TRANSPORT

INTERMEDIARIES UNDER

TURKISH LAW

Hakan KARAN

Turkey

www.karan.av.tr

INTRODUCTION

The number of actors playing role in transport has increased since 1950’s, and new actors acting as transport intermediaries have emerged.

This symposium could be very first step to reach a common understanding on the unified regime applicable to the transport intermediaries.

The transport intermediaries under Turkish law:

- The Turkish Commercial Code 2011 (TCC)

- The Turkish Road Transport Act 2003 (TRTA)

- The Turkish Obligations Code 2011 (TOC)

DEFINITION

TYPES

Depending on the power of representation, TSO may act variously. It is important to analyse the types of TSO for the application of right

secondary rules under the TCC and TOC. Transport representative Transport commissioner Transport broker Transport agent

TRANSPORT REPRESENTATIVE

TSO granted by TSR a power of representation to organise transport service in the name and on the behalf of TSR is a «transport representative» subject to Articles 40-45 of the TOC.

This is so especially when the transport document is signed by TSO as a representative of TSR.

TRANSPORT COMMISSONER

TSO entitled by TSR to organise transport service in its own name, but on the behalf of TSR is a «transport commissioner» subject to Articles 532-546 of the TCC.

This is so especially when the transport document is signed by TSO without declaring on whose behalf it acts.

TRANSPORT BROKER

TSO who, without any power of representation, mediates between TSR and TSP in the conclusion or performance of the transport service agreements is a transport broker subject to Articles 520-525 of the TOC.

This is so especially when the transport document is signed by a person other than TSO.

TRANSPORT AGENT

TSO who has a continuous contractual relation with TSR is a «transport agent» subject to Articles 102-123 of the TCC.

The foreign principal having concluded any contract in Turkey by means of an agent could be sued in Turkey (TCC Art. 103 and 105).

OBLIGATION The basic obligation is to organise the transport

service.

The transport is «a bobble of continuous sub-services» starting from the receipt of until the delivery of goods.

TSO shall organise the receipt, handling, caring for, storage, loading, stowage, carriage, discharge and delivery of goods.

TSO may be assumed other subsidiary obligations, such as to organise the insurance, packaging and clearing at customs of the goods.

TSO is under an obligation to organise the conclusion of any contracts for the organisation of transport services, especially the contract of carriage.

Those obligations may be entrusted to other sub-TSOs.

TSO shall perform the obligations by exercising due diligence expected from a prudent TSO.

PERFORMANCE OF TRANSPORT SERVICE The performance of transport service to be

organised may be either in principle undertaken by a third party TSP or exceptionally by TSO itself.

TSO is free to choose who performs the transport service on the condition that due diligence has shown during the selection of the transport service providers.

Should TSO assumes an obligation to perform the transport service (carriage) whose organisation has been obliged by itself, TSO becomes also TSP (carrier).

In that case, TSO as a TSP (carrier) may actually perform the transport service or entrust such service on a third party transport service providers (carriers) by way of sub-contracts of transport service (carriage).

In practice, in that case, two transport documents are issued: Forwarder’s and Owner’s Transport Documents.

LIABILITY TO TSR

TSO in breach of the contract of transport service organisation is contractually liable to TSR subject to different legal regimes under Turkish law depending on first:

Whether the performance of transport service to be organised has been assumed by TSO as a TSP (carrier) or not:

- If assumed: TSO is liable as if he were a TSP (carrier).

- If not assumed, then depending on: Whether the loss has arisen due to loss of or damage

to as well as delay in delivery of goods in custody or not:

- If in custody: TSO is liable as if he were a road carrier

- If not in custody: TSO is liable if it has breached the contract of transport service organisation.

LIABILITY TO TSP

TSO may be held liable to TSP (carrier) for the payment of transport fee and other related transport service costs depending on the existence of the contractual relation arising from the contract of transport service (carriage) to be organised:

If TSO acts as a broker and just mediates between the TSR and TSP, then he cannot be liable for the transport costs.

If TSO acts as a direct representative of TSR, all liability shall lie on TSR as a principal.

If TSO acts a transport commissioner, all liability shall be on TSO unless TSR duly undertakes them with the approval of TSP.

RECOURSE CLAIM

TSO is a transport intermediary. As a result it can always recourse claim against either

TSP or TSR depending on by whom the claim has been brought unless the loss has arisen by its own breach of the contract.

CERTIFICATE OF AUTHORISATION

The Turkish Road Transport Act requires TSO to obtain a certificate of authorisation to organise road transport services (otherwise, a fine of 1,000 TL (approximately $470)

Types Transport Service Organisers

G2Agents for international road carriage of goods.

G4Agents for international road carriage of cargo.

H2Transport commissioners for international road carriage of goods.

R2Transport service organisers assuming also road carriage for international road carriage of goods.

CONDITIONS FOR AUTHORISATION

The conditions of the authorisation are as follows: 1) Turkish Nationality

(Having been formed in Turkey under Turkish law) 2) Good occupational reputation (Having not been convicted of serious criminal

offences) 3) Professional competence

(The possession of knowledge and skills with regard to the engagement in the occupation of transport) 4) Financial competence

(Having sufficient resources available to ensure proper launching and proper administration of an undertaking)

Types Minimum Capital

Requirements

Other Conditions

G2 30,000 TL ($13.650)

an agency agreement with max. ten C2 or L2 certificate holders, and a land of 30 m2

G4 30,000 TL ($13.650)

an agency agreement with max. two M3 certificate holders, and a land of 20 m2

H2 40,000 TL ($18.180)

an office

R2 300,000 TL ($136.500)

an officeHowever, if TSO is obliged both the transport service

organisation and the actual carriage, then it is compelled to own certain amount of vehicles too as shown:

Type Minimum Vehicle

Minimum Capital

Other Conditions

C2Private Carriers

11 owned vehicles with total loading capacity of 440 m/t

100,000 TL

($45.455)

-

L2Logistic FirmsGoods

6 owned vehicles with total loading capacity of 220 m/t

300,000 TL

($136.365)

A land of 2000 m2 (for each branch 200 m2), and a branch or agent abroad

M3Logistic FirmsCargo

30 owned vehicles of less than 12 years old with total loading capacity of 300m/t

300,000 TL

($136.365)

A land of 400 m2 (for each branch 20 m2), and a branch or agent abroad

FEE FOR AUTHORISATION AND RENEWAL

Types Fee

C2 67,727 TL ($32,000)

G2 10,154 TL ($4.615)

G4 10,154 TL ($4.615)

H2 10,154 TL ($4.615)

L2 338,656 TL ($147.241)

M3 338,656 TL ($147.241)

R2 338,656 TL ($147.241)

COMPETITION

Any abuse of dominant position by requiring that a certain service purchased not be sold below a certain price can also be overruled by the application of the Turkish Act on Protection of Competition 1994.

THANKS