This was an appeal from a judgment of the Regional Court of Appeal (2023/476-2023/310).

The plaintiff, a German insurance company, 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 plaintiff stated that the steel pipes were loaded onto the vessel owned by the second defendant, di Navigazione SpA, at Mersin Port on 21 February 2014 by Özbal Çelik. During loading, the ship's captain identified deformations in six pipes, which were recorded in a report. The goods were delivered in damaged condition at Moerdijk Port in the Netherlands. After arrival, expert examinations were conducted, and efforts were made to utilise the damaged pipes as effectively as possible.

The plaintiff asserted that the insured's loss was compensated and the claim was assigned to the plaintiff. According to a report by Battermann & Tillery, the damage resulted from inadequate cargo securing and stowage errors. The report also held the shipper responsible and noted that the carrier had an obligation to supervise the cargo. The plaintiff argued that the defendants were jointly and severally liable for the damages and sought annulment of the defendants' objection to enforcement proceedings.

The plaintiff demanded the recovery of EUR 94,215.50 as the principal debt and EUR 831.16 in accrued interest (as of 22 January 2015), amounting to a total of EUR 95,046.66 with additional interest at the highest rate applied by public banks on euros from the enforcement date. Additionally, the plaintiff sought enforcement denial compensation amounting to at least 20% of the claim.

The first defendant argued that the steel pipes in question were loaded onto the vessel without any defects or damage. The defendant stated that if any damage occurred, it must have arisen after the cargo was loaded in good condition. The defendant referred to two bills of lading indicating that the goods were delivered in sound condition. The defendant further argued that the cargo ceased to be under Özbal Çelik's control once it was loaded onto the vessel and came under the carrier's control, making the carrier responsible for any subsequent damage due to failure to exercise due diligence. Accordingly, Özbal Çelik requested dismissal of the case.

The second defendant contended that the dispute should be resolved through arbitration in England, as stipulated in the agreement, and requested dismissal of the case for lack of jurisdiction. The defendant pointed to the ‘FIOS' (Free In/Out Stowed) notation, which specified that loading, stowage, and unloading operations were the responsibility of the seller and buyer. The defendant argued that the operations were not the carrier's responsibility and that the master of the vessel Hartura, owned by the defendant, was only obligated to oversee these operations. The defendant asserted that the master fulfilled this duty appropriately and that any damage arising from improper loading could not be attributed to the master or the vessel owner. On this basis, di Navigazione SpA requested the dismissal of the case.

The Regional Court of Appeal ruled that the carrier is obligated to deliver the goods entrusted to it in an undamaged condition to the consignee. Even if the carrier does not perform the loading and stowage, the carrier is responsible for supervising these processes. The survey report dated 13 March 2014, prepared after the delivery of the cargo to the consignee, identified various damages to 63 pipes. Expert reports, including one dated 12 December 2014 by the plaintiff's surveyor, and reports obtained during the first-instance proceedings, determined that the damage occurred due to improper loading and stowage. Some damages occurred during the initial loading and stowage, others during the voyage due to inadequate stowage, and some during unloading due to faulty stowage.

Based on these findings, which were accepted as consistent with the facts and the case file, the Court concluded that the damage occurred while the cargo was under the carrier's custody during transportation, as per art 1178 of the Turkish Commercial Code (TCC), based on art 3.2 of the Hague and Hague-Visby Rules. Consequently, the carrier was held liable for the damage to the consignee. Furthermore, since the ship's captain did not note any damage on the bill of lading, any records or documents prepared regarding loading and stowage errors could not be asserted against the consignee as a bona fide third party. The carrier's objections to being partially or fully exempt from liability were therefore rejected.

The decision against the first defendant was upheld by the Supreme Court of Appeal (CMI2582), and no further ruling was required concerning this defendant.

The second defendant appealed this decision.

Held: Appeal dismissed.

The Supreme Court of Appeal dismissed the appeal by the second defendant, finding no error in the Regional Court of Appeal's judgment.