When the box is opened at Ambarlı or Gebze the scene is familiar: the timber crates around the marble slabs have collapsed, big bags have folded into each other for want of dunnage, a machine has toppled because it was never chocked. The carrier says the packing was inadequate and the shipper stuffed the container; cargo interests say a clean bill of lading was issued with no reservation whatsoever. The insurer subrogates, and the file turns on two questions:

Is there a reasoned reservation on the bill, and was the defect within the carrier’s means of checking? Below we set out how liability is allocated in cargo damage arising from packing and stowage, how the reservation mechanism works, and on what provisions apportionment rests. This article concerns sea carriage only; road carriage and the CMR regime are outside its scope.

Contents

1. The parties and who does what
2. The carrier’s two core duties
3. The shipper’s declaration and packing liability: Articles 1145-1148
4. Reservations on the bill of lading
5. Letters of indemnity for a clean bill and Article 1241
6. The no-fault presumptions and their limit: Article 1182
7. How far do FIO / FIOS terms protect the carrier?
8. The “means of checking” test
9. FCL carriage: internal stow or external impact?
10. Apportionment: which provisions and how
11. Damage to the container and the ship
12. Defendants and joint liability
13. Notice of loss and the one-year time bar
14. Loading-time checklist
15. Evidence and questions for the expert
16. Eight common mistakes
17. Conclusion
18. Frequently asked questions
19. Sources and caveat

1. The Parties and Who Does What

The distinction has practical bite: defective packing is the shipper’s act; in-container stowage is usually the shipper’s too; stowage in the hold or on deck belongs to the carrier’s organisation. In a single file all three links interact.

2. The Carrier’s Two Core Duties

Liability rests on actual control over the goods and, as a rule, covers the port-to-port period. Once the claimant shows the damage occurred within that period, the carrier is presumed at fault and bears the burden of proving otherwise.

The second duty is cargoworthiness. Under Article 1141/1 the carrier must ensure the ship is seaworthy, voyage-worthy and cargoworthy; under Article 1141/2 it is liable for loss arising from any want of these qualities, unless the deficiency could not have been discovered before the start of the voyage despite the diligence and care of a prudent carrier.

This second duty is often overlooked in stowage disputes. Where the carrier-supplied container has rotten cross-members, where hold lashing eyes are broken or corroded, or where tensioning equipment is uncertified, the issue is not “the shipper stowed it badly” but a want of cargoworthiness, and liability returns to the carrier.

3. The Shipper’s Declaration and Packing Liability: Articles 1145-1148

This establishes a guarantee (strict) liability: the shipper answers to the carrier for an inaccurate declaration even without fault. In packing and stowage disputes the point is concrete — a misdeclared weight, description, count or characteristic distorts both the stowage plan and the securing calculation.

The same guarantee liability applies under Article 1146 (impermissible goods and loading), Article 1147 (goods secretly loaded without the master’s knowledge) and Article 1148 (dangerous goods). Article 1148 in particular provides that where goods classified as dangerous are brought on board without the master’s knowledge of them or of their dangerous nature, the charterer or shipper is liable under Article 1145 even where no fault is attributed to them.

The master’s powers sit in the same frame: under Article 1146/3, where the goods endanger the ship or other cargo on board, the master may land them and, in cases of necessity, jettison them. The basis for emergency intervention at a transhipment port after a bad stow is likewise the master’s duty to protect cargo interests and his statutory power of representation.

4. Reservations on the Bill of Lading

a) Entering a reservation is a duty, not an option

The statute says the carrier must enter the reservation. A carrier that accepts, without reservation, cargo whose packing is visibly inadequate, whose crates are broken or whose stow is slack, weakens its own “the packing was bad” defence.

b) The reservation must be reasoned

The standard illustration is clear: writing only “number unknown” on the bill is not a reservation, because no grounds are given, and the statement continues to operate as a presumption against the carrier. The reservation must state the reason justifying the doubt — for example, “crates open, no timber between slabs, no internal securing performed”.

c) Against a good-faith holder, the reservation is the only shield

Once the bill is endorsed on, the presumption cannot be rebutted against a good-faith holder. Even if the carrier could later prove the truth as between itself and the shipper, it cannot raise that against a buyer or a bank that relied on a clean bill. The price of a sentence not written at loading cannot be paid later with any amount of evidence.

5. Letters of Indemnity for a Clean Bill and Article 1241

The familiar scenario: the packing is poor and the carrier wants to clause the bill; but the shipper, needing a clean bill for its letter of credit, offers a letter of indemnity — “don’t clause it, I will cover any loss”.

Article 1241 settles what was long contested under the former Code. The balance it strikes: the indemnity is void where the purpose is to defraud third parties; and in that case, where the omitted reservation concerns statements the shipper asked to be entered on the bill, the carrier cannot even claim compensation from the shipper under Article 1145.

6. The No-Fault Presumptions and Their Limit: Article 1182

Article 1182/1 provides that the carrier and its servants are deemed to be without fault where the damage results from the listed causes. Three limbs govern packing and stowage disputes:

• (e) acts or omissions of the shipper, the charterer, the owner of the goods and their representatives and servants — defective internal stowage and securing fall here;
• (f) natural loss in bulk or weight, inherent vice, or the nature of the goods;
• (g) insufficiency of packing — weak pallets, thin wrap, flimsy timber crates.

Article 1182/4 further provides that certain statements entered on the bill on the shipper’s declaration are not binding on the carrier; where weight or description has been misdeclared, that provision supports the carrier’s defence.

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

FIO (free in and out) and FIOS (free in, out and stowed) terms transfer the cost and the work of loading, discharge and sometimes stowage to cargo interests. They change the allocation of work and expense; they do not extinguish the carrier’s statutory duty of care.

• The master’s supervision: even where loading and stowage are performed by cargo interests, the master’s general duty of oversight under seamanship principles remains. Stowage decisions affecting the safety and stability of the ship cannot be transferred by any contract.
• The mandatory limit: contractual terms reducing or excluding the carrier’s statutory liability are void under the semi-mandatory regime; a FIO term cannot be converted into an exclusion clause.

We examine this in more detail in who is liable for cargo damaged during loading and discharge.

8. The “Means of Checking” Test

Article 1239 ties the duty to clause the bill to whether the carrier had “adequate means of checking”. In practice that is the question which sets the direction of liability: was this deficiency within the carrier’s means of inspection at the time of taking over?

9. FCL Carriage: Internal Stow or External Impact?

For full container load carriage the Turkish Court of Cassation has drawn the line clearly. In its decision of 26.12.2023 (11th Civil Chamber, file 2023/1054, judgment 2023/7707), the court held that in carriage marked FCL the carrier is not liable for damage caused by stowage and packing inside the container, but that where the goods are damaged by an external impact to the container during carriage, the carrier must be held liable. On the facts, the loss having been traced to inadequate timber crates around marble slabs, sudden movement and a loading error, the carrier was not held liable.

That principle dictates how the file is built. For cargo interests, the aim is to show an external cause: a crushed corner post, deformation in the roof panel, a changed seal number, a drop recorded in handling. For the carrier, the aim is the reverse: intact seal, no external damage to the box, shift marks inside.

10. Apportionment: Which Provisions and How

Damage at sea rarely has a single cause: the packing is weak and the deck stow is faulty; internal securing is missing and the ship did not alter course in heavy weather. In such cases liability is shared. The bases are:

• Article 1182/2 — the carrier is not relieved where the presumption’s cause was brought about by an event for which it is responsible. This breaks full exoneration and opens the causal shares to argument.
• Article 1178/2 — liability is confined to the part of the damage falling within the carrier’s period of control; anything occurring before loading or after discharge is outside it.
• Articles 1145 et seq. — the shipper’s guarantee liability grounds the carrier’s counterclaims and set-off defence.
• Article 52/1 of the Code of Obligations — where the injured party contributed to the occurrence or aggravation of the loss, the judge may reduce or wholly disallow compensation.

In practice the court, guided by the expert’s causation analysis, arrives either at full exoneration (where the presumption operates), full liability (where the stow was the carrier’s), or a division by causal shares. The outcome is therefore settled in how the questions to the expert are framed.

11. Damage to the Container and the Ship

Disputes usually run on cargo damage, yet a bad stow also damages the container, the ship’s equipment and other consignments. In a case decided by the Istanbul 17th Commercial Court of First Instance, sitting as a maritime specialist court, blocks of marble had not been properly dunnaged or secured inside the container and the container floor was damaged; on the strength of the FCL bill of lading remarks the court held the shipper itself liable for the stowage and securing failure. The same judgment accepted that the cost of transferring the cargo into another container at the transhipment port was recoverable from the shipper, within the master’s duty to protect cargo interests and his statutory power of representation.

Recoverable heads on the carrier’s side typically include: repair or replacement cost of the container; loss of use while it is out of service; discharge, re-stowage, handling and storage costs at the transhipment port; survey fees; repair of ship’s equipment such as hatch covers, deck sheathing and lashing eyes; and recourse for compensation paid to other cargo interests.

12. Defendants and Joint Liability

The contractual carrier issuing the bill and the actual carrier performing the voyage are jointly and severally liable to the extent they are liable for the same loss (Article 1191). The carrier also answers for the acts and omissions of the actual carrier and of the servants it uses in performing the carriage. The aggregate of compensation payable by the carrier, the actual carrier and their servants cannot exceed the limits of liability provided in the Code.

A freight forwarder issuing a bill in its own name answers as carrier; one acting purely as intermediary is subject to different rules. Suing the wrong party is rarely repairable within the one-year period.

13. Notice of Loss and the One-Year Time Bar

14. Loading-Time Checklist

For carriers and agents

• Enter every deficiency you see on the bill together with its reason; unreasoned entries such as “number unknown” are not reservations.
• If you have no means of checking, say so expressly — Article 1239 accepts that ground in its own right.
• Weigh the Article 1241 risk before accepting a letter of indemnity for a clean bill; where deception is involved the indemnity will not protect you.
• Keep the container release and return EIRs; they are the only evidence against a defective-container allegation.
• Where your own gang performs the hold or deck stow, file the stowage plan, securing equipment certificates and the securing manual.

For shippers and cargo interests

• Design the packing for the vibration, humidity and heel of a sea voyage; packing adequate for a road leg may not survive at sea.
• Photograph the internal stow and securing; the last frame before the doors close is the strongest evidence in most files.
• Declare weight, description and count accurately; an inaccurate declaration triggers strict liability under Article 1145.
• Check your copy of the bill for reservations; a clean bill is a presumption in your favour.
• Read your policy in advance for a “defective packing/stowage” exclusion.

15. Evidence and Questions for the Expert

• Both faces of the bill: is there a reservation, is it reasoned; FCL/STC remarks, paramount and jurisdiction clauses.
• Seal and container records: seal number, condition at discharge, EIR in/out entries.
• Stowage and securing evidence: loading photographs, packing list, lashing plan, weight declaration.
• Survey report: it must address the mechanics of the damage — direction of shift, crush marks, chafing — and causation; a report that only quantifies loss will not resolve liability.
• Ship’s documents: stowage plan, securing equipment certificates, deck log, weather and routing records.
• Insurance documents: policy, exclusions, adjuster’s report, payment receipt and release.

Three questions to the expert decide the file: (i) did the damage arise from the internal packing/stow, from an external impact or handling, or from a deficiency of the ship? (ii) who actually performed the stow? (iii) was the deficiency within the carrier’s means of checking at the time of taking over (Article 1239)?

16. Eight Common Mistakes

1. Writing an unreasoned reservation. Entries such as “number unknown” are not reservations under Article 1239; the statement keeps operating against the carrier.
2. Relying on a letter of indemnity instead of clausing the bill. Where deception is involved the indemnity is void and even Article 1145 recourse may close.
3. Not recording the seal condition. Both the FCL defence and the external-impact allegation rest on it.
4. Overlooking Article 1182/2. It is the only provision that breaks the presumption for cargo interests, and it goes unpleaded in most submissions.
5. Treating a FIO term as an exclusion clause. It reallocates work and cost; it does not remove the statutory duty of care.
6. Missing the three-day notice for non-apparent damage. The box is trucked to a warehouse and opened days later — the period has run.
7. Failing to claim container and ship damage. Repair, loss of use and transhipment costs frequently go unclaimed.
8. Suing the wrong party. Contractual carrier, actual carrier or forwarder — a mistake rarely repaired within the year.

17. Conclusion

• Liability follows control and the means of checking. Where the stow sits in the carrier’s organisation, Article 1178 applies; where the container was stuffed and sealed by the shipper, the presumptions in Article 1182/1(e) and (g) come into play.
• The presumption is not absolute. Under Article 1182/2 the carrier cannot escape where the cause was brought about by an event for which it is responsible — a defective container and a faulty deck stow both qualify.
• The reservation is the carrier’s only real shield. Article 1239 requires reasons; an unreasoned or missing reservation turns the bill’s statements into a presumption against the carrier, unrebuttable against a good-faith holder.
• In FCL the line is clear: no liability for damage from the internal stow and packing; liability for damage from an external impact.
• The procedural threshold comes first: three days for non-apparent damage, one year for the time bar, ninety days for recourse.

18. Frequently Asked Questions

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

Yes. Under Article 1182/2 the presumption is displaced where the internal stow only became damaging through an event for which the carrier is responsible: a defective container, a faulty deck stow, or measures not taken during the voyage.

Is “number unknown” on the bill a valid reservation?

No. Article 1239 requires the reservation to state the grounds justifying the doubt, or the absence of adequate means of checking. An unreasoned entry does not prevent the corresponding statement from operating as a presumption.

I saw the packing was poor at loading but entered no reservation — what follows?

The bill is prima facie evidence that you took the goods over as described, and that presumption cannot be rebutted against a good-faith third party. Your insufficient-packing defence is materially weakened by the “a clean bill was issued” objection.

Does a letter of indemnity protect me if I issue a clean bill?

Not always. Under Article 1241 the indemnity is void where the purpose is to defraud third parties; in that case, where the omitted reservation concerns statements the shipper asked to be entered, the carrier cannot even claim compensation from the shipper under Article 1145.

Damage appeared in an FCL container — who is liable?

Under the 11th Civil Chamber decision of 26.12.2023, the carrier is not liable for damage from the internal stow and packing, but is liable where the damage results from an external impact to the container.

Does a FIO term exonerate the carrier completely?

No. FIO/FIOS leaves the work and cost of loading and discharge to cargo interests; it does not remove the master’s general duty of oversight under seamanship principles or the carrier’s statutory duty of care.

I misdeclared the weight — what is my exposure?

Under Article 1145 the charterer and shipper are liable to the carrier for loss arising from inaccurate declarations even without fault. A misdeclared weight distorts the stowage plan and securing calculation, so this liability arises readily.

The packaging was closed and I could not see the slack inside — does that defence work?

If proved technically, yes. Article 1239 ties the reservation duty to “adequate means of checking”; where there are none, no inspection duty arises and the presumptions in Article 1182/1(e) and (g) operate.

The bad stow damaged my container — can I claim from the shipper?

Yes. Repair or replacement cost, loss of use, discharge and re-stowage costs at the transhipment port and survey fees are all claimable. Necessary transhipment expenses are recoverable from the shipper within the master’s protective duty.

If I miss the three-day notice, is my claim lost?

The claim survives, but you must rebut the presumption that the goods were delivered undamaged. In practice that materially weakens the file.

As a subrogated insurer, how long do I have?

Under Article 1188/3 the recourse action may follow the one-year period, but is extinguished unless exercised within ninety days of payment or of service of the claim against you.

What if the cause of the damage cannot be established?

The burden of proof decides. If the damage is shown to have occurred within the carrier’s period of control, fault is presumed; conversely an FCL remark plus an intact seal puts cargo interests in difficulty. Uncertainty is resolved by the quality of the survey.

19. Sources and Caveat

• Turkish Commercial Code No. 6102, Book on Maritime Trade: Articles 1141, 1145-1148, 1178, 1182, 1185, 1188, 1191, 1239, 1241 — official text at mevzuat.gov.tr
• Turkish Code of Obligations No. 6098, Article 52
• Court of Cassation, 11th Civil Chamber, 26.12.2023, file 2023/1054, judgment 2023/7707 (FCL; internal stow v. external impact)
• Istanbul 17th Commercial Court of First Instance (maritime specialist court) — marble blocks, container floor damage and transhipment costs
• Turkish scholarship on letters of indemnity against clean bills of lading and Article 1241

Related reading

• Who is liable for cargo damaged during loading and discharge?
• Contracts of affreightment and the carrier’s liability
• Arrest of ships: conditions and framework
• All maritime law articles