This was an appeal from a judgment of the Regional Court of Appeal (2019/182-2020/574, 13 July 2020) and the Commercial Court of First Instance (2015/682-2018/594, 12 October 2018).

The plaintiff, a German insurance company, stated that it had insured Stahlrohr GmbH, which purchased steel pipes from the first defendant, Özbal Çelik Boru Sanayi Ticaret Taahhüt AŞ (Özbal Çelik), and fully paid for them. The pipes were loaded onto the vessel Hartura, owned by the second defendant, di Navigazione SpA, at Mersin Port on 21 February 2014. During loading, the ship's captain identified deformations in six pipes, and the cargo was later delivered in damaged condition at Moerdijk Port in the Netherlands.

The plaintiff compensated the insured for the loss, and acquired an assignment of rights to recover damages. An expert report attributed the damage to inadequate securing and stowage, holding both the shipper and carrier responsible. The plaintiff argued that the defendants were jointly and severally liable and sought annulment of their objections to enforcement proceedings, demanding EUR 94,215.50 in principal debt, EUR 831.16 in accrued interest, additional interest, and enforcement denial compensation.

The first defendant argued that the steel pipes were loaded onto the vessel in good condition and without defects. The defendant claimed that if any damage occurred, it must have arisen during the voyage after the goods had left its control. The first defendant referred to two bills of lading stating the goods were delivered in sound condition, and argued that responsibility shifted to the carrier once the goods were loaded onto the vessel. Accordingly, the first defendant requested dismissal of the case, asserting that any failure to exercise due diligence rested with the carrier.

The second defendant contended that the dispute should be resolved through arbitration in England, requesting dismissal of the case on jurisdictional grounds. The defendant highlighted the ‘FIOS' (Free In/Out Stowed) notation, which stipulated that loading, unloading, and stowage operations were the responsibility of the seller and buyer. The defendant asserted that the vessel's master, overseeing the Hartura, was only obligated to supervise these operations and had fulfilled this duty appropriately. The second defendant maintained that neither the master nor the vessel owner could be held liable for damages arising from improper loading and requested the case's dismissal.

The Court of First Instance dismissed the arbitration objection raised by the second defendant. The Court determined that the damage to the pipes occurred during loading and the voyage, making the carrier liable. Additionally, the Court found the first defendant liable for failing to deliver the goods in an undamaged condition, constituting a breach of contract. Consequently, the objection to enforcement proceedings was partially annulled, allowing enforcement to continue. However, claims for additional amounts were dismissed due to lack of evidence, and the plaintiff's claim for enforcement denial compensation was also rejected, as the conditions for such compensation were not met.

Both defendants appealed the decision.

The Regional Court of Appeal found that the arbitration clause raised by the second defendant should have been upheld. The Court ruled that the Commercial Court of First Instance's decision should have dismissed the case against the second defendant due to lack of jurisdiction. The Court confirmed that the cargo was delivered in a damaged condition and held the shipper responsible, but it noted that the lower Court did not establish joint and several liability between the shipper and carrier.

The Court dismissed the appeal by the first defendant. However, the Court accepted the appeal by the second defendant and annulled the lower Court's decision to that extent.

This decision was subsequently appealed by both the plaintiff and the first defendant.

Held: Appeal partially accepted

Regarding the arbitration objection by the second defendant, the Supreme Court of Appeal found that the arbitration clause referenced in the charterparty could not bind the plaintiff. The Court held that for such a clause to be enforceable against the consignee or its insurer, the clause must either be explicitly included in the bill of lading or the referenced charterparty must be presented to the holder. Since the second defendant failed to provide evidence that the charterparty was shared with the consignee or the plaintiff, the arbitration objection was dismissed, and the Regional Court of Appeal's ruling on this point was overturned.

For the appeal by the first defendant, the Court found no procedural or substantive errors in the Regional Court of Appeal's decision.

The Supreme Court ordered the case file to be returned to the Regional Court of Appeal.