Non-Contractual Liability of the Carrier and its Crew in Maritime Law

Entrance

Although maritime transport is based on a contract of carriage established between the parties, not every dispute is solely related to this contract. In some cases, the rights and obligations of the parties arise independently of the contractual relationship. This is where non-contractual liability comes into play.

In maritime law, carriers and seafarers acting on their behalf may also be liable for damages not directly related to the contract of carriage. Such liability is generally of tort law .

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1. The Concept of Non-Contractual Liability

1.1. Definition

Non-contractual liability is liability arising from damage even if there is no contractual relationship between the parties.

1.2. Basis

Liability for torts according to Article 49 of the Turkish Code of Obligations (TBK):

"Anyone who causes harm to another through a culpable and unlawful act is obligated to compensate for that harm."

In maritime trade, this rule applies to damages caused by the carrier and crew to third parties.

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2. Carrier's Non-Contractual Liability

2.1. Non-Contractual Damages

The carrier is liable not only for obligations arising from the transportation contract, but also for damages caused to third parties.
For example:

• Environmental pollution caused by the ship in the port,
• Damage caused to third parties during loading,
• Damage to the cargo of neighboring ships.

2.2. Principle of Fault

In non-contractual liability, the presumption of fault is not as strong as in contractual liability. The injured party must prove the carrier's fault.

2.3. Insurance Relationship

These losses are usually P&I Clubs .

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3. Non-Contractual Liability of Seafarers

3.1. Definition

The carrier's men are those who act on its behalf, such as the captain, officers, and ship's crew.

3.2. Direct Liability

The actions of seafarers can hold both the carrier and themselves liable.

For example:

• Negligence that caused injuries to workers during loading at the port,
• Deliberately causing damage to the cargo,
• Collision with a third ship due to the captain's faulty maneuver.

3.3. Protection in Favor of the Carrier's Men

The Turkish Commercial Code and international regulations stipulate that the carrier's employees can also benefit from the limited liability regime. However, this protection intent and gross negligence .

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4. Characteristics of Non-Contractual Liability

• It is independent of the contractual relationship.
• It is based on the principle of tort.
• The burden of proof of fault rests with the injured party.
• Liability limits are often applied in a manner similar to the SDR limits granted to the carrier.
• Both the transporter and his men can be held jointly and severally liable.

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5. International Regulations

5.1. The Hague-Visby Rules

It granted limited liability to the carrier's men, but eliminated this possibility in cases of intentional acts.

5.2. Hamburg Rules

It has expanded the non-contractual liability regime to protect the cargo owner.

5.3. Rotterdam Rules

This is a modern regulation that also covers multimodal transport. The responsibilities of the carrier's personnel are discussed in detail here.

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6. Non-Contractual Liability in Light of Supreme Court Decisions

• The Court of Cassation rules that the carrier's employees can also be held directly liable under the provisions of tort law.
• In cases of damage caused to third parties, particularly during loading and unloading at port, the crew members are also held liable in addition to the carrier.
• However, the liability of the carrier's agents can be limited in parallel with the limits of the carrier's liability.

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7. Insurance Relationship

7.1. P&I Clubs

The non-contractual liabilities of the carrier and its agents are often secured by P&I clubs.

7.2. Scope

Environmental pollution, death or injury to third parties, port damage, accidents during loading and unloading.

7.3. Exceptions

• Damages caused intentionally,
• Gross misconduct,
• Actions that violate insurance terms.

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8. Problems Encountered in Practice

• Proof of fault: It can be difficult for the injured party to prove the fault of the carrier or its agents.
• Scope of the limited liability regime: Whether these limitations apply to non-contractual liability is debatable.
• The men's personal liability: This may give rise to joint and several liability with the carrier.
• Insurance disputes: The insurer's liability is eliminated in cases of intentional acts.

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9. Evaluation

• Non-contractual liability is important for the protection of third parties in maritime trade.
• The carrier may also be liable for damages not included in the contract.
• Seafarers, even though they act on behalf of the carrier, can be held directly liable for their own actions.
• International regulations have protected the limits of liability, shielding the carrier and its crew from excessive responsibility.
• The Supreme Court has developed precedents to protect victims, particularly by interpreting cases involving damages to third parties broadly.

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Conclusion

In maritime law, the non-contractual liability of the carrier and its crewis a special category covering damages outside of the contractual relationship.

• This liability is based on the principle of tort.
• The burden of proof of fault rests with the injured party.
• In cases of intent and gross negligence, the limitation of liability is eliminated.
• Insurance systems (particularly P&I clubs) play a key role in covering these types of losses.

In conclusion, non-contractual liability is a supplementary arrangement in maritime trade that balances the interests of the parties and safeguards third parties against potential damages.