This was an appeal from a judgment of the Adana 9th Regional Court of Appeal (2020/751-2022/1229) and a judgment of the Mersin 1st Commercial Court of First Instance (2018/92-2020/119).

The plaintiff insurer claimed that red lentils, packaged in 25 kg bags and loaded into 104 closed 20-foot containers, were insured under a cargo insurance policy. The goods were sold on a 'Cost and Freight' (CFR) basis by a third-party company, Dervişoğlu Tarım Ürünleri (Dervişoğlu), to International Transit SAL, based in Egypt, to meet the needs of the Egyptian Ministry of Defence.

The plaintiff stated that the insured goods were loaded into containers at the insured's premises under the supervision of SGS Supervise Gözetme Etüd Kontrol Serv AŞ from 19 December 2016. The containers were transported to the port area on 26-28 December 2016, where the containers were stacked and stored. Subsequently, the containers were exposed to rainwater on 29 December 2016 before being loaded onto a container ship on 2 January 2017 and transported to Alexandria Port.

Upon arrival, the containers were unloaded and placed in the port area. During inspections conducted by the Alexandria Port Authority, it was observed that yellow liquid was leaking from some containers, and foul odours were emanating from them. The buyer notified the seller that the Egyptian government categorically refused to accept the damaged cargo, and the containers would need to be returned to their origin. Following this notification, an expert report was prepared. Based on the findings, the buyer's insurer compensated the buyer for the damage sustained to the cargo in 27 containers.

The plaintiff asserted that the plaintiff reimbursed the insured TRY 342,105.47 on 3 October 2017 for the damage, including costs incurred for customs, storage, transportation, supervision, and inspection related to the return of the 27 containers and their contents to Türkiye. The plaintiff also acquired a deed of assignment from the insured, and was subrogated into the insured’s rights.

The plaintiff contended that the damage resulted from the unseaworthiness of the containers provided by the first defendant, Turkon Konteyner Taşımacılık ve Denizcilik AŞ (Turkon), in its capacity as the carrier, and the lack of protective measures at the port storage area, including inadequate drainage, which was the responsibility of the second defendant, Mersin Uluslararası Liman İşletmeciliği AŞ (MIP), in its capacity as the terminal operator. The plaintiff claimed that the defendants were jointly and severally liable for the losses and claimed TRY 342,105.47, together with interest.

The first defendant, Turkon, raised a time-bar objection, asserting that the cargo reached the discharge port and was delivered on 3 January 2017, while the lawsuit was only filed on 12 February 2018. It denied any liability. The first defendant maintained that liability transferred when the containers passed over the ship's rail and that any responsibility prior to this point rested solely with the shipper or the second defendant. Even if the containers were deemed unsuitable for loading, the first defendant argued that it was the seller’s obligation to immediately notify it so that the issue could be remedied. However, no notification was made.

The first defendant further stated that it fulfilled its obligations as the carrier by delivering the goods in the condition in which they were received. The first defendant clarified that the containers were not rented to the third-party exporter, Dervişoğlu, but were supplied to the shipper for its goods, without a rental agreement or any rental payment. Since the loading was carried out by the shipper, the shipper was responsible for identifying and notifying any alleged deficiencies in the containers to the first defendant. Furthermore, the first defendant noted that the shipper continued loading the cargo into the containers and onto the ship despite exposure to flooding. The first defendant argued that the damage was caused by a force majeure event and that no loss occurred during transportation. Additionally, the first defendant contended that the plaintiff’s insurance policy, being a transportation policy, had not yet come into effect, and the payment allegedly made was contrary to the terms of the policy. Accordingly, the first defendant requested the dismissal of the case.

The second defendant, MIP, argued that the plaintiff acknowledged the goods were transported in unsuitable containers and based the claim on this fact. The second defendant stated that it received the containers as sealed units and stored the containers in the container stacking area without opening them or handling their contents. The second defendant noted that flooding occurred in Mersin on 29 December 2016 and argued that the insurance policy covered potential future damages occurring after its issuance, not damages that had already occurred. The second defendant further contended that the exact location and cause of the damage were not properly determined and that the expert report was based on assumptions. The second defendant rejected the findings of inspections conducted without its representatives or personnel being present and highlighted that a damage assessment involving the opening of the containers was conducted only four months later. The second defendant raised a time-bar objection and argued that the damage resulted from an unforeseeable and unavoidable natural disaster beyond its control or operational scope, for which it could not be held liable. Consequently, the second defendant requested the dismissal of the case.

The Commercial Court of First Instance found that the damage occurred while the goods were in storage at the warehouse due to excessive rainfall leading to flooding in Mersin. The Court ruled that the flooding constituted a force majeure event. It concluded that the second defendant had proven the existence of a force majeure event that rendered the performance of the contract impossible. Therefore, the second defendant was absolved from liability. Additionally, the Court determined that the damage did not occur during carriage by the first defendant and found no fault attributable to this party. On these grounds, the Court dismissed the case.

The plaintiff appealed the decision to the Regional Court of Appeal.

The Regional Court of Appeal ruled that the disaster caused by adverse weather conditions in Mersin and its districts was correctly classified as a force majeure event. The Court agreed that the damage resulting from the flooding caused by the rainfall should be evaluated as stemming from force majeure and that the second defendant could not be held liable for the damage.

Regarding the first defendant, the Court noted that Turkon, as the carrier, was not responsible for the damage that occurred on 29 December 2016 while the containers were waiting at the port. The Court determined that the damage fell outside the carrier's scope of liability. Moreover, the Court rejected the plaintiff's claims that the first defendant was liable as the entity renting the containers, concluding that these claims were unfounded.

Held: Appeal partially accepted

The Supreme Court of Appeal ruled that the flooding in Mersin constituted a force majeure event, and upheld the Regional Court of Appeal’s decision to exempt MIP from liability. However, regarding Turkon, the Court found that the lower Courts failed to adequately evaluate the condition of the containers. Evidence indicated significant wear and damage to some container seals, potentially rendering them unsuitable for transport in extreme weather conditions. The Court concluded that an expert assessment was necessary to determine whether the damage was attributable to the unfitness of the containers and Turkon's liability.

The Court thus annulled the Regional Court of Appeal’s decision concerning Turkon and remanded the case to the Court of First Instance for further examination.