“Execution of the ‘Authority of the Ministry of Transportation And Infrastructure To Grant Exemption or Exception for Pilot and /or Tugboat Services Has Been Suspended.”

“Given the importance and nature of pilotage and tugboat services provided to assist ships in navigation and maneuvering, and considering that any exemption or exception to these services may have implications for the safety of life and property, it is essential that all conditions under which such exemptions or exceptions are to be granted are clearly defined and articulated.” 

Council of State, Board of Administrative Litigation Chambers

Pursuant to the ‘Regulation on Amendments to the Ports Regulation‘ published in the Official Gazette on April 14, 2023, No. 32163 (Duplicate), the Ministry of Transport and Infrastructure has been authorized to ‘grant exemptions or exceptions for pilotage and/or tugboat services.’

In the case filed, the Council of State Board of Administrative Litigation Chambers decided to suspend the execution of the regulation in question. The reasoning of the Board’s decision dated June 10, 2024 No. E. 2024/308 states:

“Upon reviewing the provision of the Regulation in dispute, which states that the authority may grant an exemption or exception for a pilot and/or tugboat taking into account factors such as the ship’s technical structure and characteristics, intended use, maritime traffic, geographical and meteorological conditions, and overriding public interest, it is observed that the content lacks clarity, the conditions under which an exemption or exception may be granted are not explicitly defined, vague terms like ‘overriding public interest’ are used, and open-ended expressions like ‘such as’ are employed, potentially allowing for the granting of exemptions or exceptions without clear criteria.

In the disputed Regulation, issued to regulate the requirements for pilotage and tugboat services, there is no impediment to the authority’s ability to clearly define the limits and conditions under which exemptions or exceptions to the requirement for a pilot and/or tugboat may be granted, in a manner that does not leave room for doubt or result in arbitrary and unforeseeable practices. Indeed, while the relevant paragraphs of Article 14 of the disputed Regulation comprehensively set out the situations where there is no obligation to have a pilot or a tugboat, it is not possible to accept that the contested Paragraph 15 is clear, precise, comprehensible, and enforceable in a way that leaves no room for hesitation or doubt, or that it contains protective measures against arbitrary practices by the authority.

Given the importance and nature of pilotage and tugboat services provided to assist ships in navigation and maneuvering to ensure navigational safety and the protection of life, property, marine, and environmental security, and considering that any exemption or exception to these services could have consequences for the safety of life and property, it is necessary to clearly define and specify all elements of the situations in which such exemptions or exceptions may be granted. It is assessed that the regulation in the disputed Regulation is contrary to the principle of legal predictability and certainty due to its ambiguous expressions, lack of clarity and specificity, and failure to establish clear boundaries.”