1. The Concept of War Risk Surcharge
In maritime transport, the concepts of War Risk Surcharge (WRS) and surcharges in general refer to the mechanism by which the carrier reflects increased transportation costs to the cargo interests where such costs arise due to unforeseen circumstances under contracts of affreightment. The legal nature and application of these charges have developed within the framework of both the Turkish Commercial Code (TCC) and international maritime transport practices. In this context, surcharge does not constitute a purely abstract commercial practice; rather, it derives its legal basis from contractual arrangements reflecting the parties’ intentions. In other words, the foundation of surcharge application primarily lies in clauses agreed upon under the principle of freedom of contract, which are further supplemented by the provisions of the TCC and applicable international regulations.
A surcharge refers to an additional charge imposed on top of the base freight rate in order to offset extraordinary cost increases that were unforeseeable at the time the contract of carriage was concluded and that arise beyond the carrier’s control. In maritime practice, bunker surcharge, congestion surcharge, and particularly War Risk Surcharge (WRS) applied in regions exposed to armed conflict are among the most common types of surcharges.
In maritime transportation, War Risk Surcharge constitutes an additional charge added to freight in order to compensate for extra costs incurred by the carrier when a shipping route is declared a high-risk area due to war, civil war, rebellion, or military tensions. These costs generally include additional insurance premiums, enhanced security measures, and operational costs arising from route deviations.
Although the concept of War Risk Surcharge is not expressly defined in statutory provisions, it is commonly incorporated into maritime contracts through standard war risk clauses prepared by BIMCO (The Baltic and International Maritime Council). In practice, the VOYWAR 2013[1] and CONWARTIME 2013[2] clauses have been widely used in maritime transport agreements. In addition, BIMCO introduced updated war risk clauses in April 2025—CONWARTIME 2025[3] and VOYWAR 2025[4]—which introduced significant changes compared to earlier versions, particularly regarding transparency, burden of proof, and the determination of additional costs. These new provisions aim to ensure that the scope and legal basis of additional charges arising from war risks are presented more clearly.[5][6]
The legal consequences of war risks are also addressed in international maritime law instruments. Under Article 4(2)(e) and (f) of the Hague-Visby Rules, acts of war and acts of public enemies constitute circumstances in which the carrier is exempt from liability. This provision allows the carrier to avoid high-risk areas and, where necessary, to deviate from the originally agreed route, thereby potentially enabling the carrier, under certain conditions to pass on the additional costs arising from such deviation to the cargo interests. It should, however, be noted that Articles 4(2)(e) and (f) of the Hague-Visby Rules do not confer upon the carrier a direct right to claim additional charges. These provisions regulate war risk as a ground for exemption from liability; by contrast, the allocation of costs arising from such risks to the cargo interests depends on the existence of an explicit contractual provision or on such costs having been agreed as part of the freight.
Within this framework, surcharge may be understood as a mechanism based on the principle of allocating cost increases—arising at the time of the conclusion of the contract of affreightment—between the parties in a fair manner. However, “unforeseeability” should not be regarded as a mandatory legal requirement in all cases. For instance, where the contract contains an express surcharge clause, the parties are deemed to have agreed in advance on how the additional costs arising from certain risks will be allocated. In such cases, it is not necessary for the relevant risk to be independently unforeseeable, as it has already been contemplated and incorporated into the contract. Conversely, in the absence of such a provision, any subsequent claim for additional costs may only be assessed within the framework of Article 138 of the Turkish Code of Obligations. In such cases, the existence of conditions such as unforeseeability and excessive hardship in performance must be established in order to justify contractual adaptation.
2. Legal Nature of the Surcharge Concept
The legal nature of surcharges remains controversial in legal doctrine, where two principal approaches may be identified. Articles 1195 and 1196 of the Turkish Commercial Code regulate the determination of freight and the management of extraordinary expenses arising in maritime operations. Within this legal framework, extraordinary costs such as pilotage, lighthouse dues, or quarantine expenses are generally borne by the carrier unless otherwise agreed in the contract. Surcharges, however, typically arise through special contractual clauses that allow such costs to be transferred to cargo interests.
According to the first doctrinal approach, surcharge is regarded as an integral part of freight. Under this view, the freight obligation represents the consideration for the carrier’s obligation to transport the goods to the destination, and all charges falling within the scope of freight benefit from the same legal protection In essence, a contract of affreightment is an obligation to deliver the goods safely to the place of destination. In the event of war, the additional costs necessarily incurred in order to perform this obligation (WRS) are regarded as a “natural extension” of the freight. In this respect, the surcharge amount is also considered as a component of the freight claim.The qualification of the War Risk Surcharge (WRS) not as a mere compensation but as a freight surcharge allows the carrier to exercise a direct right of lien over the cargo pursuant to Article 1201 of the Turkish Commercial Code and Articles 950–953 of the Turkish Civil Code. According to this reasoning, even if the contract does not expressly stipulate that “WRS shall be paid,” such cost may still be regarded as part of the freight claim, enabling the carrier to exercise its right of lien under Article 1201 of the Turkish Commercial Code.
Within this framework, if the shipper or the consignee at the port of destination defaults on the payment of the WRS, the carrier may refuse to deliver the cargo. On the other hand, since such claims are subject to a one-year short limitation period pursuant to Article 1246 of the Turkish Commercial Code, it is a legal necessity to initiate collection and lien enforcement processes without delay.
According to the second doctrinal approach, surcharge constitutes a separate ancillary obligation independent from freight, intended to compensate for extraordinary operational costs. Under this view, surcharge is not an element determining the freight amount but rather a compensatory payment covering additional costs such as increased insurance premiums, enhanced security expenses, or costs arising from route deviations. This distinction is particularly significant in matters such as general average calculations, limitation periods, and allocation of costs among the parties. According to this approach, the legal enforceability of surcharge claims requires that the right to charge such additional fees be explicitly provided for in the contract or incorporated into the contract by reference to applicable terms and conditions. In practice, such provisions are frequently encountered in clauses relating to container demurrage or similar additional charges[7]. However, it is necessary to underline the fundamental distinction between the legal nature of WRS and container demurrage charges. While demurrage constitutes a contractually determined charge/compensation of a continuing nature, linked to a delay such as the late collection or return of the goods, WRS is directly dependent on the existence of a specific external risk and the actual increase in costs incurred by the carrier as a result of that risk.
Within this framework, it does not appear possible to automatically apply a principle similar to “once in demurrage, always in demurrage” in respect of WRS. This is because the said principle reflects that exceptional circumstances arising during the period of delay do not interrupt the running of time, whereas the continuation of WRS depends on whether the risk and the related costs persist in fact. Accordingly, if the port of destination is located within a war risk area and the additional costs (such as insurance and security expenses) continue during the period of delay, it may be argued that WRS should also continue. Conversely, where the risk arises only at a specific stage of the voyage and its cost is determined at that time (as a one-off occurrence), the automatic continuation of WRS after the risk has ceased—similar to demurrage—would not be compatible with the principle of a prudent merchant and the principle of reflecting actual costs.For this reason, the duration of the application of WRS must be assessed separately in each individual case, depending on the continuity of the risk and the specific provisions contained in the contract.
3. The Carrier’s Authority to Claim Additional Charges
In maritime contracts of carriage, freight is generally determined by agreement between the parties. For this reason, the carrier cannot normally increase the freight amount unilaterally. However, in practice, carriers may claim additional charges under specific provisions contained in bills of lading or booking terms.
The carrier’s ability to claim additional charges due to war risks largely depends on contractual provisions. In particular, War Risk Clauses, Bunker Clauses, or similar surcharge provisions contained in bills of lading or freight contracts may grant the carrier such authority. In practice, such provisions are often incorporated into contracts through references to BIMCO standard clauses such as VOYWAR or CONWARTIME.
WRS applications must also be assessed in light of the BIMCO CONWARTIME and VOYWAR updates introduced in April 2025. Under these updated clauses, merely declaring a WRS amount is not legally sufficient. The carrier must objectively demonstrate that it has used reasonable endeavours to obtain the increased insurance coverage (including Kidnap & Ransom – K&R insurance) under the most favorable market conditions. Furthermore, in accordance with the principle of transparency, any discounts, rebates, or no claims bonuses obtained from insurers must be clearly reflected in the calculation and invoicing of the surcharge net of discounts, which constitutes a contractual obligation in favor of the cargo interests.
Pursuant to Article 1237 of the Turkish Commercial Code, the legal relationship between the carrier and the holder of the bill of lading is primarily governed by the bill of lading itself. Therefore, the legal basis for surcharge claims will generally be found in provisions contained in the bill of lading or in contractual terms incorporated by reference.
In addition, the surcharge requested by the carrier must be proportionate to actual market conditions and real cost increases. Under Article 18(2) of the Turkish Commercial Code, merchants are expected to act as prudent businesspersons. Accordingly, additional charges claimed due to war risks should correspond to objective market indicators such as the Joint War Committee (JWC) Listed Areas published by the Lloyd’s Market Association.
Furthermore, the carrier’s ability to designate a particular region as a “war risk area” and apply a War Risk Surcharge (WRS) or to completely alter the route has been limited by the landmark decision of the English High Court in The Triton Lark. According to this precedent, the existence of risk cannot be based solely on the subjective concerns of the master. Rather, the master and the shipowner must exercise reasonable judgment, act in good faith, and conduct necessary enquiries based on objective security indicators such as the Joint War Committee (JWC) listings. Otherwise, the WRS claimed may be challenged as unjust enrichment.
Where additional charges are excessive or lack objective justification, it is possible under the Turkish Code of Obligations to request a reduction of the amount or the restitution of the excessive portion on the basis of the provisions concerning exploitation (gross disparity). Furthermore, due to the unforeseeable circumstances created by a state of war, the adaptation of the contract (adjustment of the amount) may also be sought. Such a request for adaptation may, as a rule, be brought by the carrier who is unable to pass on the increased costs. However, it may equally be invoked by the cargo interest, particularly where it is faced with the threat of the carrier exercising a lien over the cargo due to excessive surcharge claims, or where payment has been made under reservation in order to avoid disruption of the operation, with a view to reducing the amount to an equitable level.. However, both legal remedies involve considerable litigation costs, time loss, and difficulties relating to the burden of proof. For this reason, in order to prevent potential disputes at the outset, it is advisable for the parties to determine the authority to impose additional charges and the method of calculation through clear and concrete criteria at the time the contract is concluded.
4. Requirement of Written Form and Notification Obligation
In maritime practice, it is common for carriers to publish freight tariffs and surcharge announcements on their websites. However, there are ongoing discussions regarding the legal binding nature of such announcements, and their validity depends on certain conditions.
Pursuant to Article 1237 of the Turkish Commercial Code, the legal relationship between the carrier and the bill of lading holder is governed primarily by the bill of lading. Therefore, general terms and tariffs published on the carrier’s website will only become binding upon cargo interests if the bill of lading expressly refers to those terms. In legal doctrine, this mechanism is referred to as “incorporation by reference.”
Accordingly, where the bill of lading does not contain an explicit reference to such website terms, a unilateral price increase announced solely through the carrier’s website cannot automatically bind the cargo interests. Nevertheless, under the principle of prudent business conduct, parties engaged in international transport are expected to follow the freight tariffs and surcharge announcements published by carriers to a reasonable extent.
Another important issue concerning surcharge applications is the carrier’s obligation to notify cargo interests. The carrier cannot act arbitrarily when demanding additional charges. Under Turkish law, the principle of good faith constitutes a fundamental rule governing the performance of contracts, and surcharge claims must therefore be evaluated within this framework.
This notification obligation is not merely a matter of commercial courtesy; rather, it constitutes a legal prerequisite enabling the shipper to exercise certain rights, such as proposing alternative routes, terminating the contract of affreightment (where permitted under the relevant war risk clauses), or requesting the cargo to be discharged at an alternative port. In the absence of transparency, ex-post WRS invoices issued after the fact are frequently rejected by courts and arbitral tribunals as unjust enrichment or breach of contract.
Accordingly, the carrier must inform the cargo interests within a reasonable time before entering a risk area or before the relevant cost increase materializes. Such notification provides cargo interests with the opportunity either to accept the additional cost or to request that the goods be transported through an alternative route.
5. Impact of War Risk on the Contract of Affreightment and Freight
War, regional conflicts, and security risks may significantly increase costs in maritime transport. In particular, increased insurance premiums in high-risk areas, enhanced security measures, route deviations, and operational delays may lead to substantial increases in transportation costs. Accordingly, carriers frequently reflect such increased costs onto the cargo interests through the application of a War Risk Surcharge or similar additional charges.
However, the mere emergence of a war risk does not automatically justify a modification of the freight rate. Accordingly, the legal basis of surcharge claims must be assessed in light of both the provisions contained in the contract of affreightment and the applicable mandatory rules of law.
Under Article 4(2) of the Hague-Visby Rules, acts of war and acts of public enemies are listed among the circumstances in which the carrier is exempt from liability. Similarly, Article 1182 of the Turkish Commercial Code provides that war-related incidents constitute situations in which the carrier is deemed not at fault.
In addition, additional costs arising from route deviations due to war risks are also subject to legal debate. Under Article 4(4) of the Hague-Visby Rules, a reasonable deviation does not constitute a breach of contract. Accordingly, additional fuel and operational costs arising from the extension of the route or the avoidance of high-risk areas may, in certain circumstances, serve as a justification for surcharge claims.
A state of war gives rise to two fundamental consequences in maritime transport law, which are complementary in nature but differ in their legal basis. On the one hand, pursuant to Article 4(2) of the Hague-Visby Rules and Article 1182 of the Turkish Commercial Code, war constitutes a statutory ground for exemption from liability, relieving the carrier from responsibility for loss of or damage to the cargo.
On the other hand, the operational difficulties and increased costs caused by war—such as higher insurance premiums, route deviations, and additional security expenses—provide a legal basis for contractual surcharge claims, enabling the carrier to continue performance despite such risks.
Accordingly, while statutory exemptions release the carrier from liability for loss and damage, contractual mechanisms such as War Risk Surcharge (WRS) and BIMCO clauses serve to maintain the economic equilibrium of the contract under aggravated conditions. In this context, surcharge may be regarded as a complementary legal tool that allows the continuation of the transport by way of freight adjustment, rather than the termination of the contract based on statutory exemptions (frustration of contract).
6. Reflection of Surcharge Costs by Freight Forwarders
In maritime transport practice, there is often a freight forwarder (FF) positioned between the carrier and the cargo owner, acting as a key intermediary responsible for organizing the transportation process in international trade. Within the Turkish legal system, the concept of a freight forwarder has traditionally been defined as a “transportation works broker” (taşıma işleri komisyoncusu) pursuant to Articles 917 et seq. of the Turkish Commercial Code.
However, under the current regulatory framework, such activities are also governed by the Freight Forwarding Services Regulation (TİO Regulation). Accordingly, freight forwarders operate within a dual legal structure, being subject both to the provisions of the Turkish Commercial Code and to the administrative and legal regime introduced by the TİO Regulation.
Under a transport commission agency contract, the commission agent does not primarily undertake the physical carriage of the goods but rather assumes the responsibility of organizing the transportation of the goods. Within this scope, the obligations of the commission agent include determining the means of transport and the route, selecting the actual carrier, concluding the necessary transportation contracts, and organizing the transportation process while safeguarding the interests of the consignor. In addition, the commission agent may also undertake the conclusion of contracts related to ancillary services such as the insurance, packaging, marking, or customs clearance of the goods.
In maritime transport practice, the transport relationship frequently exhibits a multi-party or sequential structure. Accordingly, while a single freight forwarder may exist between the carrier and the cargo owner, there may also be situations where multiple forwarders are involved sequentially or participate at different stages of the transportation organization. In such cases, the manner in which surcharge costs are reflected to the cargo owner must be evaluated in light of the legal status and contractual position of the relevant forwarder within the transportation chain.
Where the freight forwarder acts solely in the capacity of a transport commission agent, pursuant to Articles 918 and 919 of the Turkish Commercial Code, the forwarder is obliged to protect the interests of the consignor and may only claim reimbursement for reasonable expenses incurred. In such circumstances, the forwarder may pass on to the cargo owner the costs that have been charged to it by the actual carrier.
Conversely, where the freight forwarder has undertaken the carriage itself or has issued its own bill of lading pursuant to Article 926 of the Turkish Commercial Code, it assumes the legal status of a “carrier” in respect of the rights and obligations arising from the transport. In such a case, the forwarder no longer acts as a commission agent but becomes a contracting carrier under the contract of affreightment, with the authority to determine its own freight tariff.
A forwarder acting in the capacity of a carrier may therefore claim an additional charge different from the amount imposed by the actual carrier. The legal validity of such a claim is subject to the same principles applicable to carriers in general: the authority to impose a surcharge must either be expressly provided for in the bill of lading or the underlying service agreement, or—absent such a provision—be justified through contractual adaptation on the grounds of hardship (excessive difficulty of performance) pursuant to Article 138 of the Turkish Code of Obligations, particularly where war risk has led to extraordinary cost increases.
Accordingly, a forwarder assuming the status of a carrier benefits from the same legal mechanisms as the contractual carrier. Nevertheless, from the perspective of transparency and evidentiary certainty, it is highly advisable that such surcharge authority be clearly defined at the stage of contract formation.
8. Conclusion
Current global tensions, wars, and regional conflicts have led maritime shipping lines to experience rapid increases in operational costs and risk premiums. As a natural consequence, the legal legitimacy of War Risk Surcharge (WRS) and similar additional charges announced by carriers has once again become a subject of debate in maritime law.
Although doctrinal discussions continue as to whether surcharge payments constitute an integral component of freight or an independent compensatory obligation, the increasing prevalence of surcharge practices in recent years has brought this issue back to the forefront. Accordingly, any legal assessment must be conducted on a case-by-case basis, taking into account the Hague-Visby Rules, the relevant provisions of the Turkish Commercial Code, and the scope of clauses incorporated into the bill of lading or the contract of carriage through incorporation by reference.
High asymmetric threats in regions such as the Red Sea, the Gulf of Aden, and the Black Sea basin have placed the burden of proof and the expectation of transparency directly upon the carrier in maritime law practice. With the BIMCO 2025 revisions, the carrier’s right to demand WRS has ceased to be an absolute privilege. Instead, it now requires an objective, good-faith, and reasonably conducted investigation (reasonable endeavours) consistent with the The Triton Lark test, together with demonstrable transparency regarding insurance invoices, discounts, and any applicable no-claims bonus.
The above evaluations are intended to present the general legal framework, and different conclusions may arise depending on the specific circumstances of each case. For further information or legal assistance regarding this matter, please contact us at iuslaw@ilhanustunoglu.com
[1] War Risks Clause for Voyage Chartering 2013 (VOYWAR 2013), available at: https://www.bimco.org/contractual-affairs/bimco-clauses/earlier-clauses-list/war_risks_clause_for_voyage_chartering_2013/ (accessed 24 March 2026). For the most recent version, see Footnote 11.
[2] War Risks Clause for Time Chartering 2013 (CONWARTIME 2013), available at: https://www.bimco.org/contractual-affairs/bimco-clauses/earlier-clauses-list/war_risks_clause_for_time_charters_2013/ (accessed 24 March 2026). For the most recent version, see Footnote 10.
[3] War Risks Clause for Time Chartering 2025 (CONWARTIME 2025), available at: https://www.bimco.org/contractual-affairs/bimco-clauses/current-clauses/war_risks_clause_for_time_charters_2025/ (accessed 24 March 2026). The full clause and explanatory notes are available at the link.
[4] War Risks Clause for Voyage Charter Parties 2025 (VOYWAR 2025), available at: https://www.bimco.org/contractual-affairs/bimco-clauses/current-clauses/war_risks_clause_for_voyage_charter_parties_2025/ (accessed 24 March 2026). The full clause and explanatory notes are available at the link.
[5] Pursuant to sub-clauses (d) and (e) of BIMCO CONWARTIME 2025 and VOYWAR 2025:
Reasonable Endeavours: The carrier shall use reasonable endeavours to obtain appropriate insurance cover and terms in respect of any additional war risks.
Actual Cost / Net Basis: Any additional costs claimed shall be limited to the actual additional costs properly incurred by the carrier, calculated on a net basis, taking into account any discounts, rebates or recoveries (including no claims bonuses).
Supporting Evidence: The carrier is expected to substantiate such additional costs with appropriate supporting documentation, which may include evidence beyond invoices where relevant (e.g. confirmations or records relating to crew payments).
[6] In addition, further guidance on this subject can be found in BIMCO’s publication titled “Remember the BIMCO War Risks Clauses,” dated 3 March 2026, available at:
https://www.bimco.org/news-insights/bimco-news/2026/03/03-war-risks/ (The publication provides guidance on how these and other important clauses (such as force majeure) may be incorporated into contracts; accessed on 24 March 2026.)
[7] For instance, by incorporating a reference to CONWARTIME 2025, it is possible to include provisions such as sub-clause (d), which provides that: “If the Vessel proceeds to or through or remains in an Area exposed to War Risks, the Charterers shall reimburse Insurance Costs to the Owners. If requested, the Owners shall demonstrate that they have used reasonable endeavours to obtain appropriate cover and terms (including premium). “
Similarly, under sub-clause (e), it may be stipulated that:” If the Owners become liable under the terms of employment to pay to the crew any bonus and/ or additional wages due to the Vessel being exposed to War Risks, then the bonus and/or additional wages actually paid to the crew shall be reimbursed to the Owners by the Charterers within fifteen (15) days of receipt of the Owners’ invoice together with signed receipt by the crew members or written confirmation from the crew managers of such payment .”
