Non-standard Commercial Transport Operations in Maritime Law

Entrance

One of the most important areas of maritime law transportation contracts. In the ordinary course of commercial life, the transportation of cargo and passengers by ships is generally customary commercial transportation . However, sometimes transportation that is not for commercial purposes, that deviates from ordinary transportation activities, or that is exceptional in nature, comes into play.

The Turkish Commercial Code (TTK) has introduced special provisions for this type of transportation. This is because these types of transportation differ from commercial transportation in terms of both the obligations of the parties and the responsibility of the carrier.

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1. Definition of Standard Commercial Transportation Operations

In the Turkish Commercial Code (TTK) system routine commercial transportationrefers to transportation that the carrier regularly undertakes within the scope of its ship operation activities and for the purpose of generating commercial profit.

For example:

• Container shipping,
• Transporting crude oil by oil tankers,
• Passenger transportation with regular services,

These are typical examples of routine commercial transportation operations.

In contrast, exceptional transport operations are those that fall outside of normal commercial activity, are non-continuous, or are not for commercial purposes.

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2. Definition of Transportation that Does Not Fall Under Standard Commercial Transportation Operations

Although the Turkish Commercial Code does not contain a specific definition of this type of transportation, based on doctrine and Supreme Court decisions, it can be defined as follows:

“These are non-continuous, non-profit, or special-purpose maritime transport activities that are outside the carrier's ordinary commercial operations.”

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3. Legal Basis for These Transports

Articles 1151 and subsequent articles of the Turkish Commercial Code contain provisions relating to maritime transport. The legislator has acknowledged that the legal regime for transport that is not part of the usual commercial transport operations is different; in some cases, it has limited the carrier's liability.

In addition, international conventions (particularly the Hague-Visby Rules) address these types of transport to a limited extent.

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4. Types of Transportation That Are Not Standard Commercial Transportation

The main types of transportation included in this scope are as follows:

4.1. Free Transportation

Transport of goods without the carrier receiving any compensation (for example, the transport of goods for friendly aid).

4.2. One-Time or Temporary Transportations

Transportation carried out exceptionally, outside the ordinary business activities of the carrier.

4.3. Transportation for Rescue or Assistance Purposes

The transfer of cargo or passengers to another vessel after a maritime accident.

4.4. Transportation for State or Public Service Purposes

Transportation for military purposes or for the public good.

In these types of shipments, the carrier generally does not want to assume commercial risk and liability; therefore, their legal statuses are different.

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5. Carrier's Liability

For shipments that are not routine commercial transport, the carrier's liability is narrower in scope than for commercial transport.

• In commercial transport, the carrier is directly responsible for any loss, damage, or delay of the cargo.
• In exceptional cases of transport , the carrier's liability is often limited to intent or gross negligence

For example, in the case of free transportation, the carrier is only held liable if their actions are grossly negligent.

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6. Application in Passenger Transportation

Passenger transport is, as a rule, ordinary commercial transport. However, in some special circumstances, passenger transport does not have a commercial character

• The ship's captain transporting a person free of charge upon a special request.
• Holiday transportation by private boat.

In these cases, the carrier's liability to the passenger is limited.

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7. Insurance Relationship

While cargo insurance and P&I insurance come into play in commercial shipments, insurance coverage can become controversial in non-commercial shipments.

• Free transportation is generally not covered by insurance.
• Transport for rescue or aid purposes can be covered by special insurance contracts.

Therefore, it is important for the parties to determine the insurance coverage beforehand.

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8. Court of Cassation Practice

The Supreme Court considers transportation that does not fall under the category of ordinary commercial transportation to be subject to a special liability regime

• The Supreme Court's 11th Civil Chamber rulingshave stated that in cases of free transportation, the carrier is only held liable in cases of intent or gross negligence.
• It has been ruled that private transportation, not for commercial purposes, is not subject to the mandatory liability provisions of the Turkish Commercial Code.
• However, liability for compensation can arise even in this type of transportation if the carrier's fault is proven.

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9. Problems Encountered in Practice

Such transportation methods can lead to certain disputes in practice:

• Nature of the contract: Determining whether the transport is commercial or exceptional.
• Difficulty of proof: Proving fault can be difficult in cases of free or friendly transportation.
• Insurance disputes: The insurer's liability for the coverage may become contested.
• Public transportation: A special status of responsibility undertaken by the state or public institutions.

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10. Conclusion

In maritime law, routine commercial transport is the rule; however, exceptional transport may also occur in practice. Free transport, salvage transport, or one-off exceptional transports are not considered routine commercial transport.

In this type of transport, the carrier's liability is more limited compared to commercial transport. Liability usually arises only in cases of intent or gross negligence. There are also differences in terms of insurance, freight, and contract terms.

The Supreme Court's decisions have adopted an approach that balances the interests of the parties in this matter. It has interpreted non-commercial transport narrowly, while emphasizing that commercial transport is subject to the absolute liability regime.

In conclusion, transportation that does not fall under the category of ordinary commercial transportation is limited and exceptional in maritime trade, and its legal regime differs from that of commercial transportation. It is of great importance for the parties to understand this distinction when drafting their contracts and insurance plans to prevent potential disputes.