This was an appeal from a judgment of the 51st Commercial Court of First Instance (2011/422-2013/34, 21 February 2013).

The plaintiff, as the insurer of the goods, claimed that the cargo was damaged during transport by sea due to the fault of the defendant carrier. The plaintiff claimed that the insured had been compensated for the damage and, by way of subrogation, sought the recovery of the paid amount, together with advance interest from the date of payment.

The defendant contested the claim and requested the dismissal of the case.

The Commercial Court of First instance found that the notation on the bill of lading concerning the quantity and type of cargo, such as 'said to contain' or 'shipper's load and count', was included to prevent it from creating a presumption against the carrier and to ensure that the carrier would not be held liable for damages arising from improper stowage. However, this notation had no bearing on the issue of who provided the container. The defendant, in a response dated 20 April 2006, acknowledged that the container had been supplied by the carrier. Moreover, the customary practice in container transportation is that containers are generally supplied by the carrier.

The Court noted that the damage resulted not from loading, unloading, or stowage but from water leakage through the container's lid seals, which had lost their functionality. The damage occurred due to water seeping through the lid, as the seals had partially lost their water-tightness due to wear and tear. When a container is provided by the carrier, it is considered part of the 'ship’s hold'. Under art 1019 of the Turkish Commercial Code (TCC No 6762) [based on art 3.1.c of the Hague Rules and the Hague-Visby Rules], the carrier must ensure that the hold is suitable for preserving the cargo. This obligation extends to containers provided by the carrier.

The defendant argued that the shipper was negligent for failing to inspect the container and to request a replacement if it was unsuitable. However, the Court determined that the shipper could not have reasonably detected issues, such as the partial loss of water-tightness caused by the deterioration of the seals, even with due care. The Court further held that to escape liability, the carrier needed to prove either that the container was suitable for preserving the cargo at the outset or that the damage resulted from a cause for which the carrier was not responsible. The carrier failed to meet this burden of proof.

Consequently, the Court found the carrier liable for the damage caused by the initial unsuitability of the container and ordered the carrier to pay the claimed amount, along with interest.

The defendant appealed the decision.

Held: Appeal dismissed.

The Supreme Court of Appeal found no error in the evaluation of evidence. All appeal objections by the defendant were rejected, and the judgment was unanimously upheld.