Kaptanın Davada Temsil Yetkisini Düzenleyen TTK m. 1104 Hükmüne Eleştirel Bir Yaklaşım
Yasin YavşanKaptanın donatan adına dava açma yetkisi (TTK m. 1104/2) ile geminin malikine veya kiracısına izafeten kaptana karşı açılan davada kaptanın temsil yetkisi (TTK m. 1104/3) çalışmamızın temelini oluşturmaktadır. Çalışmada öncelikle kaptan kavramı üzerinde durulmuştur. Ardından kaptanın sahip olduğu her iki yetkinin niteliği medenî usûl hukuku çerçevesinde değerlendirilmiştir. Bu değerlendirmeye bağlı olarak söz konusu yetkilerin kapsam ve sınırları belirlenmiştir. Aynı başlık altında ayrıca kaptanın donatan adına yaptığı hukuki işlemlerde yetkisiz olması halinde, bu durumun kaptanın donatan adına dava açma yetkisine ve izafeten kaptana karşı açılan davada temsil yetkisine etkisi incelenmiştir. Son olarak her iki hükmün (TTK m. 1104/2, TTK m. 1104/3) yerindeliği hakkında değerlendirmelerde bulunulmuştur.
A Critical Approach to Article 1104 of the Turkish Commercial Code Regulating a Shipmaster’s Representation Authority in Court
Yasin YavşanThe study’s basis comprises the authority of a shipmaster to file a lawsuit on behalf of a shipowner (Turkish Commercial Code [TCC] Article 1104/2), as well as a shipmaster’s representative authority in a lawsuit filed against the shipmaster with reference to the owner and the bareboat charterer of a foreign ship (TCC Article 1104/3). The study firstly emphasizes the concept of shipmaster before assessing the nature of a shipmaster’s authorities in terms of civil procedure law. Based on this assessment, the study has determined the scope and limits of these authorities. Under the same heading, the study examines the effect of a shipmaster not being authorized regarding the legal transactions made on the shipowner’s behalf in terms of the shipmaster’s authority to file a lawsuit on behalf of the shipowner, as well as the shipmaster’s representative authority in a lawsuit filed against the shipmaster. Lastly, the study evaluates the appropriateness of both provisions.
In accordance with Turkish Commercial Code (TCC) Article 1104/2, a shipmaster has the authority to file a lawsuit on behalf of the shipowner for matters that fall under the shipmaster’s duties. In accordance with TCC Article 1104/3, any lawsuits to be filed against the owner and the bareboat charterer of a foreign ship may also be served against the shipmaster. This study assesses to which institution in civil procedure law the two regulations in question correspond.
Firstly, when evaluating a shipmaster’s authority to file a lawsuit on behalf of the shipowner, two different views are present in the doctrine regarding this issue. According to one view, the shipmaster has the competence to conduct litigation. According to another view, the shipmaster has the authority of legal representation and can use this authority to file a lawsuit on behalf of the owner. Competence to conduct litigation refers to the authority to make a decision regarding the outcome of a request. A person with the competence to conduct litigation is also a party to the lawsuit. Legal representation refers to the representation of a person who has not been given the capacity to sue by a person appointed by law. This study is of the opinion that the regulation that gives a shipmaster the authority to file a lawsuit on behalf of the shipowner does not take into account the shipmaster’s competence to conduct litigation or legal representation but is instead an exception to the rule that the lawsuit is to be pursued through a lawyer in voluntary representation. In this regard, the shipmaster can be said to have proxy competence in a lawsuit. In this case, because the shipowner is party to the lawsuit, the judgment will be enforced against the shipowner.
Secondly, when evaluating the regulation that enables all kinds of lawsuits to be filed against a shipmaster with reference to the shipowner or bareboat charterer of a foreign ship, a similar conclusion should be reached here as well. Accordingly, the regulation that allows a lawsuit to be filed against the shipmaster provides an exception to the rule that the lawsuit will be pursued through a lawyer in voluntary representation.
A shipmaster may have taken legal action on behalf of the shipowner in regard to a matter for which the shipmaster was not authorized to represent the shipowner, or the shipmaster may have exceeded the limits of the shipmaster’s authority to represent the shipowner, or this authority may have expired during the transaction. This undoubtedly affects a shipmaster’s authority to represent the shipowner in court. If a shipmaster takes legal action on behalf of the shipowner as a representative despite not having the authority to represent, this action becomes binding on the owner only upon approval. Therefore, the shipmaster’s authority to file a lawsuit on behalf of the owner in terms of disputes arising from such transactions depends on the shipowner’s approval of said unauthorized legal action.
The authority of a shipmaster to file a lawsuit on behalf of the shipowner in disputes arising from transactions that exceed the limits of the power of representation should be evaluated within the framework of TCC Article 1106. Accordingly, the law states that a shipowner who has limited the shipmaster’s authority to represent the owner can claim that the shipmaster did not comply with these restrictions only against those who know about these restrictions. Based on this principle, if a shipmaster exceeds the limits of the shipmaster’s representation authority in the transactions the shipmaster carries out with third parties on behalf of the shipowner, whether or not the third party knows about these limitations plays an important role in determining the shipmaster’s authority to file a lawsuit on behalf of the shipowner.
Terminating a shipmaster’s employment contract also terminates the shipmaster’s authority to represent the shipowner in court. Therefore, in cases where the employment contract is terminated, the shipmaster loses the authority to file a lawsuit on behalf of the shipowner, nor is filing a lawsuit against the shipmaster possible anymore by referencing the owner or bareboat charterer of the relevant foreign ship.
Finally, it should be noted that the provisions of Article 1104/2 of the TCC and Article 1104/3 of the TCC correspond to § 527 and § 760 of the German Commercial Code. The reason for including these provisions in German Commercial Code is that, at the time the law was being drafted, communications between shipmaster and shipowner were practically impossible, and no companies were found to be engaged in international transportation, nor any foreign representative offices of these companies. With the developments in the field of technology and the emergence of large transportation companies, the need for a legal regulation regarding a shipmaster’s authority to represent the shipowner in court no longer exists. As a result, these provisions were removed from the German Commercial Code.
