According to Caglar Coskunsu, Cavus & Coskunsu Law Firm, Istanbul, writing for Gard Club, major incidents like the “Nassia” collision with the “Shipbroker” and the “Independent” collision with the “Evriali” which also involved the loss of crewmembers , proved that the risks do exist.
Namely, Turkey considers the safety of the Turkish Straits to have the utmost importance and has established that all salvage operations must be carried out by the Directorate General of the Coastal Safety.
The Directorate not only covers the Turkish Straits but also areas around the islands of Gokceada and Bozcaada in the Aegean Sea, as well as the coastal areas around the entrances of the Dardanelles and the Bosporus. In addition to salvage services the Directorate General of the Coastal Safety also provides:
- Search and Rescue;
- Pilotage in the Turkish Straits;
- Turkish Straits Vessel Traffic Services (TSVTS) Aids to Navigation (Lighthouses, Buoys etc.);
- Marine Communication;
- Marine oil spill response during salvage operations or in case of emergency.
Salvage in the Bosporus and the Dardanelles used to be associated with the Turkish Open Form (TOF) standard form of salvage agreement, despite the fact that its use was almost exclusively limited to salvage operations in the Turkish Straits and nearby areas covered by the Directorate General of Coastal.
Nevertheless, Caglar Coskunsu informs that TOF was abandoned some years ago, after a milestone decision by the Turkish Supreme Court. The main argument regarded the arbitration clause of TOF where only the Directorate General of Coastal Safety had the power to launch arbitration proceedings and considering the usually excessive securities put up in favour of the Directorate General of Coastal Safety, Owners and Underwriters did not have much choice but to settle the salvage claims.
Revised salvage agreement - Turks 2015
The Turkish Commercial Code, which fully applied on 1 July 2012, codified the provisions of the International Convention on Salvage of 1989. Turkey became a party to the 1989 Salvage Convention with full effect as of 29 May 2013, which is directly applicable to all salvage cases in Turkey with a foreign element.
The Directorate General of Coastal Safety amended the arbitration clause in the new Turks 2015, aiming to comply with the Supreme Court ruling by giving all parties concerned the right to begin arbitration.
However, a controversial part of the original arbitration clause remains, where arbitrators have the right to receive 12% of each award that would be equally distributed between them.
Another issue for shipowners under Turks 2015 is that when they sign Turks 2015, they must provide security for all salved properties on board, assuming liability for all property on board.
For this reason, Gard's suggestion is that, if possible, shipowners should try to avoid entering Turks 2015 until it is revised in terms of payment, security, liabilities and also the dispute resolution clause.
The Directorate General of Coastal Safety has traditionally claimed 8-12% of salved values as a reward with salvage security amounting to some 15-20% of salved values. However, in spite of a salvage claim of the Directorate General of Coastal Safety in a major case in 2018, where the claim amount was exceptionally high as the 50%, recent trends indicate lower settlements at about 5-6%.
The Turkish Commercial Code which came into force on 1 July 2012 substantially codifies the provisions of the International Convention on Salvage of 1989 that Turkey has been a party to since May, 2013 and Turkey now applies contemporary principles of salvage law. The SC Sara decision from the Turkish Supreme Court lead to the Turks 2015 salvage agreement. Although far from perfect in its current incarnation, future revisions to Turks 2015 may make it a preferable form of salvage agreement
Caglar Coskunsu concludes.