The outcome of the dispute is often determined not by its merits, but by the standing to sue: if the defendant’s capacity in the specific case — whether carrier, forwarder, or merely an agent — is not correctly identified, a legitimate claim will be dismissed due to lack of passive standing.
Short Answer
The answer yields three different outcomes depending on the defendant’s capacity in the specific case:
Carrier / forwarder who has acquired the status of a contractual carrier: A forwarder; if they have personally undertaken the carriage (TCC art. 926), agreed upon a single/lump sum fee including carriage costs (art. 921), or issued a freight invoice in their own name and collected freight, they become liable as a carrier and can be sued directly.
Pure (not having acquired the status of a contractual carrier) forwarder: They are responsible for the loss and damage of goods in their possession (art. 928/1); however, for delays and similar damages related to goods not in their possession, they are only held liable if they have breached their organizational obligation under art. 918 (art. 928/2). If they acted like a prudent merchant, their liability does not arise.
Mere agent: A person designated in the bill of lading as “as forwarder agent only”, “destination agent”, “delivery/distribution agent” or “consignee” and who does not undertake the carriage cannot be sued directly. According to TCC art. 105/2, an agent can only be sued in relation to the principal carrier; a direct lawsuit will be dismissed due to lack of passive standing.
Most critical warning: If the carrier’s name is not shown at all or explicitly on the bill of lading, Article 1238 of the TCC comes into play, and the representative who issued the document can also be considered a carrier along with the shipowner — this is an important “saving” provision for the cargo interest.
1. The Core of the Problem: Who Should Be Sued?
In maritime transport, when cargo is damaged, lost, or delivered late, the exporter or insurer often turns to the first point of contact, the person who issued the invoice or stamped the bill of lading — that is, the forwarder or the arrival agent. However, in Turkish law, the real determining question is not “who caused the damage?” but “in what capacity did the defendant act in this carriage?” is the question.
If this capacity is not correctly determined, even an essentially valid claim will be rejected due to lack of passive locus standi (because the lawsuit was directed against the wrong person). A significant portion of the recent Regional Courts of Justice decisions examined below were rejected precisely for this reason — without delving into the merits.
2. Three Capacities: Carrier, Commission Agent, Agent
| Capacity | What is undertaken? | Direct action? | Legal Basis |
|---|---|---|---|
| Carrier / contractual carrier | To carry goods (personally or by contract) | Yes | TTK art. 1178 et seq.; art. 921, 926 |
| Freight forwarder (forwarder) | To organize the transport of goods | Generally yes (within the limits of art. 928) | TTK art. 917–930 |
| Agent | Manages business on behalf and account of a carrier/shipowner | No — but by imputation | TTK art. 105/2 |
The same company can act in different capacities in different transports; even in the same transport, it can be an agent for the sea leg and a carrier for the land leg. Therefore, the determination of capacity is not based on the company’s title or general activity, but rather on the documents and actual role in that specific transport.
3. Acquisition of Carrier Status by the Forwarder (TTK art. 921, 926)
A forwarder ceases to be a commission agent and assumes the position of a carrier in three cases and becomes directly subject to the carrier’s liability regime:
| Case | Article | Condition |
|---|---|---|
| Undertaking the transport personally | m. 926 | The forwarder has personally undertaken the transport of the goods; is considered a carrier |
| Lump-sum (all-in) fee | m. 921 | A single fee including transport costs has been agreed upon |
| Consolidated cargo | m. 927 | The cargo has been combined with the cargo of other shippers |
If one of these cases exists, the forwarder’s defense of “I am just an organizer” will not be effective; they will be held liable as a carrier and can be sued directly.
4. Presumption of Freight Invoice — and its Rebuttal
In practice, the strongest indicator of whether the commission agent has acquired the status of a carrier is the freight invoice. In established judicial practice, it is accepted that a freight forwarding agent will be considered a carrier (contractual carrier) if they demand and collect freight in their own name.
Istanbul Regional Court of Appeals 13th Civil Chamber — D. 2019/702, K. 2020/1375, D. 26.11.2020In the case file concerning cargo damaged due to water leaking from a hole in the container; the defendant was held responsible for the damage, as it was accepted that, even if they were a freight forwarder, due to having issued a freight invoice dated 18.09.2015, they personally undertook the transportation of the goods in accordance with Article 926 of the TCC and would be considered a carrier. The defendant’s defense of “I just selected the carrier, I am a forwarder” was not heard at the appellate stage as it was not raised in time at the first instance.
Istanbul Regional Court of Appeals 14th Civil Chamber — D. 2021/1270, K. 2024/1321, D. 26.09.2024In the file concerning the transportation of nitric acid, it was accepted that the forwarder who issued the freight and service invoice was a contractual carrier on the grounds that “in established judicial decisions, a freight forwarder would be considered a carrier if they demand and collect freight“. (The case was also evaluated separately on the merits due to the cargo being a dangerous good and the container internal stowage having been done by the shipper.)
However, this presumption is not absolute. Even if a freight invoice has been issued, if the defendant presents an agency agreement and appears on the bill of lading as “person to be referred to for delivery” / “consignee”, the court may consider them an agent, not a carrier:
Istanbul Regional Court of Justice 12th Civil Chamber — E. 2019/2173, K. 2022/349, T. 03.03.2022Although the defendant issued a freight invoice; its presentation of an agency agreement, its designation as “person to be referred to for delivery” in the bill of lading issued by the contractual carrier, its designation as “consignee” in the master bill of lading, and its issuance of the delivery order were evaluated together, leading to the conclusion that the defendant acted as the contractual carrier’s agent, and therefore, a direct lawsuit could not be filed against it pursuant to Article 105/2 of the Turkish Commercial Code (TCC).
Conclusion for the practitioner: A freight invoice is a strong initial presumption; however, the opposing party can rebut this with an agency agreement and bill of lading records. Therefore, before filing a lawsuit, one should not only look at the invoice, but also at the stamp, capacity/status, and delivery arrangements in the bill of lading.
5. Liability of the Pure Commission Agent (TCC Art. 918, 928)
Even if the forwarder has not acquired the status of a carrier, their liability does not entirely cease; however, the regime changes:
TCC Art. 928/1: The commission agent is responsible for the loss of and damage to goods in their possession (the provisions concerning the carrier’s liability are applied by analogy).
TCC Art. 928/2: For damages (including delay) not arising from the loss/damage of goods in their possession, they are liable only if they have breached their organizational obligation under Art. 918; they are exonerated if the damage could not have been prevented despite the diligence of a prudent merchant.
Izmir 5th Civil Court of Commerce — Docket No. 2018/124, Decision No. 2021/482, Date 15.06.2021In the case file concerning demurrage damages arising from the delivery of “door-to-door” furniture transport to Germany being changed from door-to-port; it was accepted that the commission agent, acting as the contractual carrier, in accordance with Turkish Commercial Code (TTK) Article 928, will only be liable for damages not arising from the loss/damage of goods not in its possession if it has violated its obligation under Article 918 (choosing the carrier, determining the route, concluding the contract, providing information/instructions); and cannot be held liable because it flawlessly fulfilled each of these obligations. It has been stated that the debtor of the demurrage, in accordance with TTK Article 1171, is the consignor. (The claim against the other defendant, who was the agent of the actual carrier, was also rejected on the grounds that a direct lawsuit cannot be filed against them pursuant to Article 105.)
6. Lawsuit Against a Mere Agent: TTK Article 105/2 Barrier
TTK Article 105/2: Just as an agent can file a lawsuit on behalf of their principal regarding disputes arising from contracts they mediated or entered into, a lawsuit can also be filed against them in the same capacity. (Meaning, in representation of the actual merchant.)
The practical implication of this provision is clear: An agent concludes contracts they sign or mediate not in their own name and on their own behalf, but on behalf of the person they represent (carrier/shipowner). Therefore, as a rule, they are not personally liable for these contracts. A lawsuit cannot be filed directly (in their own capacity) against an agent; but a lawsuit can be filed in representation of the actual carrier, and the decision is rendered regarding the principal.
Istanbul Regional Administrative Court 43rd Civil Chamber — E. 2024/977, K. 2024/1259, T. 19.09.2024In the case filed due to the delivery of goods without collecting payment for the goods; considering that the defendant signed the bill of lading with the notation “as forwarder agent only” (only as a forwarder’s agent), did not issue a freight invoice, and the bill of lading was not issued in its own name, it was deemed an agent of the contractual carrier; it was accepted that a direct lawsuit cannot be filed according to Article 105/2 of the Turkish Commercial Code (TCC). The plaintiff’s arguments regarding being a multimodal transport operator (MTO) and TCC Article 1238/3 were also rejected.
Istanbul Regional Administrative Court 13th Civil Chamber — E. 2025/796, K. 2025/813, T. 15.05.2025In the case of wetting damage during the Nigeria–Mersin sesame transport; given that the defendant was listed on the bill of lading only as “contact for delivery / distribution agent”, and there was no evidence that it carried out or intermediated the transport, it was deemed not to have the status of a carrier; it was accepted that a direct lawsuit could not be filed pursuant to TCC Art. 105, and the decision of dismissal due to lack of passive legitimacy was upheld.
7. Name of the Carrier in the Bill of Lading: TCC Art. 1238 Gateway
So, what happens if the party concerned with the cargo does not know who the actual carrier is? The law opens an important gateway here to protect the party concerned with the cargo.
Turkish Commercial Code (TCC) Art. 1238: The status of carrier depends not on issuing the bill of lading, but on undertaking the carriage. (1) The person who signs the bill of lading as carrier or for whom the bill of lading is signed in their name and on their account is deemed to be the carrier. (2) If the name and title of the carrier and its place of business are not indicated in the bill of lading, or are not clearly understandable, the shipowner is deemed to be the carrier; unless the shipowner, upon the holder’s request, documents and notifies the carrier. (3) If the carrier’s name is not indicated in a bill of lading issued by the master or the carrier’s representative, the representative who issued this document may also be deemed to be the carrier along with the shipowner.
The practical consequence of this provision is as follows: If the forwarder/agent issuing the bill of lading has not clearly indicated the identity of the actual carrier in the document, the cargo interest may address them as the carrier. The rationale of the Law also clearly states this: the holder has been granted the possibility to request the carrier’s identity information from the shipowner or its representative and to directly sue the carrier; the carrier, shipowner, and representative are jointly and severally liable for damages arising from the incorrect or late notification of the carrier’s name.
Strategy note: TCC Art. 1238 indicates that the defense “as forwarder agent only” is not always sufficient on its own. If the identity of the actual carrier is not clearly stated on the bill of lading, the agent who issued the document may be considered the carrier. However, as seen in the above BAM 43rd Civil Chamber’s decision, if the identity of the carrier (actual carrier) is clear on the master bill of lading, this argument is rejected. Therefore, Art. 1238 is a strong basis in cases where the carrier’s identity on the bill of lading is truly uncertain.
8. How to Properly Establish the Defendant (Standing)?
The representative of the cargo owner should follow these three steps in order before the lawsuit:
Collect documents: Master bill of lading, house bill of lading, freight invoice, service invoices, delivery order, cargo delivery instruction, and email correspondence.
Determine the capacity: Did the defendant issue a freight invoice? In what capacity did they sign the bill of lading (“as carrier” / “as agent” / “as forwarder agent only”)? Do they appear on the bill of lading as a carrier or as a consignee/delivery agent? Is there an agency agreement?
Direct the claim accordingly:
If they have the capacity of a carrier → directly to the defendant.
If they are only an agent → to the agent on behalf of the actual carrier (“… on behalf of Carrier Inc. … Agency Inc.”).
If the carrier’s identity is uncertain on the bill of lading → to the issuer of the document in the capacity of a carrier, based on Art. 1238.
Exception for the agent’s personal fault: Pursuant to Article 105/3 of the TCC, if the agent’s personal fault is alleged and proven, direct legal action can be taken against them. Therefore, if a lawsuit is being considered against the agent, the agent’s specific personal fault (e.g., negligence regarding the cargo in their possession) must be clearly stated and evidenced in the petition.
9. The Pitfall in an Action for Annulment of Objection
There is a frequently encountered and difficult-to-remedy pitfall in insurers’ subrogation files: if enforcement proceedings are initiated against the wrong party (e.g., directly against the agent), the party status cannot be corrected in a subsequent action for annulment of objection.
Istanbul Regional Court of Appeals 13th Civil Chamber — E. 2025/796, K. 2025/813, D. 15.05.2025The plaintiff, stating that they had erroneously directed the enforcement proceedings against the wrong company, requested a change of party pursuant to Article 124 of the CCP; however, the court upheld the decision to reject the case due to lack of standing for the defendant, stating that the action for annulment of objection is strictly tied to the enforcement file, that a change of party cannot be made in the enforcement file and that the proceedings initiated against the wrong party would not affect the present case.
Practical lesson: The party against whom legal action is to be taken must be finalized before enforcement proceedings are initiated. In an action for annulment of objection, the lawsuit proceeds against whomever the enforcement proceedings were initiated against; if the wrong party has been chosen, Article 124 of the CCP (change of party) will not remedy this defect. Therefore, in insurer subrogation cases, conducting an analysis of the parties based on the bill of lading and invoice before the proceedings is of vital importance.
10. Criterion of Possession and Burden of Proof
The carrier’s (or broker considered as carrier) liability is conditional on the damage arising while the goods were under its control (TCC art. 1178). In container shipments, two records are decisive at this point:
Presumption of clean bill of lading: If the container was received without reservation (clean), a presumption arises that it was received in sound condition and that the damage occurred during transportation. In the BAM 13th Civil Chamber (2020) decision mentioned above, it was accepted that the container was received in sound condition due to the absence of any reservation regarding a hole in the container, and thus the damage occurred during transportation.
“Shipper’s load & count” / FCL notation: In cases where the container is filled and sealed by the shipper (STC/FCL), the burden of proof may shift for damages arising from stowing and loading. In the BAM 14th Civil Chamber (2024) decision, it was accepted that the leakage resulted from the shipper’s fault due to the FCL and “containers were filled, stowed, counted, and sealed by the shipper” notations.
11. Scope and Limits of Liability
In cases where the defendant can be held liable, the scope of compensation is determined within the following framework:
| Subject | Rule |
|---|---|
| Loss / damage ceiling (carrier capacity — sea) | The higher of 666.67 SDR per package or 2 SDR per kg (TCC art. 1186) |
| Delay (carrier capacity — sea) | 2.5 times the freight; cannot exceed the total freight (TCC art. 1186/6) |
| Delay (carrier capacity — road) | 3 times the carriage fee (TCC art. 882/3) |
| Fault of auxiliary persons | The commission agent/carrier is responsible for the acts and omissions of persons used in performance (actual carrier, etc.) as if they were their own acts (art. 929 / art. 1191) |
| Removal of limitations | If the damage arises from intent or reckless behavior, the limitations cannot be invoked (art. 886 / art. 1187) |
| Proof of exculpation | Liability does not arise for damage resulting from causes that could not be avoided or prevented despite the utmost care |
12. Demurrage, Laytime, and Equipment Fault
Three specific items are frequently debated in practice and directly affect disputes:
Demurrage / Detention: The debtor for the waiting fee arising from the late return of the container or the late delivery of the cargo is, as a rule, the carrier (TCC art. 1171). In the decision of Izmir 5th Commercial Court, it was also stated that the debtor for demurrage/detention is the carrier, and an innocent commission agent cannot be held responsible for it. However, if the party listed as the “consignee” in the bill of lading fails to take delivery of the goods, their liability may also arise.
Equipment (container) defect: The contractual carrier, who organizes the transport and undertakes the provision of the container, may be held liable for damages arising from a technical defect in the container (e.g., refrigeration malfunction, hole in the roof).
Delivery without bill of lading: In a documentary sale, the delivery of the cargo to the consignee without collecting the goods’ value and without presenting the bill of lading gives rise to the carrier’s liability; however, this claim must also be directed to the correct party (the carrier or their agent by proxy).
13. Sea and Land: Time Difference (TCC art. 1188 / art. 930)
The defendant’s legal standing changes not only the standing to sue but also the nature of the limitation period for the lawsuit:
| Addressee | Period | Nature |
|---|---|---|
| Sea Carrier | 1 year (art. 1188) | Forfeiture Period — cannot be interrupted, considered ex officio |
| Forwarding Agent | 1 year (art. 930/1) | Statute of Limitations — can be interrupted; 3 years in case of intent/recklessness |
Since the one-year period against the sea carrier is a forfeiture period, enforcement proceedings or a mediation application does not extend this period; applications left to the last days of the period lead to loss of rights. However, against the agent, since the period is a statute of limitations, it can be interrupted by enforcement or a lawsuit. Furthermore, in commercial receivables, mediation is a prerequisite for legal action, and the statute of limitations is suspended during the process.
14. Table of Current Court Decisions
| Decision | Defendant’s Status | Outcome |
|---|---|---|
| Ist. BAM 13. HD 2019/702–2020/1375 | Forwarder who issued the freight invoice | Art. 926 is considered a carrier → liable |
| Ist. BAM 14. HD 2021/1270–2024/1321 | Forwarder who issued freight + service invoice | Contractual carrier (has legal standing); essentially the consignor is at fault → dismissal |
| Izmir 5th Commercial Court 2018/124–2021/482 | Contractual carrier + also an agent | Art. 928/2 faultless commission agent is not liable; to agent Art. 105 → dismissal |
| Ist. BAM 12. HD 2019/2173–2022/349 | Freight invoiced but with an agency agreement | Deemed an agent; Art. 105/2 → direct lawsuit cannot be filed |
| Ist. BAM 43. HD 2024/977–2024/1259 | “as forwarder agent only”, no freight invoice | Agent; Art. 105/2 → dismissal |
| Ist. BAM 13. HD 2025/796–2025/813 | Distribution/delivery agent | Agent; Art. 105 + trap of objection annulment → dismissal |
The pattern illustrated by the table is clear: the party issuing the invoice and undertaking the carriage is held liable; whereas one who is merely an agent can only be sued indirectly. Most decisions are based on standing (locus standi), not on the merits.
15. Parties to the Case Checklist
Did the defendant issue a freight invoice in this carriage?
In what capacity did they sign the bill of lading? (“as carrier” / “as agent” / “as forwarder agent only”)
Does it appear on the bill of lading as a carrier or as a consignee/delivery agent?
Can the defendant present an agency agreement?
Is the identity of the actual (de facto) carrier clear on the master bill of lading? (Is Article 1238 applicable?)
Was an all-in / lump sum price agreed upon? (Article 921)
Was the cargo consolidated with other cargo? (Article 927)
Did the damage arise while in the defendant’s possession? (Article 928/1 or Article 928/2?)
Can the agent’s personal fault be asserted? (Article 105/3)
If enforcement proceedings are to be initiated, was the proper party to the action determined before the proceedings?
How much time is left for the one-year period starting from the date of delivery?
16. Frequently Made Mistakes
Automatically suing the invoice issuer. A freight invoice is strong prima facie evidence, but it can be rebutted by an agency agreement.
Suing the agent directly (in their own name). According to Article 105/2 of the TCC, it must be filed in a representative capacity; otherwise, it will be dismissed due to lack of a proper defendant.
Not reading the capacity of the signature on the bill of lading. The notation “as forwarder agent only” determines the fate of the lawsuit.
Initiating enforcement proceedings against the wrong party. Party identification cannot be rectified in a lawsuit for the annulment of an objection.
Skipping the possibility under Article 1238. If the carrier’s identity is unknown, the issuer of the document can be pursued as the carrier.
Disregarding the criterion of possession. A pure commission agent is liable for the delay of goods not in their possession only through a violation of Article 918.
Directing demurrage to the wrong addressee. The debtor is typically the carrier (Article 1171).
Underestimating the one-year period. The time limit against a sea carrier is peremptory.
Why is Expert Legal Support Necessary?
Most cargo damage, loss, and late delivery lawsuits in sea transport are lost not on their merits, but on the grounds of party identification. Whether the invoicing party is a carrier or an agent; in what capacity the bill of lading was signed; whether the identity of the actual carrier is specified in the document; whether enforcement proceedings were directed against the correct party — each of these can lead to the rejection of even a fundamentally legitimate claim. These determinations can only be made by examining the bill of lading, invoice, delivery order, and correspondence together and in the correct sequence.
2M Law Office, with its Tuzla-based structure and field experience in the shipyard region, provides legal services regarding forwarder and freight forwarder liability, agent disputes, cargo damage and loss claims, late delivery compensation, freight–demurrage–dispatch claims, bill of lading disputes, ship arrest, and the collection of maritime claims.
Our service areas: maritime commercial law lawyer, forwarder liability lawyer, cargo damage and loss claims lawyer, freight forwarder claims lawyer, agent disputes lawyer, bill of lading disputes lawyer, ship arrest lawyer — we operate in the regions of Tuzla, Pendik, Kartal, Maltepe, Aydınlı, Tepeören, Orhanlı, Gebze, Darıca, Çayırova, Dilovası, and Kocaeli.
Legal consultancy is provided in English, French, and Arabic for foreign clients. To assess whether the proper parties have been established in your case, you can contact our lawyer team.
Related articles from 2M Law:
Who is Responsible for Cargo Damaged During Loading and Unloading?
How Are Disputes Resolved According to Freight Contract Types?
How are Laytime and Demurrage Disputes Calculated?
Frequently Asked Questions
Can I directly sue the forwarder for cargo damage or late delivery?
If the forwarder has acquired the status of carrier (by issuing a freight invoice, undertaking the carriage personally, or agreeing on a lump sum), you can file a direct lawsuit. If they are merely an organizer/agent, you cannot sue them directly but can file a lawsuit on behalf of the actual carrier. Is a forwarder who issues a freight invoice always considered a carrier?
Issuing a freight invoice is a strong presumption and, in established practice, leads to being considered a carrier. However, if the forwarder presents an agency agreement and appears as the consignor’s/delivery agent on the bill of lading, the court may consider them an agent. In this case, a direct lawsuit cannot be filed. Why can’t an agent be sued directly?
According to Article 105/2 of the TCC, an agent concludes contracts not in their own name but on behalf of the carrier/owner they represent; therefore, as a rule, they are not personally liable. A lawsuit can only be filed against an agent on behalf of the actual carrier. A lawsuit filed directly (in person) will be dismissed due to lack of passive standing. What happens if the bill of lading states “as forwarder agent only”?
This record indicates that the defendant signed only as the shipper’s agent and, as a rule, prevents them from being considered a carrier. However, if the identity of the actual carrier is not explicitly stated on the bill of lading, according to Article 1238 of the TCC, the issuer of the document may be considered the carrier. I don’t know who the actual carrier is, what can I do?
According to Article 1238 of the Turkish Commercial Code, if the carrier’s name and title are not indicated on the bill of lading or are not clearly understandable, the shipowner is considered the carrier; the agent who issued the document may also be considered the carrier along with the shipowner. As the holder, you have the right to request the carrier’s identity from the shipowner and to directly sue the carrier. Is the freight forwarder responsible for demurrage fees?
As a rule, no. The debtor of demurrage arising from the late receipt of goods is the consignee, according to Article 1171 of the Turkish Commercial Code. An faultless commission agent cannot be held responsible for this. However, if the party listed as the consignee on the bill of lading fails to take delivery of the goods, their responsibility may arise. I initiated enforcement proceedings against the wrong company, can I correct it?
Since the lawsuit for annulment of objection is strictly tied to the enforcement file, if the proceeding was initiated against the wrong adversary, a change of party cannot be made at the lawsuit stage under Article 124 of the Civil Procedure Code. Therefore, the adversarial party must be finalized before initiating enforcement proceedings. Is a pure commission agent (a forwarder not considered a carrier) responsible for late delivery?
They are only responsible for the delay of goods not in their possession if they have violated their organizational obligations under Article 918 of the Turkish Commercial Code (selecting a carrier, determining the route, making contracts, providing information/instructions). If they acted like a prudent merchant, their responsibility does not arise.
Confirmation note: The decisions of the Regional Court of Justice and the Civil Court of Commerce mentioned in this article have been compiled from texts provided/accessed by relevant parties and open-source legal publications. The details of the decisions (chamber, file number, decision number, and date) and their up-to-dateness must be confirmed via UYAP and Supreme Court Decision Search before being used in a petition or publication. For legal texts, Turkish Commercial Code no. 6102‘s current version should be taken as a basis.
