4.5 The Privity of Practical Commercial and Customary
Applications Compared to TCO (TCC Article 1/2)
According to Article 1/2 of TCC, commercial affairs that do not have a commercial
clause, commercial custom applies before general provisions. In this respect, even if
Article 55/1-(f) of TCC, as mentioned above, did not exist, customary law would
apply before the general provisions of Article 20 of the TCO. Because of the
international characteristics within the scope of maritime law, agreements regarding
such matters as sea carriage of goods, towage and salvage are drafted as standardform contracts. International authorization and arbitration clauses involved in these
contracts and also charterparties to which bills of lading relate, have gained acceptance across the world including Turkey. In this connection, it is submitted that
custom, practice and usage have developed. In that regard, before implementing
general provisions, this custom must be applied and international authorization and
arbitration clauses must be accepted.
International bodies involved in global maritime trade expend great efforts into
global protection of carriers and parties related to cargo, in order for principles of
trade and commerce to be uniform all over the world. The standard type contracts
prepared for almost all trade and commerce relations and agreements by the organizations such as the Baltic and International Maritime Council (BIMCO) are resorted
to widely in international trade. Changes and updates related to the agreements
concerned are announced and presented regularly on their websites for the information of merchants operating internationally.
Thus, it is not possible to say that the generalized transaction terms, that become a
matter of common knowledge, are accepted by using the ignorance of one of the
contracting parties or by imposing means for concealing them. On the contrary, it
can be said that the terms in question have reached the status of custom. Examining
of generalized transaction terms as general provisions that are contrary to custom
will cause the practice that has become uniform to be removed from the international
trade system.
4.6 The Effect of the Compulsory Provisions Regarding
Maritime Law Under TCC
Article 1243 of TCC, involves compulsory provisions regarding contracts within the
scope of maritime law, the conditions that will not be involved in bills of lading and
their legal consequences. For example, according to Article 1243 of the TCC,
provisions in contracts of carriage, abolishing and restricting the carrier’s liability,
must be void. The compulsory provisions of the law mentioned above can be
considered as an examination of generalized transaction terms. In such case, while
it may be in accordance with the special provisions regarding maritime law in the
TCC, internal examination of generalized transaction terms and examining in
The Effect of the Arbitration Clause Incorporated in a Bill of Lading. . .
13
Applications Compared to TCO (TCC Article 1/2)
According to Article 1/2 of TCC, commercial affairs that do not have a commercial
clause, commercial custom applies before general provisions. In this respect, even if
Article 55/1-(f) of TCC, as mentioned above, did not exist, customary law would
apply before the general provisions of Article 20 of the TCO. Because of the
international characteristics within the scope of maritime law, agreements regarding
such matters as sea carriage of goods, towage and salvage are drafted as standardform contracts. International authorization and arbitration clauses involved in these
contracts and also charterparties to which bills of lading relate, have gained acceptance across the world including Turkey. In this connection, it is submitted that
custom, practice and usage have developed. In that regard, before implementing
general provisions, this custom must be applied and international authorization and
arbitration clauses must be accepted.
International bodies involved in global maritime trade expend great efforts into
global protection of carriers and parties related to cargo, in order for principles of
trade and commerce to be uniform all over the world. The standard type contracts
prepared for almost all trade and commerce relations and agreements by the organizations such as the Baltic and International Maritime Council (BIMCO) are resorted
to widely in international trade. Changes and updates related to the agreements
concerned are announced and presented regularly on their websites for the information of merchants operating internationally.
Thus, it is not possible to say that the generalized transaction terms, that become a
matter of common knowledge, are accepted by using the ignorance of one of the
contracting parties or by imposing means for concealing them. On the contrary, it
can be said that the terms in question have reached the status of custom. Examining
of generalized transaction terms as general provisions that are contrary to custom
will cause the practice that has become uniform to be removed from the international
trade system.
4.6 The Effect of the Compulsory Provisions Regarding
Maritime Law Under TCC
Article 1243 of TCC, involves compulsory provisions regarding contracts within the
scope of maritime law, the conditions that will not be involved in bills of lading and
their legal consequences. For example, according to Article 1243 of the TCC,
provisions in contracts of carriage, abolishing and restricting the carrier’s liability,
must be void. The compulsory provisions of the law mentioned above can be
considered as an examination of generalized transaction terms. In such case, while
it may be in accordance with the special provisions regarding maritime law in the
TCC, internal examination of generalized transaction terms and examining in
The Effect of the Arbitration Clause Incorporated in a Bill of Lading. . .
13