This was an appeal from the judgment of the Bandırma 1st Civil Court of first instance (3 May 2016, 2013/347-2016/203).

The plaintiff stated that the defendant carrier did not discharge a cargo of rice bran owned by the plaintiff in accordance with its instructions. The cargo was discharged at the port of Bandırma. In particular, the plaintiff stated that the discharge operation was initiated with the provisional attachment decision in respect of the ship issued by the Court of first instance [which was based on art 1.1.i of the Arrest Convention 1999]. The plaintiff argued that the defendant's general average claim was unjustified. Thus, the plaintiff filed a lawsuit against the judgment of the Court for a determination that the plaintiff did not owe the defendant USD 60,000 in general average, and for the return of the guarantee deposited. The plaintiff further demanded TRY 98,781.43, and applied for the rejection of the defendant's counterclaim.

The defendant argued that the ship, which was under the control of the plaintiff, experienced machinery failure before its arrival in the Bosphorus Strait on 10 August 2013 carrying a cargo of 1,421,940 mt of rice bran in bulk from the port of Temryuk in Russia. The defendant also stated that an agreement was signed due to the incident, and that the ship entered port on 16 August 2013. The defendant referred to art 1277 of the Turkish Commercial Code (the TCC) and argued that it was clear that the master was under no obligation to deliver goods that would contribute to a pro-rata general average contribution, unless a guarantee was provided under art 1201 of the TCC or the pro-rata contribution was paid; otherwise, the master was personally liable for such pro-rata contribution. As a result, the defendant applied for the dismissal of the plaintiff's claim by arguing that the commercial invoices submitted by the plaintiff did not provide evidence for the damage it suffered. The defendant further sued for damages of USD 100,000.

The Court of first instance observed that the defendant's declaration of general average was justified, taking into account the general average report. The ship was stranded due to machinery failure. Given the nature of the ship's breakdown, the cargo was delivered late due to the general average incident. The Court found that the defendant had no responsibility for the general average incident, and that the plaintiff could not prove its claim of short delivery and damaged cargo. Hence, the Court dismissed the claims regarding the payments of USD 7,875, USD 7,192, and USD 52,552.36 for receivables, with partial acceptance of the case against the dismissal of the main case, because the plaintiff was entitled to demand fuel and protective agency expenses from the defendant during the period when the ship was at anchor.

The plaintiff appealed to the Supreme Court of Appeal.

Held: The plaintiff's appeal is admissible. The judgment of the first instance Court is reversed in favour of the plaintiff.

The Supreme Court of Appeal affirmed that the suit related to claims for damages suffered by the plaintiff due to the unjustified provisional attachment imposed on the relevant ship and the general average pro-rata contribution determined by the general average report.

The Supreme Court referred to the provisions governing general average in Turkish law, namely arts 1272-1285 of the Turkish Commercial Code (the TCC) [which are based on the York-Antwerp Rules - the 2016 York-Antwerp Rules entered into force in Türkiye through publication in the Official Gazette 30691 on 19 February 2019. Article 1273 of the TCC states that 'unless parties agree otherwise, general average pro-rata contributions are subject to the Rules of the last version of the York-Antwerp Rules prepared by the International Maritime Committee and translated into Turkish and published under this Article'.]

The Supreme Court held that general average could be declared to protect the ship, cargo, goods, and freight in a common maritime adventure from a danger threatening them, when any extraordinary sacrifice or expenditure is intentionally and reasonably made or incurred for the common safety for the purpose of preserving them from peril [based on r A.1 of the York- Antwerp Rules 2016]. In particular, the Court found that, following a general average declaration, the shipowner is obliged to arrange a general average report without delay. The Court will then summon all interested parties to a hearing, and will consider submissions regarding the approval of the report or objections to the account. The Court further observed that any objections to the report must be raised at the latest at the first hearing. If the report is not objected to, or the objections are not considered justified, the Court will approve the report. The Court held that the report, once approved by the Court, gains the quality of a judgment, and the dispatch report, like a judgment, can then be directly executed.

The Court further found that it was indisputable that the ship was irreparably damaged on the voyage, and the master duly declared general average and obtained a general average report without delay. Under the provisions mentioned above, while it was possible for the defendant to apply to the Court for approval of the report and for the Court to give the report the quality of a judgment, it was not possible to initiate a counter-claim for the collection of a general average pro-rata contribution in the same proceedings. In this case, considering that there was no legal basis for the defendant filing a counter-claim requesting the collection of the general average pro-rata contribution determined by the report, this counter-claim should have been dismissed by the Court of first instance.

One of the Judges provided a dissenting opinion as follows: There is no legal provision which prevents a lawsuit from being initiated directly for the collection of a pro-rata general average contribution. One of the Civil Chamber judges therefore disagrees with the justification for the decision of the reversal due to the lack of legal basis reached by the majority of the Chamber.

[For the revision and reversal of this decision, see E: 2018/4685 K:2020/3211, Supreme Court of Appeal, 11th Civil Chamber, 25 June 2020 (CMI2007).]