This was an appeal from the judgment of the 17th Commercial Court of first instance (4 March 2021, 2019/370-2021/109).

The plaintiff claimed for damage caused to the plaintiff's truck, which was carrying dispenser-sized gallon bottles of water, and was being transported on the first defendant's ferry. In particular, the plaintiff argued that an extreme windstorm had shaken the ferry, which caused the damage to goods. The defendants had decided to go on a sea voyage despite the extreme weather. The plaintiff further claimed that although the ferry was only half full of cargo, the plaintiff's truck was parked near the edge of the vessel, and not in the middle. The accident disrupted the balance of the truck by shaking it excessively since there was no other vehicle to balance the movement of the ferry. Therefore, the plaintiff was entitled to compensation.

The first defendant, the carrier, argued that the plaintiff did not act as a prudent merchant while stowing the bottles by not placing medium-density fibreboard (mdf) between them. The plaintiff also lacked a water transportation certificate issued by the Ministry of Health. The first defendant further argued that the damage was entirely due to the incorrect stacking of the bottles in the plaintiff's vehicle and that the first defendant had no responsibility in this regard. Therefore, the defendant requested the dismissal of the lawsuit.

The second defendant, the liability insurer of the vessel, argued that there was no negligence attributable to the first defendant concerning the damage that occurred. The plaintiff had a lack of standing due to non-indemnification of the second defendant insurer in favour of the insured. Therefore, the defendant requested the dismissal of the lawsuit.

The Court of first instance held that the bottles were not stowed and lashed properly under maritime transportation safety standards. Thus, neither the first defendant nor the second defendant was responsible for the damage under art 1256 of the Turkish Commercial Code (the TCC) [which is based on art 4 of the Athens Convention 2002 relating to the Carriage of Passengers and their Luggage by Sea - Türkiye became a State Party to the Athens Convention on 3 April 2017].

The plaintiff appealed to the Court of Appeal.

The plaintiff claimed that there was no contract of carriage between the plaintiff and the defendants. Its suit for damages was not closely related to maritime transport. Moreover, the plaintiff argued that the accident that caused the damage occurred in the part of the ferry reserved for vehicles, which should be considered a highway, and that the expert's primary and additional report was biased. Hence the plaintiff requested the annulment of the Court of first instance's judgment.

Held: Appeal dismissed. The judgment of the Court of first instance is upheld in favour of the defendants.

The merits of the case are based on the claim for damages a number of bottles of water into the sea during transportation. Although the plaintiff claimed that there was no contract of carriage and maritime transportation between the parties, the Court of Appeal found that the incident occurred in the vehicle carried on a ferry operated by the first defendant carrier. Therefore the requested compensation for the damage was related to maritime transportation.

Having examined the expert report on the case file, the Court of Appeal found that rigid stacking should have been used to guard against tipping and rolling when the bottles were placed inside the truck; placing medium-density fibreboard (mdf) between the packaged gallons was not an appropriate precaution. When the bottles were stacked on top of each other, there was no protective feature against slipping and overturning in case the load was affected by lateral forces. The bottles slid off each other due to the effect of the shaking, caused damage to the body of the truck, and fell into the sea.

Since stowing and lashing the cargo into the truck was performed by the shipper, and the truck was then delivered to the vessel by the shipper, the carrier should not be held liable for the damage that occurred outside its care and custody. In other words, no act or omission was attributable to the first defendant carrier arising out of the shipper’s incorrect stowing and lashing operations. Therefore, the plaintiff's appeal should be dismissed.