This was an appeal from the judgment of the Istanbul 52nd Commercial Court of First Instance (14 January 2014, 2012/471-2014/5).

The plaintiff carrier argued that it successfully transported the defendant's goods on 9 December 2011 without any deficiencies, and that the freight was prepaid to their agent. The plaintiff noted that the consignee company, as listed on the bill of lading, failed to take delivery of the goods. It claimed demurrage for its two containers left at the port for 70 days, amounting to USD 5,700, as well as USD 7,000 for the containers themselves, totalling USD 12,700. The plaintiff sought to recover this amount, along with interest.

The defendant responded that the transportation was conducted by the plaintiff, and that the freight was prepaid. However, the consignee engaged Arkas Russia, a subsidiary company of the plaintiff, to handle the customs procedures for the discharged goods at the port. Despite all payments being made to this company, it failed to carry out customs procedures. The defendant asserted that it bore no responsibility for this failure and requested the dismissal of the lawsuit.

The Court of First Instance noted that art 1110 of the Turkish Commercial Code (No 6762, TCC) stipulates that 'the legal relationships between the carrier and the shipper shall adhere to the provisions of the carriage contract', and that the terms of carriage were defined by the bill of lading [based on art 1.b of the Hague Rules and the Hague-Visby Rules]. According to the bill of lading, after a 7-day free period, the consignee would incur demurrage charges of USD 25 per day for the first 7 days (from the 8th to the 14th day) and USD 50 per day thereafter for the two 20-foot containers involved in the shipment. If the containers were not returned to the owner’s depot within 70 days after pickup, the free period would be nullified, and the consignee would be liable for an additional USD 3,500 per container without the benefit of the free period.

The containers were discharged on 19 December 2011, and by the date of the lawsuit, more than 70 days had passed. The expert calculated the demurrage for the 70-day period to be USD 6,650, but the plaintiff had only requested USD 5,700. Although the plaintiff also sought compensation for the container cost, the bill of lading specified that the container cost could only be claimed if the containers were taken by the consignee and not returned within 70 days. The intention behind this provision was to enable the container owner to recover the cost of the container if it was not returned after being allocated for transportation.

Given that the containers were not picked up by the consignee and remained at the discharge port as acknowledged by both parties, and since the bill of lading stipulated that the goods at the discharge port were not delivered to a legitimate holder of the bill under arts 1102 ff of the TCC, the containers were still under the carrier's control. Therefore, the Court partially upheld the claim, ordering the defendant to pay USD 5,700 in demurrage charges with interest. However, the plaintiff’s claim for the cost of the container was denied.

The decision was appealed by both parties.

Held: Appeal dismissed.

The Court of Appeal dismissed all the objections, stating that there were no procedural or legal errors in evaluating the evidence upon which the lower Court's decision was based.