This was a claim made by LLC KomplektSib (the claimant) against LLC Silmar Agency (the defendant) for damages arising from the loss of cargo consisting of chocolate and polymers loaded into several containers. The cargo was carried on the ship Amnah, owned by Sidra Denizcilik ve Ticaret (the actual carrier). During loading operations, the ship tilted and partially sank. As a result, part of the cargo was wet and lost. The claimant claimed damages for the full value of the cargo from the defendant, a freight forwarder that undertook to act as a carrier under the relevant agreement. The claimant's insurer made a claim against the actual carrier in Turkey.

Among other arguments, the defendant claimed it did not accept the cargo into its custody because a bill of lading was not issued. The defendant also stated that the claimant indicated the value of the cargo in the booking applications, so the value was disclosed and the defendant’s liability could not exceed that amount. The defendant argued that the onus was on the claimant to show that the cargo was lost in full, and that the claimant failed to prove that. As a contractual carrier, the defendant could be liable only to the extent of the actual carrier's liability to the defendant. Accordingly, the claimant should have established the amount of the actual carrier’s liability under Turkish law.

The Court of first instance and the Court of Appeal found in favour of the claimant in full. The Courts ruled that the defendant had accepted the cargo, as the damage occurred during the loading operations carried out by the carrier. The indication of the value in the booking applications cannot be considered a proper indication under art 170 of the Merchant Shipping Code of Russia (the MSC RF). The carrier bears the burden to prove that the cargo was damaged not due to the carrier’s fault (art 166(1) of the MSC RF). The defendant refused to carry out the court examination at its own expense. Therefore, it failed to prove that the cargo damage was not due to the carrier’s fault. The defendant had a separate obligation to the claimant to conduct the carriage, and was therefore liable to the claimant separately from the actual carrier under Turkish law. The defendant appealed in cassation.

Held: The cassation appeal is upheld. The case is sent to the Court of first instance for reconsideration.

The Court of Cassation found that the bill of lading is not the only evidence that the cargo was accepted by the carrier. As the damage occurred during the procedure to be carried out by the carrier, the cargo is considered to be in the carrier's custody. The carrier is liable for damage that occurred while the cargo was in its custody. The defendant's argument is rejected.

To consider the value of the cargo indicated for the purpose of limitation of the carrier’s liability, this value should be indicated in the bill of lading (art 170(1) of the MSC RF). As the bill of lading was not issued at the time when the cargo was damaged, its value cannot be considered properly indicated. The booking applications are not proper evidence. The defendant's argument is rejected.

The carrier bears the burden of proving that the damage was not caused by its fault (art 166(1) of the MSC RF). However, the claimant must prove that the damage actually occurred and the amount of the damage. The court’s order that the examination be conducted at the sole expense of the defendant was unjustified. The defendant's argument is accepted.

As the defendant was not the actual carrier, it was liable to the claimant as if it had been an actual carrier (art 173 of the MSC RF). This means that the limitation of liability applicable to the actual carrier should apply to the defendant. The Court did not draw a firm conclusion on the relationship between the liability of an actual carrier and that of a contractual carrier, but indicated that this issue should be considered by the Court of first instance on rehearing the case.

After evaluating the appeal's arguments, the Court of Cassation upheld the appeal and sent the case for reconsideration.