the basis of the voyage charter contract, Art. 1243 is not applied with respect to the
relationship between the non-charterer consignee and the carrier. In other words, the
provisions of the charter contract which abolish the obligations and liabilities of the
vessel for the non-charterer consignee, are invalid. Accordingly, under Art.1237, the
question arises as to whether the arbitration clause in the charterparty is valid for the
holder except for the charterer to whom a charterparty is submitted. In order for this
question to be answered, it should be assessed whether the arbitration clause, on its
own, has a feature for removing or restraining obligations and liabilities of the
carrier.
An arbitration clause, on different grounds, is to ensure that there is a real person/
corporation for the settlement of disputes. Such clause does not hinder the party
alleging a dispute from resorting to a third party for the settlement of the dispute. It is
also not possible to state that the preference of the arbitration procedure breaches the
right to legal remedies. If the charterparty is submitted to the non- charterer holder of
the bill of lading, it is deemed that he is aware of the method available for the
settlement of disputes and there is no restraint on him to apply the agreed arbitration
procedure. For these reasons, in my opinion, for the holder, excluding the charterer
to whom a charterparty is submitted, it is not possible to interpret the arbitration
clause in the charter party as a clause removing or restraining liability. The holder,
excluding the charterer to whom a charter party is submitted, shall not allege under
TCC Article 1243 that the arbitration clause is invalid.
4 Assessment in Terms of Law of Obligations
4.1 In Regard To a Bill of Lading as a Negotiable Instrument
the Unavailability of Examining Generalized Transaction
Terms Under Article 20 of TCO
By virtue of the principle of abstraction, which is a leading principle in the Negotiable Instruments Law, a bill of lading, independently of the legal relationship based
on it, is in circulation with all its terms and conditions. Another principle that should
be mentioned in this regard is the principle of “Trust to Negotiable Instrument
Records”. The one who takes over a bill of lading, trusts the records in the belief
that the conditions therein are valid for him as well; that is, both for the transferee
and the transferor. This principle has a protective effect.
It is well known that the negative conclusion of the examination conducted under
Article 20 of Turkish Code of Obligations (hereinafter TCO) is the condition
examined being “deemed to be unwritten”. The conclusion of the condition being
deemed to be unwritten is contrary to the principle of trust to the negotiable
instrument records stated above. As a result of the examination of the generalized
transaction terms, there is a possibility that the clauses which were agreed upon by
the transferee and the transferor of the bill of lading shall become invalid. For this
10
P. Akan
relationship between the non-charterer consignee and the carrier. In other words, the
provisions of the charter contract which abolish the obligations and liabilities of the
vessel for the non-charterer consignee, are invalid. Accordingly, under Art.1237, the
question arises as to whether the arbitration clause in the charterparty is valid for the
holder except for the charterer to whom a charterparty is submitted. In order for this
question to be answered, it should be assessed whether the arbitration clause, on its
own, has a feature for removing or restraining obligations and liabilities of the
carrier.
An arbitration clause, on different grounds, is to ensure that there is a real person/
corporation for the settlement of disputes. Such clause does not hinder the party
alleging a dispute from resorting to a third party for the settlement of the dispute. It is
also not possible to state that the preference of the arbitration procedure breaches the
right to legal remedies. If the charterparty is submitted to the non- charterer holder of
the bill of lading, it is deemed that he is aware of the method available for the
settlement of disputes and there is no restraint on him to apply the agreed arbitration
procedure. For these reasons, in my opinion, for the holder, excluding the charterer
to whom a charterparty is submitted, it is not possible to interpret the arbitration
clause in the charter party as a clause removing or restraining liability. The holder,
excluding the charterer to whom a charter party is submitted, shall not allege under
TCC Article 1243 that the arbitration clause is invalid.
4 Assessment in Terms of Law of Obligations
4.1 In Regard To a Bill of Lading as a Negotiable Instrument
the Unavailability of Examining Generalized Transaction
Terms Under Article 20 of TCO
By virtue of the principle of abstraction, which is a leading principle in the Negotiable Instruments Law, a bill of lading, independently of the legal relationship based
on it, is in circulation with all its terms and conditions. Another principle that should
be mentioned in this regard is the principle of “Trust to Negotiable Instrument
Records”. The one who takes over a bill of lading, trusts the records in the belief
that the conditions therein are valid for him as well; that is, both for the transferee
and the transferor. This principle has a protective effect.
It is well known that the negative conclusion of the examination conducted under
Article 20 of Turkish Code of Obligations (hereinafter TCO) is the condition
examined being “deemed to be unwritten”. The conclusion of the condition being
deemed to be unwritten is contrary to the principle of trust to the negotiable
instrument records stated above. As a result of the examination of the generalized
transaction terms, there is a possibility that the clauses which were agreed upon by
the transferee and the transferor of the bill of lading shall become invalid. For this
10
P. Akan