What is a Ship in Maritime Law?

What is a Ship in Maritime Trade Law?

In this article, I will try to address, for my esteemed readers, the definition of a ship in Maritime Trade Law, the appurtenances and integral parts of a ship, merchant ships, naval warships and auxiliary vessels, state-owned ships exclusively allocated to a public service and ships belonging to other public entities, and the criteria for being a Turkish ship within the meaning of Maritime Trade Law.

Turkish Commercial Code Article 938- The first Turkish owner of a ship is free to give the ship any name they wish. However, the chosen name must be different from the names of other ships in such a way as to avoid confusion.

The name of a ship that has been issued a ship certificate may be changed with the permission of the Ministry of Transport, Maritime Affairs and Communications.

If a distinction is to be made; ships registered in the ship registry are issued a ship certificate. A ship certificate is necessary for ships to exercise their right to fly a flag. It can be concluded from this that the names of ships not registered in the ship registry can be changed easily.

As another concept, the issue of the home port of a ship is one of the important matters.

Turkish Commercial Code Article 946- The home port of a ship is the place where the voyages of that ship are managed.

The home port of a ship can be likened to the headquarters of a commercial enterprise. The headquarters of a commercial enterprise is the place where commercial, legal, and administrative affairs are organized. For ships, it should also be considered as the place where the ship's operation is managed. Since ship owners are rightly companies with high density, that is, because they are legal entities, we will talk about the headquarters of legal entities. If the headquarters of legal entities are in a port city, there is no obstacle in this case, and that place can be accepted as the home port of the ship and they can be registered in the ship registry there. The real point of debate here is what happens if the headquarters of the legal entities or the centers where the ships are managed are not in a port city.

Turkish Commercial Code Article 955/2- If a ship's voyages are managed from a foreign port or a land city, or from the ship itself, the owner may register their ship in the registry of their choice.

We see the home port as the place where ship voyages are managed. This is fundamentally a very important issue in terms of determining the competent court. In lawsuits filed against the owner of the ship, that is, the operator, the courts of the place where the home port is located are competent.

The master's powers are limited as the ship approaches the home port, and the master's powers increase as the ship moves away from the home port. This means that the master becomes fully authorized on the high seas because they are far from the home port, as the master represents the owner. Whether far from or near to the home port, the master may issue bills of lading and enter into contracts with crew members. It is expected that the master's ability to undertake exchange commitments will be technically restricted when near the home port. Because this is an extraordinary authority, it is expected to be restricted when approaching the home port, but it becomes possible to speak of this authority again as the ship moves away from the home port.

Coming to the nationality of the ship, that is, the issue of flying a flag, we are interested in the ship being a Turkish ship under our own law. Almost every country wants ships to fly its own flag and be subject to its own nationality. This is because it is a display of power. The more ships a country has within its structure, the more powerful it indicates it is. Article 940 mentions which ships can fly the Turkish flag and, at the same time, states that this is an obligation for those who have this right.

Turkish Commercial Code Article 940- Every Turkish ship flies the Turkish Flag.

A ship owned solely by a Turkish citizen is a Turkish ship.

Ships belonging to more than one person are considered Turkish ships provided that;

a) In the case of joint ownership, the majority of the shares,

b) In the case of collective ownership, the majority of the owners are Turkish citizens.

Ships belonging to organizations, institutions, associations, and foundations that have legal personality and are established under Turkish laws are considered Turkish ships provided that the majority of the persons constituting the governing body are Turkish citizens;

Ships belonging to Turkish commercial companies are considered Turkish ships provided that the majority of those authorized to manage the company are Turkish citizens, the voting majority belongs to Turkish partners according to the articles of association, and in joint-stock companies and limited partnerships with shares divided into shares, the majority of the shares are registered and the transfer of shares to a foreigner is subject to the permission of the company's board of directors.

Ships owned by shipping associations registered in the Turkish trade registry are considered Turkish ships provided that more than half of the shares belong to Turkish citizens and the majority of the managing partners authorized to manage the association are Turkish citizens.

Turkish Commercial Code Article 941/1- If a Turkish ship is left for at least one year to be operated in their own name to persons who would lose the right to fly the Turkish Flag if it belonged to them, the Ministry of Transport, Maritime Affairs and Communications may, upon the request of the owner, permit the ship to fly a foreign flag during the period of leave, provided that the laws of that country allow it. Unless this permission expires or is withdrawn for legal reasons, the ship cannot fly the Turkish Flag.

What this article aims to state is that when a ship whose owner is Turkish is leased by the owner to a foreigner for one year, this foreigner can fly their own flag on the ship. When this lease period comes to an end, the Turkish owner cannot do this automatically when they want to fly the Turkish flag again. They must prove that the conditions for flying the flag are met again and obtain permission from the relevant ministry.

Turkish Commercial Code Article 941/2- If a non-Turkish ship is left for at least one year to be operated in their own name to persons who would be able to fly the Turkish Flag, the Ministry of Transport, Maritime Affairs and Communications may permit the ship to fly the Turkish Flag, provided that the owner's consent has been obtained, the provisions of Turkish legislation regarding the captain and ship officers are complied with, and there is no provision in the foreign law preventing this. However, the person who receives the permit is obliged to prove every two years that the conditions necessary for the permit continue to exist.

Turkish Commercial Code Article 938/2- The name of a ship that has been issued a ship certificate may be changed with the permission of the Ministry of Transport, Maritime Affairs and Communications.

A ship certificate is not a mandatory element for all ships. For ships registered in the registry, the issuance of a ship certificate will be a mandatory element. However, it is not mandatory for every ship to be registered in the registry. Merchant ships will be registered in the registry; there are other ships that can be registered as well, but this is a determination in the most general terms. There are also possibilities for ships not registered in the registry to fly the Turkish flag. It is possible for ships smaller than eighteen gross tonnage to fly the Turkish flag without a ship certificate. It is also possible for ships used exclusively for sports, cruising, or scientific research to fly the Turkish flag. There is also a concept called a flag certificate. This term is also related to the right to fly a flag. The situation regarding a flag certificate is slightly different from a ship certificate. To give an example, a flag certificate is issued by a Turkish consulate for a ship built in a foreign country and to be sold to a Turk so that it can come to Turkey, and the ship can fly the Turkish flag based on this. It is also possible for the situation we mentioned to develop in exactly the opposite way. That is, if a ship to be sold to a foreigner is built in Turkey and will be taken to that foreign country, the Turkish flag can be flown based on the flag certificate to be obtained from the relevant ministry until the destination country.

Acquisition and Termination of Ship Status

There is an ongoing debate in the doctrine regarding when the status of a ship is acquired. According to one view, the status of a ship begins when the ship is built and then launched. According to another view, there is no need for the ship to be launched. It is accepted when the ship is built and acquires the capability of being a ship. That is, they are of the opinion that the ship can acquire the status of a ship even while it is on the slipway. The second view carries more weight as a majority. From the perspective of the Turkish Commercial Code, the most fundamental element in evaluating a vehicle as a ship was that it was allocated to a vehicle moving at sea. Therefore, the most important criterion here is the will of the ship's owner. Because, whether the ship is built or not, if that ship is to remain stationary, it will never acquire the status of a ship. However, if the owner's will is firm, then it will be healthier to discuss this part.

As for the issue of the loss of ship status, there are three types of situations. One is that it has been allocated to a purpose that does not require movement at sea, as we mentioned above. This means that the status of a ship will be completely lost.

If a ship sinks beyond salvage, becomes irreparable, or is allocated to a purpose that does not require movement at sea, if any of these three situations occur, the ship loses its status as a ship.

If the situation of sinking beyond salvage and becoming irreparable is examined; in fact, these two are similar to each other. Because a ship that has sunk beyond salvage will already manifest itself as a ship that does not accept repairs. Differently, for one, it has sunk completely and it is not possible to remove it from where it sank, or even if it is removed from where it sank, it is not possible for it to stay on the sea. It is in a state that must definitely be transported by another vehicle. For an irreparable ship, the description of a ship that has become a complete wreck can be made.