This was an appeal from the judgment of the Istanbul 52nd Commercial Court of First Instance (16 July 2013, 2012/381-2013/211).

The plaintiff insurer claimed that goods which it had insured were damaged during their transportation in a container from Hamburg, Germany, to Izmit Derince Port, Türkiye, on the MV Ibrahim Dede. In particular, after the goods were delivered to the insured's firm by land transport, it was determined and recorded during discharge operations that there was a hole in the ceiling of the container, which caused the goods to be delivered to the insured consignee in a wet and damaged condition. The plaintiff further claimed that the defendant should be liable for the total loss pursuant to art 1178 of the Turkish Commercial Code (the TCC); therefore, the plaintiff was entitled to collect from the defendant the TRY 4,727,01, plus interest, which the plaintiff had paid its insured under the cargo policy.

The plaintiff referred to art 1178 of the TCC [based on art 3.2 of the Hague Rules, art 3.2 of the Hague-Visby Rules, and art 4.2 of the Hamburg Rules - although Türkiye is only a State Party to the Hague Rules, the TCC incorporates a set of rules that purport to adapt elements of the Hague-Visby Rules and the Hamburg Rules] which sets out the liability of carrier and period of the responsibility of the carrier. Accordingly:

In the implementation of the transport contract, the carrier is obliged to pay strict attention as expected from a prudent carrier for the loading, stowing, handling, transportation, protection, observance, and unloading of the cargo;

the carrier is responsible for the losses arising from the loss of or damage to the goods or late delivery of them (in line with the Hamburg Rules). However, in order to hold the carrier liable, the loss, damage or delay in delivery should occur during the goods are in possession of the carrier.

Liability of the carrier continues to be in effect as of the date on which the goods are received by the carrier from the shipper or the person acting in the name of the shipper or from the authorities to which the goods should be delivered pursuant to the laws and regulations in effect at the port of loading up to the date on which:

(a) They are delivered by the carrier to the consignee; or

(b) They are made available for delivery to the consignee in accordance with the provisions of the transport contract or the law or the commercial practice applied at the port of unloading in cases where the consignee refrains from taking delivery of the goods; or

(c) They are delivered to the authorities or third persons to whom the goods should be delivered pursuant to the law and regulations in effect at the port of unloading.

The defendant argued that the container claimed to be damaged was received and delivered to the consignee in good condition, and no inscription of damage was reported or recorded regarding the insured party's goods or the container itself. The defendant further argued that since the goods were subsequently carried on land under the care and custody of the appointed agent of the insured party, the defendant carrier should not be liable, and therefore the defendant requested the dismissal of the lawsuit.

The Court of first instance observed that the goods subject to the plaintiff insurer’s cargo insurance policy were carried under a bill of lading dated 27 October 2011, which did not involve any damage inspection record. Thus, the Court stated that it should be considered a clean bill of lading. Secondly, the Court found that although it was reported and recorded in the survey report dated 14 December 2011 that the damage to goods occurred due to water leakage in the container, no photos of damage to the container had been submitted to the case file. Thirdly, the Court found that the container was discharged from the MV Ibrahim Dede in good condition, the insured did not notify the carrier of the damage, and proof to the contrary that damage had arisen in possession of the defendant carrier and act or omission of the defendant carrier has not been submitted to the case file. As a consequence, the Court dismissed the plaintiff's lawsuit.

The plaintiff appealed to the Supreme Court of Appeal.

Held: Appeal dismissed. The judgment of the Court of first instance is upheld in favour of the defendant carrier.