This was an appeal from the judgment of Mersin 1st Commercial Court of first instance (4 October 2019, 2017/721- 2019/635).

The plaintiff claimed that cargo consisting of engine and car parts valued at USD 233,471 was loaded under a bill of lading on 11 June 2013 on the MV Al Safat belonging to the defendant, Yang Ming Marine Transport Corp (Yang Ming Deniz Nakliyesi AŞ) to be delivered to the plaintiff by the shipper, Echo One Global Trading. In particular, the plaintiff claimed that the price of the goods was paid in advance, and that the defendant notified the plaintiff that the container had fallen into the Oman Sea due to bad weather conditions during transportation. The plaintiff argued that it was not possible to refloat the container, and that the shipment was therefore a total loss. Thus, the plaintiff claimed USD 233,471, being the invoice price of the container.

The defendant argued that the contract of carriage was concluded by the shipper at Port Klang, Malaysia, the port of loading. The defendant further argued that according to cl 26 of the bill of lading, the bill of lading and therefore the contract of carriage was subject to English law and jurisdiction. Therefore, the defendant demanded that the lawsuit be dismissed in terms of jurisdiction.

The Court of first instance found that the master of the vessel acted in a prudent and cautious manner, and showed the necessary care and attention in terms of the care of the cargo. The Court further found that the vessel was exposed to a seasonal monsoon storm, and therefore the defendant should not be held liable for the damage incurred. The Court observed that it was determined by the expert report that the report kept by the master and the meteorological data were consistent. The Court referred to art 1182 of the Turkish Commercial Code (the TCC) [which is based on art 4.2 of the Hague Rules], and held that the claim should be dismissed on the grounds that the container containing the plaintiff's cargo fell into the sea due to the perils of the sea, and the plaintiff could not prove otherwise.

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.

The Supreme Court of Appeal affirmed that the lawsuit is related to the claim for compensation for the damage caused by the loss of the plaintiff's cargo during international carriage by sea undertaken by the defendant.

The Supreme Court of Appeal found that in the expert report taken as a basis for the judgment by the Court of first instance, it was concluded that the master of the vessel had acted prudently and cautiously 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 - although Türkiye is only a State Party to the Hague Rules, the TCC incorporates provisions which purport to adopt elements of the Hague-Visby and Hamburg Rules].

The Supreme Court observed that the expert report showed the necessary care and attention for the safety of the cargo and that the meteorological findings confirmed the accident report. However, the plaintiff argued that the expert report was contradictory with the meteorological data. The Court further observed that the plaintiff claimed that the master did not take the necessary precautions even though the same weather conditions existed before the day of the accident, and that the master showed negligence in the supervision and measures required to ensure the safety of the cargo from the time the adverse weather conditions started on the day of the accident until the time the cargo fell into the sea.

The Supreme Court further found that the plaintiff raised serious objections, observing that four containers, not just its container, had fallen overboard, which demonstrated negligence on the part of the master. However, the Court found that this objection was rejected by the Court of first instance on the ground that the expert report received at the hearing dated 4 October 2019 investigated the claims and defences of the parties, the report complied with the provisions of the legislation, and was suitable and clear for inspection.

The Supreme Court held that in order to resolve these serious objections to the report by obtaining an additional report or, if necessary, a report from a new expert committee and to make a decision according to the result to be formed, it was necessary to accept the plaintiff's appeal and to reverse the judgment of the first instance Court in favour of the plaintiff.

One of the Judges provided a dissenting opinion as follows: It is not necessary to obtain a new report from a new expert committee or an additional report from the previous expert committee. All the evidence was collected by the first instance Court and the report of the expert committee submitted to the file clarified the material facts.