This was an appeal from the judgment of the Istanbul 17th Commercial Court (15 February 2016, 2014/1436-2016/44).

The plaintiff insurer paid its insured under a cargo policy. It sought to collect USD 3,172.62 under art 1472 of the Turkish Commercial Code (the TCC), arguing that the defendant carrier was liable as a carrier for cargo damage during its transportation from Turkey to the Philippines. In particular, the plaintiff argued that the cargo was loaded on the ship undamaged. During the cargo's discharge to the warehouses of the consignee, it was discovered that the container lids were opened due to cracks and openings in the container. Accordingly, some of the insured goods were damaged by water ingress.

The defendant argued that a notice of damage was not provided under art 1185 of the TCC [which is based on art 3.6 of the Hague-Visby Rules and art 19 of Hamburg Rules - although Türkiye is only a State Party to the Hague Rules, the TCC incorporates provisions that purport to adopt elements of the Hague-Visby and the Hamburg Rules]. The defendant further claimed that the goods were under the care and custody of the consignee on 31 May 2014, and the notice of damage was made by the shipper only on 19 June 2014. However, no minutes of any damage determination were taken down at the port during the delivery stage after the maritime transport. Thus, the defendant was not liable for the damage. The defendant applied for dismissal of the lawsuit.

The Court of first instance referred to art 1185.1 of the TCC [which is based on art 3.6 of the Hague-Visby Rules] and observed that unless notice of loss or damage and the general nature of such loss or damage is given in writing to the carrier or his agent at the port of discharge before or at the time of the removal of the goods into the custody of the person entitled to delivery thereof under the contract of carriage; or, if the loss or damage is not apparent, within three days, such removal shall be prima facie evidence of the delivery by the carrier of the goods as described in the bill of lading. The Court observed that the damage notification made by the insured consignee to the plaintiff insurer did not comply with the conditions in art 1185.6 of the TCC [which is based on art 19.8 of Hamburg Rules].

The Court found that in the bill of lading the loading, stacking, counting, and sealing of the goods in the containers were stated to be the shipper's responsibility; there was no documentation or evidence of damage during transportation. Therefore the defendant carrier should not be responsible for the dampening of the goods inside the container, of which the outer surface was found to be intact and undamaged. The Court further observed that no inscription of damage was reported or recorded regarding the insured party's goods or the container itself at the port of destination. The goods removed from the port were taken to the address of the recipient company by local transport vehicles and no other matter was included in the expert report except that the commodity was wet. Since the cause of the damage could not be ascertained, it could not be proved that the damage occurred under the care and custody of the defendant carrier, and it could not be determined at what stage of the transportation the damage occurred. 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.