This was an appeal from a judgment of the 9th Adana Regional Court of Appeal (2020/1445-2023/975) and the 1st Mersin Commercial Court of First Instance (2015/236-2019/461).

The plaintiff shipper entered into a contract with X Transport, a company based in Sudan, for the sale of four 35-ton telescopic cranes for EUR 473,000 and eight 50-ton telescopic cranes for EUR 1,184,000, including spare engines and parts. The agreement stipulated that the first batch - comprising one 35-ton and one 50-ton telescopic crane - was to be delivered to X Transport in Sudan by 1 October 2012. The plaintiff claimed that payment of the invoices and further orders was contingent on the first batch being delivered on time. To fulfil this obligation, the plaintiff contracted with the defendants for the transportation of the first batch of cranes by sea. The defendant Y Denizcilik issued an invoice for freight charges of USD 22,500, which the plaintiff paid on 17 September 2012. Following this payment, the defendants Y Denizcilik and Z İntermar Denizcilik arranged for the cargo to be shipped on the vessel M, with loading completed on 18 September 2012.

However, when delivery had not been completed by 28 September 2012, the plaintiff was contacted by the defendants, who informed them via telephone and email that the vessel had anchored off the Syrian coast and was demanding additional payments before proceeding to Sudan. Despite assurances that the issue would be promptly resolved, no progress was made, and by 31 October 2012, the situation remained unchanged.

As a result of these delays, X Transport exercised its right to unilaterally terminate its contract with the plaintiff. The plaintiff subsequently travelled to Syria, engaged with X Transport's legal representatives, and personally managed the process of securing the release and delivery of the cargo, covering all associated costs. The plaintiff alleged that the defendant carriers failed to provide any assistance or financial contribution during this process. Although X Transport ultimately accepted the first batch of goods despite the delay, it cancelled the remainder of its order, which the plaintiff contended resulted in a loss of expected profits.

The plaintiff sought reimbursement of USD 22,500 from Y Denizcilik for the freight charges, TRY 1,000 from the defendants jointly and severally for loss of profit due to the cancellation of the remaining orders, and TRY 5,000 from the defendants jointly and severally for additional expenses incurred to facilitate delivery, all with commercial default interest. The plaintiff also requested that litigation costs and legal fees be imposed on the defendants.

The first defendant, Y Denizcilik, argued that it acted solely as a broker, facilitating the transport between the cargo owner and the vessel, without assuming the role of a carrier or shipowner. The defendant contended that it could not be held liable and that the plaintiff had failed to provide evidence of incurred expenses. The defendant further pointed to the bill of lading's terms, which referenced general average, asserting that under cl 3 of the bill of lading, general average should be settled in accordance with the York-Antwerp Rules 1994. The defendant claimed the lawsuit was baseless and requested its dismissal.

The second defendant, Z İntermar Denizcilik, argued that it acted solely as a broker, facilitating the transaction between the cargo owner and the vessel, and was neither the carrier nor the shipowner. The defendant contended that it could not be held liable and had fulfilled its legal obligations by promptly informing the plaintiff of the shipowner's 19 September 2012 notice, which placed responsibility for the cargo on the shipper. The defendant further denied liability for the USD 30,000 payment made to the Togo-flagged M/V Baraket Alrahman under an 'Amicable Settlement and Compensation Agreement' (ASCA) between X Transport and the vessel's operator. The defendant argued that the plaintiff was not a party to this agreement, had no proof of payment, and could not claim reimbursement based on an out-of-court settlement, which lacked legal standing under Turkish law. Additionally, the defendant cited the bill of lading's general average provisions, which referred to the York-Antwerp Rules 1994. The defendant maintained that the plaintiff's claim was unjustified and should be dismissed.

The third defendant, V Denizcilik, submitted that it acted solely as a ship agent under arts 102 ff of the Turkish Commercial Code (No 6102 TCC) and bore no personal liability for the shipowner's obligations. The defendant argued that the plaintiff wrongly directed its claims against the agent instead of the actual carrier. The defendant further contended that the plaintiff had voluntarily entered into an out-of-court settlement to resolve the issue and could not seek reimbursement from unrelated parties. The defendant maintained that, in the case of general average, the appropriate procedure would have been to appoint a general average adjuster rather than pursuing direct claims against the defendants. As such, the defendant requested the dismissal of the case.

The Commercial Court of First Instance held that the conditions for the refund of freight charges were not met, and that the plaintiff had failed to prove that it had incurred or paid additional transportation costs. The Court found that the second and third defendants acted as agents and could not be directly sued for contractual liability, with any potential tortious liability left to the Court’s discretion. The Court rejected the defendants' defences based on the bill of lading clauses and general average, stating that these arguments were not substantiated with concrete evidence. The Court concluded that the expert report was sufficient for a ruling, dismissing the case.

The plaintiff appealed to the Regional Court of Appeal.

The Regional Court of Appeal upheld the trial Court’s ruling, dismissing the appeal.

The Regional Court of Appeal found that the plaintiff contracted Y Denizcilik for the carriage of telescopic cranes to Sudan, paying USD 22,500 in freight. The cargo, loaded in Mersin on 18 September 2012, was delayed after the vessel called at Tartous, Syria. The plaintiff alleged this delay, caused by the defendants’ negligence, led to contract termination with X Transport and financial losses.

Expert reports confirmed that Z İntermar Denizcilik and V Denizcilik acted only as agents and could not be sued. However, Y Denizcilik, as the freight invoice issuer, was considered the carrier. As such, under art 1178.2 of the TCC [based on art 3.2 of the Hague Rules and the Hague-Visby Rules], a carrier is liable for loss, damage, or delay if such events occur while the goods are under its control. The plaintiff argued that it had incurred additional expenses while pursuing delivery in Syria, including legal fees. However, the documents submitted, including the ASCA, did not sufficiently prove that these expenses arose due to the carrier's breach. Furthermore, the plaintiff claimed a loss of profit due to the cancellation of the second batch of orders. However, the 7 May 2012 sales contract specified that further orders would only be placed if the first batch was delivered as per technical specifications. Since the second batch was not a guaranteed order, the Court ruled that a loss of future profits claim could not be claimed. As a result, The Court concluded that the trial Court correctly dismissed the claim, rejecting the plaintiff's appeal.

The plaintiff then appealed to the Supreme Court of Appeal.

Held: Appeal dismissed.

The Supreme Court upheld the Regional Court of Appeal's decision, rejecting the plaintiff's appeal. The case file was remitted to the Commercial Court of First Instance and the ruling was final.