When a container is opened in Ambarlı or Gebze, the picture is familiar: the wooden crate around marble slabs has collapsed, big-bags have shifted into one another because no dunnage was placed between them, or machinery has tipped over because it was not chocked. The carrier says, “the packaging was inadequate; you stuffed the container,” while the cargo interest says, “a clean bill of lading was issued and no reservation was made.” The insurer then brings a recourse claim, and the file turns on two questions:

Was there a reasoned reservation on the bill of lading, and was the defect within the carrier’s ability to inspect? Below, we examine how liability is allocated in maritime cargo damage arising from packaging and stowage, the reservation mechanism and the legal basis for apportionment of fault. This article concerns carriage of goods by sea only; road carriage and the CMR regime are outside its scope.

Contents

1. Parties and allocation of duties: charterer, shipper, carrier, actual carrier
2. The carrier’s two core obligations: seaworthiness/cargo-worthiness and due care in stowage
3. The shipper’s declaration and packaging liability: TCC Arts. 1145-1148
4. Reservation on the bill of lading: the single line that may determine the fate of the case
5. Letter of indemnity in exchange for a clean bill of lading and TCC Art. 1241
6. Presumptions of absence of fault and their limits: TCC Art. 1182
7. How far do FIO / FIOS terms protect the carrier?
8. The “ability to inspect” test
9. FCL container carriage: internal stowage or external impact?
10. Apportionment of fault: under which provision and how?
11. Container and vessel damage: the carrier’s counterclaims
12. Proper parties and joint and several liability
13. Notice period and the one-year forfeiture period
14. Loading-stage checklist
15. Evidence and questions to put to the expert
16. Eight most common mistakes in practice
17. Conclusion
18. Frequently Asked Questions
19. Sources and warning

1. Parties and Allocation of Duties

The discussion of proper parties and liability in maritime carriage begins with correctly identifying the parties:

This distinction has practical consequences: a packaging defect is an act of the shipper ; internal container stowage is likewise often the shipper’s responsibility, whereas hold and deck stowage are organised by the carrier. In the same file, these three links interact.

2. The Carrier’s Two Core Obligations

Liability is based on actual control over the goods and, as a rule, covers the “port-to-port” period. Once the injured party shows that the damage arose during this period, the carrier is presumed to be at fault; the burden of proving absence of fault lies with the carrier.

The second obligation is fitness/seaworthiness. Under TCC Art. 1141/1, the carrier must ensure that the vessel is seaworthy, voyage-worthy and cargo-worthy; under Art. 1141/2, the carrier is liable for damage arising from unfitness unless the defect could not have been discovered before the commencement of the voyage despite the exercise of the care and diligence expected of a prudent carrier.

This second obligation is frequently overlooked in stowage disputes. If floor beams of a container supplied by the carrier are rotten, hold lashing points are broken or corroded, or tensioning equipment is uncertified, the issue is not “the shipper’s stowage error” but “unfitness for cargo” and liability shifts back to the carrier.

3. The Shipper’s Declaration and Packaging Liability: TCC Arts. 1145-1148

This provision establishes guarantee (strict) liability toward the carrier: the shipper is liable for the inaccuracy of its declaration even without fault. In packaging and stowage disputes this has a very concrete effect — incorrect declaration of weight, type, quantity or characteristics of the cargo may disrupt both the vessel’s stowage plan and the securing calculation.

The same guarantee liability also applies under Art. 1146 (impermissible goods and loading), Art. 1147 (goods secretly loaded without the master’s knowledge), and Art. 1148 (dangerous goods). In particular, Art. 1148 provides that where goods deemed dangerous under legislation protecting life and property at sea are brought aboard without the master’s knowledge, the charterer or shipper is liable under Art. 1145 even if no fault can be attributed to them .

The master’s powers operate within the same framework: under Art. 1146/3, if the goods endanger the vessel or other goods on board, the master is entitled to discharge them ashore or, where necessary, jettison them. Mandatory interventions at a transshipment port because of faulty stowage are likewise grounded in the master’s duty to protect the interests of cargo interests and the master’s statutory representative authority.

4. Reservation on the Bill of Lading: the Single Line That May Determine the Fate of the Case

The provision has three practical consequences:

a) Entering a reservation is not merely a right; it is a duty

The statute does not say “may enter” but “must enter”. A carrier that receives without reservation cargo whose packaging is visibly inadequate, whose crate is broken or whose stowage is loose weakens its own later defence that “the packaging was poor”.

b) The reservation must state reasons

A common example in legal commentary and teaching is clear: merely writing “quantity unknown” on the bill of lading is not treated as a reservation because no reason is stated, so the relevant bill-of-lading entry continues to operate as a presumption against the carrier. The reservation must also state the reason justifying the suspicion: for example, “crates are open, there is no dunnage between slabs, and there is no internal securing”.

c) A reservation is the only real shield against a good-faith third party

Once the bill of lading is transferred by endorsement, the contrary of the presumption cannot be established against a good-faith holder. Thus, even if the carrier can later prove the true situation between itself and the shipper, it cannot rely on that against a buyer or bank that acquired the document in reliance on a clean bill of lading. The cost of a sentence omitted at the time of loading cannot later be cured by any amount of evidence.

5. Letter of Indemnity in Exchange for a Clean Bill of Lading and TCC Art. 1241

A common scenario in practice is this: the packaging is poor and the carrier wants to enter a reservation, but the shipper needs a clean bill of lading for payment under a letter of credit and gives a letter of indemnity, saying, “do not enter the reservation; I will indemnify any resulting loss.”

TCC Art. 1241 expressly regulates an issue that had been disputed under repealed Code No. 6762. The balance established by the statute is as follows: the indemnity is invalid where there is an intention to deceive third parties; in that case, if the reservation omitted from the bill of lading concerns particulars supplied by the shipper for insertion into the bill of lading, the carrier may not even claim indemnity from the shipper under Art. 1145.

6. Presumptions of Absence of Fault and Their Limits: TCC Art. 1182

TCC Art. 1182/1 provides that, where the loss arises from the listed causes, the carrier and its servants are presumed to be free from fault . In packaging and stowage disputes, three subparagraphs are decisive:

• (e) Acts or omissions of the shipper, charterer and owner of the goods, and their representatives or servants — faulty internal stowage and securing fall within this category.
• (f) Wastage in bulk or weight, latent defects of the goods, or the inherent nature and characteristics of the goods.
• (g) Insufficiency of packaging — weak pallets, thin stretch wrapping, fragile wooden crates.

In addition, under Art. 1182/4, certain statements entered in the bill of lading on the basis of information provided by the shipper are not binding on the carrier; where weight or type has been misstated, this provision supports the carrier’s defence.

7. How Far Do FIO / FIOS Terms Protect the Carrier?

Under FIO (free in and out) and FIOS (free in, out and stowed) terms commonly used in contracts of affreightment, loading, discharge and sometimes stowage work and costs are left to the cargo interest. These terms alter the allocation of work and costs but do not entirely eliminate the carrier’s statutory duty of care.

Two limits are particularly important:

• The master’s duty of supervision: even where loading and stowage are performed by the cargo interest, the master’s general supervisory obligation under the rules of seamanship continues. Stowage decisions affecting the safety and stability of the vessel cannot be transferred by contract.
• Mandatory-law limitation: contractual clauses reducing or excluding the carrier’s statutory liability are ineffective where they conflict with relatively mandatory provisions; an FIO term cannot be transformed into an exclusion-of-liability clause.

We examined this issue in detail in our article entitled Who Is Liable for Cargo Damaged During Loading and Discharge? .

8. The “Ability to Inspect” Test

TCC Art. 1239 links the carrier’s duty to enter reservations to whether it has “sufficient means of checking”. In practice, the question determining the direction of liability is: was this defect within the carrier’s ability to inspect at the time of receipt?

9. FCL Container Carriage: Internal Stowage or External Impact?

The Court of Cassation has drawn a clear distinction in full-container-load (FCL) carriage. In the Court of Cassation 11th Civil Chamber decision dated 26.12.2023, E. 2023/1054, K. 2023/7707, it was held that in FCL carriage the carrier is not liable for damage arising from internal stowage and packaging inside the container, whereas the carrier should be held liable where the goods are damaged because the container is struck externally during carriage . In the specific case, the carrier was not held liable because the damage was found to have resulted from inadequate wooden crates used for marble slabs, sudden movements and swaying, and loading error.

This principle directly determines how the file should be built. From the cargo interest’s perspective, the objective is to show that the damage arose from an external event — was the container corner post crushed, is there deformation in the roof panel, did the seal number change, is there a record that the container was dropped during handling? From the carrier’s perspective, the objective is the opposite: the seal was intact, the exterior of the container was undamaged, and there were signs of internal shifting.

10. Apportionment of Fault: Under Which Provision and How?

In maritime carriage, damage often does not arise from a single cause: the packaging is weak and the deck stowage is faulty; internal securing is inadequate and the vessel failed to alter course in heavy weather. In such cases, liability is apportioned. The legal bases are as follows:

• TCC Art. 1182/2 — where an event for which the carrier is responsible caused the presumptive cause to arise, the carrier cannot escape liability. This breaks complete exoneration and opens the question of causative contribution.
• TCC Art. 1178/2 — liability is limited to the part of the damage occurring during the carrier’s period of custody; if part of the damage occurred before loading or after discharge, that part falls outside the carrier’s responsibility.
• TCC Art. 1145 et seq. — the shipper’s guarantee liability forms the basis of the carrier’s counterclaims and set-off defence.
• TBK Art. 52/1 — where the injured party contributed to the occurrence or increase of the loss, the judge may reduce the compensation or deny it entirely.

In practice, depending on the expert’s causation analysis, the court may find complete exoneration (if the presumption operates), full liability (if the stowage was the carrier’s responsibility), or apportion liability according to causative contribution. For this reason, the fate of the case is determined by how the questions put to the expert are framed.

11. Container and Vessel Damage: the Carrier’s Counterclaims

Discussion usually focuses on cargo damage, yet faulty stowage may also damage the container, vessel equipment and other cargo. In a decision of the Istanbul 17th Commercial Court of First Instance, acting as the Maritime Specialised Court, the container floor was damaged because block-marble cargo had not been properly dunnaged and secured inside the container; under the FCL bill-of-lading terms, the court held the shipper itself liable for the stowage and securing error. The same decision accepted that the costs of transferring the cargo from the damaged container into another container at the transshipment port could be recovered from the shipper within the scope of the master’s duty to protect the interests of cargo interests and statutory authority to represent them.

From the carrier’s perspective, typical recoverable items include:

• Cost of repairing the container or, in case of total loss, replacement value,
• Loss of use for the period during which the container was unavailable,
• Discharge, restowage, handling and storage costs at the transshipment port,
• Survey and inspection fees,
• Repair of vessel equipment such as hatch covers, deck plating and lashing eyes,
• Recourse for compensation paid to other cargo interests.

12. Proper Parties and Joint and Several Liability

Where the contractual carrier issuing the bill of lading and the actual carrier physically performing the carriage are liable for the same damage and to the same extent, they are jointly and severally liable (TCC Art. 1191). The carrier is also liable for acts and omissions of the actual carrier and of persons it uses in performing the carriage obligation. However, the aggregate compensation payable by the carrier, actual carrier and their servants cannot exceed the statutory liability limits.

Where a freight forwarder issues a bill of lading in its own name, it is liable as carrier; where it merely acts as intermediary, its liability is governed by different principles. Incorrectly identifying the proper defendant may have consequences that are difficult to remedy within the one-year forfeiture period.

13. Notice Period and the One-Year Forfeiture Period

14. Loading-Stage Checklist

For the carrier and agent

• Record every defect you observe on the bill of lading together with the reason ; unreasoned wording such as “quantity unknown” does not constitute a reservation.
• If you have no ability to inspect, say so expressly — Art. 1239 separately recognises this reason.
• Assess the risk under Art. 1241 before accepting a letter of indemnity in exchange for a clean bill of lading; if deception is involved, the indemnity will not protect you.
• Keep EIR records for delivery and return of the container; these are often the key evidence against an allegation of a defective container.
• If your own team performs hold or deck stowage, keep the stowage plan, lashing-equipment certificates and manual in the file.

For the shipper and cargo interest

• Choose packaging suitable for vibration, humidity and inclination during a sea voyage; packaging that survives road carriage may not survive carriage by sea.
• Photograph internal container stowage and securing; the final image before the doors are closed is often the strongest evidence in the file.
• Declare weight, type and quantity accurately; an inaccurate declaration gives rise to strict liability under Art. 1145.
• Check whether your copy of the bill of lading contains any reservation; a clean bill of lading creates a presumption in your favour.
• Read your policy in advance to see whether it contains an exclusion for “faulty stowage/packaging”.

15. Evidence and Questions to Put to the Expert

• Front and reverse of the bill of lading: whether there is a reservation and whether it is reasoned; FCL/STC wording, paramount clauses and jurisdiction clauses.
• Seal and container records: seal number, condition at discharge, EIR in/out records.
• Stowage and securing evidence: loading photographs, packing list, lashing plan, weight declaration.
• Survey report: it should address the mechanics of damage (direction of movement, crushing marks, abrasion marks) and causation; a report that merely quantifies the amount of damage does not resolve liability.
• Vessel documents: stowage plan, lashing-equipment certificates, ship’s log, weather and route records.
• Insurance documents: policy, exclusion clauses, adjuster’s report, payment receipt and release.

Three questions put to the expert determine the case: (i) did the damage arise from internal packaging/stowage, external impact or handling, or a vessel-related deficiency? (ii) who actually performed the stowage? (iii) was the defect within the carrier’s ability to inspect at the time of receipt (Art. 1239)?

16. Eight Most Common Mistakes in Practice

1. Entering an unreasoned reservation. Statements such as “quantity unknown” do not qualify as reservations within the meaning of Art. 1239; the entry continues to operate as a presumption against the carrier.
2. Relying on a letter of indemnity and omitting the reservation. If deception is involved, the indemnity is invalid and even recourse under Art. 1145 may be unavailable.
3. Failing to record the condition of the seal. This is the foundation both of the FCL defence and of an external-impact allegation.
4. Overlooking Art. 1182/2. From the cargo interest’s perspective, this is the key provision capable of defeating the presumption, yet it is omitted from many pleadings.
5. Treating an FIO term as an exclusion-of-liability clause. It changes the allocation of work and costs; it does not remove the statutory duty of care.
6. Missing the three-day notice period for latent damage. If the container is moved to a warehouse and opened days later, the period may already have run.
7. Failing to claim container and vessel damage. Repair, loss of use and transshipment costs are often left unclaimed.
8. Incorrectly identifying the proper defendant. If the distinction among contractual carrier, actual carrier and forwarder is not corrected within one year, the right may be lost.

17. Conclusion

• Liability is allocated according to control and ability to inspect. If stowage is organised by the carrier, the duty of care under Art. 1178 applies; in a container stuffed and sealed by the shipper, the presumptions under Art. 1182/1-(e) and (g) come into play.
• The presumption is not absolute. Under Art. 1182/2, if an event for which the carrier is responsible caused the presumptive cause to arise, the carrier cannot escape liability. A defective container and faulty deck stowage fall within this category.
• A reservation is the carrier’s only real shield. Art. 1239 requires a reasoned reservation; an unreasoned reservation or failure to enter one turns the bill-of-lading statement into a presumption against the carrier, and the contrary cannot be proven against a good-faith holder.
• In FCL carriage, the distinction is clear: the carrier is not liable for damage arising from internal stowage and packaging, but is liable for damage arising from an external impact.
• Procedural thresholds come first: three days for latent-damage notice, one year for the forfeiture period, and ninety days for recourse.

18. Frequently Asked Questions

I stuffed the container myself; can the carrier still be liable?

Yes. Under TCC Art. 1182/2, if an event for which the carrier is responsible — such as a defective container, faulty deck stowage or measures not taken during the voyage — caused the internal stowage defect to become effective, the presumption is displaced.

Does writing “quantity unknown” on the bill of lading count as a reservation?

No. Under TCC Art. 1239, the reservation must state the reason justifying the suspicion or explain that there was no sufficient means of checking. An unreasoned statement does not prevent the relevant bill-of-lading entry from creating a presumption.

I saw at loading that the packaging was poor but made no reservation. What happens?

The bill of lading constitutes prima facie evidence that you received the goods as described, and the contrary cannot be proven against a good-faith third party. Your inadequate-packaging defence is seriously weakened by the opposing party’s argument that a clean bill of lading was issued.

If I obtain a letter of indemnity and issue a clean bill of lading, am I protected?

Not always. Under TCC Art. 1241, an indemnity intended to deceive third parties is invalid; where the omitted reservation concerned particulars supplied by the shipper for insertion into the bill of lading, the carrier may also be unable to claim indemnity from the shipper under Art. 1145.

Damage was found in an FCL container; who is liable?

According to the Court of Cassation 11th Civil Chamber decision dated 26.12.2023, the carrier is not liable for damage arising from internal stowage and packaging, but is liable where the damage resulted from an external impact on the container.

Does an FIO term completely release the carrier from liability?

No. An FIO/FIOS term allocates loading and discharge work and costs to the cargo interest; it does not eliminate the master’s general duty of supervision under the rules of seamanship or the carrier’s statutory duty of care.

I misstated the weight; what is my liability?

Under TCC Art. 1145, the charterer and shipper are liable to the carrier for loss arising from inaccurate declarations even in the absence of fault . Since an incorrect weight declaration distorts the stowage plan and securing calculation, this liability can arise readily.

The packaging was closed and I could not see the looseness inside. Is that a valid defence?

Yes, if technically proven. TCC Art. 1239 links the duty to enter reservations to “sufficient means of checking”; where there was no ability to inspect, no inspection duty arises and the presumptions under Art. 1182/1-(e) and (g) operate.

Faulty stowage damaged my container; can I recover from the shipper?

Yes. Repair or replacement cost, loss of use, discharge and restowage costs at the transshipment port, and survey fees may be claimed. It is accepted that mandatory transshipment costs may be recovered from the shipper within the scope of the master’s duty to protect the cargo interests.

If I do not notify latent damage within three days, is my action extinguished?

No. Your right of action is not extinguished, but you must rebut the presumption that the goods were delivered without damage. In practice, this significantly weakens the file.

As an insurer, how long do I have to bring a recourse action?

Under TCC Art. 1188/3, a recourse action may be brought even after the end of the one-year period, but the right is extinguished unless exercised within ninety days from the date you paid compensation or were served with the statement of claim brought against you.

What happens if the cause of the damage cannot be determined precisely?

The burden of proof becomes decisive. If it can be shown that the damage arose during the carrier’s period of custody, the carrier is presumed to be at fault; however, an FCL notation and intact seal place the cargo interest in a difficult position under the presumption in Art. 1182/1-(e). The uncertainty is overcome through the quality of the survey.

19. Sources and Warning

• Turkish Commercial Code No. 6102, Book on Maritime Trade: Arts. 1141, 1145-1148, 1178, 1182, 1185, 1188, 1191, 1239, 1241 — official text at mevzuat.gov.tr
• Turkish Code of Obligations No. 6098, Art. 52
• Court of Cassation 11th Civil Chamber, 26.12.2023, E. 2023/1054, K. 2023/7707 (FCL container; distinction between internal stowage and external impact)
• Decision of the Istanbul 17th Commercial Court of First Instance (Maritime Specialised Court) — block marble, damage to container floor and transshipment costs
• Legal scholarship on letters of indemnity issued in exchange for clean bills of lading and TCC Art. 1241

Related Articles

• Who Is Liable for Cargo Damaged During Loading and Discharge?
• Contracts of Affreightment and Carrier Liability
• Provisional Attachment of Vessels: Conditions and General Framework
• All of Our Maritime-Law Articles