Taşıyanın yükün ziya veya hasarından sorumluluğunda teknik kusur-ticari kusur ayırımı
Başlık çevirisi mevcut değil.
- Tez No: 20856
- Danışmanlar: PROF.DR. TURGUT KALPSÜZ
- Tez Türü: Yüksek Lisans
- Konular: Hukuk, Law
- Anahtar Kelimeler: Deniz yolu taşımacılığı, Hasar sorumluluğu, Kusur, Yük kaybı, Sea transportation, Damage liability, Fault, Loss of load
- Yıl: 1992
- Dil: Türkçe
- Üniversite: Ankara Üniversitesi
- Enstitü: Sosyal Bilimler Enstitüsü
- Ana Bilim Dalı: Belirtilmemiş.
- Bilim Dalı: Belirtilmemiş.
- Sayfa Sayısı: Belirtilmemiş.
Özet
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Özet (Çeviri)
SUMMARY The subject of the thesis is a point of separation between a technical fault and a commercial fault in the responsibility of carrier for loss or damage. Art. 1061 of Turkish Commercial Code provided that, the carrier shall carefully load, stow, carry, handle and discharge the goods like a cautious carrier. If the carried goods are damaged or lossed in the time between it was delivered to the carrier and the consignee, the carier shall be responsible unless loss or damage was resulted from any other cause arising without the actual fault of the carrier. Also following Article of the same Code provided that, the carrier shall be responsible for fault of the mariner and his servants like his actual fault on the condition that the carrier doesn't show that loss or damage resulted from act, neglect, or default in the navigation or in the management of the ship. As we saw, technical fault covering fault in the navigation or in the management of the ship is an exception, which has a long history dating back to the nineteenth century and were fruquently incorparated into bills of lading long before the preparation of the Hague and HagueA/isby Rules. In its basic form, designed merely to provide protection for“errors of navigation”, the exception is inapplicabla once negligence on the part of the carrier is established. However it is more commonly drafted to cover situations in which negligence is involved. The modern version first appeared in statutory form in section 3 of the US Harter Act, 1893 which provided that, where the shipovvmer exercised due diligince to make his vessel seaworthy, he should not be liable“for damage or loss resulting from faults or errors in the navigation or in the management of said vessel.”A 158similar pattern was followed in Art IV, rule 2 (a) of the Hague and Hague/Visby Rules:“ act, neglect, or default of the master, mariner, pilot, or the servants of the carrier in the navigation or in the management of the ship.”Hague Rules was also approved by Turkey in 1955. Despite its antiquity and the respectability of its lineage, the exception has been the target of considerable criticism from cargo interests and is regarded as somewhat of an anachronism in many parts of world. It affords as protection to the sea carrier which is not available in any other transport convention and it is noticeable that it has not been retained in the recent draft of Hamburg Rules. More problems have been encountered in seeking to distinguish the technical fault from the commercial faulth. Each case must be decided on its own facts but uncertainty has arisen because the same negligent act fruquently affects both the benefit of the vessel and the benefit of the cargo. In such circumtances the courts tend to have regard to the property primarily affected by the conduct in question. We intend to draw the distinction between a technical and a commercial fault, so we can profit by the creterian of benefit: (a) If a fault breaks solely the benefit of the vessel, the fault is a technical fault and the carter isn't liable; but (b) If a fault breaks solely the benefit of the cargo, the fault is a commercial fault and tthe carrier is responsible; but (c) If a fault breaks the benefit of the vessel rather than the benefit of the cargo, the fault is a technical faulth and the carier isn't liable; but (d) If a fault breaks the benefit of the cargo, rather than the benefit of the vessel, the fault is a commercial fault and the carrier is responsible Thus 159Art. 1062 of Turkish Commercial Code provided that,“....Precaution taken against the benefit of the cargo rather than the benefit of the vessel is not included in the manegement of the ship.”. Smilarly in Gosse Milard v. Canadian Government Merchant Marine a ve^el had to enter the dock for repairs and the hatches were left open to provide ease of access. Having failed to replace the tarpaulins, rainwatter penetrated the hold and caused a damage to the cargo of tinplate. In the view of the House of Lords, the tarpaulins are provided to protect the cargo, the conduct in question is related to the care of the cargo rather than the management of the ship; (e) The further question is whether the carrier is responsible or not when a fault breaks the benefit of the vessel and the benefit of the cargo at the same time and in the same state. In this case the fault must be considered as a commercial fault and the carrier must be liable for it. In this way, Art. 1062 of Turkish Commercial Code provided that,“If there is a doubt, damage is quated not to have arised from the management of the ship.”Nevertheless, the distinction is a fine one and, with every decision depending on its own particular facts, it is often difficult to forecast whether or not the exception will apply. As the carrier claims the benefit of the exception, the negligent act or omission must have relation to the vessel. Faults upon the care of the cargo (commercial faults) other than the ones relating to the working of the vessel (technical faults) are not to be excused. Thus, after an earlier conflicting decision, it would appear that negligence in the maintenance or use of the ship's apparatus (for example refrigeration equipment) designed to protect cargo, would in this time not be considered in the technical fault. ffUse&Sğrefcte f W^ 160
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