When a container is opened at Gebze or Ambarlı, the picture is familiar: marble blocks have shifted and punched through the container floor; a machine has toppled because it was never chocked; big bags have collapsed into each other for want of dunnage; or a deck stow of pipes has moved after the lashings slackened. In almost every such case the parties exchange the same two sentences: “I did not stow it — the carrier failed to exercise care,” and “You packed and sealed the box yourself.”

This article sets out how Turkish law resolves stowage and securing disputes under the Turkish Commercial Code No. 6102, the Code of Civil Procedure No. 6100 (“CCP”) and the Act on Private International and Procedural Law No. 5718 (“PIL Act”): the tests that allocate liability, the notice and time-bar rules, the competent court, and the fate of foreign jurisdiction clauses printed on the reverse of bills of lading.

Contents

1. Stowage, dunnage and lashing: concepts and typical damage
2. The carrier’s two core duties: cargoworthiness and care in stowage
3. Container stowage: FCL/LCL and “shipper’s load, stow and count”
4. The no-fault presumption: Article 1182/1(e) and its limit
5. Damage to the container and the ship: the master’s authority and transhipment costs
6. International technical standards
7. Who can sue whom, and for what?
8. Notice of loss and the one-year time bar
9. Competent court and venue
10. Foreign jurisdiction clauses: a divided case law
11. Applicable law and mandatory limits
12. Evidence: what actually wins the file
13. Liability checklist
14. Eight common mistakes
15. Conclusion
16. Frequently asked questions
17. Sources and caveat

1. Stowage, Dunnage and Lashing: Concepts and Typical Damage

• Stowage: placing the cargo in the hold, on deck or inside the container with regard to weight distribution, cargo compatibility and access.
• Dunnage: timber, plywood, air bags, cardboard or mats placed beneath and between the cargo to protect it from moisture, chafing and point loading.
• Lashing and securing: immobilising the cargo with chains, webbing, wire, tensioners, turnbuckles and shoring.
• Chocking and blocking: timber or steel chocks preventing lateral and longitudinal movement.

Failures in these operations typically produce: shifting and toppling of cargo, crushing of lower tiers, torn packaging, punctured container floors or side walls, strained door hinges, impaired ship stability, loss of deck cargo overboard, and leakage in dangerous goods consignments.

2. The Carrier’s Two Core Duties

a) Duty to provide a cargoworthy ship (TCC Article 1141)

Under Article 1141/1, in every contract of affreightment the carrier must ensure that the vessel is seaworthy, voyage-worthy and cargoworthy. Cargoworthiness means that the parts of the vessel used for carrying goods, including refrigeration plant, are fit to receive, carry and preserve the cargo.

In lashing disputes this matters greatly: broken lashing eyes or D-rings, corroded deck sockets, rotten cross-members in a carrier-supplied container, or uncertified and fatigued securing equipment mean that the damage is not a stowage error but a want of cargoworthiness, and liability returns to the carrier (Article 1141/2).

b) Duty of care in stowage and custody (TCC Article 1178)

Liability thus rests on actual control over the goods. Once the claimant shows that the damage occurred during the carrier’s period of control, the carrier is presumed at fault and bears the burden of proving the absence of fault.

3. Container Stowage: FCL/LCL and “Shipper’s Load, Stow and Count”

Where the goods were packed and sealed into the container by the shipper itself, “loaded, stowed and counted by shipper” remarks on the bill of lading are in principle effective. In the practice of the 11th Civil Chamber of the Turkish Court of Cassation, responsibility for stowage lies with the shipper under the terms of the sea carriage document, and where damage results from defective packing inside the container and the contrary is not proved, the carrier cannot be held liable.

Facts that typically neutralise the remark: a broken or mismatched seal at the discharge port; evidence that the container was opened during the voyage; marks showing external impact or handling damage; the carrier having re-stowed the box with its own labour; and a defective carrier-supplied container.

4. The No-Fault Presumption: Article 1182/1(e) and Its Limit

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

• (e) acts or omissions of the shipper, the charterer, the owner of the goods, and their representatives and servants;
• (f) natural loss in bulk or weight, inherent vice, or the nature of the goods;
• (g) insufficiency of packing.

Defective internal stowage and securing fall under limb (e); weak pallets, thin stretch wrap or flimsy crates under limb (g). Where it is probable that the damage arose from one of these causes, it is presumed to have done so, and the carrier is relieved of liability unless the contrary is proved.

5. Damage to the Container and the Ship

Poor stowage and securing damages not only the cargo but the container and the ship’s equipment. In a case decided by the Istanbul 17th Commercial Court of First Instance, sitting as a maritime specialist court, blocks of marble had not been properly dunnaged or secured inside the container and the container floor was damaged. On the strength of the FCL bill of lading remarks, the court held the shipper itself liable for the stowage and securing failure.

The same judgment examined the cost of transferring the cargo into another container at the transhipment port. Finding that the master had acted within the duty to protect the interests of cargo interests and within the statutory power of representation under Article 1112/2, the court held that the necessary transhipment and port expenses incurred to prevent further loss were recoverable from the shipper.

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

6. International Technical Standards

“The care expected of a prudent carrier” and “the shipper’s negligence” are abstractions; the court-appointed expert measures them against concrete standards. Pleading those standards converts a technical argument into a legal outcome:

• CTU Code (IMO/ILO/UNECE Code of Practice for Packing of Cargo Transport Units): internal stowage, weight distribution, securing forces and dunnage.
• CSS Code (IMO Code of Safe Practice for Cargo Stowage and Securing): shipboard stowage and lashing calculations.
• Cargo Securing Manual: each vessel’s approved manual — the type, number and maintenance records of securing equipment are audited against it.
• SOLAS and the VGM regime: declaration of the verified gross mass; a false declaration distorts both the stowage plan and the liability balance.
• Turkish Regulation on the Carriage of Dangerous Goods by Sea and Loading Safety (14 November 2021) and the IMDG Code: loading-safety obligations and coastal facility compliance certificates.

7. Who Can Sue Whom, and for What?

Consignee and holder of the bill of lading

Where, contrary to the remarks on the bill, the damage arose from defective stowage on board or from breach of the carrier’s duty of custody, the consignee or the holder taking the bill by endorsement may claim damages under Article 1178.

The carrier’s counterclaims

Where defective lashing and dunnage by the shipper have damaged the container or the ship, the carrier may claim repair costs, survey expenses and transhipment costs — by counterclaim or by way of set-off in the cargo claim.

The insurer’s subrogated claim

A cargo underwriter that has indemnified its assured may pursue the carrier as subrogee under Article 1472. However, where the policy treats defective stowage as an excluded peril, the balance shifts: if no payment is made, no subrogation arises. Policy exclusions should therefore be read before defendants are chosen.

Contractual carrier, actual carrier or freight forwarder?

The contractual carrier issuing the bill and the actual carrier performing the voyage are jointly and severally liable to the extent they are liable for the same loss. A forwarder issuing a bill in its own name answers as carrier; a forwarder acting purely as intermediary is subject to different rules. Suing the wrong party is rarely repairable inside the one-year period.

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

9. Competent Court and Venue

Claims arising from maritime trade and contracts of affreightment are absolute commercial disputes. They fall to the maritime specialist courts and, where none is established, to the commercial courts of first instance; in Istanbul the Istanbul 17th Commercial Court exercises this function. Subject-matter competence is a matter of public order and is raised by the court of its own motion.

On venue, Turkish domestic law offers two routes: CCP Article 6, the general rule of the defendant’s domicile, and CCP Article 10, the place of performance — in sea carriage, the port of loading or the port of discharge. Where the cargo was discharged and surveyed in Turkey, the discharge port court is usually the strongest choice on both jurisdiction and evidence.

10. Foreign Jurisdiction Clauses: A Divided Case Law

Carriers routinely print clauses on the reverse of bills of lading conferring exclusive jurisdiction on foreign courts such as the High Court of Justice in London or a US state court. Their fate is assessed under Articles 40 and 47 of the PIL Act.

It would be misleading to present the practice as settled. Two distinct lines exist, and the fate of a file often depends on which one applies.

Line one: clauses upheld

In a series of decisions the 11th Civil Chamber has held that where the dispute has a foreign element, does not fall within the exclusive jurisdiction of the Turkish courts and arises from a contractual obligation, the jurisdiction agreement is valid under Article 47; and that a consignee who takes the bill by endorsement and presents it to the carrier is bound by its terms. On that line, the clause binds even a subrogated insurer and the claim is dismissed on jurisdictional grounds (see e.g. 11th Civil Chamber, 13.02.2015, file 2014/16212, judgment 2015/1885; 07.01.2019, file 2017/2638, judgment 2019/71).

Line two: clauses set aside

Other decisions hold that a pre-printed clause placed unilaterally on the reverse of the bill does not establish exclusive jurisdiction against a consignee or transferee unless expressly negotiated and accepted; and that where the carrier is established in Turkey or has its agency or head office there, and the evidence and elements of performance are in Turkey, invoking the pre-printed clause offends the rule of good faith and amounts to abuse of right under Article 2 of the Turkish Civil Code.

11. Applicable Law and Mandatory Limits

Bills of lading commonly select English law together with a paramount clause incorporating the Hague or Hague-Visby Rules. Where the jurisdictional objection is rejected and the case proceeds in Turkey, the applicable law is determined under Article 29 and the related provisions of the PIL Act.

The chosen law is not unlimited. The Turkish Commercial Code provisions on the sea carrier’s liability are semi-mandatory: contractual terms reducing or excluding the carrier’s statutory liability are void, while terms increasing it are permitted. A choice of foreign law therefore cannot displace the minimum liability framework or the mandatory rules of Turkish public order.

12. Evidence: What Actually Wins the File

• Both faces of the bill of lading: STC remarks, reservations, jurisdiction and paramount clauses.
• Container and seal data: seal number, seal condition at discharge, and EIR (Equipment Interchange Receipt) in/out records showing whether the container damage predates the voyage.
• Stowage and securing evidence: packing photographs, packing list, lashing plan, VGM declaration, CTU Code compliance records.
• Survey report: it must address the mechanics of the damage (direction of shift, crush marks, chafing) and causation; a report that only quantifies loss will not resolve liability.
• Ship’s documents: Cargo Securing Manual, equipment certificates, stowage plan, deck log, weather routing records.
• Correspondence: notice of loss, protest, delivery records, terminal and agency emails.
• Insurance documents: policy, exclusion clauses, adjuster’s report, payment receipt and release (the basis of subrogation).

Part of this material sits only with the opposing party, so the disclosure provisions of the CCP and, where appropriate, an application for preservation of evidence should be considered while the traces are still fresh at the discharge port.

13. Liability Checklist

14. Eight Common Mistakes

1. Missing the three-day notice for non-apparent damage. The box is trucked to a warehouse and opened days later — the period has already run.
2. Not recording the seal condition. If the record does not state that the seal was intact, the strongest support for the internal-stow defence is lost — and the converse is equally true.
3. Commissioning a quantum-only survey. A report silent on causation cannot resolve the liability dispute.
4. Overlooking the container damage. Repair, loss of use and transhipment costs frequently go unclaimed on the carrier’s side.
5. Suing the wrong party. Forwarder or contractual carrier, and which actual carrier — a mistake rarely repaired within the year.
6. Underestimating the jurisdiction clause. By the time jurisdiction is declined the claim may be time-barred.
7. Pursuing subrogation without reading the exclusions. If defective stowage is excluded, the basis for subrogation shifts.
8. Relying on an oral time extension. An extension is meaningful only in writing and only after the cause of action has arisen.

15. Conclusion

Three questions decide stowage and securing disputes: who performed the stow, during whose period of control did the damage occur, and what does the bill of lading say?

• If the stow was performed within the carrier’s control, Article 1178 requires the care of a prudent carrier and liability follows unless absence of fault is proved.
• If the container was packed, stowed and sealed by the shipper on FCL terms, the Article 1182/1(e) presumption applies and liability stays with the shipper unless rebutted.
• The presumption is not absolute: under Article 1182/2 the carrier cannot escape where the listed cause was itself brought about by an event for which it is responsible.
• Where defective securing damaged the container or the ship, the carrier may recover repair, transhipment and port costs; the master’s protective duty under Article 1112/2 grounds the necessity of those expenses.
• Ahead of all of this stands a procedural threshold: three days’ notice for non-apparent damage, the one-year time bar, the ninety-day recourse window and the jurisdiction clause on the bill.

16. Frequently Asked Questions

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

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

Does “shipper’s load, stow and count” always protect the carrier?

No. It is a reservation, not a conclusive term. It loses effect where the seal is broken, the box was opened en route, or the damage is shown to have an external cause.

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

The claim is not extinguished, but the goods are presumed to have been delivered undamaged and you must rebut that presumption. In practice this materially weakens the file.

When does the one-year period start?

Under Article 1188/2, from the date the carrier delivered the goods or part of them, or, if never delivered, from the date delivery should have been made.

Do enforcement proceedings preserve the one-year period?

The legislative reasoning treats “judicial recourse” as including enforcement proceedings. However, there are decisions holding that the period restarts on the debtor’s objection, so the action to set aside must still be filed within the year.

As an insurer, how long do I have for recourse?

A recourse action may be brought after the one-year period, but is extinguished unless exercised within ninety days of payment or of service of the claim against you.

My policy excludes defective stowage — what follows?

If the insurer pays nothing on that head, no subrogation arises and no recourse action lies. The cargo interest must then proceed directly against the carrier or the shipper. Read the exclusions before choosing defendants.

Is a London jurisdiction clause in the bill valid in Turkey?

There is no single answer. Some decisions of the 11th Civil Chamber uphold clauses satisfying Article 47 of the PIL Act; others set them aside as unnegotiated standard terms invoked contrary to good faith. The clause must be assessed before the file is built.

If foreign law is chosen, do Turkish mandatory rules still apply?

Yes. Terms reducing or excluding the carrier’s liability are void; a choice of law cannot displace mandatory rules of public order or the minimum liability framework.

Which court should I file in?

The maritime specialist court (or, absent one, the commercial court of first instance); on venue, the defendant’s domicile under CCP Article 6 or the loading/discharge port under CCP Article 10.

What can the carrier claim from me for container damage?

Repair or replacement cost, loss of use, discharge and re-stowage costs at the transhipment port, survey fees and repair of ship’s equipment. Necessary transhipment expenses are recoverable from the shipper as part of the master’s protective duty.

What if the cause of the damage cannot be established?

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

17. Sources and Caveat

• Turkish Commercial Code No. 6102, Articles 1112, 1141, 1178, 1182, 1185, 1188, 1191, 1472 — official text at mevzuat.gov.tr
• Code of Civil Procedure No. 6100, Articles 6 and 10
• Act on Private International and Procedural Law No. 5718, Articles 29, 40 and 47
• Turkish Regulation on the Carriage of Dangerous Goods by Sea and Loading Safety (14.11.2021); IMO/ILO/UNECE CTU Code; IMO CSS Code
• Court of Cassation, 11th Civil Chamber, 13.02.2015, file 2014/16212, judgment 2015/1885; 07.01.2019, file 2017/2638, judgment 2019/71
• Istanbul 17th Commercial Court of First Instance (maritime specialist court) — marble blocks / container floor damage and transhipment costs

Related reading

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