Turkish Supreme Court’s Interpretation

Yasar Ozturk

Attorney At Law 

Turkish Supreme Court’s Interpretation The Turkish Supreme Court 11th Panel of Law ruled in its decision dated 19 June 2001 that: “The consignee should have right of action against the first carrier who issued the air waybill and received the cargo from the consignor as there is no entering into airwaybill on that the carriage should be performed by various successive carriers and also no existing agreement on the successive carriage was submitted according to the provision of Article 30/3 of Warsaw Convention.” Turkey has ratified the Warsaw Convention, the Hague Protocol 1955 and Montreal Additional Protocol 4 signed in 1975, while the Guadalajara Convention 1961 was not ratified. The dispute arose from a consignment of tap parts, sold to a Turkish importer, under an air contract concluded between Air Express International Italy Spa, appearing as the air carrier’s agent in the air waybill, and an Italian exporter, Fimes SRL (the shipper), for the carriage of the consignment and delivery to the consignee in Istanbul. Air Express International Italy Spa received the cargo in good order and without defect, with the air waybill issued on 24 November 1997 from the shipper and they delivered the shipment to DHL Aviation NV for carriage from Italy to İstanbul by air. DHL received the cargo in good order and without defect from Air Express International Italy Spa and issued an air waybill entering Air Express Spa as shipper and Air Express Spa’s agent, Berben Express Ltd, as the consignee in Istanbul. The buyer, the Turkish importer, was not entered in the air waybill as consignee in order to get him to pay the air freight against delivery of the goods. The cargo was delivered short to the Turkish buyer’s firm owing to loss during carriage by the aircraft. The insurer of the goods paid the value of the goods lost during the carriage, demanded the paid sum from the first carrier, Air Express International (Italy) Spa, and filed claims with the commercial court in Istanbul. Defendant Air Express Spa’s lawyers’ defence was that Air Express Spa had delivered the cargo in good order and without defect to the subcarrier DHL for carriage by aircraft from Italy to İstanbul. DHL made no remarks indicating any defect or damage or bad condition of the goods subject to carriage in the airwaybill and therefore Air Express should not be held liable for the partial loss of the goods during the actual carriage. Istanbul 9th Commercial Court determined that Air Express International was defined as carrier’s agent at the place of departure in the air waybill and it is evident from the air waybill issued by DHL that the defendant, Air Express, did not perform the carriage by itself but arranged for it to be carried out by DHL International Inc. It is explicitly understood that Air Express Spa appears as consignor in the air waybill, which does not contain any reservation remarks with regard to the cargo and the absence of the reservation remarks proves that the cargo was delivered without defect and in good order to the subcarrier by the defendant. The provisions of the Warsaw Convention are to be applied in respect of the carriage route. Where the goods subject to carriage by air are rendered defective, destroyed or lost during the carriage, the lawsuit should be directed against the carrier who performs the carriage at the time when the damage or loss happened according to the provisions of Articles 1/3 and 30 of the Warsaw Convention. It is necessary to conclude a mutual agreement between the parties in order for the carriage that will be performed by various successive carriers to be subject to the Warsaw Convention’s provisions. Each of the various carriers must have concluded an agreement with the consignor severally or one of the carriers must have undertaken (the carriage) representing the other carriers. The shipper (consignor) is the seller’s firm, Fimes SPL, the consignee is the buyer’s firm, Eczacibasi, and the carrier is Air Express International Spa in the air waybill issued by Air Express Spa. However, the shipper (consignor) appears as Air Express Spa, the consignee is Berben Express Nak. ve Tic Ltd and the carrier is DHL International Inc. In the second airwaybill, issued and signed by DHL, there are contracts between shipper Fimes SPL and main carrier Air Express Spa, and between Air Express Spa and subcarrier DHL International, but there is no agreement among the parties that the carriage should be performed under various (carriage) contracts. None of the carriers has concluded any carriage contract severally with the shipper of the cargo. As there is no contractual relationship between the shipper Fimes SPL and subcarrier DHL International, and also as Air Express Spa did not conclude any contract on behalf of DHL representing said subcarrier, there is no ‘successive carriage’ as defined in Articles 1/3 and 30 of the Convention, DHL International Inc cannot be deemed as carrier and Air Express International Spa has been deemed the carrier and therefore is ordered to pay the indemnity to the plaintiff insurance company which has indemnified the insured consignee. The Istanbul 9th Commercial Court made this judgment based on the decision of the Supreme Court’s 11th Panel of Law, dated 15 October 1999. The Supreme Court’s 11th Panel of Law stated in its said decision: ‘According to Article 1/3 of the Warsaw Convention, in the carriage to be performed by several succesive carriers, if this is regarded by the parties as a single operation, whether it has been agreed upon under the form of a single contract or a series of contracts, regardless of this it is deemed one uninterrupted carriage. Under the provision of this article, it is required that the parties must agree on the acceptance of the carriages to be performed by the successive carriers as a single carriage operation and thus there must be an agreement of the wills determines on the same direction among the parties. It is understood that the word of parties in this statement covers successive carriers-more than one-as well as a passenger or the shipper (consignor of the cargo). It is explicitly pointed out that there must be a contractual relation among the parties by stating that such a carriage could be suggested by a single or more contract(s) and as also the parties might have entered into a contractual relation being the result of the agreement between the shipper and successive carriers. In short, it is necessary to conclude an agreement among the parties in order to have the carriage operation which is to be performed by the successive carriers, subject to the provisions of the [Warsaw] Convention. Each carrier severally must conclude an agreement with the shipper of the cargo or one of the carriers must undertake to represent the other carriers.’ The 11th Panel of Law of the Supreme Court confirmed the judgment of the Istanbul 9th Commercial Court stating that, as there are no remarks or entry in the air waybill issued by the first carrier, Air Express International Spa, on the performance of the carriage by several carriers and as no other contract on this subject was submitted in the file, the plaintiff insurer of the consignee has the right of action for the indemnified loss incurred during the carriage performed by the carrier DHL International Inc, against the first carrier who received the cargo from the shipper by issuing the air waybill under provisions of Articles 1/3 and 30 of the Warsaw Convention