This was an appeal from the judgment of the Commercial Court of First Instance (18 October 2016, 2015/292-2016/468).

The plaintiff insured cargo which was transported by the defendant. During the transport, part of the cargo was lost at sea, while another portion was damaged due to shifting within the containers. As a result of these incidents, the plaintiff compensated the insured for a total loss of EUR 28,824.00. The plaintiff sought to recover this amount from the defendant through subrogation, asserting the defendant’s liability for the mishandled cargo.

The defendant argued that the entity named as the defendant in the claim did not legally exist. Additionally, the bill of lading listed a different company as the carrier, suggesting that any dispute should be directed towards that company instead. The defendant argued that there was no evidence proving that it acted as an agent in the transport operation. Furthermore, the defendant claimed that the ship, which experienced severe weather conditions, was not at fault, that there were no notifications of damage, and that the container was loaded by the shipper. Based on these arguments, the defendant requested the dismissal of the case.

The Court of First Instance ruled that the defendant, the actual carrier, should be evaluated according to the provisions related to torts as outlined in art 41 of the Turkish Code of Obligations (TCO No 818). The Court found that there was no proof of negligence on the part of the ship's crew that contributed to the damage. It was determined that the actual carrier could benefit from all the defences available to the contractual carrier. The Court noted that the ship encountered stormy weather, and that the ship’s crew could not be considered at fault for choosing to continue sailing under harsh weather conditions. The occurrence of a storm eight days after the start of the voyage was deemed unforeseeable. The master took all possible precautions when the storm emerged, and it was unreasonable to expect the ship to choose 'the safest route' as a means of turning back.

The Court therefore dismissed the case, concluding that the defendant had taken all the necessary measures expected of it, and that the exemption from liability under art 1063.1.1 of the Turkish Commercial Code (TCC No 6762) [based on art 4.2.c. of the Hague Rules] was applicable, stipulating that carriers are not responsible for loss or damage arising from dangers and accidents inherent to the sea or other navigable waters.

The plaintiff appealed to the Supreme Court of Appeal.

Held: Appeal dismissed.

The Supreme Court found that there were no inaccuracies in the evaluation of the evidence and deemed all of the plaintiff's appeals unfounded.