This was an appeal from a judgment of the Istanbul 14th Regional Court of Appeal (19 November 2020, 2020/1647-2020/1260) and a judgment of the Istanbul 17th Commercial Court of First Instance (6 November 2019, 2018/512-2019/657).

The plaintiff, in its capacity as a freight forwarder, managed the transport of containerised cargo from İzmir to Chennai under a bill of lading. The defendant, as the consignor, was responsible for dispatching the cargo to Prime Road Solutions Pvt Ltd (Prime), the consignee on the bill of lading. Although the cargo arrived on time at the destination port, it was not collected by Prime. As a result, the plaintiff was invoiced for container demurrage/container rental charges by the performing carrier's agent. After the defendant failed to reimburse these fees, the plaintiff initiated a non-judicial debt collection through Bakırköy 12th Execution Office, which was, however, halted by the defendant’s objection. The plaintiff sought to overturn this objection and continue the debt collection process.

The defendant argued that the basis of the execution proceeding was an invoice and that according to general jurisdiction rules, the competent execution office and the court should be in Karşıyaka, where the defendant’s company was located. It stated there was no carriage contract between it and the plaintiff. It was further contended that the cargo subject to the invoice was to be delivered under ‘FCA İzmir’ terms. Due to these terms, it was impossible to make any claims against the defendant’s company. The defendant explained that under these terms, its responsibility ended once the goods were duly processed through customs and delivered to the carrier in İzmir, at which point risk was transferred to the buyer. Therefore, the defendant requested the dismissal of the case due to a lack of procedural conditions.

The Commercial Court of First Instance determined that in an FCA (Free Carrier) delivery term, the obligation to arrange transportation, namely the carriage contract, belongs to the buyer. Here, the cargo was delivered to the carrier in İzmir, and the carriage contract was established between the plaintiff carrier (freight forwarder) and the buyer based in India. Therefore, there was no carriage contract relationship between the plaintiff and the defendant. Even if it were assumed otherwise, the claim subject to the execution proceeding related to recovery of damages due to the container/demurrage fees paid by the plaintiff to the actual carrier for the containers used in the transportation, which did not constitute a monetary claim as defined under art 89.1 of the Turkish Code of Obligations (No 6098, TCO). Since the defendant was a company domiciled in İzmir, the competent execution office, according to art 6 of the TCC, was in İzmir. The execution proceedings conducted by the Bakırköy Execution Offices were outside their jurisdiction, and thus, the case was dismissed due to lack of procedural conditions.

The plaintiff appealed the decision. The Regional Court of Justice, in accordance with art 353.1.b.1 of the TCC, dismissed the appeal on substantive grounds. The plaintiff further appealed this decision to the Supreme Court of Appeal.

Held: Appeal accepted.

The Supreme Court of Appeal determined that there was a carriage relationship between the plaintiff and the defendant. It stated that the case should be reviewed, considering that the plaintiff could initiate an execution proceeding at its place of residence. The Court found that the judgment below was contrary to procedure and law. As a result, the plaintiff's appeal was upheld. The decision of the Regional Court of Justice to dismiss the appeal against the Commercial Court of First Instance’s decision on substantive grounds was annulled and reversed, and the case file was sent back to the Commercial Court of First Instance, and a copy of the decision was sent to the Regional Court of Justice.