The appellant brought this appeal against the respondent regarding judgment 2014/430-2015/122 issued by the Commercial Court of first instance. The case arose from a fire on 1 November 2012, which spread onto the tour boat owned by the appellant from the boat owned by the respondent, as a consequence of which the tour boat was a total loss, as per the findings in the survey report.

The appellant argued that there was no defect attributable to it under art 947 ff of the repealed Turkish Commercial Code and arts 1061, 1062 ff of the new Turkish Commercial Code. According to the appellant, liability was limited to the ship and the freight, and was a liability based on fault. Accordingly, the shipowner was responsible with his assets for the damage caused by his seafarers under service contracts, the liability of the shipowner against third parties was not included in the Turkish Commercial Code, and the shipowner might have been liable under the provisions of tort law. Neither the appellant ship's crew nor the appellant shipowner defaulted in this incident; the appellant ship's electrical equipment components were repaired one year before the incident. The respondent was also concurrently negligent as the respondent’s boat caused the fire to increase, there was no fire extinguisher in the fishing port, there was no watchperson, and the insured respondent was paid in full by its insurer without the salvage value of the boat being calculated for which the damage was paid. Consequently, the appellant appealed the decision by requesting the dismissal of the case.

Held: The appeal is admissible.

The appellant argued on appeal that the provisions of the Turkish Commercial Code No 6102, which entered into force on 1 January 2012, should be applied because the fire incident, which rightly caused the dispute in question, took place on 1 November 2012, indicated in the expert panel report dated 26 December 2014. Accordingly, under the reference made in art 1062.2 of the Turkish Commercial Code titled 'Liability of Seafarers arising from the Faults of Seafarers', the right of the shipowner to limit liability arising from international agreements to which the Republic of Türkiye is a signatory is reserved. According to this reference, considering the provisions of arts 1328 and 1329 of the Turkish Commercial Code No 6102, the provisions of the Convention on Limitation of Liability for Maritime Claims 1976 (LLMC 1976) provide the system for limitation of the shipowner's liability, and should be applied to this case.

The expert report dated 26 December 2014, which is the basis of the Court of first instance judgment, refers to art 2.1.a of the LLMC 1976. This article provides that

the following claims, whatever the basis of liability may be, shall be subject to limitation of liability:

(a) claims in respect of loss of life or personal injury or loss of or damage to property … , occurring on board or in direct connexion with the operation of the ship or with salvage operations, and consequential loss resulting therefrom.

Claims arising from all kinds of loss and damage to goods and other damage are maritime claims subject to limitation. Based on this event and the maritime claim, the shipowner's responsibility is within the scope of limited liability under the LLMC 1976. If more than one maritime claim arises on any distant occasion, this falls under art 9 of the LLMC 1976, and the limits of liability determined in art 6 apply to the aggregate of all claims which arise on any distinct occasion on a pro-rata basis. For this reason, even if limited liability is invoked before the constitution of the limitation fund, limited liability to creditors shall apply as provided for in art 12 correspondingly.

Since the experts were appointed in respect of different case files within the framework of the same event, they could determine other maritime claims brought against the respondent shipowner as coming within the limited liability framework under art 10.2 of the Convention. Consequently, the distribution of funds should be taken as a basis for the limitation fund in compliance with arts 9 and 12. In terms of procedural law, it would be appropriate to invoke limited liability and make a distribution accordingly. In this case, since the source of the maritime claims is damage to property occurring on board, all of these claims are covered by art 6 of the LLMC 1976. When determining the limit in SDRs in art 1332 of the Turkish Commercial Code, the respondent’s payments in respect of the 'totality' of claims arising from the same fire should be considered as a requirement.

It appears from the case file that the respondent’s insurer made partial payments to different creditors, but without consolidating the three separate files and determining all payments. In this case, the Court determines the amount of damage and the payments made related to all the boats damaged in the fire, which is the subject of the lawsuit, although the aforementioned expert report has been adopted, and the payments made are determined, and the files are combined when necessary to make this determination, without eliminating the deficiencies pointed out in the expert report. Based on the average of the numbers of the three files, the first instance judgment was not correct, and must be dismissed.

[See also E:2015/7292 K:2016/4818 (CMI1874).]