In cargo claims nothing burns more time than the fight over the right defendant. The forwarder says “I only arranged it, the owner carried it”; the owner says “there is no contract between me and the claimant”; and the file spends two years cycling through court experts. The Turkish Commercial Code closes both of those defences at the outset.

This article sets out the status of the contractual carrier, the actual carrier and the freight forwarder in the carriage of goods by sea, the scope of joint and several liability, the validity test applied to exemption clauses and the recourse relationship. It concerns sea carriage only.

Contents

1. The parties: contractual carrier, actual carrier, forwarder
2. Article 1191: the contractual carrier stays liable
3. The actual carrier’s status and the limit of its liability
4. Joint and several liability in the case law
5. The aggregate cap: Article 1191/5
6. Do special agreements bind the actual carrier?
7. Recourse and the internal allocation of fault
8. When does a forwarder become a carrier?
9. The pure organiser: when liability does not attach
10. Exemption clauses and their validity test (Art. 1192)
11. Period of control and the burden of proof
12. Notice given to the actual carrier
13. Table of decisions
14. Document checklist for establishing capacity
15. Strategy by party
16. Eight common mistakes
17. Conclusion
18. Frequently asked questions
19. Sources and caveat

1. The Parties

The common structure in practice: a Turkish cargo owner contracts with a logistics company; the logistics company issues a bill of lading in its own name and entrusts the sea leg to a shipping company. The logistics company is then the contractual carrier and the shipping company the actual carrier.

2. Article 1191: The Contractual Carrier Stays Liable

The words “without regard to whether the contract entitled it to do so” are the sharpest part of the provision. The contractual carrier does not escape liability by sub-contracting, whether or not it had the right to sub-contract. The rule is mandatory.

Turkish courts apply the principle consistently. The Court of Cassation, 11th Civil Chamber, in its judgment of 08.07.2024 (file 2023/2682, judgment 2024/5672), held that where the carriage is entrusted in whole or in part to an actual carrier, the carrier remains liable for the entire carriage — irrespective of any contractual entitlement to sub-contract — and is also liable for the acts and omissions of the actual carrier and its servants.

The Istanbul 17th Commercial Court, in its judgment of 20.02.2024 (file 2022/332, judgment 2024/79), noted that “the carrier may perform the carriage it has undertaken through sub-carriers rather than itself”, and confirmed that such delegation does not end the contractual carrier’s liability; the same court repeated the express rule of Article 1191 in its judgment of 13.03.2024 (file 2021/294, judgment 2024/135).

3. The Actual Carrier’s Status and the Limit of Its Liability

The actual carrier has no direct contract with cargo interests; its liability arises from the statute. Article 1191/2 makes all provisions on the carrier’s liability applicable to it, so the plea that “there is no contractual link with the claimant” fails.

That liability is not unlimited, however: it is confined to the part of the carriage the actual carrier performs itself. In a door-to-door shipment where the damage occurred during inland haulage, the actual carrier of the sea leg cannot be held liable; liability stays with the contractual carrier. In multimodal files this distinction is the backbone of the defence.

The Istanbul Regional Court of Appeal, 43rd Civil Chamber, made the characterisation expressly in its judgment of 28.11.2024 (file 2021/1158, judgment 2024/1736): having entrusted the sea-carriage part of its undertaking to the shipping company, the logistics company was the contractual carrier and the shipping company the actual carrier. The same chamber applied the same structure in its judgment of 24.10.2024 (file 2021/56, judgment 2024/1537).

4. Joint and Several Liability in the Case Law

Under Article 1191/4 the liability of the carrier and the actual carrier is joint and several where they are liable for the same loss, and to that extent. The words “to that extent” matter: solidarity is confined to the head of loss for which both are answerable, and cannot be constructed for a stage in which the actual carrier played no part.

The practical consequence: cargo interests may claim the whole loss from the contractual carrier, the actual carrier, or both together. For recovery that is a real advantage — particularly where the actual carrier is a foreign owner and the contractual carrier is established in Turkey.

• Istanbul 17th Commercial Court, 13.03.2024 (2021/294 – 2024/135): within the provision governing external liability, one defendant was held liable to cargo interests for loss caused by the fault of the other, the liability being joint and several under Article 1191/4.
• Istanbul 17th Commercial Court, 02.07.2024 (2021/457 – 2024/288): the defendants having failed to perform the conditions of carriage properly during the sea carriage, they were held jointly liable under Articles 1178 and 1191 and the claim was partly allowed.
• Istanbul RCA 12th Civil Chamber, 19.12.2024 (2021/46 – 2024/1872): in a dispute over delivery contrary to the shipper’s instructions, the actual carrier was held liable for its agent’s fault and the contractual carrier for the acts and omissions of the actual carrier and its servants; both were held jointly and severally liable under Articles 1191/1, 2 and 4.
• Istanbul 19th Commercial Court, 09.02.2026 (2024/204 – 2026/79): the forwarder’s defence that the carriage had been performed by a third party was rejected; the forwarder was held jointly and severally liable with the carrier, and the actual and contractual carriers liable together for the loss.
• Istanbul 4th Commercial Court (2020/457 – 2022/167) and Istanbul RCA 13th Civil Chamber (2019/532 – 2020/1217): whether the damage occurred during the sea leg or the rail leg, the contractual carrier is jointly and severally liable with the sub-carriers for damage occurring at any stage of the carriage.

5. The Aggregate Cap: Article 1191/5

Joint and several liability does not multiply the compensation. Under Article 1191/5 the aggregate of compensation payable by the carrier, the actual carrier and their servants cannot exceed the limits of liability provided in the Code. The per-package or per-kilogram SDR ceiling is not doubled because there are two defendants.

A parallel rule applies to servants: the aggregate recoverable from the carrier and its servants likewise cannot exceed the statutory limit, subject to the rules on loss of the right to limit. Adding defendants therefore does not raise the ceiling; what it raises is the prospect of recovery.

The Istanbul RCA 43rd Civil Chamber recalled the same point in its judgment of 24.10.2024 (2021/56 – 2024/1537).

6. Do Special Agreements Bind the Actual Carrier?

Article 1191/3 is frequently overlooked. Special agreements under which the carrier assumes an obligation not imposed on it by law, or waives a right conferred on it, do not take effect against the actual carrier without its express written consent; yet such an agreement continues to bind the carrier even without that consent.

The practical effect is clear. Where a contractual carrier, to satisfy its customer, has inserted a clause raising the limit of liability, guaranteeing a delivery date or waiving a statutory defence, that clause binds it alone. It cannot be invoked against the actual carrier. For cargo interests this determines against whom the enhanced undertaking can be used; for the carrier it marks where recourse will narrow.

7. Recourse and the Internal Allocation of Fault

Joint and several liability operates externally; it does not fix the internal split. Article 1191/6 provides expressly that the article does not affect the recourse relationship between the carrier and the actual carrier.

The Court of Cassation, 11th Civil Chamber, put the balance as follows in its judgment of 08.07.2024 (2023/2682 – 2024/5672): where the carrier and the actual carrier are liable for the same loss and to that extent their liability is joint and several, and the article does not affect recourse between them; in joint and several liability each debtor is in principle liable for the whole, and the parties have rights of recourse against each other in proportion to fault in the internal relationship.

Three elements decide a recourse file: the terms of the sub-carriage arrangement (slot, space charter, sub-bill), the technical finding as to the stage at which the damage occurred, and how the limitation provisions apply. Serving third-party notice on the other party in the main action makes a substantial difference in practice.

8. When Does a Forwarder Become a Carrier?

Freight forwarding is regulated in Articles 917 to 930. Under Article 917 the forwarder undertakes, for an agreed fee, to have the goods carried; its obligation is therefore one of organisation and, as a rule, it cannot be held liable for the carrier’s acts. Three situations change that:

On that basis an organiser that has quoted a single all-in freight, issued a bill of lading in its own name, or undertaken consolidated carriage acquires the status of contractual carrier and becomes jointly and severally liable with the actual carrier. Its liability for the carriage is then determined not under Article 928 but under the provisions governing carriers.

The Bakırköy 4th Commercial Court applied these tests concretely in its judgment of 28.12.2023 (file 2021/615, judgment 2023/1019): the organiser having arranged the carriage and issued the freight invoice to the claimant’s assured consistently with the transport document, it was treated as contractual carrier and the performing company as actual carrier; the objection as to standing was rejected and, applying the rule that a forwarder acquires the carrier’s rights and obligations where a single price including carriage costs has been agreed, the defendants were held jointly and severally liable for the damage.

9. The Pure Organiser: When Liability Does Not Attach

The other side of the coin matters just as much: an organiser meeting none of the statutory conditions cannot be held liable as carrier. In its judgment of 13.03.2024 (file 2021/294, judgment 2024/135) the Istanbul 17th Commercial Court held that the defendant was a freight forwarder and that, the conditions of Articles 926, 927 and 921 not being met, it could not be held liable for the loss as a carrier; no liability was established against it.

That yields a concrete defence strategy. Counsel for the forwarder will show that the fee was invoiced separately as commission and freight, that no bill of lading or transport document was issued in its own name, that no groupage carriage was undertaken, and that the contract records an undertaking to have the goods carried rather than to carry them.

Where forwarder status is preserved, the liability regime changes: under Article 928/1 the forwarder is liable for loss of or damage to goods in its possession; under Article 928/2 it is liable for loss not arising from loss of or damage to those goods only where it has breached one of its obligations under Article 918, and is relieved where the loss could not have been avoided by the care of a prudent merchant.

10. Exemption Clauses and Their Validity Test

A contract of affreightment may provide that a specified part of the carriage will be entrusted to an actual carrier and that the contractual carrier will not be liable for loss occurring in that part. That exemption is subject to two strict conditions:

These two conditions make the clause fragile in practice. The questions for cargo interests are simple: is the actual carrier’s identity and address stated in the contract, or does the bill contain only a general “sub-carriers may be used” wording? Can proceedings be brought against the actual carrier in Turkey? If either answer is negative, the clause is void and the contractual carrier’s liability continues.

The burden of proof also rests on the contractual carrier: to rely on the exemption it must prove that the loss occurred during the actual carrier’s period of control. Without that proof the exemption does not operate.

11. Period of Control and the Burden of Proof

Under Article 1178/2 the carrier’s liability depends on the loss, damage or delay having occurred while the goods were in the carrier’s control. The Istanbul 17th Commercial Court underlined this in its judgment of 02.07.2024 (2021/457 – 2024/288): the defendants can be held liable only on condition that the damage occurred while the goods were within the carrier’s control.

Because the actual carrier answers only for the sea leg it performs, identifying the stage at which the damage arose becomes central. That is done with despatch notes, port tally sheets and terminal records, Equipment Interchange Receipts, the deck log and stowage plan, marine survey reports, and customs and warehouse records.

12. Notice Given to the Actual Carrier

Article 1185/6 unifies the chain for notice purposes as well: where the goods have been delivered by the actual carrier, every notice given to it takes effect as if given to the carrier, and every notice given to the carrier as if given to the actual carrier. Notice to any person acting on behalf and for account of the carrier or actual carrier — including the master and the officer in charge — is deemed given to them.

The Istanbul 17th Commercial Court confirmed in its judgment of 02.07.2024 that every notice given to the actual carrier takes effect as if given to the carrier. In practice: notifying the agent or the ship’s side also protects your position against the contractual carrier. The safer course remains to send the same text to the contractual carrier as well.

13. Table of Decisions

14. Document Checklist for Establishing Capacity

• Bills of lading and transport documents: in whose name and on whose letterhead; is the signature “as carrier” or “as agent only”; how are the house and master bills structured?
• Freight invoice: a single all-in price, or commission and freight invoiced as separate items? This alone decides the Article 921 argument.
• Quotation and contract wording: is the undertaking “to carry” or “to have carried”; is the right to use sub-carriers and the identity of the actual carrier stated?
• Agency arrangements: on whose behalf did the agent act, and what capacity is used in the correspondence?
• Consolidation records: was groupage carriage undertaken (Art. 927)?
• Documents showing the stage of the damage: despatch note, port tally, EIR, deck log, survey report.

15. Strategy by Party

Cargo interests and underwriters

Suing the contractual and actual carrier together is the safest course; when the stage of the damage emerges during the proceedings, no standing problem arises. Where the contractual carrier is established in Turkey, that is where recovery lies. If an exemption clause is raised, test the two conditions of Article 1192 immediately.

Contractual carriers and forwarders

“I did not perform the carriage” will not work. The realistic lines are: that the capacity remained one of forwarding (Arts. 921, 926 and 927 not satisfied); that the damage did not occur within the carrier’s period of control; that one of the Article 1182 no-fault heads applies; that the limits of liability apply; and, where Article 1192 is satisfied, the exemption. Do not omit third-party notice to the actual carrier.

Actual carriers and P&I clubs

The absence of a contractual link is not a defence. What is strong is that liability is confined to the part actually performed: if the damage arose before loading, during inland haulage or in post-discharge handling, the actual carrier is not liable. Enhanced undertakings given unilaterally by the contractual carrier do not bind the actual carrier under Article 1191/3.

16. Eight Common Mistakes

1. Suing only one defendant. Choosing a single defendant before the stage of the damage is clear may be irreparable within the one-year period.
2. Pleading “I am only an organiser” without documents. An all-in invoice or a bill issued in one’s own name defeats it.
3. Relying on the actual carrier’s “no contractual link” objection. It fails against Article 1191/2.
4. Assuming the exemption clause is valid. It is void unless both conditions of Article 1192 are met.
5. Treating solidarity as unlimited. Under Article 1191/5 the aggregate cannot exceed the statutory limits.
6. Failing to protect recourse in the main action. Without third-party notice, the later recourse claim runs into evidential difficulties.
7. Going to the court expert without documenting the stage of the damage. Without EIRs, tally sheets and the deck log, no allocation can be made.
8. Overlooking Article 1191/3. That the contractual carrier’s additional undertakings do not bind the actual carrier goes unpleaded in most submissions.

17. Conclusion

• Standing defences are closed. The contractual carrier’s “I sub-contracted it” plea fails under Article 1191/1; the actual carrier’s “no contractual link” objection fails under Articles 1191/2 and 1191/4.
• Recovery is straightforward externally. Cargo interests may claim from the contractual carrier, the actual carrier or both; the paying party then recovers internally in proportion to fault under Article 1191/6.
• Solidarity does not multiply compensation. Under Article 1191/5 the aggregate cannot exceed the statutory limits of liability.
• The forwarder’s position is conditional. An organiser meeting none of Articles 921, 926 and 927 cannot be held liable as carrier; meeting one, it becomes jointly and severally liable with the actual carrier.
• Exemption clauses are fragile. They are void if the actual carrier’s identity and address were not given or if no action lies against it in Turkey; and the burden of proving that the loss occurred in the actual carrier’s control rests on the contractual carrier.

18. Frequently Asked Questions

I sub-contracted the carriage — am I released?

No. Under Article 1191/1 the contractual carrier remains liable for the entire carriage, without regard to whether the contract entitled it to sub-contract.

There is no contract between me and the actual carrier — can I still sue it?

Yes. The actual carrier’s liability arises from the statute; under Article 1191/2 all provisions on the carrier’s liability apply to it for the carriage it performs itself.

From whom can I claim my loss?

Since their liability is joint and several where they answer for the same loss and to that extent (Art. 1191/4), from the contractual carrier, the actual carrier or both together.

Does having two defendants double the limit?

No. Under Article 1191/5 the aggregate payable by the carrier, the actual carrier and their servants cannot exceed the statutory limits of liability.

Is a forwarder always liable as a carrier?

No. It is deemed carrier where it undertakes the carriage itself (Art. 926), exercises the groupage right (Art. 927), or an all-in price including carriage costs has been agreed (Art. 921). Absent these, it cannot be held liable as carrier.

What if I issued a bill of lading in my own name?

Issuing a bill in your own name is among the strongest indicators of having undertaken the carriage and produces the status of contractual carrier, with joint and several liability alongside the actual carrier.

Can I contract out of liability for the sea leg?

You may include such a clause, but Article 1192 imposes two conditions: the actual carrier’s name, title and business address must be apparent from the contract (or notified to the consignee at the latest on delivery), and proceedings must be available against the actual carrier before a competent Turkish court. Otherwise the clause is void.

Who bears the burden of proof under an exemption clause?

The contractual carrier. Under Article 1192/1 the burden of proving that the loss, damage or delay occurred while the goods were in the actual carrier’s control lies with the carrier.

Does an undertaking given by the contractual carrier bind me?

As actual carrier, in principle no. Under Article 1191/3, special agreements by which the carrier assumes an obligation not imposed by law or waives a right do not take effect against you without your express written consent; but they continue to bind the carrier.

Is the actual carrier liable if the damage arose during inland haulage?

No. Its liability is confined to the part of the carriage it performs itself. The contractual carrier, by contrast, remains liable for the whole.

Is notice to the agent enough?

Under Article 1185/6 notice to a person acting on behalf and for account of the carrier or actual carrier is deemed given to them, and notice to the actual carrier takes effect as notice to the carrier. Sending the same text to the contractual carrier remains the safer course.

I have paid the claim — can I recover from the other party?

Yes. Under Article 1191/6 the provisions of the article do not affect recourse between carrier and actual carrier; joint debtors may recover from one another in proportion to fault internally.

19. Sources and Caveat

• Turkish Commercial Code No. 6102, Articles 917, 918, 921, 926, 927, 928, 1178, 1185, 1186, 1187, 1190, 1191, 1192 — official text at mevzuat.gov.tr
• Legislative reasoning to Article 1191 (drawing on the 1968 Brussels-Visby regime and the Hamburg Rules)
• Court of Cassation, 11th Civil Chamber, 08.07.2024, 2023/2682 – 2024/5672
• Istanbul RCA 12th Civil Chamber, 19.12.2024, 2021/46 – 2024/1872; Istanbul RCA 43rd Civil Chamber, 28.11.2024, 2021/1158 – 2024/1736 and 24.10.2024, 2021/56 – 2024/1537; Istanbul RCA 13th Civil Chamber, 05.11.2020, 2019/532 – 2020/1217
• Istanbul 17th Commercial Court (2022/332 – 2024/79; 2021/294 – 2024/135; 2021/457 – 2024/288); Istanbul 19th Commercial Court (2024/204 – 2026/79); Istanbul 4th Commercial Court (2020/457 – 2022/167); Bakırköy 4th Commercial Court (2021/615 – 2023/1019)

Related reading

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