This was an appeal from the judgment of the Istanbul Regional Court of Appeal, 12th Chamber (2018/2595-2021/1973) and the Istanbul 17th Commercial Court of First Instance (2017/377-2018/296).

The plaintiff contended that it acted as an agent for ZIM Integrated Shipping Services Ltd, which transported the defendant’s goods in a 40-foot flat container from the US by sea to the Istanbul Ambarlı Port, Türkiye. The container was discharged from the ship on 23 January 2015, and a notice of arrival was sent to the defendant prior to the container reaching port. Despite the defendant receiving the delivery order from the plaintiff on 29 January 2015, they did not physically take possession of the goods and continued to use the container. The necessary customs procedures related to the import of the goods did not occur and the contents of the container were seized on 10 October 2016. The plaintiff alleged that the defendant wrongfully used the container from 30 January 2015 to 10 October 2016. Consequently, the plaintiff’s company sent a demurrage invoice to the defendant dated 15 November 2016 for USD 54,516, which was received and not contested by the defendant, thus becoming final. However, the defendant failed to make payment and objected to the enforcement proceedings initiated by the plaintiff. The plaintiff sought the cancellation of this objection, the continuation of the enforcement, and a ruling for compensation for the denial of enforcement against the defendant.

The defendant, Ulusoy AS, argued for the dismissal of the case based on the statute of limitations. It stated that it merely acted as a freight forwarder, not as the primary recipient of the cargo subject to freight charges. A freight forwarding agreement was established between Ulusoy AS and the actual recipient of the cargo. Therefore, Ulusoy AS contended that it lacked standing in the lawsuit and requested that the Court dismiss the case accordingly.

The Court of First Instance determined that the defence of the statute of limitations was not applicable. The defendant acquired the right to take delivery of the goods according to the bill of lading upon which its right to receive the goods was based, and thus became liable for the demurrage charges associated with the container. The Court referred to cl 10.d of the bill of lading, titled ‘Containers to be provided by the carrier’, which stipulates that if the containers are not unloaded or returned by the consignee, it shall be responsible for all resulting losses, damages, demurrage, and costs. Since the goods arrived at the port of destination on 23 January 2015, and the unloading of the cargo occurred on 10 November 2016, the Court applied the plaintiff’s demurrage rate during this period, calculating the demurrage fee to be USD 54,516. Based on these grounds, the Court ruled in favour of the plaintiff.

The decision was appealed by the defendant to the Regional Court of Appeal.

In the appeal document, the defendant claimed that it acted as a shipper and not a consignee, with the actual recipient and buyer of the goods being X. A freight forwarding agreement was signed between Ulusoy AS and X. The defendant argued that it should not be responsible for the demurrage charges, noting that the expert report was based on an incomplete examination and that the expert panel did not investigate which elements were included in the sale price. The goods in question were sold to Serkan Koca in an e-auction by the Bakırköy Liquidation Management on 3 November 2016 for TRY 72,000, and the sale amount was collected on 9 November 2016 as per the accounting voucher. Responses from the Customs Directorate confirmed that Serkan Koca was the recipient listed on the delivery slip. The defendant highlighted that the expert panel failed to explore whether the demurrage charges were reflected in the sale price and that the Court of First Instance did not examine objections regarding this matter. Therefore, the defendant argued that the judgment was legally flawed due to the oversight of these concerns and a lack of consideration of their objections to appointing a customs expert to the expert panel for further investigation into the matter of demurrage fees. As a result, the defendant requested that the decision of the Court of First Instance be overturned.

The Regional Court of Appeal considered the defendant's request to dismiss the case based on the statute of limitations and other objections concerning consignment responsibilities. Despite the bill of lading listing the defendant as the consignee, the defendant claimed that it only acted as the shipper and identified X as the actual consignee. The Court dismissed this standing objection as unfounded. It cited scholarly articles and the English High Court decision in Mediterranean Shipping Co SA v Cottonex Anstalt [2016] 2 Lloyd’s Rep 494. This case illuminated the principles of maintaining contractual obligations when a party no longer has a reasonable interest in doing so. The English Court ruled that the ongoing container demurrage costs, having surpassed the containers’ value and with alternative containers readily available, did not justify the defendant’s continued adherence to the contract. The Court held that it was unreasonable for the carrier to insist on maintaining the contract under these circumstances.

The Regional Court of Appeal further observed that since the goods had not been delivered to the plaintiff by the time of the customs liquidation, and the container could not be returned after their sale at customs, the claim for container demurrage beyond the practical replacement or sale of the container was unjustified. It ruled that demurrage charges could only be claimed up to the date when it was clear that the container could not be returned, and not indefinitely.

The Court amended the calculation of the demurrage charges up to 24 March 2015, allowing a claim for 7 days of demurrage at USD 60 per day, totalling USD 420, and for 48 days thereafter at USD 84 per day, totalling USD 4,032, amounting to a total claim of USD 4,452. Based on these findings, the defendant's appeal was accepted, the decision of the Court of First Instance was overturned, and the objections were partially cancelled.

The decision was appealed by the plaintiff and the defendant to the Supreme Court of Appeal.

Held: Appeal upheld in favour of the plaintiff.

The plaintiff argued that the Regional Court of Appeal’s decision, which allowed demurrage claims only up to 24 March 2015, was erroneous. It contended that the Court’s rationale that allowing claims beyond this date would enable unjust enrichment under the guise of indefinite demurrage for easily replaceable goods, contradicts the legal essence of demurrage. It also argued that describing a container as 'easily replaceable' does not align with current commercial conditions, and that the liquidation of the goods under customs regulations should not halt demurrage charges.

The plaintiff cited various precedents from the Supreme Court of Appeal, 11th Civil Chamber, that support the continuation of demurrage charges under similar circumstances, regardless of the goods being seized. The plaintiff noted that the seizure of the goods inside the container does not preclude the possibility of unloading the goods into customs or liquidation warehouses. Ownership rights over the goods still remained with the importer/receiver, who could demand their unloading and storage in customs-controlled warehouses at any stage. The plaintiff criticised the Regional Court of Appeal for making a decision without obtaining an expert report, instead relying on foreign court rulings and some scholarly work, which deviated from established practices. It highlighted that the English High Court decision cited by the Regional Court should not serve as a precedent for this specific case, noting that in that case, the carrier had offered to purchase the containers, but an offer was not present in this case. Based on these arguments and other considerations that should have been taken into account, the plaintiff requested the reversal of the decision.

The defendant reiterated its previous claims.

The Supreme Court noted that art 355 of the Code of Civil Procedure (CCP, No 6100) specifies that the Regional Court’s review should be limited to the reasons stated in the appeal document. However, if the Regional Court identifies any issues concerning public order, it is entitled to examine these issues on its own initiative. The legislator's reasoning for this provision emphasises that the appeal system chosen does not entail a complete retrial of the first instance. Instead, the scope of the appellate review is limited to examining the reasons for the appeal, though the appellate court may conduct a review on public order matters independently of the request. In this specific dispute, the Court of First Instance decided to accept the case based on an expert report, recognising that resolving the dispute required specialised and technical knowledge. That decision was appealed by the defendant to the Regional Court, which, however, referenced some academic articles and a decision by an English Court to form its written rationale for accepting the defendant’s appeal and overturning the decision of the Court of First Instance.

The Supreme Court found the appellate decision to be procedurally flawed. As a result, the appellate decision was overturned in favour of the plaintiff, rejecting the defendant’s appeal objections. This action restored the original decision of the Court of First Instance.