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Author Topic: Act On Guidelines For Response To Emergencies And Compensation Of Losses In Case  (Read 4083 times)

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ACT ON GUIDELINES FOR RESPONSE TO EMERGENCIES AND COMPENSATION OF LOSSES IN CASE OF POLLUTION OF THE MARINE ENVIRONMENT FROM OIL AND OTHER HARMFUL SUBSTANCES


Official Gazette   :   11.3.2005 - 25752
   Act No. 5312   Adopted on: 3.3.2005
SECTION ONE
General Provisions
   Purpose
   ARTICLE 1. — The purpose of this Act is, taking into account rights and obligations emanating from international law and the domestic law on ensuring of marine safety and prevention of marine pollution; to establish;
   a) the guidelines for intervention and preparedness to be applied in emergency situations in order to eliminate the risk of pollution stemming from ships and facilities on the shore or to decrease, limit and remove pollution,
   b) the guidelines for the determination and compensation of losses resulting from the incident,
   c) the guidelines for the performance of international obligations,
   d) the powers, duties and responsibilities of the persons covered by the Act and of the authorities defined in the Act of the institutions, organisations, ships and facilities covered by the Act.
   Scope
   ARTICLE 2. — This Act covers the powers, duties and responsibilities of the authorities of the ships in the areas of application or who wish to enter the areas of application for any reason whatsoever, which have a capacity of five hundred gross tons or more, carrying oil or other harmful substances; of the authorities of shore facilities engaged in activities with oil or other harmful substances which might cause pollution; of ministries; and of public institutions and organisations.
   War ships and auxiliary war ships and ships belonging to any state or operated by the state and used for non-commercial activities are not covered by the Act.
   Definitions
   ARTICLE 3. — For the purposes of this Act;
   a) ‘Emergency response team’ shall mean the unit set up, authorised and equipped within the framework of the emergency response plans, in order to implement protective measures or to cause protective measures to be implemented, to prevent pollution or to cause pollution to be prevented, eradicate pollution or cause pollution to be eradicated, to extinguish fire should a fire break out or to cause the fire to be extinguished,
   b) ‘Emergency response plan’ shall mean national, regional or local level plans within the scope of intervention activities, covering organisation, powers, duties and responsibilities, actions to be taken, preparedness, intervention possibilities and capabilities and other issues,
   c) ‘Ministry’ shall mean the Ministry of Environment and Forestry,
   d) ‘Other harmful substances’ shall mean all substances except those listed in Appendices II and III of Annex II of the International Convention for the Prevention of Pollution from Ships (MARPOL 73/78) and except for those radioactive substances not limited to the ones which create pollution when mixed with the marine environment,
   e) ‘Guarantor’ shall mean, pursuant to the provisions stipulated in this Act; the person, organisation or state that undertakes liability for the compensation of losses apart from the liable party, on behalf of the liable party and that provides the liability certificate,
   f) ‘Preparedness’ shall mean the state of mobilisation of all the tools, devices, equipment, materials and trained human power able to respond in order to take urgent and effective measures in case of an incident and to minimise the loss that might be caused by the incident,
   g) ‘Shore facility’ shall mean a facility engaged in activities that may cause marine pollution from oil and other harmful substances on the shore or in areas near the shore, including open sea facilities and pipelines,
   h) ‘Pollution’ shall mean the release of oil and other harmful substances to the marine environment in a manner creating harmful effects such as harming living resources and marine life, jeopardising human health, hindering marine activities including fishing and the use of the sea for other legal purposes, altering seawater quality and upsetting the ecological balance, as a result of an incident,
   ı) ‘Protective measure’ shall mean measures taken in order to prevent or limit possible pollution that may occur after an incident,
   j) ‘Incident’ shall mean an event giving rise to pollution or damage or to a threat of pollution or damage emanating from ships or shore facilities due to reasons such as collision, breakage, fire, explosion or other reasons which necessitate implementation of emergency response plans or emergency response,
   k) ‘Response’ shall mean activities undertaken and the implementation of protective measures to decrease, remove, limit the damage which will be caused by pollution from an incident,
   l) ‘Undersecretariat’ shall mean the Undersecretariat for Maritime Affairs,
   m) ‘Oil’ shall mean substances listed in Appendix I of Annex I of the International Convention for the Prevention of Pollution from Ships (MARPOL 73/78)  and, crude oil, fuel oil, sludge, refined products and all kinds of liquid hydrocarbon compounds which naturally exist under soil, without limiting the generality of the foregoing,
   n) ‘Liable party’ shall mean the owners, operators, masters, administrators, lessees, possessors and guarantors of ships of five hundred gross tons or more carrying oil or other harmful substances and of shore facilities, to whom responsibility can be attributed regarding compensation of the damage and the financing of protective measures,
   o) ‘Claimant’ shall mean real and legal persons making a claim for compensation of a damage pursuant to the provisions of this Act,
   p) ‘Areas of application’ shall mean, for the purposes of implementation of this Act, Turkey’s inland waters, territorial waters, continental shelf and marine jurisdiction areas consisting of her exclusive economic region, and the open sea areas beyond the territorial waters in emergency cases provided for in this Act, limited with the purposes of response to such cases and compensation of losses, depending on the decision to be given after the opinions of the Undersecretariat, the Ministry, the Ministry of Foreign Affairs and other relevant public institutions and organisations,
   r) ‘Damage’ shall mean those losses specified in Article 6 of this Act and the costs for determination and compensation of the loss and for the settlement of disputes,
   s) ‘Innocent passage’ shall mean navigation in Turkish territorial waters for the purposes of travelling over territorial waters without entering Turkish inland waters or without calling at an anchorage or port facility out of inland waters, or in order to reach or leave Turkish inland waters, stop at or leave an achorage or facility outside inland waters
.
SECTION TWO
Powers, Duties and Responsibilities
   Powers, duties and responsibilities of organisations
   ARTICLE 4. — For the purposes of implementation of this Act, the Ministry has the overall coordination duty. The institutions and organisations powered with this Act are obliged to notify the Ministry of the information obtained and operations undertaken within the scope of this Act without delay.
   The powers, duties and responsibilities regarding drawing up of emergency response plans, implementation of emergency response plans in coastal areas, determination of the type and effects of pollution, determination of harms to the environment and rehabilitation of areas affected from pollution after the incident are vested in the Ministry; the executionary powers, duties and responsbilities regarding implementation of emergency response plans for prevention of marine pollution stemming from sea craft, preparedness, response to pollution, compensation of losses and notification of liability guarantees are vested in the Undersecretariat; and the powers, duties and responsibilities regarding public security and police duties are vested in the Coast Guard Command.
   Ensuring of navigational, life, property and environmental safety
   ARTICLE 5. — The responsible parties of all ships and shore facilities within the scope of this Act are obliged to take all measures regarding obligations stipulated by international law and required by navigational, life, property and environmental safety, including preparedness and protective measures, in order to prevent the occurence of the incident, and in cases where the incident has already occured, to mitigate, remedy and limit losses.
   Ships flying a foreign flag which are covered by this Act, carrying oil and/or other harmful substances, that cannot prove, with internationally recognised instruments, compliance with standards established by conventions to which Turkey is a party, regarding navigational, life, property and environmental safety or which have clear indications that the ship is not in compliance with the standards, are not permitted to Turkish territorial waters and inland waters for the purposes of calling at Turkish inland waters or an anchorage or port facilities out of inland waters, except for force majeure to arise out of life saving services; those which have already entered are forthwith expelled or given a maximum of thirty days to ensure compliance with the standards. Ships determined to be in non-compliance with the standards at the end of this period are immeadiately expelled out of territorial waters. Ships carrying Turkish flag covered by this Act which are in non-compliance, on the other hand, are fettered and are forbade to nagivate until compliance with the standards is ensured. In such cases, the load of the ship is transferred to another suitable ship which is in compliance with the standards by the ship’s or load’s proprietor and proper disposal of loads required to be disposed of pursuant to legislation is ensured.
   The ships covered by this Act must notify the Undersecretariat of the ship and load carried fortyeight hours before entry to Turkish territorial waters for the purposes of calling at Turkish inland waters or at an anchorage or port facilities out of inland waters; or in case of ships for which the navigation time between the port of departure and entry to Turkish territorial waters is less than fortyeight hours, right after setting off from the port of departure. Ships which do not meet this requirement are not permitted to Turkish territorial waters and inland waters; those which have already entered are forthwith expelled therefrom. The procedures and guidelines for notification are set out with a regulation.
   The measures taken to ensure navigational, life, property and environmental safety are inspected by competent organisations according to the procedures and guidelines set out in this Act, relevant legislation and international arrangements. The procedures and guidelines for notification are set out with a regulation.
   The procedures and guidelines for the staff, materials and equipment that the shore facilities must have in place in order to respond to possible pollution are set out with a regulation. Newly established shore facilities are not permitted to operate until the staff, materials and equipment that they must have in place are completed.
SECTION THREE
Compensation of Losses
   Liability due to loss
   ARTICLE 6. — The liable parties of ships and shore facilities covered by this Act are severally bound to compensate cleaning costs caused by pollution or threat of pollution due to an incident stemming from ships or shore facilities in the areas of application; costs associated with protective measures, damage done to living resources and marine life, costs for recreation of the deteriorated environment, handling and disposal of collected waste, damages to natural and living resources used for subsistence purposes, damages to private property, losses due to injury or death of persons, revenue losses, damages to revenue and income capacities and other public losses.
   The liability of the guarantor does not remove other liable parties’ liability. Losses not compensated by the guarantor are compensated by the other liable parties.
   In the event of a loss in an incident to which two or more ships are a party, the liable parties of all ships are jointly and severally liable.
   The right of recourse of the payers of the loss caused by the incident to the ones who caused the loss is reserved.
   Limitation of liability
   ARTICLE 7. — The provisions of international conventions to which Turkey is a party are reserved regarding total liable party liability per ship and maximum compensation amount to be borne by the liable party.
   Liability guarantees
   ARTICLE 8. — Ships carrying oil and/or other harmful substances which wish to enter the areas of application must, pursuant to international conventions to which Turkey is a party, have the liability certificates required from them, notify these to relevant authorities and show them when requested.
Ships flying a foreign flag which are covered by this Act, determined not to have liability guarantees provided for in the internationl conventions to which Turkey is a party, are not permitted to Turkish territorial waters and inland waters for the purposes of calling at Turkish inland waters or an anchorage or port facilities out of inland waters, except for force majeure to arise out of life saving services; those which have already entered are forthwith expelled or given a maximum of thirty days to ensure fulfilment of the requirements. Ships determined to be not fulfilling the requirements at the end of this period are immediately expelled out of territorial waters. Ships carrying Turkish flag covered by this Act which are in non-compliance, on the other hand, are fettered and are forbade to nagivate until compliance with the requirements is ensured. In such cases, the load of the ship is transferred to another suitable ship which fulfils the requirements by the ship’s or load’s proprietor and proper disposal of loads required to be disposed of pursuant to legislation is ensured.     .
   Shore facilities must take out insurance against losses covered by this Act. Shore facilities which do not fulfil the insurance requirement are not permitted to operate.
   The compulsory liability insurance provided for in the above paragraph must be made by insurance companies designated by the Undersecretariat of Treasury or a pool to be established by these companies.
   The Ministry, after obtaining the approval of the Undersecretariat of Treasury, can defer the requirement for shore facilities to take out liability insurance for a maximum of one year after entry into force of the general conditions, and tariffs and instructions regarding this insurance.
   The insurance general conditions regarding the liability insurance to be taken out by shore facilities are approved by the Undersecretariat of Treasury. Liability insurance tariffs and instructions are determined by the Minister to whom the Maritime Undersecretariat reports. The Minister to whom the Maritime Undersecretariat reports has the power to decontrol the tariff.
   Notification of liability guarantees
   ARTICLE 9. — The copies of the documents mentioned in Article 8 of the ships wishing to enter Turkish territorial waters for the purpose of reaching any Turkish port and which, pursuant to this Act, must have in place liability guarantees, must, before entry to Turkish territorial waters, be forwarded to the arrival port authority through an agency based in Turkey.
   The notification obligations for ships wishing to enter Turkish territorial waters for the purpose of transit passage from Turkish straits are determined with the Turkish Straits Maritime Traffic Regulations.
   Ships which will use Turkish territorial waters for innocent passage, must notify all kinds of communication devices and details of the liability certificates and the name of the ship, call name, flag, port of registration, name of the proprietor of the ship and place of the headquarters, the ship’s International Maritime Organisation number (IMO No), type of guarantee, validity period of the guarantee, name of the insurer and place of its headquarters, compensation limits and details about and documents of the load and amount of load of the ship, the type of the ship, and the ports of departure and arrival to the nearest port authority.
   Determination of losses
   ARTICLE 10. — Chaired by the representative of the Ministry; representatives of the Undersecretariat, Coast Guard Command, General Management of Coastal Safety and Salvage Administrations and relevant governorships and municipalities, set up a loss adjustment commission. The Commission may invite the representatives and experts of other relevant institutions and organisations if it deems necessary. The procedures and guidelines of the Commission’s activities are set out with a regulation.
   The Commission may have part of the whole of loss adjustment made by specialised Turkish or foreign persons and organisations. The amount of loss such adjusted is valid after approval by the commission.
   Claims for compensation and fee and payment thereof
   ARTICLE 11. — The compensation claims of those who suffer loss due to the incident and claims for fee of those who respond to or who dispose of the pollution are notified to the Undersecretariat. The Undersecretariat, depending on the adjustment of losses and settlement of disputes, ensures compensation of losses and payment of fees by the liable parties. In case of agreement by the parties on the amount of loss determined by the commission, the Undersecretariat is authorised to demand and collect the losses from the liable party or guarantor and to disburse these to those who suffer loss.
   In case the polluter cannot be identified, the Undersecretariat responds to or causes response to the pollution.
   The Undersecretariat, taking the opinions of the Ministry and the Ministry of Foreign Affairs, may request help from the flag states for the compensation of losses caused in Turkey by ships flying foreign flag, which cause pollution within the scope of this Act, but the responsible parties of which could not be found.
   Procedures and guidelines for compensation and payments are set out with a regulation.
   Limitation
   ARTICLE 12. — The limitation period for compensation claims due to incidents within the scope of this Act is, unless a longer period is stipulated in other acts, five years as of the loss is learned or the responsible party is identified, and in all cases, 10 years as of the date of occurrence of the incident (the last incident in case of a chain of incidents). Regarding the limitation period, the provisions of international conventions to which Turkey is a party are reserved.
SECTION FOUR
Response Guidelines
   Notification
   ARTICLE 13. — Everyone who is a party to the incident, who sees the incident, hears the incident or who has knowledge of the incident is obliged to notify the pollution or threat of pollution to the relavant authority or emergency response teams. The authorities to which notification is to be made and the procedures and guidelines for notification are set out with a regulation.
   Determination of pollution
   ARTICLE 14. — The Ministry undertakes or causes to be undertaken the necessary activities regarding the type of pollution occurred, scope, amount, spreading direction and speed, possible consequences and disposal methods and notifies these to the relevant emergency response team.
   Response
   ARTICLE 15. — The power to respond to pollution or pollution threat caused as a result of the incident is vested in the Undersecretariat. The Undersecretariat may have this duty performed by other public institutions and organisations and companies operating in this field or established for this purpose which are based in Turkey. This does not remove the Undersecretariat’s responsibility and does not give the authorised public institutions and organisations and companies to directly claim compensation from the responsible party. The rights of the General Management of Coastal Safety and Salvage Administrations regarding salvage and assistance are reserved.
   Powers specified in Paragraph 1 can be exercised by the Ministry when necessary.
   In pollution caused by ships or shore facilities, the ships which are parties to the incident, and ships nearby the incident and shore facilities nearby the incident, give the first limited response with their staff, equipment and materials they have, and comply with the instructions of the authorised emergency response team after the team’s response to the incident. The Undersecretariat notifes the Ministry of response activities performed.
   Pursuant to the provisions of international cooperation set out in conventions to which Turkey is a party and in emergency response plans drawn up within this framework, the Undersecretariat is powered to invite foreign emergency strike elements or send Turkish emergency response teams to foreign countries and to pay or claim associated expenses, taking the opinions of the Ministry and the Ministry of Foreign Affairs.
   The procedures and guidelines for the response power of private organisations and public institutions and organisations which will serve as emergency response teams and foreign country emergency strike elements invited within the framework of international cooperation are set out with a regulation.
   For the purpose of increasing the effectiveness of the response activities, the Undersecretariat can temporarily suspend or change sea traffic at the venue of the incident or in sea areas related with the incident which it deems appropriate.
   Handling and disposal of wastes   
   ARTICLE 16. — Transportation to and disposal at a suitable disposal facility of wastes collected from the venue of the incident are performed according to the guidelines set out in the emergency response plans.
   Determination and rehabilitation of areas affected by pollution
   ARTICLE 17. — After the response operations, monitoring programmes are carried out by the Ministry for determination and rehabilitation of areas affected by pollution and determination of the long term effects of pollution on human health, plant and animal existence and natural and historical assets.
   Emergency response plans
   ARTICLE 18. — The national emergency response plan incorporating activities for response and guidelines regarding international cooperation in emergencies of pollution of the marine environment from oil and other harmful substances is drawn up by the Ministry in coordination with the Undersecretariat taking the opinions of Turkey Emergency Management General Directorate and the relevant organisations. The procedures and guidelines for drawing up of the national emergency response plan and regional and local level emergency response plans are set out with a regulation.
   Coordination in the event of switching to emergency management
   ARTICLE 19. — In the event of switching to emergency management, upon the Ministry’s demand, due to an incident covered by this Act, pursuant to Article 11/A of Act No 3056 dated 10.10.1984, the emergency response team to be authorised within the scope of this Act  acts as an element of the centres to be set up.
   If, even though it does not require switching to emergency management, an incident within the scope of this Act affects the land as well, the emergency response team to be authorised within the scope of this Act acts as an element of the centres to be set up pursuant to the provisions of Paragraph 1.
   In cases provided for in Paragraphs 1 and 2, the representatives of Turkey Emergency Management General Directorate join the commission referred to in Article 10.
SECTION FIVE
Miscellaneous Provisions
   Designation of arbitrator for setttlement of disputes
   ARTICLE 20. — If the Undersecretariat and the liable party or the guarantor agree, an arbitrator or an arbitration committee may be designated for settlement of disputes to arise out of the implementation of this Act. Arbitrators designated apply Turkish law. The arbitration is, based on relevance, subject to the provisions of the Code of Civil Procedure No 1086 or International Arbitration Law No 4686.
   Acceptance of ships under threat to suitable and safe sea areas
   ARTICLE 21. — The Undersecretariat is powered to accept a ship under threat to suitable and safe sea areas, on demand by the ship. The procedures and guidelines for acceptance are set out with a regulation.
   Inspection of the ship and police duties
   ARTICLE 22. — Where there is serious doubt that a ship will cause an incident or pollution within the scope of this Act or it will pose such a risk, the Undersecretariat can subject the ship to inspection for final determination. The Undersecretariat may, in cases deemed necessary, devolve its power to relevant institutions and organisations.
   All public security and police duties regarding the enforcement of this Act are undertaken by the Coast Guard Command.
   Pollution resulting from ship fuels and loads
   ARTICLE 23. — The provisions of this Act are applicable except the third paragraph of Article 5 and Articles 8 and 9 in the event of an incident for response to pollution or a threat of pollution and determination and compensation of losses arising out of oil or oil derivatives carried as fuel by a ship regardless of the fact whether the ship is covered or not covered by this Act or out of other harmful substances/loads carried by a ship not covered by this Act. The provisions of international conventions to which Turkey is a party are reserved. 
   Regulations
   ARTICLE 24. — Regulations regarding the enforcement of this Act are drawn up jointly by the Ministry and the Undersecretariat, taking the opinions of the relevant ministries and organisations.
   Amended provisions
   ARTICLE 25. — The following Paragraph (j) has been added to Article 3 of the Public Procurement Law No 4734 dated 4.1.2002:
   j) Within the scope of the provisions of the Act on Guidelines for Response to Emergencies and Compensation of Losses in Case of Pollution of the Marine Environment from oil and Other Harmful Substances, drawing up of emergency response plans and response to pollution after an incident occurs and service procurement and tool, device and material procurement which may be urgently needed for the execution of emergency response plans,
   ARTICLE 26. — The following paragraph has been inserted after the last paragraph of Provisional Article 4 of Act No 4734:
   The guidelines and procedures regarding Paragraph (j) of Article 3 of this Act are set out with a regulation to be adopted by the Ministry of Environment and Forestry, taking the opinions of the Ministry of Finance, Public Procurement Authority and Undersecretariat for Maritime Affairs.
   PROVISIONAL ARTICLE 1. — The regulations which are provided for in this Act are drawn up in one year at the latest as of the date of entry into force of this Act; general conditions and tariffs and instructions regarding liability insurance are drawn up in six months at the latest as of the date of entry into force hereof and promulgated in the Official Journal.
   PROVISIONAL ARTICLE 2. — The activities of facilities which are active at the time of the entry into force of this Act and which cannot make good within the period defined in the regulation their shortcomings regarding staff, materials and equipment that they must have in place pursuant to the last paragraph of Article 5 of this Act are interrupted by the Ministry.
   Entry into Force
   ARTICLE 27. — This Act shall enter into force three months after the date of its publication.
   Enforcement
   ARTICLE 28. — The Council of Ministers shall enforce the provisions of this Act.
 
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