This was an appeal from the judgment of the Istanbul 17th Commercial Court (5 February 2018, 2015/290-2018/18).

The plaintiff insurer paid its insured, Alarko Carrier San Ve Tic AŞ, under its insurance policy and sought to collect TRY 4,431.90 plus interest from the defendant, arguing that the defendant was liable as a carrier for the damage of air conditioners carried from Thailand to Istanbul.

The defendant argued that the plaintiff insurer lacked standing to sue, and that no liability could be directed against the defendant. The defendant therefore requested dismissal of the lawsuit.

The Court of first instance observed that the insured air conditioners were carried by road to the warehouse of Türker Lojistik after being discharged from the ship, and Metro Taşımacılık, rather than the defendant, undertook this carriage by road. The torn hole in the container ceiling, the wetting of the goods, and the related damage, were determined during the delivery of the goods to the warehouse.

The Court further found that since the damage report did not include the carrier's or its representative's signature, it could not qualify as a damage or claim notification. In this case, a separate damage notification should have been made to the carrier. The Court held that the insured company did not notify the damage in due time 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 Hamburg Rules].

Concerning art 1185, the Court concluded that in the case of damage to cargo, the burden of proof lies on the plaintiff to prove that damage occurred while the cargo was under the care and custody of the carrier. In particular, the Court observed that no examination and determination was conducted regarding the damage after the discharge of the cargo from the vessel. Therefore, evidence of a hole or tear in the container's ceiling was not properly submitted to the case file.

Considering the lack of evidence and examination action in this regard, since the cargo was carried by road after it was discharged from the ship, it cannot be determined from the scope of the file whether the tear in the container caused the cargo to get wet. Also, it needs to be determined whether this occurred during sea transportation. It is also unclear whether the water leaking from the hole in the container during and after the cargo was delivered to the warehouse and which caused the cargo to get wet was sea water, since the silver nitrate test was not carried out to determine whether the water was seawater. Hence the Court held that it could not be determined that the cargo wetting and damage occurred while the goods were under the care and custody of the carrier. Consequently, the Court held that the carrier should not be liable for loss or damage to the goods under art 1178 of the TCC [which is 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].

The plaintiff appealed to the Supreme Court of Appeal.

Held: The plaintiff's appeal is admissible. The judgment of the first instance Court is reversed in favour of the plaintiff on the grounds below.

The Supreme Court affirmed that the case was based on a recourse action arising from the damage to goods. The Court observed that the Court of the first instance insufficiently examined when the cargo was discharged at Haydarpaşa Port, who undertook the land transportation operation to Gebze Customs, and whether the defendant played a role or made any undertaking with regard to this mode of transportation.

The Supreme Court further found that the Court of first instance did not evaluate whether it would be feasible during one-day road transport, according to the ordinary course of events, for wetting to cause the formation of the mould growth which was claimed to cause the damage to goods. In this respect, the Court held that the Court of first instance's judgment should be dismissed, based on a lack of examination and an additional expert report.