Ulgener

R. Zehra Çolak
Associate Lawyer

With the increase in maritime trade, maritime risks have also increased and the notion of "Insurance" has become a necessary element of commercial life in terms of financing these risks.However, it is certainly difficult for a single insurance company to cover large amounts and the full risk arising from an insurance contract with third parties, so, the notion of “Joint Insurance” and its sub-notion “Closed Co-insurance” have emerged in order to minimize this difficulty by distributing the risk among several insurance companies. Whereas "Slips", which we encounter frequently in international insurance market, in which more than one company undertakes the risk at their own rates and contains the details of risk and insurance cost, is also generally considered within the scope of "Joint Insurance".

Article 1466 of the Turkish Commercial Code, which regulates Joint Insurance; it is clearly stated that if more than one insurance company guarantees the same risk, they are all responsible for the damage at the rate of the insurance costs. The insured risks are insured piecemeal, separately, and independently from each other and each one of the insurers is responsible in proportion to the sum of the insurance costs. However, if mutual liability is determined, the insured cannot ask for more money for the damage they have suffered, as well as each of the insurers is only responsible for up to the price that he is obliged to pay according to the contract. In this case, the right of recourse that the insurer making the payment has against other insurers is in the proportion of the costs that the insurers must pay to the insured in accordance with the provisions of the contract. In both cases, if the insured has a right to bring claim against those responsible for the damage incurred, this right will pass to the insurer as much as the indemnified amount and would become the subrogation of the insurer.

In Closed Co-Insurance, a part of the undertaken risk by the insurance company, in an insurance contract, is transferred to one or more insurance companies through separate contracts (protocol). In a closed co-insurance, there is only one insurer that makes a contract with the insured. However, in respect of the protocols, the insurer shares the risk it has provided against the insurer with other insurance companies (co-insurer/coassurers) in accordance with the agreements they have made. Within this scope, only the insurer, which is a party to the insurance contract, is liable to the beneficiary of the insurance. In this case the Supreme Court has concluded, the addressee of the insured is only the insurer that issues the insurance policy, co-insurers and the insured are not interlocutors to each other both for the payment of the premiums and in the collection of risk compensation. There is no legal relationship between the insured and the co-insurer. As a result of this, the co-insurer company will not be able to become the subrogation of the insured.

In a recent Supreme Court decision dated 2021, when the claim for receivables arising from a collision of an insured ship is evaluated, there is a closed co-insurance protocol between the parties which are the insurance companies and pursuant to this protocol, the claimant insurance company has the right to file a lawsuit against the defendant insurance company within the scope of the principle of relativity of the contract's, however, there is no contractual relationship between the co-insurer and the insured and since the claimant co-insurer company does not carry the title of insurer, they cannot file this lawsuit as a successor of the insured; addressee of the insured is only the insurer that issues the insurance policy, co-insurer and the insured are not interlocutors to each other both in the payment of premiums and in the collection of risk compensation.

In summary, in the situation of a joint insurance, the risks are insured by more than one insurance company at the rate of its shares and in an independent manner. However, for closed co-insurances, there is only one insurer party to the insurance contract, this insurance company then after shares the risk it has provided against the insurer with other insurance companies in accordance with the protocols they have made. As a result of this, in joint insurance, each insurance company becomes the subrogation of the insured in proportion to the amount it indemnifies; on the other hand, for closed co-insurance, the co-insurers cannot be argued to be subrogation because there is no contractual relationship between the insured.