This was an appeal from a judgment of the Istanbul 14th Regional Court of Appeal (16 March 2020, 2020/564-2020/318) and a judgment of the Istanbul 17th Commercial Court of First Instance (12 March 2019, 2017/144-2019/119).

The insurer plaintiff, Mapfre Sigorta AŞ, insured a CNC pipe-cutting machine purchased by Özka Fabrika Malzemeleri ve Takımsan Ltd Şti from SoCo Machinery Co Ltd, based in Taiwan. The transport from Kaohsiung, Taiwan, to Istanbul was undertaken by Ultima International Transport Logistics & Foreign Trade Ltd Co. The cargo was loaded into containers on the Zim Antwerp, and a clean bill of lading was issued on 11 November 2016. On arrival at Istanbul on the Buxtehude it was discovered that a container was severely damaged. A damage report and inspection revealed that the cargo had been corroded by seawater. The plaintiff compensated the insured's loss, amounting to TRY 113,511.17 by the payment of USD 29,475 on 3 March 2017. In turn, the plaintiff asserted that Ultima International Transport Logistics and Foreign Trade Ltd Co, as the carrier, was liable under arts 1138 and 1141 of the Turkish Commercial Code (No 6102, TCC) [based on art 1.b and 3.1 of the Hague Rules and the Hague-Visby Rules], stating that the carrier took charge of the container without damage as per the uncontested external condition noted on the bill of lading.

The defendant argued that it was not an actual carrier and thus could not be a party in the case. Instead, the company responsible for transporting the machinery was Catoni Maritime Ltd, and the primary carriers were Nippon Yusen Kaisha (NYK Line) and, by extension, Catoni Maritime Ltd. It alleged that the damage occurred while the container was on the ship due to adverse weather conditions, as communicated to the plaintiff via emails, and the responsibility was acknowledged by the carrier. The defendant noted that its role was merely that of an intermediary, and there was no fault attributable to it. The plaintiff's claim for recourse from the defendant was based on improper packaging and the lack of warnings or external instructions during stacking and under arts 1182 ff of the TCC [based on arts 4.2.n and 4.2.q of the Hague Rules and the Hague-Visby Rules]. The goods were allegedly stacked haphazardly on top of each other in the container. The master bill of lading indicated that the goods were ‘Shipper’s Load, Count and Seal’, implying that the goods were loaded, counted, and sealed by the shipper, making the shipper responsible for the packaging of the goods as stated in the bill of lading. Thus, the defendant requested the dismissal of the case.

The Commercial Court of First Instance, considering the relevant details, determined that the plaintiff possessed active legal standing due to the payments made under a valid insurance contract. The examination of the bill of lading in the case file identified Fax Express Ltd as the carrier, SoCo Machinery Co Ltd as the shipper, Özka Dış Tic Kollektif ve Takımsan Ltd Sti as the consignee, and Ultima Uluslararası Taş ve Dış Tic Ltd Şti as the notify party. In the document referred to by the parties as the sea waybill, Fax Express Ltd was listed as the shipper, Ultima Uluslararası Taş ve Dış Tic Ltd Şti as the notifier, and NYK Line as the carrier. The freight invoice, consistent with the bill of lading records, also charged the insured an import freight fee, establishing the defendant’s commitment to transport, thus giving it passive legal standing under art 1191 of the TCC as the contractual carrier, even though it did not physically perform the transport.

Here there was a damage report signed and sealed by the master dated 14 December 2016, which, under art 1185 of the TCC did not require a separate damage notification. While the Buxtehude could have sustained damage to the containers under sea weather conditions of 8-10 Beaufort scale, considering such conditions as ‘force majeure’ for a vessel of this type seemed feasible; however, the case file lacks weather reports, ship journal records, or any documents proving that the vessel was exposed to these conditions during its voyage. No loading plan for the ship was provided either, leaving the defendant unable to prove that the containers were securely loaded and lashed on the ship.

Furthermore, the defendant’s claim that the cargo within the container was not loaded suitably for sea transport is not upheld against the damage to other containers. Therefore, the Court held the defendant responsible for the exempted amount of USD 29,475 following the damage assessment, and ruled in favour of the plaintiff

The defendant appealed the decision to the Regional Court of Appeal. The Appellate Court dismissed it as untimely due to the late submission of the appeal documents. This decision was subsequently appealed to the Supreme Court of Appeal

Held: Appeal dismissed

The Supreme Court dismissed the appeal and upheld the decision made by the Regional Court of Appeal, confirming that the lower Court's judgment was consistent with legal standards and procedural requirements.