This was an appeal from the judgment of the 17th Commercial Court of First Instance (24 March 2011, 2008/15-2011/97).
The plaintiff sought compensation for damage sustained by two AN/MPN 14 K Rapcan radar systems during their transport from Portland, USA, to Türkiye. The radars, insured against transport risks, were shipped under the defendants' joint and several liabilities on the Aron under two separate bills of lading. The systems were allocated to Çiğli Military Airfield and Kayseri/Erkilet Airfield, with damages claimed at USD 115,144 and USD 613,720, respectively.
The first defendant argued that the plaintiff needed to prove payment to the insurer before the statute of limitations expired on 21 February 2002. The compensation amount paid by the insurance company was determined based on the external appearance of the container at unloading, but it was unclear whether the cargo inside had actually been damaged. Therefore, the compensation paid was considered an 'ex-gratia' payment, not necessarily required by any legal obligation. Furthermore, the first defendant claimed that any damages alleged to have been caused by poor weather conditions were not the responsibility of their client under art 1063/1-1 of the Turkish Commercial Code (TCC No 6762) [based on art 4.2.c of the Hague Rules], which exempts liability for damages caused by such conditions. Even if the plaintiff's right to compensation was acknowledged, the claim should be directed not at their client but at the other defendant who, as the carrier, was responsible under the contract for carrying out all operations related to the cargo. This responsibility was specified in cl 8 of the charterparty agreement, which stipulated that the carrier would handle all cargo-related operations. Additionally, according to cl 56 of the charterparty, claims for damages to the cargo would be resolved according to the 1984 Interclub Agreement. The Agreement's art 2 states that if damage results from improper stowage or handling of the cargo, the carrier must bear the full cost of such damage. Based on these arguments, the first defendant requested dismissal of the lawsuit.
The second defendant, Alko Dış Ticaret ve Denizcilik AŞ, contended that even if the alleged damage and loss were conceded, the liability for such damage would not fall on their client but on the 'performing carrier' who physically executed the transport. Under art 1061 of the TCC, a carrier exercising due diligence and care should not be held accountable unless the fault is their own. Furthermore, the second defendant argued that any faults that occurred were related to the conduct of the ship's crew in the technical navigation and management of the ship under art 1062/2 of the TCC [which is based on art 4.2.a of the Hague Rules]. Therefore, unless the carrier itself was at fault, it could not be held liable. Additionally, according to art 1063.1 of the TCC [art 4.2.c of the Hague Rules], its client could not be held responsible. The second defendant also pointed out that the requirements for inspection and notification set forth in arts 1065 and 1066 of the TCC [based on art 3.3 and 3.6 of the Hague Rules] were not properly and timeously fulfilled, thus any responsibility should be limited. Given these reasons, the claim was considered excessive and dismissal of the lawsuit was requested.
The Court of first instance ruled that the cargo insured and transported from the US to Türkiye on the Aron was not loaded according to proper procedure. It was found that the damaged goods, along with other cargoes on board, were not suitably positioned for transport. The Court noted that the lashing done with wire ropes, which could potentially damage the cargo and thus come loose, was not adequately considered, and no measure related to this was documented in the file. The bill of lading specified the type, weight, and characteristics of the cargo, and export reference information was also recorded in the bill of lading. The credit and invoice details were communicated to the carrier. Furthermore, under the contract between the seller and the insurer, it was mandatory to inform the carrier's agent or office about the type, weight, and volume of the material to be shipped one month in advance. Consequently, it was held that the carrier was aware of the cargo's value. Therefore, the defendants were held fully liable for the actual damages, and the court decided in favour of the plaintiff, ordering the defendants to jointly pay USD 728,864 plus interest accruing from the date of the lawsuit.
The decision was appealed by the defendants.
Held: Appeal dismissed. The judgment of the Court of first instance is upheld in favour of the plaintiff.
Regarding the first defendant's appeal, the Supreme Court found no inaccuracies in the lower Court's assessment of evidence or application of law. The second defendant's appeal was dismissed on procedural grounds due to the late submission. Consequently, the Court affirmed the original decision, upheld the award of damages to the plaintiff, and allocated the costs of the legal proceedings and attorney's fees accordingly.