This was an appeal from the judgment of the Istanbul 52nd Commercial Court (14 March 2013, 2012/337-2013/58).

The plaintiff insurer paid its insured under its insurance policy and sought to collect TRY 10,325 plus interest from the defendant, arguing that the defendant was liable as the carrier for damage to its cargo during transportation from the port of Valencia. In particular, the cargo was discharged on 20 February 2010, and it was determined in the expert report during the discharge that the cargo was damaged.

The defendant stated that the lawsuit was filed against the agent of the carrier based on the liability of the carrier. In fact, the transportation was carried out under a contract of carriage concluded by the parties, and the contract was signed by the agent company under its trade name acting in the capacity of an agent of the carrier. The defendant further stated that it had not intervened in the relevant transportation, and that it was not the owner or the operator of the ship which carried the cargo. The defendant argued that the plaintiff directly addressed its lawsuit against the agent of the carrier, and stated that the lawsuit cannot be addressed to the defendant due to lack of standing according to art 105 of the Turkish Commercial Code (the TCC), regulating the capacity of agents. The defendant therefore applied for the dismissal of the lawsuit.

The Court of first instance observed that the defendant company is the general agent of the carrier of the insured cargo, and therefore no lawsuit can be directly brought against the agent under art 105 of the TCC. The Court further observed that a lawsuit can be brought against the agent as the representative/on behalf of the principal, only with regard to the operations which such agent mediated. The Court found that the relevant bill of lading was signed by the carrier; that the defendant mediated this agreement; and that the defendant also mediated other agreements made between the parties and referred to in the bill of lading, as under the bill of lading the defendant was not the carrier.

The Court of first instance further found that even though a lawsuit may be based on the provisions of the bill of lading, and may be directed to the shipowner if the carrier is not specified in the bill of lading, in which case the shipowner will be accepted as the carrier under art 1238.2 of the TCC [which is based on art 1.1 of the Hamburg Rules - although Türkiye is not a State Party to the Hamburg Rules, the TCC incorporates a set of rules which purports to adopt elements of the Hamburg Rules], in this case, since a party other than the shipowner was named as the defendant, the lawsuit should be dismissed due to a lack of standing.

The plaintiff appealed to the Supreme Court of Appeal.

Held: Appeal dismissed.