involving this clause; in other words, in the agreement, it must be clarified that the
general conditions are part of or a supplement to the agreement.
11
There is no problem if there are explicit references to the arbitration clause
incorporated in a voyage charterparty. Where parties refer to the application of the
charterparty terms and conditions including an arbitration clause, such a clause will
be binding. On the other hand, if there is reference to a voyage charterparty or
generalized transaction terms without mentioning the arbitration clause, although the
binding effect of the arbitration clause may fluctuate, it can be foreseen that an
arbitration agreement can be entered into by incorporation in the IAL. In other
words, under Art. 4/2 of IAL, a valid arbitration agreement shall be deemed to be
made in case of a reference to a document containing an arbitration clause constitutes
an arbitration agreement provided that the reference is such as to make that clause
part of the contract.
12 In this context it will be appropriate to mention Articles
1245
13 and 1243
14 of TCC.
According to Art. 1243 of TCC, all terms and conditions in the contract of
affreightment, bill of lading or sea waybill which abolish or restrict obligations
and liabilities directly or indirectly, are invalid. According to Art.1245, the provisions of Article 1243 shall not be applied to the voyage charter contracts. In other
words, obligations and liabilities can be removed in advance. However, in the
continuation of Art.1245 it is provided that if the bill of lading is issued on
11 Şanlı, Uluslararası Ticari Akitlerin Hazırlanması ve Uyuşmazlıkların Çözüm Yolları, Sixth
Edition, 2016, pp. 417–421.
12 Ekşi, “Milletlerarası Deniz Ticareti Alanında “Incorporation” Yoluyla Yapılan Tahkim
Anlaşmaları”, First Edition, 2004, pp. 38, 41; Şanlı, “Konişmentonun Devri,Alacağın Temliki,
Perdeyi Kaldırma Teorisi Uygulamasında Sözleşmede Yer Alan Tahkim Şartının Konişmentoyu
Devralan, Alacağı Temellük Eden ve Perdenin Arkasında Kalan Bakımından Geçerliliği Sorunu,
2002, MHB Ergin Nomer’e Armağan, pp. 774–776.
13 The provisions of Article 1243 shall not be applied to the voyage contracts. However, if the bill of
lading is issued on the basis of such a contract, the provisions of Article 1243 shall apply to the
relationship between the consignee and the carrier.
14 In a contract of affreightment or in the bill of lading, or seawaybill;
(a) Articles 1141, 1150, 1151 and 1178 to 1192 relating to the carrier’s obligations and liabilities,
(b) Articles 1145, 1149, 1165 and 1208 concerning the obligations and liabilities of the charterer
and the shipper,
(c) Articles 1228 to 1242 of the seawaybills,
All the terms and conditions that void or restrict the obligations and liabilities arising directly or
indirectly from these provisions are invalid.
(2) All the terms and conditions resulting from the transfer of the rights and receivables of the
insurance to the carrier or to provide such benefits to the carrier and to reverse the burden of proof,
which is regulated by the laws, shall be subject to the provisions of the first paragraph.
(3) The invalidity of the terms and conditions that abolish or restrict the responsibility shall not
be the result of the invalidity of the contract of affreightment or the remaining provisions of the bill
of lading or seawaybill.
(4) The terms and conditions that extend or aggravate the carrier’s obligations and liabilities are
valid.
The Effect of the Arbitration Clause Incorporated in a Bill of Lading. . .
9
general conditions are part of or a supplement to the agreement.
11
There is no problem if there are explicit references to the arbitration clause
incorporated in a voyage charterparty. Where parties refer to the application of the
charterparty terms and conditions including an arbitration clause, such a clause will
be binding. On the other hand, if there is reference to a voyage charterparty or
generalized transaction terms without mentioning the arbitration clause, although the
binding effect of the arbitration clause may fluctuate, it can be foreseen that an
arbitration agreement can be entered into by incorporation in the IAL. In other
words, under Art. 4/2 of IAL, a valid arbitration agreement shall be deemed to be
made in case of a reference to a document containing an arbitration clause constitutes
an arbitration agreement provided that the reference is such as to make that clause
part of the contract.
12 In this context it will be appropriate to mention Articles
1245
13 and 1243
14 of TCC.
According to Art. 1243 of TCC, all terms and conditions in the contract of
affreightment, bill of lading or sea waybill which abolish or restrict obligations
and liabilities directly or indirectly, are invalid. According to Art.1245, the provisions of Article 1243 shall not be applied to the voyage charter contracts. In other
words, obligations and liabilities can be removed in advance. However, in the
continuation of Art.1245 it is provided that if the bill of lading is issued on
11 Şanlı, Uluslararası Ticari Akitlerin Hazırlanması ve Uyuşmazlıkların Çözüm Yolları, Sixth
Edition, 2016, pp. 417–421.
12 Ekşi, “Milletlerarası Deniz Ticareti Alanında “Incorporation” Yoluyla Yapılan Tahkim
Anlaşmaları”, First Edition, 2004, pp. 38, 41; Şanlı, “Konişmentonun Devri,Alacağın Temliki,
Perdeyi Kaldırma Teorisi Uygulamasında Sözleşmede Yer Alan Tahkim Şartının Konişmentoyu
Devralan, Alacağı Temellük Eden ve Perdenin Arkasında Kalan Bakımından Geçerliliği Sorunu,
2002, MHB Ergin Nomer’e Armağan, pp. 774–776.
13 The provisions of Article 1243 shall not be applied to the voyage contracts. However, if the bill of
lading is issued on the basis of such a contract, the provisions of Article 1243 shall apply to the
relationship between the consignee and the carrier.
14 In a contract of affreightment or in the bill of lading, or seawaybill;
(a) Articles 1141, 1150, 1151 and 1178 to 1192 relating to the carrier’s obligations and liabilities,
(b) Articles 1145, 1149, 1165 and 1208 concerning the obligations and liabilities of the charterer
and the shipper,
(c) Articles 1228 to 1242 of the seawaybills,
All the terms and conditions that void or restrict the obligations and liabilities arising directly or
indirectly from these provisions are invalid.
(2) All the terms and conditions resulting from the transfer of the rights and receivables of the
insurance to the carrier or to provide such benefits to the carrier and to reverse the burden of proof,
which is regulated by the laws, shall be subject to the provisions of the first paragraph.
(3) The invalidity of the terms and conditions that abolish or restrict the responsibility shall not
be the result of the invalidity of the contract of affreightment or the remaining provisions of the bill
of lading or seawaybill.
(4) The terms and conditions that extend or aggravate the carrier’s obligations and liabilities are
valid.
The Effect of the Arbitration Clause Incorporated in a Bill of Lading. . .
9