CONTRACTS OF CARRIAGE UNDER TURKISH COMMERCIAL CODE (MARCH 2016)

Pursuant to Turkish Commercial Code, an act of carriage involving any kind of load is usually performed by the carriers operating as “commercial enterprises”. Contracts of carriage are the contracts which the carrier undertakes to carry the goods to the destination and deliver to the consignee. In return for this contract, the carrier shall collect a fee which is called freight under law. This article focuses on the “contracts of carriage”, except the transportation by sea, railway, air or the transportation regarding the Postal and Telegraph Corporation.

In daily application, the carriage of goods is generally performed by private cargo firms. The contract of carriage shall be concluded when the sender delivers the good to the carrier and when the carrier accepts carrying the good. It is required to issue bill of lading to prove this contract. Bill of lading is often issued by the carrier as a printed document.

The bill of lading should be issued as three original copies and should be signed by the sender. The sender may ask the carrier to sign the bill of lading. A copy of the bill of lading shall belong to the sender. The second copy of the bill of lading shall accompany the good carried, the third (copy) shall remain at the carrier. If bill of lading is not issued, the carrier has to sign and send a bill of lading including sufficient information about good and carriage upon the request of the sender.

The bill of lading shall include the mandatory records specified in the law. The sender and the carrier may also add other records which deemed necessary. The bill of lading signed by the sender and the carrier has evidential value for conclusion of the contract of carriage, the acceptance of the good by carrier and, unless otherwise mentioned, it also proves that the good and its package are in good condition by all appearances and the amounts, signs and numbers of packages carried comply with the records in the bill of lading at the time of acceptance by the carrier. The sender can check the authenticity of the weight, amount or content of the goods provided that, the sender shall cover these expenses and the carrier shall have the appropriate equipment.

The sender is obliged to make a brief and clear notification regarding the content of the good to be carried. In case carriage of the good is dangerous, the carrier may not perform the carriage and demand the expenses suffered. The carrier shall be responsible for damages due to loss of the documents delivered with the good, damage or misuse of the goods except the situations that cannot be prevented.

The responsibility of the carrier for damages shall be limited with the amount to be paid in case of loss of the good. This amount shall be calculated according to the value of the good at the time and place of delivery. Whilst determining this value, the market price or invoice amount, if any, shall be considered. In case the good is damaged, the difference between undamaged value and damaged value shall be paid as compensation. The carrier is obligated to indemnify the expenses made in order to calculate the damage, freight, other taxes, duties for carriage and other expenses arising from carriage.

The carrier’s responsibility for damages or losses shall be limited to the amount corresponding to Special Drawing Right 8,33 (33,68.-TL as of 31.12.2015) per the kilogram of the gross weight of the commercial commodity. The responsibility of the carrier due to failure in carriage period shall be limited to threefold of freightage.

The freight shall be paid to the carrier at the time of the delivery. The sender and the carrier may determine other methods (such as payment of the fee by the sender) for payment. The carrier cannot demand extra fee for loading and unloading. The carrier can demand his damages for incomplete and partial loading from the sender. Only the carrier shall be responsible for the damages in case he fails to warn the sender regarding insurance for carriage. The carrier has right of retention on the goods.

The carrier is obliged to deliver the good within the agreed period, if not agreed, within a reasonable time. If the good is not delivered within twenty days following the determined carriage period, the good shall be deemed as “lost”. For cross-boundary carriages, this period is thirty days. If the sender has been indemnified due to the loss, he can demand to be informed when the good is found. In case the good is found, the sender may refund the compensation within thirty days and receive the good back. Otherwise, the title of good shall pass to the carrier.

In case it is obvious that the good cannot be delivered before it reaches to the place of delivery, the carrier has to receive instructions from the sender. Such kind of instruction is not subject to submission bill of lading. In case the carrier does not receive any instruction, the carrier can entrust the good to a third person or return to the sender.

The sender can terminate the contract of carriage at any time. In case the reason for termination is not generated from the carrier, the carrier can either demand damages or one third of the shipment fee.

In case it is obvious that the good has been damaged or destroyed and the sender or the consignee have not notifies such damage latest until the delivery time, the good shall be deemed as delivered duly pursuant to the contract. In such a notice, it is obligatory to mention and describe the damage explicitly. In the event the damage or loss cannot be detected clearly, such notice shall be made within seven days’ period as of the delivery. In case the consignee does not notify the carrier about late delivery within twenty one days as of the delivery, the consignee cannot claim his rights arising from delay. The notice to be made after delivery has to be in written form or can also be made via telecommunication instruments. If the identity of the notifying party can be understood in any way, there is no need for signature. It is sufficient for such a notice to be made on time to preserve this period.

The courts located in the judicial area of the agreed delivery place or the place where the good is delivered shall be entitled to settle any kind of disputes originated from the carriage of good. Any claim regarding the carriage of good shall lapse in one year period after the delivery to the consignee. In case of lost, the lapse of time starts from the (agreed) date of delivery. The carrier’s responsibility for acts committed by intention, conscious negligence or negligence shall lapse after three years’ period.