In a rapidly changing and developing world, the mutual need between businesses or individuals located in different countries—and the resulting increase in trade between them—is growing accordingly. Alongside these developments, the growth of international economic relations, the expansion of incentives, the suspension or removal of visa requirements and import taxes have elevated commercial activities to a level that transcends national borders, thereby expanding the transportation sector to an international scale. In response, with the technical enhancement and increased safety of the vehicles used in the transportation sector, cross-border transportation has become more feasible, enabling goods to be delivered to recipients more quickly, economically, and efficiently.
As a result, the growing interdependence between individuals and businesses located in different regions, the development of international trade facilitated and encouraged by governments, and the increased use of technically advanced vehicles in cross-border transportation have all created the need for uniform international legal rules to regulate these activities, as well as for legal norms expected to be integrated with such rules.
THE NEED FOR NORMS IN DEVELOPING ROAD TRANSPORTATION LAW
As a result of these needs, various international conventions have been drafted in the field of transportation to eliminate differences in national legislations and to establish uniform rules for cross-border transport. In 1890, the Agreement concerning the International Carriage of Goods by Rail was adopted, followed by the 1924 Brussels Convention, also known as the “International Convention for the Unification of Certain Rules of Law relating to Bills of Lading (Hague Rules).” Shortly thereafter, in 1929, the Warsaw Convention (Convention for the Unification of Certain Rules Relating to International Carriage by Air) was prepared to regulate the liability of air carriers. Similarly, in the context of road transport, the need for regulation was felt due to issues such as determining the applicable national law in case of disputes, addressing existing legal gaps, and the necessity of a uniform legal system.
In 1956, nine European countries came together and, based on the belief that “the Contracting Parties considered it desirable to standardize the conditions governing the contract for the international carriage of goods by road, particularly as regards the documents used for such carriage and the liability of the carrier…,” they prepared and opened for signature the Convention on the Contract for the International Carriage of Goods by Road (CMR). Turkey adopted the Convention as published in the Official Gazette dated December 7, 1993, No. 21788, and brought it into force on October 30, 1995. Since the entry into force of the Turkish Commercial Code No. 6102, it has been harmonized with the provisions of the CMR in resolving disputes arising from international road carriage of goods.
The Mandatory Nature of the CMR Convention
The primary objective of the CMR Convention is to establish regulations on certain matters for the carrier and those who are in a relationship with the carrier due to the transportation operation. These regulations are generally of a mandatory nature for the parties. However, in some cases—where commercial customs or common practices exist—the parties are given the opportunity to determine their legal status. This flexibility granted to the parties must in no way harm the purpose and objectives of the Convention. Therefore, it can be said that although the Convention is essentially mandatory in nature, it also acknowledges and refrains from restricting established commercial customs or habitual practices of the parties in certain situations.
Due to this mandatory nature of the Convention, even if the parties reach an agreement, they cannot make decisions or stipulate provisions contrary to the binding regulations of the Convention. In fact, in accordance with the principle of pacta sunt servanda, such binding provisions cannot be altered even by the contracting states. This is explicitly stated in Article 1/5 of the Convention: “The Contracting Parties undertake not to alter the provisions of this Convention by special agreements between two or more of them.”
Indeed, this principle has been affirmed by the Turkish Court of Cassation (Yargıtay), which stated: “…in terms of the carriage contract between the sender/consignor and the carrier, the CMR Convention does not allow for contractual freedom; any condition, agreement, or clause that directly or indirectly violates the provisions of the Convention shall be deemed invalid.” Thus, the mandatory nature of the Convention has been recognized in Turkish legislation. Additionally, it should be noted that any provision contrary to the Convention shall be considered invalid, while the remaining provisions of the carriage contract shall continue to remain in force.
The Issue of Applicable Law in the Absence of a Governing Provision in the CMR Convention
The Convention does not regulate many aspects of road transport and, as stated in its preamble, it only includes provisions concerning the documents used in transportation and the carrier’s liability in cases of damage, loss, and delay. In situations where the Convention does not provide a provision, a solution must be sought under national law. In such cases, the primary issue becomes which country’s legal system should be applied.
If the parties have not made a choice of law in situations where there is a gap, then the applicable national law can be determined according to the rules of private international law. In line with the modern approach in international transportation relations, this is generally considered to be Lex Portitoris—that is, the law of the country where the carrier has its habitual residence or administrative headquarters.
CONDITIONS FOR THE APPLICATION OF THE CONVENTION
The conditions for the application of the Convention are as follows: there must be a transportation contract involving the transportation of goods by road for a fee using specific vehicles, the subject of the transport must be goods, the transport must be for a fee, the transport must be carried out by road, and the place of receipt and the place of delivery must be in different states, with at least one of these states being a party to the CMR.
Generally, a transportation contract.
A transportation contract is an agreement in which the carrier transports goods from one place to another, either for free or for a fee. The purpose of the transportation contract established between the parties is to deliver the goods to the carrier in the same condition as they were handed over, ensuring that they reach the destination exactly as intended.
Article 856 of the Turkish Commercial Code No. 6102 states, “Even if a transportation document is not issued, a transportation contract is formed by the mutual consent of the parties,” thereby addressing the formation of a transportation contract and indicating that it is not dependent on any transportation document. The mutual agreement of the parties is sufficient for the formation of the transportation contract with respect to the application of the convention, and there is no need for the issuance of a transportation document or a consignment letter, nor for the goods to be handed over to the carrier. In a transportation contract, one party undertakes to deliver the goods to the desired location, while the other party assumes the responsibility to pay the agreed-upon fee.
The Carrier’s Primary and Secondary Obligations in Goods Transportation
The transport services added as the fourth book of the Turkish Commercial Code No. 6102 are regulated between Articles 850 and 930. A contract of carriage is defined as the transportation of a person or goods from one place to another in return for payment. The Turkish Commercial Code does not provide a specific definition of the contract of carriage; instead, Article 850 merely defines who the carrier is and sets out the mutual rights and obligations of the parties to the contract of carriage. Furthermore, the last paragraph of the same article states that transport activities can only be carried out as part of a commercial enterprise.
Article 850 of the Turkish Commercial Code states:
“The carrier is the person who undertakes the transportation of goods or passengers, or both, under a contract of carriage. Goods also include all types of cargo. The carrier, under the contract of carriage, undertakes to transport the goods to the destination and deliver them to the consignee there, or to transport the passenger to the destination; in return, the sender in the case of goods carriage, and the passenger in the case of passenger transport, shall be obliged to pay the transport fee to the carrier. Transport services are considered commercial enterprise activities.”
In the carriage of goods, the carrier has two main obligations: to transport the goods to the place of destination and to deliver them to the consignee there. The most essential element of a carriage contract is that the carrier must assume the transport obligation as their principal performance. In short, the carrier undertakes to transport the goods to the agreed location under their own supervision and responsibility.
However, in order to achieve the expected benefit of the contract of carriage, the carrier also has an obligation to protect the goods, in addition to the main obligation of transporting them. The legal basis for the carrier’s duty to protect the goods can be found in Article 875 of the Turkish Commercial Code (TCC) and Article 17 of the CMR Convention.
According to Article 875 of the TCC:
“The carrier is liable for any loss, damage, or delay in delivery of the goods occurring during the period between the time they are taken over for carriage and the time of their delivery.”
Here, the loss or damage to the goods is considered a violation of the carrier’s duty to protect the goods.
In the carriage of household goods, in addition to the duties of care for the goods and timely delivery, the rule of utmost care also applies to the performance of special obligations, which are not ordinarily included under these duties and are regulated in Article 895 of the TCC.
The carrier’s liability applies for the period from the time the goods are taken over until they are delivered. In a contract of carriage, the carrier’s principal obligation is to transport the goods from one place to another. The carrier’s duty to protect the goods begins at the moment the goods are handed over to them and ends once the transportation is completed and the goods are delivered to the consignee.
According to the contract of carriage, the carrier is obliged to transport the goods without damage — that is, in the same condition and state as when they were received — from the moment they are taken over until the moment they are delivered. In other words, the carrier must not only fulfill their expected roles during the loading, stacking, or unloading processes, but also maintain the obligation to protect the goods throughout the entire course of transportation.
This means that the carrier’s responsibilities and obligations continue throughout the entire process, from the loading of the goods onto the vehicle until their unloading. The principles of liability for any damage arising from the carrier’s failure to fulfill this primary obligation, as well as the amount of compensation to be paid, are regulated under the Convention.
Since the obligation to protect the goods ends with the completion of the transportation process and the delivery of the goods to the consignee, the carrier must take all necessary measures during the course of transportation to prevent the goods from being damaged and to ensure they are delivered in the same condition in which they were received.
These measures may include, for example, performing necessary maintenance on the goods such as ventilation when needed, using protective equipment to prevent the goods from getting wet or drying out, taking preventive measures in case of potential damage due to humidity, and regularly inspecting and monitoring the goods at specific intervals.
Keeping the goods at the required temperature or coolness, ensuring regular inspections, providing ventilation, and protecting the goods from internal or external threats all fall within the scope of the carrier’s duty to preserve the goods throughout the transportation period.
Therefore, depending on the nature of the goods, the carrier is obliged to inspect the goods at regular intervals, provide ventilation, monitor the heating or cooling systems, and, if the goods are partially wet or overheated, take measures to dry or cool them down until the moment of unloading.
Indeed, in its decision numbered 2009/11135 E. and 2011/4287 K., the 11th Civil Chamber of the Court of Cassation ruled that “in the dispute subject to the lawsuit, the defendant was required to preserve the goods at 2–3 degrees Celsius, whereas the transportation occurred at temperatures between 6.1 and 12.3 degrees Celsius, causing the damage; the damage was not due to a stacking error, and the defendant was therefore responsible for the damage,” thus confirming that the carrier has a duty to protect the goods during the course of transportation.
According to Article 8(1)(b) of the Convention, the carrier has an obligation to check the apparent condition of the goods and their packaging; under Article 12(6), if the carrier is unable to carry out instructions given by the sender, they must immediately notify the party giving the instruction; under Article 14(1), if transportation becomes impossible, the carrier must request instructions from the person entitled to dispose of the goods; and under Article 22(2), upon learning that the goods are dangerous, the carrier is obliged to unload, destroy, or neutralize them at any time and place. These are among the several ancillary obligations imposed on the carrier. If these obligations are not fulfilled, the carrier becomes liable for any resulting damage.
THE LOSS AND DAMAGE OF GOODS
Loss refers to the situation where the goods subject to transportation are in a condition that makes them unable to be delivered. In this context, the reason why the goods cannot be delivered is not important. Damage, in terms of a transportation contract, refers to the deterioration of goods that occurs during the transportation process, which reduces their economic value. In other words, the goods are being delivered, but there is physical deterioration of the goods. As with loss, partial or total damage can occur here as well. If the remaining goods cannot provide the expected benefit due to the damage, it should be considered total damage, and the compensation amount should be determined accordingly.
Carrier’s Limited Liability/Instances Where Liability Is Limited
The principles regarding the amount of compensation to be paid in the event of the loss of the goods being transported are specified in Article 23 of the CMR.
Article 23 of the CMR
- Under the provisions of this Convention, when a carrier is held liable for compensation due to the partial or total loss of the cargo, the amount of compensation is calculated based on the value of the cargo at the time and place it was accepted for transportation.
- The value of the goods is determined based on the market price at the trade exchange. If such a price does not exist, the value is determined according to prevailing market prices. If neither a trade exchange price nor a prevailing market price exists, the value is determined based on the normal value of goods of the same type and quality.
- Furthermore, the compensation will not exceed 8.33 accounting units per kilogram of the gross weight that is lost.
- The transportation fee paid for the carriage of the cargo, customs duties, and other payments are fully refunded in case of total loss of the goods. In the case of partial loss, payment is made in proportion to the damage incurred. No other compensation will be paid beyond these.
- In the event of delay, if the claimant proves that the damage and loss arose from the delay, the carrier will pay compensation up to the amount of the transport fee for the loss and damage.
- According to Articles 24 and 26, if the value of the goods or any special interest in the delivery is declared, a higher compensation may be requested.
- The unit of account specified in this agreement is the Special Drawing Rights (SDR) as defined by the International Monetary Fund (IMF). The amount specified in Article 3 of this agreement will be converted into the national currency of the State where the court handling the case is located, at the exchange rate in effect on the date of the decision or the date mutually agreed upon by the parties. The value of the national currency of a State that is a member of the IMF for the purpose of the Special Drawing Rights will be calculated by the IMF using the valuation method applicable for its own transactions and operations on the date in question. For the application of Special Drawing Rights, the value of the national currency of a State that is not a member of the IMF will be calculated according to the method determined by that State.
- However, a State that is not a member of the International Monetary Fund and whose laws are not suitable for the application of the provisions mentioned in paragraph 7 of this article may declare, at the time it ratifies or accedes to the CMR Protocol, or at any time thereafter, that the monetary unit to be applied in its country for the obligation specified in paragraph 3 of this article will be a monetary unit equivalent to 10/31 of a gram of 900 fine gold. The conversion of the amount specified in this paragraph into the national currency will be carried out in accordance with the laws of the relevant State.
- The calculation mentioned in the last sentence of paragraph 7 of this article and the conversion referred to in paragraph 8 of this article, as expressed in these paragraphs as the unit of account, will be carried out in the national currency of the State for the amount specified in paragraph 3 of this article in a manner that reflects the actual value as closely as possible. When a document referred to in Article 3 of the Protocol added to the CMR is deposited or if any changes are made to paragraphs 7 or 8 of this article, States will notify the Secretary-General of the United Nations of the method of calculation made under paragraph 7 of this article or the result of the conversion made in accordance with paragraph 8 of this article, as applicable.
Accordingly, the value that forms the basis for the carrier’s compensation responsibility for the loss of goods is the value of the goods at the place and time they were accepted for transportation. Since the value of the goods serves as the basis for the compensation, it is essential to determine this value first. While the value that forms the basis for the carrier’s compensation responsibility for the loss of the goods is calculated according to Article 23/2 of the CMR, an upper limit is also set for the compensation amount resulting from this calculation. According to this, compensation will not exceed 8.33 units of account per kilogram of the missing gross weight (Article 23/3 of the CMR).
In the case of loss or damage to individual parts of the consignment, the carrier’s responsibility is limited to the value of the entire consignment if it has lost its total value, or to the value of the lost part if only part of the consignment has lost value. This is determined by the net weight of the lost part, with each kilogram being compensated up to the amount equivalent to 8.33 Special Drawing Rights.
The unit of account mentioned here is the Special Drawing Rights (SDR) as defined by the International Monetary Fund. The amount referred to in Article 23/3 of the CMR will be converted into the national currency of the state where the court concerned is located, based on the exchange rate at the time of the decision or the date agreed upon by the parties. The value of the national currency of a state that is a member of the International Monetary Fund, as applied to the Special Drawing Rights, will be calculated by the International Monetary Fund in accordance with the applicable evaluation method on the date of the transaction for its own operations. For applications related to Special Drawing Rights, the value of the national currency of a state that is not a member of the International Monetary Fund will be calculated according to the form determined by that state (CMR Art. 23/7).
In the event of damage to the goods, the scope of the carrier’s compensation liability will be determined within the framework of the principles set out in Article 25 of the CMR. Article 25 of the CMR states that in the case of damage, the carrier will be responsible for the difference between the value of the goods determined according to Article 23 and the damaged value. Therefore, before determining the compensation amount in the event of damage, the value of the goods should first be determined based on the stock exchange price, and if no stock exchange price is available, based on the market price. If a market price cannot be determined for the damaged goods, the value of the goods should be determined based on the value of goods of the same kind and quality. The customs duties paid for the transportation of the goods will also be covered by the carrier in proportion to the ratio of the damaged value to the undamaged value of the goods. The Convention stipulates that the carrier will compensate for the customs duties in proportion to the damage rate.
The obligation to protect the goods, like the obligation to complete the transportation within a specified period, is also a positive obligation. As stated in Article 875 of the Turkish Commercial Code (TTK), the carrier is responsible for “…the damages resulting from delays in the delivery of goods.” In Article 17 of the CMR, responsibility for “delays in delivery” is also accepted. The carrier who fails to deliver the goods on time is considered to be delayed. Delay refers to exceeding the agreed transportation period. In this regard, the carrier is responsible for the delay.
The carrier is required to complete the transportation within the time agreed upon in the transportation contract. If the parties have not specified the duration of the transportation in the contract, the transportation must be completed within a reasonable time, taking into account the circumstances and the time that a diligent carrier could reasonably be expected to take (Article 873 of the TTK). In Article 19 of the CMR, delay is defined as follows: “If the goods have not been delivered within the agreed time limit or, in cases where there is no agreed time limit, if the transportation exceeds the normal duration and especially in the case of partial loads, the time required for gathering the entire load, then the delay in delivery is considered to exist if the time taken exceeds what is necessary for a diligent carrier.”
In relation to the matter, the 11th Civil Chamber, in its ruling dated 12.12.2006, E. 2005/12623, K. 2006/13193, stated:
“However, in the case at hand, according to Article 19 of the CMR, if there is no provision in the transportation contract specifying the duration of the transportation, the transportation period is determined according to a reasonable time frame within which a diligent carrier would carry out the transportation. The calculation of the reasonable transportation period must be evaluated separately based on the specific circumstances of each case. Several factors must be taken into account when calculating the time, such as the nature of the goods, the instructions for transportation, the usual waiting time at customs, road conditions, permitted driving hours, and so on. The carrier’s responsibility for late delivery is based on an enhanced duty of care. In this regard, in the present case, the court should have determined the reasonable transportation time between Istanbul and Damascus and evaluated the claim for the refund of the freight charge accordingly. However, the decision, based on an incomplete examination, was not correct.”
Circumstances in Which the Carrier’s Limited Liability Provisions Cannot Be Applied
Article 29 of the CMR states: “If the damage results from the carrier’s own wrongful act or from fault equivalent to intentional wrongdoing, as determined by the court handling the case, the carrier shall not benefit from the provisions of this article that would eliminate or limit their liability or shift the burden of proof to the other party.”
Article 786/3 of the Turkish Commercial Code (TCC) states: “If the damage arises from the carrier’s gross fault or fraud, full compensation may be demanded instead of the compensation mentioned in the first paragraph or in Article 785 of this Code.” The term “fraud” in the article is not used in its technical sense but rather in the context of the concept of intent. Therefore, if the damage arises from intentional actions or gross negligence, the carrier is obliged to pay full compensation instead of the compensations mentioned in Article 785.
In cases where the carrier’s intent or fault equivalent to intent is present, it will not be possible to benefit from provisions in the contract that eliminate or limit the carrier’s liability or alter the burden of proof.
The terms “INTENT / FAULT EQUIVALENT TO INTENT / RECKLESS BEHAVIOR”
When considering the degrees of fault, it is necessary to take into account whether the perpetrator acted with intent or negligence. Intent is one of the types of fault and refers to the voluntary action carried out knowingly and deliberately to achieve an unlawful result. Negligence, on the other hand, refers to the failure to exercise the level of care and attention that the situation and circumstances require, without necessarily leading to an unlawful result. In this case, the fault arises from carelessness or lack of attention. In intent, the perpetrator is aware of the harmful outcome of their actions and desires for that result to occur. The perpetrator’s actions severely violate the legal order, and for this reason, the perpetrator is considered at fault. A carrier who acts intentionally is assumed to know what they are doing. On the other hand, the person with fault equivalent to intent is considered not to care about the consequences of their actions, even though they are aware that harm could result from them.
Negligence is examined in two parts: gross negligence and slight negligence. In gross negligence, harm occurs as a result of failing to exercise even the simplest care and attention that a person should show in the same or similar circumstances. The standard for determining gross negligence is the failure to take the most basic precautions that anyone in the same circumstances would take to prevent the fault from occurring. The actions of the perpetrator or excessively cautious individuals should not be considered as a criterion for evaluating the perpetrator’s behavior as negligence.
In Article 886 of the Turkish Commercial Code No. 6102, it is stated: “The carrier or the individuals mentioned in Article 879, whose actions or omissions have caused damage, proven to be committed intentionally or with recklessness and with the awareness of the possibility of such damage occurring, shall not benefit from the exemptions from responsibility and the limitations of liability foreseen in this Part.” The existence of fault equivalent to intent, reckless behavior, and the awareness of the consequences of such behavior are the conditions required here.
In the Convention, the concept of reckless conduct, or ‘wilful misconduct,’ which leads to the loss of the carrier’s right to benefit from limited liability, is determined by a test based on the presence of two factors, without the need for classifying any degree of fault. The test includes: The carrier’s avoidance or action (act/inaction) carried out with the awareness that it is incorrect or wrong, and it has been identified as intentional misconduct. Despite the awareness that this wrong action or avoidance increases the likelihood of causing damage, the carrier must continue with the action or avoidance (accepting the damage, disregarding the consequences).
In other words, for fault equivalent to reckless behavior, every system requires that the carrier be aware, either directly or indirectly, that the action or omission in which they are involved is incorrect or wrong, or that their incorrect or wrong behavior increases the likelihood of damage. According to lex fori, the courts assessing the specific case will compare the carrier’s awareness of the wrongful or incorrect action or omission and their anticipation that the behavior increases the likelihood of damage with the conduct of an experienced and prudent carrier. The court will then decide whether the behavior constitutes fault equivalent to reckless behavior. In the specific case, if the carrier, acting as an experienced or prudent carrier, would have caused the same damage, then fault equivalent to reckless behavior would not be established. However, if an experienced or prudent carrier would have acted differently in the specific case, thus preventing damage or reducing its extent, the court could decide that the carrier’s behavior constitutes fault equivalent to reckless behavior. The Supreme Court has also noted that the carrier’s behavior, when reckless, goes “beyond carelessness to boldness, recklessness, and lack of caution.” Therefore, as seen in doctrine and the decisions of the Supreme Court, reckless behavior is defined as the carrier acting in disregard of the possibility of damage, carelessly and without caution.
SUPREME COURT DECISIONS RELATED TO ROAD TRANSPORTATION
The decision of the 11th Civil Chamber of the Supreme Court, dated 12.07.2017, Case No. 2016/3125 E. and 2017/4094 K.:
“…. The court found that the carrier did not fulfill the duty of care and attention required of a prudent carrier, that the goods were not delivered in accordance with the procedure as per the Turkish Commercial Code (TCC) Article 1178, and that the carrier’s actions or those of its agents caused the damage due to a gross fault and reckless behavior, as stated in TCC Article 1179. Based on this, the court ruled that the defendant carrier was unlimitedly liable under TCC Article 1187. The defendant argued that the invoice dated 23.05.2014 was not for freight charges, but since the issued bill of lading showed that the defendant undertook the transportation work and thus acquired the status of the carrier, the case was accepted, and the sum of 10,802.38 USD was to be paid by the defendant from the foreign exchange sale rate on the actual payment day, applying the highest interest rate for a one-year term deposit account in US dollars, as established by the state banks, starting from the default date of 25.06.2014, in accordance with the provisions of Law No. 3095, Article 4/a.
The defendant’s attorney appealed the decision.
Upon reviewing the case file and the evidence presented in the reasoning of the court’s decision, no procedural or legal violations were found in the evaluation of the evidence. Therefore, all of the defendant’s appeal objections were dismissed as unfounded.”
CONCLUSION: For the reasons explained above, the defendant’s attorney’s appeal objections are rejected, and the decision that is in compliance with procedural and legal requirements is UPHELD.
Similarly, in the Supreme Court’s decision, where it states that “The carrier did not fulfill the duty of care and attention that a prudent carrier should exhibit, … and that the gross fault and reckless behavior caused the damage,” it has been indicated that reckless behavior results from the carrier’s failure to act according to the expected duty of care.
Therefore, the carrier’s failure to act according to the expected duty of care will constitute reckless behavior. The expected care from the carrier is the degree of care that an experienced or prudent carrier would demonstrate in the particular case. Although there is no explanation regarding how the level of care an experienced or prudent carrier should show should be, the determination is made as follows: “… if this result occurs despite the necessary care and precaution, the carrier will not be held responsible.”
According to Article 18/4 of the Convention, when the transportation is carried out with specially equipped vehicles designed to protect the goods from the effects of heat, cold, temperature changes, or humidity in the air, the carrier is expected to exercise maximum care when selecting, maintaining, and using such equipment. Even if all the equipment of the specially equipped vehicle is electronic, the carrier is expected to personally check the equipment, take the necessary precautions in case of problems, and ensure that the required checks are carried out.
Under the Turkish legal system, fault equivalent to intent refers to the behavior of the carrier that contradicts the duty of care and attention expected of them or creates reasonable trust for the goods owner, leading to damage despite the carrier’s awareness that such behavior will likely cause harm. This occurs when the carrier disregards the possibility of damage or acts recklessly. Therefore, the carrier should be held fully responsible for the damage caused when, throughout the transportation, they fail to check the condition of the goods, both physically and through electronic equipment that ensures control, do not use appropriate equipment for weather conditions, or fail to monitor the goods regularly to ensure proper airflow within the equipment. By not taking the necessary precautions expected of an experienced and prudent carrier, and thus failing to exercise maximum care, the carrier should be held unlimitedly liable for the damage caused.
Therefore, the care expected of the carrier, in the specific case, would mean that if the same result would occur despite the care and precautions shown by a carrier in similar situations, the carrier will not be held liable under Convention Article 17/2, and it will be considered that they have demonstrated the maximum care expected of them, or acted as a prudent and experienced carrier. The maximum care that the carrier is expected to demonstrate will be evaluated within the scope of the obligation to protect the goods. The carrier’s obligation to protect the goods and demonstrate the necessary maximum care begins with the receipt of the goods for transportation. Therefore, from the moment the goods are received until they are delivered, if the carrier fails to demonstrate the care that an experienced or prudent carrier should have shown in protecting the goods, it will be deemed that they acted recklessly.
In relation to the issue, the decision of the 11th Civil Chamber of the Court of Cassation, dated December 5, 2006, with the case number 2005/12435 E., 2006/12818 K., is as follows:
“… As stated in our decisions dated June 12, 2000, with case numbers 4546-5446, and April 4, 2005, with case numbers 6554-3112, Article 29 of the CMR Convention specifies the circumstances under which the carrier’s limited liability will not apply. Accordingly, in cases where the damage results from the carrier’s own wrongful act or fault equivalent to intentional misconduct, provisions that limit the carrier’s liability or place the burden of proof on the other party will no longer be applicable. It should be concluded that the carrier cannot benefit from limited liability in such cases, considering that this fault and intent correspond to the concepts of gross fault and fraud as outlined in Article 786 of the Turkish Commercial Code (TTK). The carrier’s failure to provide any explanation regarding the cause of the damage should result in the loss of their right to limit liability as a presumption, and it should be accepted that they must compensate the plaintiff’s actual damages. The court, in the framework of the principles and explanations made in these rulings, should have evaluated the defendant’s legal situation in accordance with Article 29 of the CMR Convention and rendered a decision accordingly. However, the failure to address this issue properly has led to the need to overturn the judgment in favor of the defendants.”
Similarly, in the decision of the 11th Civil Chamber of the Court of Cassation, dated February 6, 2007, with the case number 2005/11096 E., 2007/1431 K., it is stated as follows:
“The plaintiff’s attorney argued that the defendant carrier was grossly at fault in the case and requested compensation for the remaining damages beyond the amount collected from the insurance company. Given the date and route of the transportation, the provisions of the CMR Convention should apply to the dispute. The carrier’s maximum liability is regulated in Article 23 of the CMR Convention, and the loss of the possibility to limit liability is addressed in Article 29 of the Convention. According to this article, ‘If the damage results from the carrier’s own wrongful act or from a fault that is deemed equivalent to intentional misconduct by the court handling the case, the carrier cannot benefit from the provisions of this article that limit or eliminate responsibility, or shift the burden of proof onto the other party.'”
In the decision of the 11th Civil Chamber of the Court of Cassation, dated July 22, 2011, with the case number 2010/243 E., 2011/9308 K., it is stated as follows:
“According to both the Turkish Commercial Code (TTK) and the provisions of the CMR Convention that apply to the case at hand, the carrier is required to deliver the goods it undertakes to transport to the consignee in full and intact condition. Otherwise, the carrier’s liability is fundamental. However, Article 17(2) of the CMR Convention provides that the carrier will be exempt from liability if the damage or loss results from circumstances beyond the carrier’s control, and Article 23 limits the carrier’s liability. In the present case, however, when determining the limits of the defendants’ liability, the provisions of Articles 23 and 29 of the CMR Convention must be taken into account. Article 29 of the CMR Convention specifies the circumstances under which the carrier’s limited liability does not apply. If the damage results from the carrier’s own wrongful act or from a fault deemed equivalent to intentional misconduct, the provisions that limit the carrier’s liability or place the burden of proof on the other party can no longer be applied…”
In the decision of the 11th Civil Chamber of the Court of Cassation, dated April 4, 2005, with the case number 2004/6554 E., 2005/3212 K., it is stated as follows:
“As stated in our decision dated June 12, 2000, with case number 4546-5446, Article 29 of the CMR Convention specifies the circumstances under which the carrier’s limited liability does not apply. Accordingly, if the damage results from the carrier’s own wrongful act or from a fault deemed equivalent to intentional misconduct, the provisions that limit the carrier’s liability or place the burden of proof on the other party can no longer be applied. By accepting that this fault and intent correspond most closely to the concepts of ‘gross fault’ and ‘fraud’ in Article 786 of the Turkish Commercial Code (TTK), it must be concluded that the carrier cannot benefit from limited liability in such cases. The fact that the carrier failed to provide any explanation or justification for the damage must lead to the conclusion that the carrier has lost the right to limit its liability by presumption, and it must be accepted that the defendant is obliged to compensate the actual damage of the plaintiff.”
In the decision of the 11th Civil Chamber of the Court of Cassation, dated December 7, 2015, with the case number 2015/5726 E., 2015/13056 K., it is stated as follows:
“Based on the claim, defense, expert reports, and the entire file, the court has determined that the loading of the leeks subject to the transport contract was done at the farm, they were taken into transportation in a complete and sound condition, and the transport document was in accordance with these conditions. It was found that the defendant did not transport the goods at the +2°C temperature as specified in the transport document, and since the natural characteristics of the goods were known from the outset, the defendant did not fulfill the conditions it committed to under Article 18/4 of the CMR Convention and could not claim exemption from liability. It was noted that pre-cooling was not carried out during the loading process, but since the defendant had the possibility to reduce the temperature to +2°C, the failure to pre-cool would not cause this degree of deterioration in the fresh product. As the carrier failed to ensure transportation at the committed temperature and transported the goods with the awareness of the potential for damage, the defendant was considered fully at fault. Considering the damage amount was determined as 70%, the defendant was held responsible for 70% of the damage amount, which equates to 5,257.70 Euros out of the total 7,511 Euros. The court decided to partially accept the case and ordered the defendant to pay 5,257.70 Euros, with annual interest of 5% from the date of the lawsuit… The judgment, which is in accordance with procedure and law, was UPHELD.”
The Effect of the Carrier’s Fault Equivalent to Intent on the Statute of Limitations
Intent or fault equivalent to intent is also a situation that affects the statute of limitations period. According to Article 32 of the CMR, lawsuits arising from CMR-regulated transportations must be filed within one year. However, in cases of intentional misconduct or fault considered intentional by the court, this period is extended to three years. The reason for this provision is to prevent the carrier, who has intentional or equivalent fault, from being released from liability in a short period of time by holding them responsible for three years instead of one year.
Article 32 of the CMR
- Claims arising from transportation carried out under this Contract must be filed within one year. However, in cases of intentional misconduct or faults considered as intentional misconduct by the court, this period is three years and begins on the following dates: a) In the case of partial loss, damage, or delays upon delivery, from the date of delivery, b) In the case of total loss, 30 days after the expiration of the agreed time limit, or if there is no agreed time limit, on the 60th day after the carrier has received the goods, c) In all other cases, at the end of the three-month period following the date the transport contract was concluded. The day the limitation period begins is not included in this period.
- A written request will suspend the time limit until the carrier rejects it with a written notice and returns the relevant documents. If part of the request is accepted, the time period will resume for the disputed request. The party relying on these circumstances is responsible for proving that the request was received, the response was given, and the documents were sent. The time period cannot be suspended for other requests made for the same purpose.
- In accordance with the provisions of the second paragraph above, the extension of the time limit is regulated according to the decisions of the court hearing the case. This decision also regulates the right to file a new lawsuit.
- The right to file a lawsuit, which is lost due to the statute of limitations, cannot be exercised through a counterclaim or by offsetting one’s receivables.
SUMMARY: In freight transportation, the carrier has two main obligations. These are to transport the goods to the destination and to deliver the goods to the consignee there. In short, the carrier is responsible for transporting the goods to the agreed place under their supervision and responsibility. In addition, the carrier has secondary obligations such as the duty to protect the goods. Under the transportation contract, the carrier must carry out the transportation of the goods without damage from the moment they are received until they are delivered, in the same condition and form as when they were received. As part of the duty to protect the goods, the carrier must periodically inspect the goods, ventilate, monitor the heating or cooling system, and if the goods are partially wet or heated, dry them or ensure they cool down until the unloading moment.
The carrier’s limited liability is regulated in cases of loss or damage to the goods. In this context, if the compensation claimed is related to the loss or damage of individual parts of the shipment, the carrier’s liability is limited to the value of the entire shipment if it is completely lost, or the proportionate value of the lost part, with the net weight of each kilogram of the lost portion being limited to an amount corresponding to 8.33 Special Drawing Rights. However, the carrier’s limited liability does not apply in all cases. According to Article 29 of the CMR, the circumstances under which the carrier’s limited liability does not apply are shown. In cases where damage occurs due to the carrier’s own bad actions or faults equivalent to intentional misconduct, the carrier cannot benefit from provisions that limit liability or shift the burden of proof to the other party.
The term “reckless behavior” used in Article 886 of the Turkish Commercial Code refers to the failure to exercise the minimum care and attention expected from the carrier. Terms like “intentional misconduct,” “fault equivalent to intent,” and “reckless behavior” generally convey the same meaning. The carrier’s duty is to carry out the transportation with the highest care and in compliance with international standards. Therefore, behavior that is intentionally careless or negligent beyond what is expected from a prudent carrier will be considered under this provision.
The carrier’s intent or equivalent fault not only affects the compensation but also impacts the statute of limitations. According to Article 32 of the CMR, lawsuits arising from transportations under the CMR must be filed within one year. However, in cases of intentional misconduct or faults recognized by the court as intentional, this period is extended to three years.
Lawyer Gökhan AKGÜL & Lawyer Gökçe DEVİREN
ANTALYA ROAD TRANSPORT LAW – ANTALYA ROAD TRANSPORT LAW ATTORNEY
The road transport sector forms the backbone of trade both at the national and international levels. However, legal regulations in this field give rise to various legal responsibilities for drivers, transport companies, and cargo owners. An attorney specializing in road transport law plays a critical role in preventing loss of rights in matters such as disputes arising from transportation contracts, accidents, insurance issues, and criminal sanctions.
An attorney well-versed in road transport regulations, such as the CMR Convention, the Road Transport Law, and the Transportation Regulation, will represent their client in the best possible way by adhering to these legal frameworks. As an Antalya Road Transport Law Attorney, you can ensure the quick and effective management of the process by contacting us for professional support and consulting services from our experienced attorney team.
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