This was an appeal from the judgment of the Istanbul 17th Commercial Court (2 October 2018, 2016/34-2018/356).

The plaintiff insurer paid its insured, Tekin Ozalit Ltd Şirketi, under its insurance policy and sought to collect USD 3,091.27 plus interest from the defendant. In particular, the plaintiff insurer claimed that 700 pieces of honeycomb cardboard goods purchased on a FOB basis from Shanghai Forest Packing Co Ltd in China were damaged during their transportation from Ningbo, China, to the Port of Kumport, Istanbul. The plaintiff argued that the goods in question were delivered to the defendant carrier in complete and undamaged condition and stuffed into the container. However, they were wet and damaged when delivered to the consignee. Therefore, the defendant was liable for the damage under art 1178 of the Turkish Commercial Code (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 - although Türkiye is only a State Party to the Hague Rules, the TCC incorporates a set of rules which purport to adopt elements of the Hague-Visby Rules and the Hamburg Rules].

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 the loading operation was performed by the shipper, and claim notification was not made in due course. The defendant also claimed to act as a freight forwarder for the relevant transportation, and therefore should not be held liable as a carrier. The defendant thus requested the dismissal of the lawsuit.

The Court of first instance found that the bills of lading included a 'Shipper's Load, Count and Seal' inscription, meaning that the operations of loading, stacking, counting, and subsequently sealing the container doors of the goods in question were carried out by the shipper, Shanghai Forest Packing Co Ltd. The Court observed that the bills of lading were claused 'FCL', which meant 'full container load'. This could be understood to mean that no obligation rested upon the defendant as carrier in respect of the full container loaded onto the vessel under the shipper's care and custody. The Court further found that it is also an obligation of the shipper to take necessary measures to prevent the goods from being damaged by condensation in the container during transportation. Thus, the Court held that the lawsuit should be dismissed.

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.