This was an appeal from the judgment of the 5th Commercial Court of first instance (10 December 2015, 2014/1207-2015/1039).

The plaintiff claimed that it received an order from a customer and provided 27 crates of marble to the defendant for transport on 22 May 2014. The defendant issued an invoice to the plaintiff on 23 May 2014 for USD 386, and payment was made in return. The plaintiff further claimed that the defendant delivered the goods to the consignee without presenting and delivering the original bill of lading; as a result, the consignee did not pay the invoice amount to the plaintiff. The plaintiff argued that the original copies of the bill of lading were still in possession of the plaintiff, and the invoice amount could not be collected due to the defendant's total fault. The plaintiff demanded USD 10,802.38 plus interest.

The defendant argued that it did not enter into a carriage contract with the plaintiff, and the delivery method of the goods was on FOB terms. The defendant claimed that it acted as an intermediary and did not receive freight from the plaintiff; therefore, the lawsuit should be dismissed. The defendant also argued that it did not act as the actual carrier of the relevant shipment, that its role was limited to loading the goods on the ship, and that it was not a freight forwarder under art 917 of the Turkish Commercial Code (the TCC). The defendant further claimed that there was no contract between the defendant and the plaintiff, and that the plaintiff did not give written instructions regarding non-delivery of the goods to the defendant.

The Court of first instance found that the carrier did not fulfil the duty of care and attention that a prudent carrier should demonstrate; that the delivery of the goods was not made to the consignee under art 1178 of the TCC [which is based on art 3.2 of the Hague Rules, art 3.2 of the Hague-Visby Rules, and art 4.2 of the Hamburg Rules - although Türkiye is only a State Party to the Hague Rules, the TCC incorporates a set of rules which purport to adopt elements of the Hague-Visby Rules and the Hamburg Rules]; and referred to art 1179 of the TCC [which is based on art 4.2.q of the Hague Rules]. The Court observed that the misdelivery was caused by the carrier and its employee's gross fault and recklessness, and therefore the defendant carrier was fully liable according to art 1187 of the TCC [which is based on art 4.5.e and 4 bis.4 of the Hague-Visby Rules]. The Court further found that although there was a claim that the nature of the invoice dated 23 May 2014 was not a freight charge, according to the bill of lading issued, the defendant had undertaken the transportation business and assumed the status of a carrier. As a consequence, the Court held the lawsuit was admissible.

The defendant appealed to the Supreme Court of Appeal.

Held: Appeal dismissed. The judgment of the Court of first instance is upheld in favour of the plaintiff.