LOGISTICS, LAND AND AIR TRANSPORTATION DURING COVID-19 PROCESS
The most important stage of the commercial relationship is the logistics service. Each stage in the performance of this service creates a debt relationship, and each step corresponds to a separate contract. Our general explanations in our article titled "The Impact of Covid-19 Process on Contracts" about the fate of the contract in every link of this supply chain are valid (click for the article: http://www.altintas.av.tr/covid-19-salgininin-sozlesmeler-etkisi). If there is an impossibility of performance or excessive performance difficulty, Turkish Code of Obligations (TBK) art. Based on the provisions of 136 et seq., you must immediately inform the other party and request adaptation. In the event that you cannot reconcile with the other party, we recommend that you proceed by stating that you reserve your rights regarding the surplus while performing your action.Special importance has been attached to the issue of notification in the Transport Law according to the provisions of Convention Relative au Contral de Transport International de Marchandises par Route (CMR convention), Convention for the Unification of Certain Rules Relating to International Carriage by Air (Warsaw Convention), Convention for the Unification of Certain Rules for International Carriage by Air (Montreal Convention), Turkish Commercial Code No. 6102 (TTK) and Turkish Civil Aviation Law No. 2920 (TSHK), the carrier must always act by taking instructions from the party that has the right of disposition and show the highest care.It should not be forgotten that the provisions in the conventions to which you enter into commercial relations with the country you are a party to are since it has become our domestic law as required by constitution 90/5, it should definitely be evaluated.
2. LAND TRANSPORT
2.1. Force Majeure Case
In order for the "force majeure" issue to be accepted in the logistics sector, it must be proven that the flow of work is affected despite the utmost care taken by the carrier. As it can be understood from the decision of the General Assembly of the Supreme Court of Appeals below, the claim that an airline company flying to Libya was due to force majeure for the plaintiff's inability to take its passengers on the grounds that the firm knew the war and could land the plane in the city where the war took place under these conditions.
According to the decision of the Supreme Court General Assembly dated 27.06.2018, numbered 2017/90 E. and 2018/1259 K.;
`` ... The plaintiff's attorney stated that his client company wanted to evacuate its workers in Libya as soon as possible due to the war, that he had rented a plane from the defendant by paying the price in advance to the defendant party, that the leased plane did not fly on the day, and that the plaintiffs were given their flight cards. since a company working to Turkey, clients of immediate termination by the aircraft lease agreement between the parties, the workers have been provided evacuation by aircraft of the Turkish Air Force, the defendant paid the amount of the refund request containing the enforcement proceedings to the defendants in the follow-up to continue with the cancellation of unjust appeal, the defendant's requested and sued that the receivable should be sentenced to execution denial compensation not less than 40%. The defendant's attorney demanded that another firm evacuated its passengers under force majeure, and then prepared a new plane, but that the plaintiff passengers did not board this plane and that the plaintiff did not suffer any harm, and demanded that the case be dismissed ... When the concrete event is evaluated as a whole; First of all, it should be noted that there is no dispute between the local court and the Special Chamber regarding that there is no force majeure during the landing and departure of the aircraft at the airport.According to the local court, although the defendant had prepared the plane at the airport on 24.02.2011, due to the turmoil in the war conditions, other passengers other than the plaintiff company employees were placed on the plane and had to act in this way, due to the civil war conditions despite the civil war conditions. Emphasizing that the airline employees cannot provide the work and supervision of the passengers on board the aircraft as usual, it would be insufficient to limit the force majeure only to the landing and take-offs of the aircraft at the airport, and if it is accepted that there is a force majeure at this point, the defendant company has the boarding passes of the plaintiff company employees on 23.02.2011, It is understood that he arranged it in and that the passenger list was in the defendant company. Although there is an uproar at the airport, considering that the transportation contract between the parties was made to ensure that the workers of the plaintiff company could safely return to their country due to the civil war and turmoil already taking place in Libya, it was unforeseen that a turmoil or confusion at the airport was also it cannot be said that there is a situation. Because, at the moment the contract is drawn up, a state of civil war and turmoil continues in the country, and the defendant company's allegation of the civil war as force majeure cannot be regarded as a good faith behavior. Even the boarding passes of the workers of the plaintiff company were issued while other passengers were transported, indicating that all the necessary precautions were not taken by the defendant company, and the defendant company, which did not check the boarding passes and passenger list, acted at fault. The plaintiff's termination of the contract due to the failure of the defendant to fulfill his responsibility in accordance with the contract regulated under the conditions of war is justified, and it cannot be mentioned that the defendant sent his plane to the same place on 24.02.2011 after the termination was notified to him due to the failure to carry out timely transportation.
2.2. Demurrage Fee
During the Corana virus (Covid-19) epidemic disease process, the most common problem in transportation law is the demand for delay fee (Demurrage fee). A waiting fee is accrued as long as the transported commodity waits when it arrives at the destination port. This fee may be the responsibility of the sender or the sender according to the legal regulations and the agreement between the parties. However, it may be possible that the phenomenon of "force majeure" may affect this delay fee request.
In the decision of the Court of Appeals Legal Department below, it has been decided that the demurrage fee cannot be operated due to the occurrence of force majeure since the beginning of the Libyan war. The relevant decision is a decision that will shed light on the disputes experienced on this issue in the future.
In the decision of the 11th Civil Chamber of the Supreme Court of Appeals dated 05.03.2014 and numbered 2013/12326 E. and 2014/4189 K. "... The plaintiff's attorney stated that the contents of 3 containers loaded upon the instructions sent by the defendant to the client company were transferred from Izmir Port to Libya's Misurata Port on 12.01.2011 within the scope of the client company's bill of lading dated 02.01.2011, but the consignee of the cargo shown on the bill of lading The total amount of demurrage fee accrued for the 70-day waiting period at the port area for the containers that were not received despite notified by the notice of the bill of lading is USD 1.095.00 in total, and if the containers are not returned on the bill of lading, a compensation will be paid in the amount of the container fee together with the demurrage fee. Stating that the cost was decided as 3.500,00 USD, his client had a claim of 10.500,00 USD for 3 containers, and requested and sued for the collection of a total of 11.595,00 USD from the defendant with the interest to be committed from the date of the case. The defendant attorney stated that the failure to withdraw the commodities from the port was not due to the client's fault, that many Turkish companies had to stop their commercial activities in Libya due to the civil war that took place in Libya in the days following the transportation and the delivery to the port, and also that their containers were taken over because all commercial and bureaucratic transactions were stopped. that it was not possible, and since it was not possible for the client to receive the commodity in the case subject to the case, the acceptance of the existence of force majeure and the rejection of the case was requested. Since there is no unlawful aspect in the discussion and evaluation of the information and documents in the case file and the evidence based on the justification of the court decision, the defendant's attorney's other appeals other than the paragraph below had to be dismissed. However, although the defendant does not unload the load at the beginning requires the responsibility of the defendant and the plaintiff may demand demurrage fee for this period; Since the war started on 15.02.2011 and this issue is considered as force majeure, it is not correct to hold the defendant responsible for the period after this date.
In this respect, it was necessary to decide to quash the decision for the benefit of the defendant upon the acceptance of the appeal objections of the defendant's attorney in this respect. " the provision has been established.
2.3. Legal Liability of the Carrier
Transport resources that we apply in problems in the law, the move abroad to which Turkey is a signatory and Constitution 90/5 substance involved should our domestic law CMR Convention and TTK "Transport Affairs entitled" The fourth book; In domestic transportation, it will be the fourth book of TTK titled "Transportation Works". Both arrangements contain arrangements parallel to each other. Accordingly, when any obstacle is encountered during the transportation or delivery of the goods, the party that has the right to dispose of the goods must be informed immediately. Subsequently, the carrier will act according to the instructions given by the party that has the right to dispose of the goods (CMR Art. 14/1, TTK Art. 869/1). Thus, the carrier will fulfill the obligation to "show the utmost care" imposed by Article 876 of the TTK. According to Article 868 of the TTK, the party that has the right to dispose of the goods may give orders and instructions to the carrier for the carriage to be carried out, as well as in dispositions in the form of stopping the transportation, returning the goods, taking them to another destination or delivery place or delivering them to another shipper. can be found. The carrier is not obliged to fulfill such orders, instructions and dispositions of the party that has the right to dispose of the goods if they are inconvenient to the operation of the carrier or if they pose a threat of damage to the shipments of other senders and recipients. With the order and instruction received from the sender, the carrier may ask for the expenses required to fulfill its savings and an appropriate fee.
The carrier may be relieved of liability if it complies with its obligations regarding these notices and instructions. In the event that the sender does not make any notice within a reasonable time, the disposal right is obliged to take the measures that seem best to the benefit of the holder. (CMR art. 14/2, TTK art. 869/3) The carrier may unload and store the item, deposit it for storage to the disposal person's account or transport it back. If the carrier delivers the item to a third party, it is solely responsible for the care required in the selection of that person. In case of a perishable goods, if the condition of the good justifies such a measure or otherwise the expenses to be incurred are not at a reasonable rate according to the value of the good, the carrier may sell the good in accordance with the provisions of Article 108 of the Turkish Code of Obligations. The carrier may destroy goods that cannot be evaluated. After the goods have been unloaded, the transport is deemed to have ended. (TTK Art.869/3)
As explained above, what the Transporter should do can be summarized as follows:
- Obstacles occurring in the delivery of goods are notified to the disposal owner without delay.
- Action will be taken according to the instructions given by the owner of right of disposal.
- If the owner of the disposal right does not give any instructions within the specified time or within a reasonable time, the carrier should take the measures that seem best to the benefit of the owner.She/he can claim the cost spent in this process - if this obstacle is not caused by her - from the owner of the right of disposal.
3. AIR TRANSPORTATION
Regarding air transport, it has become our domestic law in accordance with Article 90/5 of the Constitution, as we are a party to the Warsaw Convention and the Montreal Convention. If it is not stated that another law will be applied in the contract signed with the country with which the commercial relationship is made, the conventions to which the contracting parties are a party should be followed. In domestic transportation, Turkish Registry Aviation Law No. 2920 will be applied. Pursuant to the 106th article of this Law, in the domestic transportation by airway; unless the provisions of this Act, the provisions of international agreements to which Turkey is a party and in the absence of the provisions in these agreements, the Turkish Commercial Code shall apply. For land transport 2.1. As the "Force Majeure phenomenon" described in the Clause Clause is also valid for Air Transport, it will not be mentioned separately here.
According to the Law No. 2920, on the condition that the shipper fulfills all its debts arising from the contract of carriage; the consignor has full disposition right on the load until the moment he starts using his right. If the sent, refuses to accept the air freight bill or cargo or if the required notice is not possible to be made, the shipper will have the right to save. The shipper is obliged to use this right in a way that does not harm the carrier or other shipper, and is responsible for the costs arising from the use of this right of savings. (TSHK m. 113 / 1,2)
If it is not possible to follow the instructions given by the shipper, the carrier is obliged to notify the situation immediately. If the carrier carries out the instructions of the shipper without requesting the return of the copy of the air freight bill given to the shipper, it shall be liable for any damages that the holder of this air freight bill may suffer, provided that the recourse right to the shipper is reserved. (TSHK art. 113/3)
If the carrier confirms that the load is lost, or if the load has not arrived although seven days have passed since the day it should have arrived, the dispatched has the authority to assert the rights arising from the contract of carriage against the carrier. (TSHK art. 114/3)
The carrier is responsible for the damage arising from the delay in the carriage of passengers, baggage or cargo with the airline. The carrier can avoid liability if it proves that it and its men have taken all necessary measures to prevent the damage or that it is not possible to take these measures. (TSHK art. 123)
Limitation of liability of the carrier, signed in Warsaw on October 12, 1929, for the Unification of Some Assembly for the International Air Transport of the Convention and this Agreement shall be determined that changes according to the provisions of Turkey attended the conventions and protocols (TSHK art. 124/1). For this reason, it is necessary to evaluate the conventions to which a commercial relationship is established together with the country.
If it is proven that the damage occurred as a result of careless action or negligence with the intention of damaging the carrier or its personnel or knowing the possibility of damage; The liability limits stipulated in the Law No. 2920 are not applied. However, the provisions of Article 55 of the Code of Obligations are reserved for the damage that is subject to the unlimited liability request caused by the auxiliary persons such as the workers or representatives of the carrier. (TSHK art. 126)
4. OPPORTUNITIES OFFERED IN TERMS OF TAX LAW
Explanations on the use of force majeure provisions by the taxpayers directly affected by the coronavirus (COVID-19) epidemic and the measures taken in this context are included in the General Communiqué of the Tax Procedure Law No.518 published in the Official Gazette dated 24.03.2020 and numbered 31078. All kinds of urban and intercity freight and passenger transport by air, road, rail, sea; highway, tunnel and bridge management; storage and warehousing activities; airport ground services; airport management; All kinds of logistics and transportation services such as cargo and baggage handling services related to air, land, sea and rail transportation are covered. Thus;
- Submitting Withholding Declarations (including Withholding and Premium Service Declarations) and Value Added Tax Declarations that must be submitted by 27.04.2020 and creating "Form Ba-Bs" notifications that must be submitted by 30.04.2020 and creating e-Books that must be created and signed by the aforementioned date. and on Monday, 27.10.2020, the payment terms of the taxes accrued based on these statements;
- Submission of Withholding Declarations (including Withholding and Premium Service Declarations) and Value Added Tax Declarations that must be submitted until 27.05.2020, and "Form Ba-Bs" notifications to be submitted until 01.06.2020 and creating e-Books that must be created and signed by the aforementioned date. and the "Electronic Book Certificates" that must be uploaded to the Data Processing System of the Revenue Administration within the same time as the signing date, Monday, 27.07.2020;
- Submission of Withholding Declarations (including Withholding and Premium Service Declarations) and Value Added Tax Declarations that must be submitted by 26.06.2020 and "Form Ba-Bs" notifications to be submitted by 30.06.2020 and creating e-Books that must be created and signed by the aforementioned date. It was decided to extend the loading periods of the "Electronic Book Certificates", which should be uploaded to the Data Processing System of the Revenue Administration within the same time as the signature, until Monday, 27.07.2020, and the payment period of the taxes accrued based on these declarations until the end of Monday, 28.12.2020.
As a result, if the law to be applied in the contract concluded in the context of a commercial relationship established with a foreign country is not determined differently, the provisions of the convention and contract provisions to which both parties are parties should be examined. In general, if the carrier encounters any obstacle in the Law of Carriage, it must immediately notify the person who has the right to dispose of the goods and act according to her/his instructions. If she/he does not follow this care, she may be held responsible. It can be said that the sector most affected by the Covid-19 process is the logistics sector. In this context, although delays are made in terms of tax liabilities, this is not enough to solve the main problems.Currently, there are delays in the transportation process and the sender or the sent cannot produce solutions to these problems. It is a fact that these issues will be transferred to the judicial process in the future.
- "Karayoluyla Uluslararası Eşya Taşıma Sözleşmesine İlişkin Anlaşma" (Convention Relative au Contral de Transport International de Marchandises par Route)
- Convention for the Unification of Certain Rules Relating to International Carriage by Air (Warsaw Convention)
- Convention for the Unification of Certain Rules for International Carriage by Air (Montreal Convention)
- Tax Procedure Law General Communiqué No: 518 published in the Official Gazette dated 24.03.2020 and numbered 31078 (Repeating)
- Turkish Commercial Code No. 6102
- Turkish Civil Aviation Law No. 2920
- Synergy Law Automation
- Corpus Law Automation
- 8 October 2020 Thursday