This was an appeal from a judgment of the Regional Court of Appeal and a judgment of the Izmir 5th Commercial Court (7 November 2018, 2022/6655-2023/7745).

The plaintiff claimed that the goods owned by the defendant, shipped from the port of Izmir, Türkiye, to Benghazi, Libya, were not collected by the buyer, Almeammar Alarabi Real Estate Investment. The claim involved the carriage of 156 containers under three different bills of lading, with respective demurrage charges amounting to USD 21,090, USD 24,790, and USD 11,840, totalling USD 57,720. Additionally, if the containers were not returned, a fee of USD 3,500 per container would be applicable, culminating in a total claim of USD 603,720 for 156 containers. The plaintiff argued that due to the buyer's failure to take delivery of the goods, the defendant, as the shipper, was responsible for these costs and sought the recovery of USD 603,720 plus interest from the defendant.

The defendant countered that it acted merely as a representative for Be Trading Co, facilitating the loading of the goods at the port and paying for the goods and freight charges. It argued that due to the ongoing civil war in Libya, the delivery of the three shipments was not possible. It argued that this circumstance qualifed as force majeure and the carrier should be relieved from liability under art 1069.2 of the Turkish Commercial Code (TCC No 6762) [based on art 4.2.d of the Hague Rules]. Furthermore, Arkas Konteyner Taşımacılık AŞ and Arkas Denizcilik ve Taşımacılık AŞ were listed as the carriers on the bills of lading. It contended that under CIF sales terms, the seller’s responsibility ended once the goods were loaded onto the ship. The case should be dismissed, particularly considering that the plaintiff could not initiate this lawsuit without first exercising its right to a lien, and that force majeure applied due to uncontrollable circumstances in Libya, which prevented delivery of the goods, and did not constitute default on the defendant's part.

The Court of First Instance established that the plaintiff was listed as the carrier on the bills of lading, and the freight invoices were issued in the defendant’s name and paid by the defendant. For these reasons, objections regarding active and passive standing were dismissed. Regarding the fate of the containers, responses from the Benghazi Port Authority indicated that as of 1 February, 2016, they were still at the port of Benghazi. The period for demurrage charges commenced with the discharge of the containers from the ship and continued until the containers were unloaded. The party entitled to demand this fee is the carrier. According to art 1069 of the TCC, provisions regarding liability for costs and expenses can only apply if expressly stated in the bill of lading and the freight contract to which it refers, and if the goods were received by the consignee. It was stated that the demurrage fees are specified per day, and after 71 days, container charges should also be added as per the carriage contract. If the consignee did not take delivery of the containers, the shipper continued to owe the fees.

Internal conflict in Libya commenced on 15 February 2011. Therefore, the shipper could be held liable for demurrage charges up to that date. As a consequence, the lawsuit was partially accepted, and it was ordered that a total of USD 596,642.00, calculated from the date of the lawsuit, must be paid to the plaintiff by the defendant, converted into TRY at the exchange rate on the actual payment date.

The defendant appealed to the Regional Court of Justice.

The defendant reiterated the objections concerning standing, stating that the defendant acted as an actual shipper not as a contracting shipper. The defendant argued that the costs for container demurrage and container charges should be borne by the consignee, claiming that the right to demand container charges had not arisen. It was also argued that since the containers were not collected by the consignee, it was improper to discuss the defendant’s liability. Further, the plaintiff had not exercised their right of lien, the excessive hardship pleas for the discount were not considered, and the case should have been dismissed.

The Regional Court of Justice dismissed the appeal on substantive grounds. The Court upheld the decision of the Court of First Instance, concluding that after discussing the evidence on which the initial decision was based and reassessing the material facts and legal evaluations, there was no procedural or legal error in the findings. The Court found that the defendant was indeed responsible for the demurrage and container charges as the freight costs were paid by the defendant, and the containers were left uncollected at the port by the buyer.

The defendant appealed the decision to the Supreme Court of Appeal.

Held: Appeal dismissed.

The Supreme Court of Appeal found that the grounds cited in the defendant’s appeal were not sufficient to overturn the lower Court's decision. Consequently, the decision of the Regional Court of Justice was affirmed.