As a general practice before Turkish Courts, compensation claims of a non-Turkish flagged vessel crew member or their heirs arising from injury or death occurred on board the vessel, are being heard in accordance with the provisions of Turkish Code of Obligations (“TCO”). In accordance with provisions of TCO, in order to be entitled to receive compensation, principally, there must be a causal link between the incident and the loss, as well as the opponents have to be negligent. However, these conditions may not be strictly applied for the disputes between employees and employers, and that even if the incident occurs by inevitable reasons and no fault is attributable to employers, Turkish Courts tend to share the liability between employee and employer, and order the employer to pay compensation up to an amount of 60 % of total claim amount of compensation within the scope of the principle of protecting rights of the employee against the employer.
In respect of the above, in compensation cases filed by heirs of a crew member arising from death by heart attack occurred on board of a non-Turkish flagged vessel, Turkish Courts may find the Ship Owners/Operators liable for the loss and order them to pay material and non-material damages of the heirs up to a corresponding amount of above said liability proportion.
However, in a recent compensation case where NSN was representing the Ship Operators, the Court, acting as the sole Admiralty Court in Istanbul, has rendered a decision on the contrary to usual practice. Said compensation case was filed by the wife and two children who are older than 18 years of a deceased crew member who had died from heart attack while working on board of a non-Turkish flagged vessel. The Court held that the incident occurred by inevitable reasons, and no fault was attributable to ship interests as the deceased crew member died from heart attack.
Accordingly, the Court held that heirs of the deceased crew member are not entitled to claim material and non-material compensation pursuant to provisions of TCO. However, the employment contract signed between the deceased crew member and the ship interests refers to ITF Uniform Total Crew Cost Collective Bargaining Agreement (“ITF Agreement”). In this regard, although the Court considered that the heirs are not entitled to claim compensation under TCO provisions, since the employment contract refers to ITF Agreement, which specifies the amount of compensation that has to be paid to heirs in case of death of a crew member regardless of the ship operators being negligent, the Court ordered the ship operators to pay the amount of compensation specified by said ITF Agreement. Relevant provision of ITF Agreement stipulates payment of compensation for the next of kin and each child of deceased who are under the age of 18, accordingly the Court ordered the ship operators to pay the specific compensation amount only for the wife of the deceased, as the children are older than the age of 18. As a result, non-material compensation claims of all heirs were rejected by the Court, and only the amount of compensation specified by ITF Agreement for the wife was accepted which is relatively less than her claimed amount of material compensation subject to TCO provisions.
The abovementioned decision of the Local Court was appealed by both Parties. Case file was examined by 11th Civil Chamber of Court of Appeal, and the decision of the Local Court was upheld. This judgment of Court of Appeal can be considered a new application comparing to previous similar cases, and we will follow whether or not it will become a general practice for Turkish Courts.