Coronavirus (Covid-19), which has been pronounced as a pandemic by the World Health Organization, has spread various countries and It has increased its effects all over the world economically and has affected the working life. Many countries had to implement new legal arrangements to ensure the sustainability of their working life. The chairmanship of Turkey also held a meeting on 18.03.2020 which is chaired by the President. In this regard after the  meeting on 18.03.2020 it has been  decided to make various legal arrangements. Then, with the effect of the pandemic, many legal arrangements have been entered into force  to take precautions for the relevant sectors.

Due to Coronavirus (Covid-19), travel all over the world have come to a halt, transportation companies, which have surveillance  obligation  within the scope of the occupational health and safety of the employees, have failed to meet  the transportation time frames. Therefore, application of force majeure event to the contracts have started to be discussed in the transportation sector. In this regard, it will be important to evaluate  the legitimate framework to which the transport contract is subject, the terms of force majeure provisions under such contract  and the actual circumstances.

It is essential to carry out the operations and the tasks as arranged in sea transport. Due to the epidemic, it is necessary to take the necessary health precautions regarding the cargoes in the ships and ports and ensure that the seamen conduct their business as per the international conventions on occupational health and safety.

I.EVALUATING LAPSE OF TIME PERIODS AND LEGAL TRANSACTIONS IN THE TRANSPORTATION SECTOR

I.1. According to Article 1188 of the Turkish Commercial Code (“TCC”) on sea transports;

“The option to request any kind  of compensation against the bearer because of the misfortune or harm of the thing and its late conveyance falls except if the legal cure is applied inside one year.”

 According to Article 35 of the Montreal Convention on air transportation;

“The right to damages shall be extinguished if an action is not brought within a period of two (2) years, reckoned from the date of arrival at the destination, or from the date on which the aircraft ought to have arrived, or from the date on which the carriage stopped.”

According to Article 32 of the Convention Merchandise Routier (“CMR”), which sets the responsibilities of the carrier by standardizing the conditions in international road transportion;

“The period of limitation for an action arising out of carriage under this Convention shall be one year. Nevertheless, in the case of willful misconduct, or such default as in accordance with the law of the court or tribunal seised of the case, is considered as equivalent to willful misconduct, the period of limitation shall be three years.”

 According to  Article 855 of the TCC regarding domestic road transportion;

“In the transportation subject to the provisions of this Book, the claim rights shall be expired in ten years, if the passenger dies as a result of an accident or is damaged by bodily integrity; for other damages it shall expire in a year.”

 I.2. Law No. 7226 has entered into force on 23.03.2020 by making arrangements  for  the purpose of  measures to be implemented due to Coronavirus (Covid-19). As indicated by the regulations in the law;

 “Due to the Covid-19 epidemic in our nation, in order to prevent the loss of any rights in the legal proceedings 

a) All periods with respect to the rise , use or termination  of a right, including filing a lawsuit, initiating enforcement proceedings, application, complaint, appeal, notice, notification, submission and timeout periods, deprivation times and mandatory administrative application periods; The periods determined in terms of the parties under  of the Administrative Procedure Law No. 2577 dated 6/1/1982, the Criminal Procedure Law No. 5271 dated 4/12/2004, and the Civil Procedures Law No. 6100 dated 12/1/2011; and In this context, the periods determined by the judge and the periods in mediation and reconciliation institutions, shall be halted from  13/3/2020 (including this date),

b)  The periods determined in the Execution and Bankruptcy Law dated 9/6/1932 and numbered 2004 and other laws related to the follow-up law and the periods  determined by the judge or enforcement and bankruptcy offices in this context; all enforcement and bankruptcy proceedings (except alimony debts), party and follow-up transactions, receipt of new enforcement and bankruptcy follow-up requests, the proceedings regarding the execution and execution of the precautionary attachment decisions shall be halted from 22/3/2020 (including this date) until 30/4/2020 (including this date)

According to the regulation in the law, the lapse of time and the statutory limitation periods have halted until the date of 30.04.2020. This period can be extended  by the President up to six months for one time should the epidemic  continues, and the scope can be narrowed.

With the regulations in the law, loss of a right and lapse of time periods were halted.

II. EVALUATION OF DAMAGE NOTICE PERIODS IN THE TRANSPORTATION SECTOR

II.1. Communication channels which are being restricted because of the epidemic, causes changes in the methods for leading business. In the transport sector, in situations where damage  occurs on the cargo,  legal assessment should be made regarding the notification  periods. Firstly, according to  Article 1185 of the Turkish Commercial Code (“TCC”), which is related to maritime transportion when the notification periods are considered in terms of transportation models;

·         In cases where loss and damage can be clearly seen, the notification shall be made in writing at the latest at the moment of delivery ;

·         In other cases, within three days to be calculated continuously from the date of delivery of the item to the consignee;

·         In case of delay, within sixty (60) days to be calculated continuously from the date of delivery to the consignee.

Damage of goods must be reported.

According to Article 31 of the Montreal Convention regarding air transportation;

·         The person entitled to delivery must complain to the carrier forthwith after the discovery of the damage;

·         At the latest, within seven days from the date of receipt in the case of checked baggage;

·         Fourteen days from the date of receipt in the case of cargo;

·         In the case of delay, the complaint must be made at the latest within twenty-one days from the date on which the baggage or cargo have been placed at his or her disposal.

Damage of goods must be reported.

According to Article 30  of the  CMR in international road transport;

·         If the consignee takes delivery of the goods without duly checking their condition with the carrier or without sending him reservations giving a general indication of the loss or damage, not later than the time of delivery;

·         In other cases of loss or damage and within seven days of delivery in writing. (Sundays and public holidays excepted);

·         No compensation shall be payable for delay in delivery unless a reservation has been sent in writing to the carrier, within twenty-one days from the time that the goods were placed at the disposal of the consignee.

Damage of goods must be reported.

According to  Article 889  of the TCC regarding domestic land transport;

·         In cases where loss and damage can be clearly seen, to the latest at the moment of delivery;

·         In other cases, within seven days to be calculated continuously from the date of delivery of the item to the recipient;

·         In case of delay, within twenty-one (21) days to be calculated continuously from the date of delivery to the recipient;

Damage of goods must be reported.

II.2. According to the above-mentioned regulation,  notification periods shall be stopped. However, in our opinion, it should be separately evaluated on a case by case basis, for each transport whether or not the abovementioned  notification periods stop.  For example, in the cases where the transportation is completed and the cargo is delivered to recipient, the failure of the recipient to report relying on the above mentioned legal arrangement for the halt of the periods, may be interpreted as the abuse of right.

The parties of the cargo must comply with the deadlines specified in the laws and conventions.

III.EVALUATION OF MARITIME TRANSPORTATION FROM FORCE MAJEURE

III.1.Coronavirus (Covid-19) epidemic  has also influence on  the contract of carrying (charter party). Legal evaluation of such  impacts should  be made as per the law governing the contract. As it is known, under  English  Law, existence of force majeure shall be accepted  in the case where it is expressly stated under the relevant contract. According Article 1179 of the TCC;

“… Carrier isn’t liable for the damage leading to the reasons that are not caused by the intent or negligence of the carrier or his men. The burden of proof that the intent or negligence of the carrier or his men does not cause this damage belong to the carrier.”

Coronavirus (Covid-19) epidemic may not be mention of in this context within any intent or negligence of the carrier. In addition to this, according to Article no.1182 / 1- b of TCC;

“(1) In case the damage is caused by the following reasons carrier and its men, they are flawless:

b) War events, chaos and rebellion, movements of public enemies, orders of competent authorities or quarantine restrictions”

In this context, , carrier shall not  be held liable as per the law.   If there is any fault that may  be attributable  to  the carrier, the carrier will be held liable of the damages which may arise due to his fault.

Provisions under Article 136 of the  Turkish Code of Obligations (“TCO”), “Impossibility of Performance”, Article 137 “Partial Impossibility of Performance” and  Article 138 “Excessive Difficulty in Performance” may be applicable, regardless of the existence of any express force majeure provision under the contract.

III.2. With the impact of Coronavirus (Covid-19); ship-owners, endowers or tenants and charterers have started to look for sensible solutions to take measures to prevent the outbreak from spreading and its effects.

A clause against epidemic may  be included  to charter parties. Baltic and International Maritime Council (“BIMCO”) published two separate clauses for such situations in its travel and time charters in 2015. In this regard, we may  use those clauses which are published by BIMCO.

IV. EFFECTS OF DELAYS ON MARITIME TRANSPORTATION CONTRACTS

IV.1.  According to  Article 1222 of the TCC;

“(1) If the journey delay before the journey starts or after occurs due to an event or other unexpected situation other than those stipulated by law does not change the rights and obligations of the parties. If this delay doesn’t affect the purpose of the contract. Nevertheless, in the delays arising from the unexpected situation and understood to take a long time according to the current conditions, the shipper, at his own expense is authorized to unload the goods loaded on the ship by showing a risk and suitable guarantee provided that it. The Shipper is obliged to pay the entire freight and compensate for the damages caused by the unloading in case the loading is not made again.

(2) In cases where the delay is due to a public saving, the freight agreed on time will not apply.

(3) Partial voyage charter agreements and forty-carter contracts can only be used to temporarily evacuate the carrier if they are approved by other shippers.”

Undoubtedly, in sea transport, the epidemic may be accepted as an unexpected event . At this point, as can be understood from the regulation, there is no right of termination due to delay. Obviously, if the contract of carriage has become unbearable due to the delay, the possibility of termination must be considered separately.

 CONCLUSION

It is critical to completing the tasks, as it’s arranged in the transportation sector. In cases where the ships cannot be loaded and evacuated due to the Coronavirus (Covid-19) epidemic , the question is raised whether the demands for demurrage can be met or not. In terms of demurrage demands, special clauses may  be included  in the transport contracts.

Due to the epidemic, necessary  health precautions  in ships and ports, about the transportation work, shall be taken, also seamen are required to provide that they conduct their business in accordance with international conventions on occupational health and safety.

As mentioned above,  clauses prepared by BIMCO for charter parties during the Ebola epidemic  may  also be used during Coronavirus (Covid-19) epidemic  period. We are of the opinion that it is necessary to evaluate each  transportation business separately  while performing any legal evaluation from the  transportation law perspective.