Author: Duygu Öner
Performance of the carriage of goods by someone other than the person who undertakes the carriage, both for inland and intentional carriage, is a common circumstance. This unique type of carriage by the sea resulted with the emergence of the concept of “actual carrier” due to its genuine nature and needs evolving over time. This Article reviews the term “actual carrier,” and the liability regime within the scope of sea carriage.
Term of Actual Carrier
The carrier is defined as the person who carries goods by the sea in return for a certain fee (this fee is referred to as "freight") under Turkish maritime trade law. In order to be considered as a sea carrier, a person does not have to perform the carriage personally, it would be sufficient for the carrier to undertake the carriage. In this respect, the carrier may perform the carriage in accordance with the contract of carriage in person, or assign someone else to perform the carriage, partially or wholly. The person who is assigned to perform the carriage, partially or wholly, is considered to be the actual carrier.[1] In such case, the carrier who assigned the carriage is considered to be the contracting carrier.
In order to have an actual carrier in a carriage relationship, the carrier who undertakes the carriage under a freight contract should assign someone else for the performance under another freight contract. Consequently, there are two separate freight contracts and two separate contracts of carriage. The first contract is established within the framework of the freight contract concluded between the shipper who approaches the carrier to have his goods carried, and the carrier who undertakes the carriage. The second one is established between the carrier who undertakes the carriage in accordance with the freight contract concluded with the shipper, but will not actually perform the carriage, partially or wholly, and the (actual) carrier who undertakes the carriage. The subject of this second freight contract, which is concluded between the contractual carrier and the actual carrier is partially or totally the same as the first freight contract, and it aims to perform the carriage partially or in total, which is undertaken by the contractual carrier.
In the case of damage or delay, where there are multiple contracts of carriage and multiple carriers, being able to establish each carrier’s period of liability through carriage would be important.
Liability of Actual Carrier
As per Article 1192/2 of Turkish Commercial Code numbered 6102 (“TCC”), all provisions of the TCC regarding the carrier’s liability shall also be applicable to the carriage performed by the actual carrier. In this respect, Article 1178/2 of the TCC sets forth that the carrier is liable for the loss or damage of good or delay in delivery only if the loss, damage, or delay occurs in the period when the actual carrier has charge of the goods.
In principle, the liability of the actual carrier, similar to the contractual carrier, is based on fault. The actual carrier’s fault is “prima facie” accepted, only if the damaged party is able to establish that the loss or damage is caused by the circumstances that occurred during the period when the actual carrier had charge of the goods. The burden to prove the absence of fault or neglect rests with the actual carrier.
The actual carrier’s liability is limited to the contracting carrier’s liability established under the law. As per Article 1191/3 of the TCC, special provisions increasing the carrier’s liability or obligations that are not established by law or result in giving up a right granted to the carrier, is valid for the actual carrier, only if the actual carrier gives explicit and written approval. The purpose of this regulation is to ensure that the provisions that extend the obligations or limit the rights of the contracting carrier within the framework of the freight contract concluded with the shipper are only binding on the contracting carrier, and have no effect on the actual carrier.
The carrier continues to be liable for the whole carriage within the framework of the freight contract concluded with the shipper, regardless of another carrier performing the carriage, partially or wholly. In this respect, the carrier is liable for the acts and omissions of the actual carrier and its agents working for the carriage and acting within the framework of their duties and authority under the provisions of liability set forth in the TCC.
There is no contract between the actual carrier and the shipper, since the actual carrier does not undertake a carriage for the person who is related to the goods or the shipper. However, the legislation allows the person who is related to the goods to claim a right directly against the actual carrier if damage occurs. Within this scope, the person who is related to the goods may claim a right both against the actual carrier and the contracting carrier for the compensation of its loss which occurs within the liability period of the actual carrier or occurs due to an act that takes place within this period.
Regulations limiting the liability of the carrier and the provisions regarding the circumstances under Article 1182 of the TCC that give rise to prima facie evidence that the carrier is not liable and relieves the carrier from liability, are valid for the liability of the actual carrier, since it is subjected to the principles for the carrier’s liability established under the TCC.
Conclusion
The fact that the carriage both in international and domestic waters is performed by different actors has led to the emergence of the concept of “actual carrier,” and the need for establishing the liability of the actual carrier. The legislator has established the scope of the rights and obligations of the actual carrier and, as well, has provided protection for the rights of those who are related to the goods with detailed regulations under the TCC regarding the liability of the actual carrier for the carriage of the goods by sea.
[1] Kender, Rageyan; Çetingil, Ergon; Yazıcıoğlu, Emine: Deniz Ticareti Hukuku Temel Bilgiler Cilt 1, XII Levha Yayıncılık, Ekim 2012, p. 139.
