Legislation regarding pollution from ships

The straits are one of the busiest waterways in the world in terms of traffic, and have a high accident potential. In 2000, 48,079 ships passed through the Bosporus (Istanbul Strait) and 41,561 ships passed through the Dardanelles (Canakkale Strait). Much of this traffic is oil-product-related.

LEGISLATION REGARDING SEA POLLUTION

Constitution

Turkish environmental law takes its constitutional basis from Article 56 of The Turkish Constitution of 1982. According to this article, “Every person has the right to live in a healthy and stable environment. Developing and protecting the environment and preventing environmental pollution are the duty of the state and citizens”.

Codes

According to Environment Act (EA) 2872, a legal entity or person who has suffered as a result of sea pollution shall apply firstly to the principle liability provisions of the EA. Compensation claims for pollution damages emanating from ships can be based on other codes as well.

The civil liability of the polluter has been set out in the EA on the basis of “the polluter must pay”. The main provisions regarding the liability of the polluter are contained in Article 28 of the EA. Pursuant to this provision, “The persons who pollute and damage the environment are liable for the losses caused by pollution, and damage, without consideration of the negligence provision. The liability of the polluter, and provisions regarding compensation, are reserved as per general rules as well.”

Further, there is a provision regarding compensation in Article 3 of the EA, which provides, “Expenses incurred in preventing, limiting and combating pollution must be paid by the polluter. If the polluter does not take measures to prevent or reduce pollution, or if such measures are taken by competent authorities directly, the polluter, and liable persons, are responsible for the expenses involved in such measures.”

Thus, as seen from these provisions, two types of pollution liability are envisaged by the EA. The first is liability for expenses incurred in protecting the environment, or limiting and containing pollution, and the second is liability for losses arising from pollution and damage to the environment.

Other liability provisions covering pollution damages are contained in the Turkish Commercial Code (TCC) and Code of Obligations (CO). But these general rules cannot alone provide compensation for losses of this nature, so that applying the provisions of the CO and TCC may not be in the best interests of claimants.

International conventions

Turkey is party to a number of national and international conventions, including the International Convention for the Prevention of Pollution from Ships, 1973, as modified by the Protocol of 1978 relating thereto (MARPOL 73/78), the International Convention on Civil Liability for Oil Pollution Damage, 1992 (CLC 1992), the International Convention On The Establishment of an International Fund for Compensation for Oil Pollution Damage, 1992 (FUND 1992) and the International Convention on Oil Pollution Preparedness, Response and Co-Operation (OPRC).

Regulations

Under the terms of the ‘Regulation on Determining the Crime and Punishing Methods Related to Fines to Ships and Other Marine Vessels’ (RDCPS), the direct or indirect discharge of ballast and bilge waters, or any kind of pollutant, is prohibited within Turkish territorial waters, free and exclusive economic zones, internal waterways, streams, lakes, canals etc. Fines are strictly imposed by the Council of Ministers in respect of infringements of the RDCPS, and are commensurate with the tonnage of the vessels involved. Appeals can be lodged before the relevant administrative court within seven days of notification of the fine.

‘The Regulation Regarding Control of Water Pollution (RCWP)’, meanwhile, is similar in scope to the RDCPS, but defines exclusive economic zones in a slightly different way.