The Shipowners and Agents Association warns that unauthorized deliveries may incur serious legal and financial liabilities.
The Association of Shipowners and Agents has drawn attention to the confusion experienced in customs delivery processes following the Council of State's decisions, warning the sector that deliveries made without the approval of the carrier and the agent will lead to serious legal and financial liabilities.
In a statement shared under the signature of the Chairman of the Board, Recep Düzgit, it was emphasized that the completion of customs procedures alone does not constitute a sufficient reason for the actual delivery of goods. In the announcement made to prevent erroneous practices in the sector, it was reminded that transactions carried out without the official delivery approval of the carrier and the agent will incur serious legal and financial responsibilities.
The full text of the announcement published by the VDA is as follows:
Following the judicial decisions regarding Article 94 of the Customs Regulation and the first paragraph of Article 130, it has been observed that some opinions and evaluations have emerged that are legally inaccurate and aim to direct the parties towards erroneous practices concerning the scope of the provisions of the applicable laws regarding the delivery of imported goods and the obligations arising from private law relationships.
In order to prevent legally erroneous practices and irreparable damages in the transportation and logistics sector, it has been deemed necessary, and even imperative, to share the following points with the public.
We would like to emphasize that the annulment of the provisions of the Regulation cannot eliminate the delivery obligations arising from laws and contracts concluded between the parties.
In line with the Decision No. 1/95 of the Turkey-EU Association Council, the scope of the customs administration's duties has been redefined in the process of simplifying customs procedures and aligning Turkish customs legislation with European Union legislation. The distinction is made between the customs clearance of the goods and the subsequent actual delivery carried out within the framework of private law relationships. In this context, 'delivery by the customs administration' should be understood not as the direct delivery by the customs administration, but as delivery under the supervision and oversight of the customs administration.
The actual delivery of goods after the completion of customs procedures is not independent of the private law relationships among the operator of the temporary storage facility, the owner of the goods, and the carrier. Therefore, it is not possible to conclude that the provisions of the Turkish Commercial Code, the delivery conditions arising from relevant transport documents, and the rights of the carrier regarding legal receivables and guarantees will not be applicable based on the annulment of the Regulation. The Council of State's annulment decision has not abrogated the Turkish Commercial Code, invalidated the bill of lading or other transport documents, terminated the transport contract, or eliminated the carrier's freight and other receivables. The completion of customs procedures and the delivery of goods to the rightful owner in accordance with private law provisions are entirely different legal transactions.
As is known, the Turkish Commercial Code does not address the issue of delivery in maritime transport independently of the carrier's receivables and rights arising from the bill of lading. According to Article 1203 of the TTK, if the goods are to be delivered to a person other than the carrier, the recipient must pay the amounts they are obliged to pay under the freight contract, bill of lading, or other transport documents at the moment they request delivery and fulfill their other obligations. Therefore, failing to consider the carrier's freight and receivables arising from the transport relationship before the delivery of the goods or disregarding the carrier's will regarding the delivery would be unlawful.
Indeed, Article 1204 of the TTK stipulates that the recipient must bear the carrier's right of lien for certain receivables. Therefore, it is unacceptable for this right granted to the carrier by law to be effectively eliminated through deliveries made by third parties without the knowledge and approval of the carrier. Additionally, Article 1205 of the TTK limits the carrier's ability to claim certain receivables from the sender after the delivery of the goods to the recipient. For this reason, the delivery process is not merely the transfer of goods from one person to another; it is a significant legal transaction that directly affects the carrier's rights to collect receivables and secure those receivables.
Similarly, in other modes of transport, the relevant legislation, transport contracts, transport documents, and rights and obligations arising from private law relationships cannot be disregarded solely on the grounds that customs procedures have been completed.
Therefore, the completion of customs procedures does not grant the operator of the warehouse or temporary storage facility independent and unconditional delivery authority that disregards the rights of the rightful owner or other rights holders arising from private law according to the relevant transport document. It has been clearly stated in the dissenting opinions of the aforementioned decision that the delivery after the completion of customs procedures is contingent upon the private law relationship among the operator of the temporary storage facility, the carrier, and the owner of the goods.
It is evident that legal and financial consequences arising from deliveries made without the carrier's or authorized agent's delivery approval, without fulfilling the delivery conditions arising from the relevant transport document, without considering freight and delivery-related receivables, or without properly identifying the legitimate rights holder of the goods will create liability for the businesses carrying out the delivery.
In this regard, we believe that it would not be legally accurate for warehouse and temporary storage facility operators to make any assessment suggesting that there is any 'delivery freedom' without considering the provisions of the Turkish Commercial Code, other relevant legislation, and the rights of the Carrier arising from private law.
Our association's stance on this issue remains the same today as it has been in the past. We do not accept the delivery of goods without securing the receivables arising from the freight and transport relationship; without identifying the legitimate rights holder of the goods; and without fulfilling the delivery conditions arising from the relevant transport contract and transport documents as lawful. Likewise, we oppose delivery practices that would undermine this system in transactions where bills of lading and other transport documents that secure the payment of the goods are involved, as well as in transactions where banks or collection mechanisms are present.
The completion of customs procedures should not be regarded as sufficient for physical delivery on its own; the delivery intention of the carrier or authorized representative, the ownership rights arising from the relevant transport document, and the status of freight and other transport receivables must be duly considered.
Our association will not remain silent against practices developed in a different direction. As we have done in the past, we will continue to make necessary administrative initiatives with the Ministry of Commerce and relevant public institutions to protect the legal rights of our sector and will resort to all legal avenues in disputes arising from unlawful deliveries.
The security of international trade and all modes of transport, including maritime, air, and land, depends on the complete implementation of the relevant transport documents, transport contracts, and rights arising from the law. It is unacceptable to interpret the annulment of an administrative regulation in such a way that it eliminates the rights of the parties arising from law and private law relationships, regardless of the mode of transport, and renders the legal guarantees of the international transport system ineffective.
Our association will continue to oppose delivery practices that will be carried out without securing the receivables arising from the freight and transport relationship and without properly establishing the delivery authority of the rights holder, and will resolutely continue its legal and sectoral struggle to protect the common legal guarantees of the entire transportation sector.
Respectfully announced to the public and the entire sector.
Source: SeaNews Türkiye
