Your cargo was found damaged, your freight was not refunded, or your goods were delivered days late. When you turn over the back of the bill of lading in your hand, a sentence written in small print greets you: disputes will be heard in the courts of London, Hamburg, or Singapore. The carrier is foreign, the ship is foreign, the bill of lading is foreign. So, must the lawsuit really be filed abroad?
In Turkish law, the answer to this question is often tied to a single fact: did the foreign carrier have an agent in Turkey, and was the carriage subject to the lawsuit handled by that agent? If these two questions can be answered with “yes”, the foreign jurisdiction clause in the bill of lading may largely lose its function before Turkish courts. However, the difficult part here is not legal, but the proof part. This article explains exactly how that proof process is carried out: which record should be requested from which institution, what each document proves, and which evidence is not sufficient on its own.
Short answer: Agency status is proven by the agent registry of the General Directorate of Maritime Affairs of the Ministry of Transport and Infrastructure, along with port authority and customs records; and that the specific carriage was brokered is proven by the signature-stamp on the bill of lading, booking correspondence, freight and expense invoices, and delivery order records. A unilateral letter prepared by the agent itself is not considered sufficient on its own.
Contents
- The moment the dispute arises: the foreign jurisdiction clause on the back of the bill of lading
- Legal framework: TCC Art. 105/2, TCC Art. 103, and IPLA Art. 47
- The Supreme Court’s ‘exclusive jurisdiction’ line: four key decisions
- The doctrine’s opposition and its impact on your case
- The two pillars of proof: agency status and concrete intermediation
- First pillar: how is agency status documented?
- The agent’s own statement is not enough: lessons from a Supreme Court decision
- Port authority records: the strongest official source of evidence
- Customs records: summary declaration, sea manifest, and manifesto
- Signature and seal on the bill of lading
- Commercial evidence chain: from booking to delivery order
- Two critical advantages brought by the Ship Agents Regulation
- Second pillar: the “intermediation” requirement and the discharge agency debate
- Even if the agency ends, the passive power of representation continues
- Application: list of writs and step-by-step roadmap
- The opposing party’s defense lines and responses to them
- The Trade Registry Gazette misconception and other common mistakes
- Why is it important to correctly manage the process in these files?
- Frequently asked questions
- Bibliography and legislation
1. The moment the dispute arises: the foreign jurisdiction clause on the back of the bill of lading
One of the provisions printed on the back of the bill of lading in container shipments almost always relates to where the dispute will be heard. Some shipping line operators specify the courts of the country where their headquarters are located, some London, and some directly an arbitration venue. When the cargo owner or their insurer, as their successor, files a lawsuit in Turkey, the carrier’s attorney’s first move is almost invariably the same: preliminary objection to jurisdiction.
If this objection is accepted, the case is dismissed on procedural grounds, and the cargo owner is often forced to refile the lawsuit in a foreign jurisdiction, usually under the pressure of statutory limitation periods or forfeiture periods. Considering the brevity of the one-year period stipulated for the carrier’s liability in maritime transport, a decision of lack of jurisdiction can practically mean the loss of the right. Therefore, the response to the objection to jurisdiction is the first and most critical move that determines the fate of the case.
In Turkish practice, one of the main arguments used to overcome this objection is that the jurisdiction clause does not meet the criterion of “specificity.” In its decision dated 17.02.2016, numbered E. 2015/7244, K. 2016/1657, the 11th Civil Chamber of the Court of Cassation deemed a bill of lading clause that generally authorized the courts of only one state invalid on the grounds that it did not meet the condition of specificity; however, the same decision contains a dissenting opinion stating that designating all courts of a state also satisfies the condition of specificity. The second and much more effective argument in recent years is the agency-based argument, which is the subject of this article.
2. Legal framework: TCC art. 105/2, TCC art. 103 and IPLA art. 47
What does TCC art. 105 say?
Article 105 of the Turkish Commercial Code No. 6102 consists of three paragraphs, and each of the three serves a separate function in this discussion:
First paragraph: The agent is authorized to make and accept declarations protecting rights, such as warnings, notifications, and protests, on behalf of their principal, regarding the contracts they have mediated or concluded.
Second paragraph: Due to disputes arising from these contracts, the agent may initiate legal proceedings on behalf of their principal, and legal proceedings may also be initiated against the agent in the same capacity. Any conditions in contracts regarding those acting as agents on behalf of foreign merchants that contradict this provision are invalid.
Third paragraph: Decisions rendered as a result of lawsuits filed in Turkey against persons on whose behalf and account agents act cannot be enforced against the agents.
The third paragraph is very important in practice: the agent merely serves as an address for notification and party formation; they do not assume the principal’s debt, do not guarantee it, and the judgment cannot be enforced against their assets. This shows that initiating a lawsuit nominally against the agent does not put the agent at economic risk and weakens the legal grounds for the opposing party’s objection, “Why did you include us in the lawsuit?”
Reasoning for the article: what is the purpose of the provision?
The legislative rationale clearly reveals the purpose of the provision: since local traders have their domicile and place of business in Turkey, finding a competent court for them is not difficult; the aim of the article is to create the possibility for foreign traders to be sued in Turkey. The rationale also explains why the third paragraph was added: in practice, agents have been forced to pay the debts of the persons they represent; the legislator explicitly stated that the judgment cannot be applied to the agent’s assets to eliminate this hesitation.
TCC Art. 103: Those Considered Agents Even Without an Agency Contract
The truly critical provision regarding proof often goes unnoticed. In TCC Art. 102/1, an agent is defined as a person who professionally mediates or concludes contracts “continuously” within a specific location or region. If the burden of proof were based solely on this definition, the opposing party could easily escape by claiming, “there’s no continuity, we did a one-off job.”
TCC Art. 103 closes this door. The provision stipulates that, without prejudice to special statutory provisions, agency provisions shall apply to those who are continuously authorized to conclude contracts on behalf of a domestic or foreign merchant and in their own name, as well as to foreign commercial enterprises that do not have a head office or branch within the Republic of Turkey and conduct business within the country on their behalf and account. This point was explicitly emphasized in the decision of the 11th Civil Chamber of the Supreme Court dated 20.01.1983, numbered E. 1982/5392, K. 1983/103, which was rendered during the period of the corresponding articles of the old Turkish Commercial Code and is considered well-established in the Chamber’s jurisprudence: Agency provisions apply to those who conduct business within the country on behalf and account of foreign commercial enterprises that do not have a head office or branch in Turkey, even on an occasional basis; the occasional nature of the transaction does not affect the outcome.
Pleading note: If the opposing party argues, “we are not the permanent agent of this carrier; we only provided services for this occasion,” the answer is TCC Art. 103. The element of continuity is not sought in cases falling within the scope of Article 103. The absence of a written agency agreement is also not solely determinative.
Connection with PILA Art. 47
The first paragraph of Article 47 of Private International Law and Procedural Law Act No. 5718 permits parties to empower a court of a foreign state in cases where jurisdiction by venue is not determined on the basis of exclusive jurisdiction. The second paragraph of the same article states that jurisdiction rules concerning labor, consumer, and insurance contracts cannot be overridden by agreement. Pursuant to PILA Art. 54/1-b, the enforcement of a foreign court decision rendered on a matter falling within the exclusive jurisdiction of Turkish courts is also not possible. The Supreme Court’s agency-based approach is established precisely through this concept of “exclusive jurisdiction.”
Is there a foreign jurisdiction clause in your bill of lading?
Determining whether the agency relationship can be documented before filing a lawsuit determines whether the case will be heard in Turkey. Let’s examine your bill of lading and correspondence together.
3. The Supreme Court’s “exclusive jurisdiction” line: four key decisions
The 11th Civil Chamber of the Supreme Court has, in a series of decisions rendered since 2020, begun to characterize Article 105/2 of the Turkish Commercial Code (TTK) as an exclusive jurisdiction rule in the context of international procedural law. The following four decisions form the backbone of this approach and create the strongest impact when used together in petitions.
Supreme Court 11th Civil Chamber, E. 2019/3298, K. 2020/2018, D. 25.02.2020
In this case concerning a claim for compensation arising from international maritime transport, the court of first instance had ruled for lack of jurisdiction regarding the foreign carrier and for lack of standing regarding the Turkish ship agency company. After determining that the defendant Turkish agent had acted as the agent of the foreign company in the transport operation giving rise to the dispute, the Chamber concluded that Turkish courts should be considered exclusively competent in disputes of this nature in light of the last sentence of Article 105/2 of the Turkish Commercial Code (TTK), and overturned the decision by deeming the jurisdiction clause in the bill of lading invalid.
This decision stands out with one sentence regarding proof: The Chamber specifically stated that the agency status must be “fixed”. In other words, reaching the conclusion of exclusive jurisdiction depends on the agency relationship being established in the file first.
Supreme Court 11th Civil Chamber, File No: 2019/293, Decision No: 2020/953, Date: 05.02.2020
This is an action for the annulment of an objection raised against enforcement proceedings initiated for the amount of damage covered by a marine cargo insurance policy. The plaintiff insurer brought the action against the carrier’s agent, both in its own right and on behalf of the carrier. The first instance court ruled a lack of jurisdiction, and the regional court of appeal rejected the appeal on its merits. The Chamber, stating that an action can be filed against companies acting as agents on behalf of foreign merchants pursuant to Article 105/2 of the Turkish Commercial Code (TCC) and that any provisions to the contrary are invalid, accepted that the jurisdiction clause in the bill of lading was invalid given that the agent was also sued, and consequently annulled the judgment ex officio.
The notable point in the decision is the dissenting opinion: the member who wrote the dissenting opinion argued that Article 105/2 of the TCC regulates the possibility of filing a lawsuit against representatives of foreign companies in Turkey on behalf of the company, rather than establishing the exclusive jurisdiction of Turkish courts. This dissenting opinion is the strongest document the opposing party will place in your file; one should be prepared for it. This decision goes one step further than the previous two decisions and is the most frequently cited decision in practice. Here, the lawsuit was filed not against the agent on behalf of the principal, but directly against the foreign carrier. The Chamber concluded, based on both the text of the law and its rationale, that Turkish courts are granted international exclusive jurisdiction in disputes arising from contracts made by foreign merchants through their agents in Turkey, regardless of whether the lawsuit is filed against the agent on behalf of the principal or directly against the contracting party. The part of the decision related to the specific case provides exactly the formula we are looking for in terms of proof: the dispute concerns a contract of carriage made through the defendant company’s agent in Turkey, and the bill of lading was also issued by the agent. The Chamber overturned the decision of lack of jurisdiction by citing these two facts together. Thus, your proof objective is clear: (i) the contract of carriage was made through the agent, (ii) the bill of lading was issued by the agent. In this file, it was agreed in the agreement between the parties that the arbitration venue would be London and the applicable law would be English law. The lawsuit was filed against the foreign carrier’s agent in Turkey on behalf of the principal, and the court of first instance had issued a decision of lack of jurisdiction pursuant to Article 47 of the Turkish Code on Private International Law and Procedural Law (MÖHUK). After reiterating the findings in previous decisions, the Chamber went a step further, stating that disputes which the legislator explicitly intends to be heard in Turkish courts cannot be said to be arbitrable, and thus deemed the arbitration clause invalid on the grounds that it both eliminated exclusive jurisdiction and was non-arbitrable. Furthermore, the decision emphasized that cases where Turkish courts have exclusive jurisdiction will be determined by law, and by reference to Article 47/2 of the MÖHUK (Private International Law and Procedural Law), labor, consumer, and insurance contracts fall within this scope, but that exclusive jurisdiction may also be determined by other laws. Article 105/2 of the TCC (Turkish Commercial Code) has been positioned as this “other law.” Warning: The above case citations are taken from open sources (academic review published in Marmara University Law Research Journal and Turkish Arbitration Academy publication). Please confirm the full text of each decision via UYAP before adding it to your petition; court jurisprudence may change over time. This line of jurisprudence is widely criticized in legal doctrine, and being unaware of this criticism means encountering surprises in your case. The four main objections raised in the literature of private international law are: The prevailing approach in legal doctrine is to interpret Turkish Commercial Code (TTK) Article 105/2 not as a rule of exclusive jurisdiction, but as an exception to Private International Law and Procedural Law (MÖHUK) Article 47/1. This interpretation yields the following practical result: a jurisdiction agreement made in favor of a foreign court cannot eliminate the jurisdiction of Turkish courts in disputes falling within the scope of TTK Article 105/2; however, since the provision is not a rule of exclusive jurisdiction, the enforcement of a decision obtained from a foreign court in Turkey is also not prevented. Furthermore, it is also argued in doctrine that the provision cannot be applied in lawsuits filed directly against a foreign merchant. From this perspective, the Supreme Court’s decision numbered 2020/3051 is considered incorrect. The opposing party will rely on this view; therefore, directing the lawsuit to both the foreign carrier directly and the Turkish agent on its behalf renders this arm of the defense ineffective from the outset. Practical outcome: Both legal points must be addressed. In the petition, both the arguments “TCC Art. 105/2 is an exclusive jurisdiction rule” (Supreme Court line) and “at least it is an exception to PIL Art. 47/1, therefore the jurisdiction clause cannot negate the jurisdiction of Turkish courts” (doctrine line) must be presented together. The second argument can lead to a positive outcome even before a judge who rejects the first argument. From this point onwards, the discussion shifts entirely to the law of evidence. The wording of TCC Art. 105/2 seeks two elements simultaneously: the agent has the authority to represent in disputes arising from contracts “in which it acted as intermediary or which it concluded”. Therefore, there are two separate facts that need to be proven, and these are evidenced by different proofs. This distinction is of vital importance. Proving that a company is the Turkish agent for that line is not sufficient on its own; you must also show that it mediated your specific transport. The reverse is also true: if you can show that it mediated in a single transaction, you do not need to seek continuity thanks to Article 103 of the TCC. Ship agency is not an activity that can be freely conducted in Turkey; it is subject to administrative permission, and this permission is kept in official records. The new Ship Agents Regulation, published in the Official Gazette dated May 14, 2026, and numbered 33253, has re-regulated this field, replacing the previous regulation from 2012. Most provisions of the Regulation came into force three months after its publication. The first paragraph of Article 6 of the Regulation is clear: ship agents are required to obtain an authorization certificate according to the class they operate in, and real or legal persons without an authorization certificate cannot provide agency services on behalf of the shipowner, captain, operator, or charterer. The eighth paragraph of the same article, however, offers a possibility that can be directly used in lawsuits: information about authorized agents is published on the Administration’s website. In addition, Article 23 of the Regulation stipulates that the registers of the central agent, branches, and agency personnel must be regularly kept by the Administration. This register is maintained on the Ship Agency Information System (GABS). The registration number of the central agent and branches is shown on the authorization certificate, while the registration number of the personnel is shown on the identification document. What will you request? Article 8 of the Regulation mandates that for agency applications by legal entities, the company’s publicly declared articles of association must include the phrase “ship agency” among its fields of activity, and the company must be a member of the Chamber of Shipping. These two documents indicate that the defendant is a company acting as a ship agency. However, note: these documents do not show that the company is the agent of your carrier. This distinction is further discussed in Chapter 17. The decision that most clearly sets out the standard of proof is the judgment of the 12th Civil Chamber of the Supreme Court dated 07.04.2021, numbered E. 2020/3474, K. 2021/4361. The decision is an appeal review of the judgment of the 10th Civil Chamber of the Adana Regional Court of Justice dated 05.02.2020, numbered E. 2019/1920 – K. 2020/261, and pertains to an execution proceeding initiated against an agent on behalf of a shipowner. The regional court of justice made the following determinations regarding showing that the company served with the notification was the agent of the shipowner: This four-sentence template is a defense template that the opposing party will also use. Therefore, it is risky to base the agency claim solely on “the company’s website states it is the agent for that line” or “the email it sent us has the word ‘agent’ at the bottom.” Although the Chamber found the regional court of appeal’s procedural qualification to be appropriate, it re-examined the documents in the file and concluded that an agency relationship had been established. The evidence supporting this is as follows: The lesson from this section of the decision is very clear: the document proving the agency relationship is often not in the hands of the parties, but in the file of the port authority. Instead of requesting this document from the parties, writing a writ to the relevant port authority changes the course of the file. Don’t let your case be rejected because you can’t document the agency connection A single writ sent to the right institution at the right time can make the difference between a decision of lack of jurisdiction and entering into the merits. Let’s evaluate your file together. All operations such as a ship docking at a Turkish port, departing from a shore facility, changing crew, or taking a pilot and tugboat are carried out by an agent. Article 4/ı of the Ship Agents Regulation defines a ship agent as a person who “acts on behalf and for the account of real or legal persons who own the ship/yacht, as well as the captain, operator, or charterer of the ship/yacht, through agreements made by them.” Subparagraph (h) of the same article includes within the scope of ship agency services the making of necessary notifications for docking and departing from a shore facility and the timely reporting of all kinds of information related to these operations. The natural consequence of this is: a ship cannot enter a Turkish port without notifying the port authority of who its agent is. Article 13/1-b of the Regulation further stipulates that agents are obliged to provide information and documents requested by the Administration or the port authority. Considering that the documents appended to the port authority’s letter in the decision of the 12th Civil Chamber of the Court of Appeals, examined above, changed the outcome of the file, the critical importance of this memorandum becomes clearer. The same records are needed for urgent procedures such as the provisional attachment of a vessel; for detailed information on this matter, you can review our page on provisional attachment of vessels and our article on how to find a vessel’s name and IMO number. The second official record pool is at customs and is often more detailed than port records. In accordance with Articles 35/A and 35/B of Customs Law No. 4458 and Article 60 et seq. of the Customs Regulation, a summary declaration is submitted for goods brought into the Turkish Customs Territory. The summary declaration can be submitted by the person who brings the goods into the customs territory or assumes responsibility for their carriage, as well as by a person acting on behalf of these individuals or their representative. In practice, this declaration is mostly made by the agent. In the summary declaration form annexed to the Customs Regulation, there are boxes to be filled separately: in the “carrier” box, if the person submitting the summary declaration and the carrier are different, the name of the carrier, in the “declarant/representative” box, the name of the declarant or their representative, additionally, in a separate “agent” box, the name and tax identification number of the authorized container agent are written. Comparing these three boxes reveals, through official documents, who is the carrier and who is the agent. There is also an important finding in the administrative practice concerning this matter: The General Directorate of Customs stated that there is no contravention of legislation in agents submitting summary declarations, but that it is not appropriate for agents to write their own titles in the “carrier” box if they have not entered into any transport contract and have not received freight. This indicates that the boxes on the form carry legal meanings that must be taken seriously. In the maritime general declaration form submitted before the ship’s arrival at the port, along with the ship’s name and type, IMO number, call sign, voyage number, flag, captain’s name, and registration certificate information, there is clearly a “Ship Agent’s Name and Contact Information” field. This form is one of the most direct official documents that alone demonstrates the agency relationship and can be requested from the customs administration. Unlike the summary declaration, the arrival notification is submitted by the carrier; in maritime transport, this notification is registered by the operator or agent of the transport vehicle. Furthermore, it is stipulated that original manifests and bills of lading shall be kept for the document retention period specified in Article 13 of the Customs Law, to be presented if deemed necessary within the scope of customs controls. This means that there is a high probability that these documents are still held by customs even on the date of the lawsuit. It will be recalled that the Court of Cassation’s decision dated 2020/3051 particularly emphasized the fact that “the bill of lading was also issued by the agent.” Therefore, the front side of the bill of lading is the most economical and direct source of proof. Warning: The claim of forgery of the bill of lading is also encountered in practice. In the practice of the Supreme Court, whether the bill of lading was issued by the carrier’s authorized agent in a foreign country and whether it is fake has been treated as a substantive issue; it has been accepted that if forgery is detected, the case should be dismissed on substantive grounds, not due to lack of passive standing. Therefore, if an objection arises regarding the authenticity of the signature and seal, the matter should be resolved on its merits, not procedurally. Official records show the agency status, while commercial documents indicate intermediation in the specific transaction. Arranging these documents in chronological order conveys the message “the contract was established through this company” to the court in the clearest possible way. The first two links of this chain are of critical importance. As we will see below, it is debatable whether an agent operating only at the discharge stage “mediated the establishment of the contract”; whereas if the freight offer and booking confirmation come directly from the corporate email of the company in Turkey, the mediation becomes undeniable. In cargo damage files, this chain must be combined with insurance subrogation; for a detailed analysis on the subject, please refer to our article on who is responsible for cargo damaged during loading and unloading; for the structure of the freight contract, please refer to our article on freight contracts; for cases of late delivery, you can refer to our article on delays in cargo transported by sea. Article 25 of the New Ship Agents Regulation contains two provisions that can be directly used in such files. Both often go unnoticed in many petitions. According to the first paragraph of Article 25 of the Regulation, agents must retain the commercial and legal books they are obliged to keep, agency agreements, information on ships and yachts for which they provide agency services, the originals or copies of letters written and received within the scope of agency services, delivery orders, faxes, telexes, electronic mail, and similar documents, as well as invoices, electronic invoices, receipts, and expense documents they have prepared, for at least five years, subject to the provisions of special laws, and keep them ready to present to the Administration upon request. The practical value of this provision is significant. When the agent claims ‘we do not have the document’, a retention obligation stemming from legislation arises against them. The court may be requested to grant the defendant agent a period of time to submit these documents, within the framework of the provisions of the HMK regarding document submission; and the consequence of non-submission in the evaluation of evidence can also be asserted. The second paragraph of the same article, after stipulating that the liability of agents continues as long as the ships or yachts they serve are within the administrative limits of the port, adds the following sentence: “Notifications made to the agent during the period for which the agents are responsible shall be deemed to have been made to the ship/yacht owner/operator/charterer.” This is particularly important for the service of precautionary attachment and interim injunction orders, and the delivery of protests and notices. It should be noted that the provision is limited in terms of time: the presumption is tied to the period when the ship is within the administrative limits of the port. For notifications to be made after the ship has left the port, it is necessary to rely on Article 105/2 of the TCC and the principle of continuation of passive representation authority discussed below. This is the point most frequently overlooked in practice. For a company to be the Turkish agent for that line is not sufficient alone for the application of Article 105/2 of the TCC. The wording of the provision refers to contracts in which the agent acted as an intermediary or concluded. In the practice of the Court of Appeals, it is also emphasized that legal action against the agent on behalf of their client is limited only to the matters in which they acted as an intermediary and to the cases specified in Article 103 of the TCC. In this context, the Court of Cassation did not find it correct to issue a decision of lack of jurisdiction without dwelling on the defendant’s defense that it did not act as an agent in the transportation work subject to the lawsuit; it stated that the court, in this regard, should collect the parties’ evidence, and if it is determined that the company against which hostility is directed is not the agent of the defendant foreign company, the foreign company should be served notice to ensure proper party formation. This finding has two sides. From the plaintiff’s perspective: the court cannot issue a decision of lack of jurisdiction without collecting evidence regarding the intermediation; requesting evidence to be collected is a right. From the defendant’s perspective: the defense “we only provided services during the unloading phase, we did not mediate the formation of the contract” is a legally admissible defense and must be addressed. One of the defenses frequently invoked by the opposing party is that the agency relationship had terminated before the date of the lawsuit. The aforementioned decision of the 12th Civil Chamber of the Supreme Court also addresses this defense. The Chamber, evaluating Article 105 of the TCC together with the explanations in the doctrine, made the following determination: the agent has legal active and passive power of representation regarding the works they actually mediated or contracted within the scope of the agency agreement; suing the agent on behalf of the principal or the agent being a party to the lawsuit is not limited by the duration of the agency agreement; provided that the transaction was carried out within the scope of the agency relationship, a lawsuit can be filed against the agent even after the termination of the agency agreement. In the concrete case, although the shipowner had informed the port authority by e-mail that the agent no longer represented them, the Chamber accepted that the passive power of representation regarding the mediated transaction did not end but continued. Therefore, what needs to be proven is not that the agency relationship continued on the date of the lawsuit, but that it existed on the date of carriage. “Our agency has ended” – Have you encountered this defense? The passive power of representation regarding the mediated work does not automatically cease with the termination of the contract. Let’s review the dates in your file together. A few recurring errors in these files weaken a well-established claim. The Turkish Commercial Code does not generally stipulate the registration of an agency agreement in the commercial registry. What will emerge from the Commercial Registry Gazette is that ship agency is among the defendant company’s fields of activity. Article 8 of the Ship Agents Regulation requires this phrase to be present in the company’s articles of association for a certificate of authorization application. This document shows that the defendant is a company that performs agency work; it does not show that they are the agent of your carrier. The documents establishing the link are administrative and port records. The reasoning of the regional court of appeals examined above clearly states that a document concerning the agency, unilaterally signed by the agent, is not sufficient to establish the existence of an agency relationship. Website screenshots and email signature blocks fall into the same category: they are supporting evidence, not standalone evidence. This is the most common deficiency found in the files. The agent’s authorization document is included in the file, but it is never asked who issued the bill of lading, to whom the freight was paid, or from whom the booking was received. However, the wording of Article 105/2 of the Turkish Commercial Code depends on the specific contract. The jurisdiction dispute can last for months. Meanwhile, the one-year period for the carrier’s liability in maritime transport and the one-year forfeiture period for the statutory lien granted by a ship’s claim continue to run. Instead of waiting for the outcome of the jurisdiction objection, recourse to the provisional arrest of the ship should be considered in parallel, to obtain security if necessary. Many decision summaries circulating on the internet have incomplete or incorrect citations. All decisions mentioned in this article are taken from academic publications and full texts published by law firms; nevertheless, they must be confirmed via UYAP before being appended to a petition. Furthermore, departmental precedents may change; especially whether this trend that emerged between 2020-2022 has been maintained in subsequent years should be investigated currently for each file. In disputes arising from maritime transport, a significant portion of lost cases are lost not on the merits, but on procedural grounds. If the objection to jurisdiction is accepted, the file is dismissed; the one-year periods may expire until a new lawsuit is filed, the ship may have left Turkish waters, and the possibility of security may disappear. Therefore, proving the agency relationship is not a technical detail but a stage that determines the fate of the file. A significant portion of Turkey’s container and bulk cargo traffic passes through the ports of the Marmara Region. Tuzla, Pendik, Kartal, Maltepe, Sancaktepe, Sultanbeyli, Ümraniye, Ataşehir, and Üsküdar on the Anatolian Side of Istanbul; and Gebze, Çayırova, Darıca, Dilovası, İzmit, Körfez, and Başiskele in Kocaeli are districts where both cargo owners and agents are densely located. Transport and shipyard activities in this region also lead to a concentration of disputes arising from maritime trade. In terms of jurisdiction, these cases are heard in civil courts of commerce; pursuant to Article 5/2 of the TCC, the divisions assigned by the Council of Judges and Prosecutors act as specialized maritime courts. In Istanbul, this duty falls to the Istanbul 17th Civil Court of Commerce. Since the relationship between a specialized court and other commercial courts is one of jurisdiction, it is observed ex officio by the court. 2M Law Office Maritime and transport law, ship arrest, cargo damage, and freight disputes are among our areas of practice. We provide services throughout Turkey, especially in Tuzla, Pendik, Kartal, Maltepe, Gebze, and Kocaeli. Postane Neighborhood, Seher Street No: 18/2, Tuzla / Istanbul The claim of certainty would not be correct. The decisions of the 11th Civil Chamber of the Court of Cassation between 2020-2022 are in this direction; however, doctrine criticizes this approach, and contrary evaluations can also be made in some court decisions. Therefore, in addition to the agency argument, alternative lines such as the invalidity of the jurisdiction clause in terms of certainty and general terms and conditions control should also be added. Turkish Commercial Code art. 103, stipulates the application of agency provisionsnin to those operating within the country on behalf and for the account of foreign commercial enterprises that do not have a head office or branch in Turkey. The absence of a written agreement is not an obstacle on its own; proof is established through actual transactions and official records. It is not considered sufficient on its own. In a regional court of appeals decision, it was stated that a document unilaterally signed by the agent, asserting that they are the shipowner’s agent, is not sufficient to establish the existence of an agency relationship. Documents bearing a counter-signature and official institutional records should be taken as a basis. A writ should be sent to the General Directorate of Maritime Affairs for the agent’s authorization certificate and registration information; to the relevant port authority for the agent reported on a voyage basis and the agent appointment letter; to the relevant customs directorate for summary declaration, general maritime declaration, and manifest; and to the coastal facility operator for discharge and delivery records. This is the most contentious point of the case file. The provision refers to contracts mediated or made by the agent. If the bill of lading was entirely issued abroad and the freight was paid abroad, it is difficult to establish agency based solely on the role in the discharge phase. In this case, a secondary line must be established through TCC Art. 103 and other transactions carried out by the agent on behalf and for the account of the carrier. According to Supreme Court practice, a lawsuit can be filed against the agent on behalf of the principal even after the termination of the agency agreement, provided that the transaction was carried out within the scope of the agency relationship. What is decisive is the situation on the date of transportation. No. Pursuant to Article 105/3 of the Turkish Commercial Code, decisions rendered in lawsuits filed in Turkey against persons on whose behalf agents act cannot be applied to the agents. It is also clearly stated in the justification of the law that the agent does not assume the principal’s debt or act as guarantor for it. In its decision dated 09.05.2022, the 11th Civil Chamber of the Supreme Court of Appeals deemed a clause providing for London arbitration invalid on the grounds that it both eliminated exclusive jurisdiction and was unsuitable for arbitration. However, this approach is criticized in doctrine; arbitrability and exclusive jurisdiction are based on different criteria. In cases with an arbitration clause, an additional risk assessment should be made. Article 25/2 of the Ship Agents Regulation stipulates that notifications made to agents during the period for which they are responsible shall be deemed to have been made to the owner, operator, or charterer of the ship or yacht. This presumption is dependent on the ship being within the administrative limits of the port. Outside this period, Article 105/2 of the Turkish Commercial Code and the principle of continuation of passive representation authority are relied upon. Article 25/1 of the Ship Agents Regulation imposes an obligation on agents to keep agency agreements, correspondence, delivery orders, invoices, and receipts for at least five years. This provision can be used as a concrete legal basis for a request for document production. In practice, the safest way is to direct the claim/hostility to both the foreign carrier directly and, by reference to them, to the Turkish agent. Although the Court of Cassation has applied the ruling in cases filed directly against the carrier, this approach is criticized in doctrine; dual-directional claim/hostility eliminates this risk. Commercial courts of first instance have jurisdiction. In accordance with Article 5/2 of the Turkish Commercial Code, the divisions assigned by the Council of Judges and Prosecutors act as specialized maritime courts; in Istanbul, this duty belongs to the Istanbul 17th Commercial Court of First Instance, and since this relationship is one of jurisdiction, it is observed ex officio. This article has been prepared for general informational purposes and does not constitute legal advice. The conditions of each case are different. It is recommended that the aforementioned judicial decisions be verified via UYAP before being used in petitions or publications.Supreme Court 11th Civil Chamber, File No: 2019/3799, Decision No: 2020/3051, Date: 22.06.2020
Turkish Court of Appeals, 11th Civil Chamber, File No. 2020/8347, Decision No. 2022/3672, Date: 09.05.2022
Decision Party against whom the lawsuit was filed Condition type Outcome 11th Civil Chamber 2019/3298 E. – 2020/2018 K. Foreign carrier + Turkish agent together Foreign court in bill of lading Jurisdiction clause invalid, reversal 11th Civil Chamber 2019/293 E. – 2020/953 K. Agent as principal + agent on behalf of carrier Foreign court in bill of lading Jurisdiction clause invalid, ex officio reversal (with dissenting opinion) 11th Civil Chamber 2019/3799 E. – 2020/3051 K. Directly foreign carrier Foreign court in bill of lading Exclusive jurisdiction even if not filed on behalf of, reversal 11th Civil Chamber 2020/8347 E. – 2022/3672 K. Agent on behalf of carrier London arbitration Arbitration clause invalid + non-arbitrability, reversal 4. The Doctrine’s Opposition and Its Impact on Your Case
5. Two pillars of proof: agency status and mediation in the specific transaction
Subject of proof What needs to be proven? Main sources of evidence First pillar: Agency status That the Turkish company acted in Turkey on behalf and account of that foreign carrier Agency authorization certificate and registry, port authority records, agency appointment letter, customs declarations Second pillar: Intermediation in the specific transaction That the agent mediated in the formation of the transport contract subject to the lawsuit or issued the bill of lading Bill of lading signature-stamp section, booking confirmation, freight invoice, delivery order, correspondence 6. First pillar: how is agency status documented?
Authorization certificate and administrative registry
Chamber of Shipping registration and trade registry
7. The agent’s own declaration is not sufficient: lessons learned from a Supreme Court decision
The standard set by the regional court of justice
Evidence that exceeded the Supreme Court’s threshold
8. Port authority records: the strongest source of official evidence
What to request from the port authority
9. Customs records: summary declaration, maritime general declaration, and manifest
Summary declaration
Maritime General Declaration (IMO FAL form)
Manifest and arrival notification
10. Signature and Seal on the Bill of Lading
Where to look?
11. Commercial evidence chain: from booking to delivery order
Stage Document What it proves? Pre-contractual Freight offer, rate confirmation, email correspondence Intermediation in the establishment of the contract — the core fact sought by TCC Article 105/2 Booking Booking confirmation / booking note That the space is allocated from Turkey on behalf of the carrier Loading Bill of lading, mate’s receipt, loading instruction That the bill of lading is issued by the agent Collection Freight invoice, THC, demurrage, and handling invoices That the agent makes collections on behalf and account of the carrier (related to TCC Article 106) Delivery Delivery order (delivery instruction), delivery record That the carrier’s delivery authority is exercised by the agent Dispute Damage protest, survey correspondence, P&I letters That the agent makes and receives declarations on behalf of the carrier (TCC Article 105/1) 12. Two critical advantages introduced by the Ship Agents Regulation
First advantage: five-year document retention obligation
Second trump card: presumption of service
13. Second pillar: the ‘intermediation’ condition and the discharge agency debate
Weak and strong scenarios
Scenario Strength of the intermediation claim Export carriage from Turkey abroad; booking and bill of lading issued in Turkey, freight collected in Turkey Very strong. The contract was effectively established in Turkey through the agent. Import carriage; however, the bill of lading was signed in the name of the Turkish agent “as agent for the carrier” Strong. Complies with the formula in the Supreme Court’s decision numbered 2020/3051. Import carriage; bill of lading entirely issued abroad, freight paid abroad, Turkish company only involved in discharge and delivery order stages Debatable. The element of “intermediation in the establishment of the contract” is weak; additional evidence is required. Turkish company appointed only for port services (pilotage, tugboat, provisions), no relation to cargo Weak. It is difficult to establish an intermediation link in a cargo dispute. What can be done in a weak scenario?
14. Even if the agency ends, the passive power of representation continues
15. Procedure: list of writs and step-by-step roadmap
Before filing a lawsuit
In the lawsuit petition
List of writs
Institution Information and documents to be requested General Directorate of Maritime Affairs, Ministry of Transport and Infrastructure Agency authorization certificate, class, region, registration number, validity period; GABS records; sub-agency authorization document Relevant port authority Agency title reported on a per-voyage basis, agency appointment letter and its attachments, arrival-departure notification records Relevant customs directorate Summary declaration (carrier / declarant-representative / agent boxes), general maritime declaration, manifest, arrival declaration, bill of lading copy Coastal facility / port operator Discharge and handling records, list of containers delivered with an order, recipient of service invoices Relevant Chamber of Shipping Membership registration, field of activity, records related to the application of agency service tariffs Defendant agent (HMK document submission) Agency agreement, correspondence, order, invoices and receipts that must be kept for five years in accordance with Regulation art. 25/1 In the response petition to the objection of authority
16. The opposing party’s lines of defense and the responses to be given to them
Defense Response “There is no written agency agreement between us.” Turkish Commercial Code (TCC) Art. 103 also covers those acting on behalf and for the account of foreign enterprises within the country; a written contract is not required. Official records and actual transactions are sufficient. “There is no continuity; we did a one-off job.” In Supreme Court practice, incidental transactions are also subject to agency provisions; continuity does not affect the outcome in terms of legal capacity to sue (locus standi). “We are merely a discharge agent; we did not mediate the formation of the contract.” This is a serious defense; it should be countered with the bill of lading signature, booking correspondence, and freight invoice. Otherwise, a secondary line of argument should be established via TCC Art. 103 and Art. 105/1-106. “The agency relationship has ended.” The passive representation authority related to the mediated transaction is not limited by the contract duration; a lawsuit can be filed against the agent even after the contract ends. “TCC Art. 105/2 is not an exclusive jurisdiction rule.” The Supreme Court’s stance is in this direction; even if not accepted, the provision is at least an exception to Law on Private International and Procedural Law (MÖHUK) Art. 47/1, and the jurisdiction clause cannot override the jurisdiction of Turkish courts. “The lawsuit was filed directly against the carrier, not vicariously against the agent.” The decision of the Supreme Court 11th Civil Chamber, numbered 2019/3799 E. – 2020/3051 K., applied the provision even in this case. To reduce risk, the claim should be directed at both parties. “We are held responsible for the debt as an agent.” Pursuant to TCC Art. 105/3, the judgment cannot be applied to the agent; the agent is not deemed to have assumed the principal’s debt or guaranteed it. 17. Misconception about the Commercial Registry Gazette and other common mistakes
Error 1: Assuming the agency relationship can be proven from the Commercial Registry Gazette
Error 2: Relying on the agent’s own letterhead
Error 3: Forgetting to prove intermediation after proving agency
Error 4: Not accounting for time pressure
Error 5: Using case citations without confirmation
18. Why is it important to properly manage the process in these files?
For the claimant cargo owner and insurer
For the defendant agent and carrier
Regional Concentration
Frequently Asked Questions
If I prove that a foreign carrier has an agent in Turkey, will the case definitively be heard in Turkey?
What happens if the agency agreement is not in writing?
Does the agent’s own writing prove the agency relationship?
Which document should be requested from which institution?
If the agent was only involved in the discharge phase, does TCC Art. 105/2 apply?
Can a lawsuit be filed against the agent if the agency relationship has ended?
If the agent loses the lawsuit, will they be liable for the debt?
Does the same result apply even if there is an arbitration clause?
Is a notification made to an agent considered to be made to the carrier?
Can I ensure that the agent submits the documents in their possession to the court?
Should I file the lawsuit directly against the foreign carrier, or on behalf of the agent?
Which court hears these cases?
Bibliography and legislation
Legislation
Court decisions
Doctrine
