This was an appeal from a judgment of the Istanbul Commercial Court of First Instance (16 April 2019, 2018/18-2019/353), the Commercial Court's decision (2022/48-2022/583), the Supreme Court of Appeal’s decision (22 January 2020, 2019/2891-2020/645), and the Supreme Court’s subsequent revision decision (1 December 2021, 2020/6516-2021/6722).

The plaintiff, as insurer, issued a marine cargo insurance policy for glass commodities owned by Ardıç Cam San Tic Ltd Şti. The goods, which were containerised and delivered to the defendant carrier, Blue Anchor Line, on 10 September 2011, were to be transported from Lianyungang, China to Haydarpaşa, Istanbul. During handling at Qingdao, the container overturned under the carrier's control, resulting in a total loss. The plaintiff compensated the insured with TRY 37,806 on 4 November 2011 and sought recovery of this amount with interest from the defendant.

The defendant argued that under art 1237 of the Turkish Commercial Code (TCC No 6102), the terms of the bill of lading should govern the relationship between the consignee and the carrier. The bill of lading specified a 9-month period for filing a claim from the scheduled delivery date, and since the claim was not filed within this period, the defendant argued that all liabilities were extinguished, and the case should be dismissed due to the statute of limitations. The defendant further noted that the insurance policy was issued on 4 November 2011, but the alleged loss occurred on 14 September 2011. Additionally, the policy listed the transport vessel as Maersk Semerang, while the bill of lading mentioned a different vessel, York, suggesting that the insurance contract might have been made after the transport was completed. Moreover, the defendant clarified that it was only an agent of the company organising the transport, and the actual transportation was carried out by Maersk Denizcilik AŞ. The defendant emphasised that the plaintiff had not provided any evidence, including an expert report, to substantiate its claims. The goods were loaded and sealed into the container by the shipper, and the accident occurred due to improper loading. The transport was conducted under a Free on Board (FOB) contract, and according to art 4.2.q of the Hague Rules and the Hague-Visby Rules, the carrier was not responsible for the acts or omissions of the shipper, the cargo owner, or their agents. Therefore, the defendant sought the dismissal of the case.

The Commercial Court of First Instance ruled that it was the plaintiff's responsibility to prove the extent of the damage. The Court had granted the plaintiff two weeks to pay the necessary expert fee of TRY 1,400 for an expert report to determine the damage. However, the plaintiff failed to make the payment within the specified time, leading to a postponement of the hearing. As a result, the Court found that the plaintiff was unable to prove the damages and dismissed the case.

The plaintiff appealed the decision.

The Supreme Court of Appeal held that when the plaintiff failed to make the said payment within the given time, the expert evidence was considered waived under art 324 of the Civil Procedure Code (HMK 1086), leading to the dismissal of the case for failure to prove damages. However, the Court noted that when granting time to the parties for such actions, like remedying deficiencies or submitting documents, it must clearly specify the obligations, the exact amounts of advance payments and expenses, and whether the period is definitive. The Court should also indicate the consequences of non-compliance clearly, as required by art 266 of the HMK. In this case, the Court of First Instance failed to properly notify the plaintiff of the consequences of not paying the expert fee. Additionally, the Court's decision to consult a maritime expert on issues that could have been resolved using judicial expertise was deemed unnecessary. For these reasons, the Supreme Court of Appeal overturned the decision in favour of the plaintiff.

After the Supreme Court’s revision, the case was remitted back to the Court of First Instance. The Court observed that the two containers of glass were loaded at Lianyungang, and the containers were handled and customs procedures were completed at Qingdao before transfer to the main vessel. The goods were sold on FOB terms, meaning that, according to Incoterms (International Commercial Terms) 2010, the seller’s obligation was fulfilled once the goods were delivered to the main vessel, with all costs and risks up to that point being the seller's responsibility. The containers were delivered to the consignee without the seals being broken, but there was no clarity regarding whether spacers were used between the glass, whether securing points were properly arranged, or whether the goods were loaded securely and without defects. Photographs in the case file revealed that the damage occurred when the container fell while being transferred to the main vessel, during which the container overturned. The bill of lading did not include a 'Clean on Board' notation, indicating that the goods were loaded into the container in good condition. Thus, it was unclear how the damage occurred. Since the goods were sold under FOB terms, the responsibility and risk remained with the seller until the goods were delivered to the vessel. The Court found that the plaintiff had not proven that the damage was caused by the defendant or that the damage occurred on the vessel. For these reasons, the Court dismissed the case.

The decision was appealed by the plaintiff.

Held: Appeal accepted.

The Supreme Court of Appeal held that given that conflicting expert reports existed, the Court of First Instance should have sought a new report from a panel of three experts specialising in maritime transport, considering whether the carrier had any contributory negligence. Instead, it made an incorrect judgment based on flawed reasoning, which warranted overturning the decision in favour of the plaintiff.