TRANSPORT INTERMEDIARIES UNDER TURKISH LAW

1. TRANSPORT INTERMEDIARIES UNDER TURKISH LAW Hakan KARAN Turkey www.karan.av.tr

2. 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)

3. DEFINITION • No definition under Turkish law. • The transport intermediary is a person mediating between the transport service requesters (TSR) and the transport service providers (TSP) in the conclusion and performance of the contract of transport services. • The transport intermediary = the transport service organiser (TSO) = freight forwarder • TSO is a person organising the transport service in return for the payment of fee under the contract of transport service organisation. • Articles 917-930 of the TCC.

4. 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

5. TRANSPORT REPRESENTATIVE • TSO granted byTSR 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.

6. 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.

7. 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.

8. 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).

9. 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.

10. 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.

11. 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.

12. 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.

13. 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.

14. 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)

15. CONDITIONS FOR AUTHORISATION • The conditions of the authorisationare as follows: 1) Turkish Nationality (Having been formed in Turkey under Turkish law) 2) Good occupational reputation (Having not been convicted of serious criminaloffences) 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 ensureproper launching and proper administration of an undertaking)

16. However, 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:

18. FEE FOR AUTHORISATION AND RENEWAL

19. 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.

20. THANKS