various jurisdictions
• Evaluating the enforceability of judgments or arbitration awards in relevant countries
• Considering the impact of vessel arrest on ongoing operations and business relationships

1. Recourse Claims: A key issue arises when the party who paid the pilotage fees (often the shipowner) seeks to recover these costs from other parties (e.g., the charterer). The existence or absence of a contract between parties significantly impacts the resolution of these issues:

• In the absence of a direct contractual relationship, determining the appropriate forum and applicable law for recourse claims becomes particularly challenging.
• When a contract exists (e.g., a charter party agreement), the choice of law provisions and arbitration clauses within the contract become crucially important.

Conclusion

The Turkish legal framework provides robust mechanisms for pilotage service providers to recover their fees. Key points to consider include:

• The classification of pilotage fees as maritime claims affords special legal protections.
• The creation of maritime liens for pilotage fees, enhancing security for service providers.
• The potential for claims against various parties involved in the vessel's operation is supported by recent court interpretations. The Istanbul Regional Court of Appeal (12th Civil Chamber, Decision No. 2018/1561 E., 2019/1588 K., dated 19.12.2019)
• The importance of clear contractual terms in charter agreements regarding responsibility for pilotage fees.
• The complexities introduced by international scenarios necessitate careful strategic planning for fee recovery.

As maritime law continues to evolve, stakeholders in the shipping industry must remain vigilant of their rights and obligations concerning pilotage fees. Shipowners, charterers, and managers should be mindful of potential liability, even in cases where they are not the direct contracting party. Conversely, pilotage service providers should leverage the legal protections available to ensure efficient fee recovery, thereby maintaining their essential services to the maritime industry.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.