Summary of This Article
Foreign line bills of lading almost invariably contain a jurisdiction clause on their reverse side, such as: ‘disputes shall be heard in London,’ ‘the courts of the vessel’s flag state have jurisdiction,’ or ‘the courts where the carrier’s headquarters are located have jurisdiction.’ A Turkish consignee whose cargo arrives damaged often believes, upon seeing this clause, that they cannot file a lawsuit in Turkey.
However, for this clause to remove the jurisdiction of Turkish courts, it depends on the fulfillment of the conditions in Article 47 of Law No. 5718 (MÖHUK). If even one of these conditions is missing, the clause does not take effect. In this article, we examine those conditions, the Supreme Court’s ‘certainty’ criterion, whether the clause binds the consignee and the insurer, and its effect on ship arrest.
Contents
- Problem: Printed Jurisdiction Clause on the Reverse Side
- Which Provision Applies: HMK Art. 17 or MÖHUK Art. 47?
- Conditions Required by MÖHUK Art. 47
- First Condition: Absence of an Exclusively Competent Turkish Court
- Second Condition: Foreign Element and Obligation Relationship
- Third Condition: Proof by Written Evidence
- Fourth Condition: The Chosen Court Must Be SPECIFIC
- Certainty Test for Typical Clauses in Bills of Lading
- Is the ‘Courts of the Flag State’ Clause Valid?
- Does the Jurisdiction Clause Bind the Consignee and the Bill of Lading Holder?
- Insurer’s Subrogation and the Jurisdiction Clause
- General Terms and Conditions Control and the Rule of Good Faith
- Derogation Effect and Two Exceptions
- When and How is a Jurisdiction Objection Raised?
- Effect on Ship Arrest: TTK Art. 1356
- Substantive Lawsuit, Enforcement, and Statute of Limitations Risk
- Practical Checklist
- Why is it Important to Conduct the Process Correctly?
- Frequently Asked Questions
1. Problem: Printed Jurisdiction Clause on the Reverse Side
In maritime transport, a bill of lading is not a contract text negotiated and signed by the parties. It is a standard document unilaterally printed by the carrier, containing over twenty pre-printed clauses on its reverse side. Turkish buyers usually see this document in the letter of credit file, meaning after the cargo has already departed.
Among the first of these clauses, almost always, there is a jurisdiction clause. When damage occurs to the cargo, the carrier uses this clause to argue that “a lawsuit cannot be filed in Turkey.” In practice, this defense is often perceived as stronger than it actually is.
The reality is this: for a clause authorizing a foreign court to remove the jurisdiction of a Turkish court, all conditions in Article 47 of the IPCPL (International Private and Procedural Law) must be met concurrently. These conditions are much stricter than commonly assumed, and a significant portion of clauses in bills of lading cannot satisfy them.
2. Which Provision Applies: Article 17 of the CPC (Civil Procedure Code) or Article 47 of the IPCPL?
The distinction is simple and should not be confused:
| Selected court | Applicable provision | Fundamental condition |
|---|---|---|
| Turkish court | HMK no. 6100 art. 17–18 | Parties must be merchants or public legal entities; agreement must be in writing; court must be specified |
| Foreign state court | MÖHUK no. 5718 art. 47 | No exclusively authorized Turkish court should exist; element of foreignness; debt relationship; written evidence |
Since the entry in the bill of lading points to a foreign state court, the applicable provision is MÖHUK art. 47. The condition “parties must be merchants” in HMK art. 17 does not directly apply here; on the other hand, it is accepted that the criterion of specificity should also be sought for MÖHUK art. 47.
3. Conditions Required by MÖHUK art. 47
The first paragraph of the provision is as follows: “In cases where jurisdiction is not determined on the basis of exclusive jurisdiction by venue, parties may agree that disputes between them, which contain a foreign element and arise from debt relations, shall be heard in the courts of a foreign state. The agreement becomes valid if proven by written evidence. The lawsuit shall only be heard in the competent Turkish court if the foreign court declares itself incompetent or if no objection to jurisdiction is made in Turkish courts.”
From this, four conditions and one result emerge:
- There should be no exclusively competent Turkish court.
- The dispute must contain a foreign element.
- The dispute must arise from a debt relationship.
- The agreement must be proven by written evidence.
- In addition to these, case law requires that the chosen court must be specified.
Result: derogation
If the conditions are met, the jurisdiction of the foreign court becomes exclusive; the international jurisdiction of the Turkish court ceases. This is called the “derogation effect.” However, this effect is not absolute; there are two exceptions that we will discuss below.
4. First Condition: Absence of an Exclusively Competent Turkish Court
In Turkish law, jurisdiction is definite and exclusive in some disputes; parties cannot circumvent this jurisdiction by agreement. Claims for cargo damage arising from sea transportation are not, as a rule, subject to exclusive jurisdiction; therefore, this condition is generally in favor of the carrier.
In contrast, the situation is entirely different regarding ship arrest. Turkish Commercial Code Art. 1355 authorizes only the court where the ship is located to issue arrest orders for foreign-flagged vessels. This is a rule of jurisdiction that cannot be altered by the parties’ will and is further discussed in section 15 below.
5. Second Condition: Element of Foreignness and Debt Relationship
In a carriage from China to Turkey, the element of foreignness is undeniable: the carrier is foreign, the ship is foreign-flagged, and the loading port is in a foreign country. The dispute also arises from a freight contract, i.e., a debt relationship.
These two conditions are rarely disputed in practice. The discussion primarily focuses on the conditions of written evidence and certainty.
6. Third Condition: Proof by Written Evidence
Private International Law and Procedural Law Art. 47 states that an agreement will be valid if proven by written evidence. This does not mean a physically signed contract in the classic sense; however, the parties’ intentions must be reflected in a written document.
Regarding the bill of lading, the critical question is: can a clause on the back of a document unilaterally printed by the carrier and never signed by the consignee be considered an agreement?
The established approach is that the bill of lading is the document determining the legal relationship between the carrier and the consignee, and that the holder who takes over the bill of lading is subject to the content of the document. However, this general acceptance does not mean that every clause will be automatically considered valid; the clause must also pass certainty and good faith scrutiny.
Practical note
Whether the back of the bill of lading is submitted to the file is a matter of debate in itself. In practice, the carrier often submits only the front side and orally relies on the clause on the back. If the text on the back and its sworn translation have not been submitted to the file, the existence and content of the clause are not considered proven by written evidence. This is the first question to be asked by the cargo owner.
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7. Fourth Condition: The Chosen Court Must Be SPECIFIC
This is the condition most frequently challenged in bill of lading clauses. It is accepted that the criterion of “specificity” explicitly required for Turkish courts in HMK art. 17–18 should also be sought for MÖHUK art. 47. In doctrine, the criterion is formulated as follows: the authorized court must be explicitly named.
The decision of the 11th Civil Chamber of the Court of Cassation dated 17.02.2016, numbered 2015/7244 E. – 2016/1657 K., directly applied this criterion. In the decision, it was argued that the jurisdiction clause in the bill of lading referred to English law and courts of a specific country; the Chamber ruled that the clause’s acceptance as valid was a ground for reversal, on the grounds that it did not meet the “specificity” criterion.
Dissenting opinion should also be known
In the dissenting opinion written in the same decision, it was argued that a clause generally granting jurisdiction to the courts of a state in disputes involving a foreign element fulfills the condition of certainty (with reference to Nomer). In other words, the criterion is not absolutely established; the opposing party may rely on this dissenting opinion. In drafting the petition, both approaches must be addressed.
8. Certainty Test for Typical Clauses in Bills of Lading
| Clause text | Assessment |
|---|---|
| “Any dispute shall be referred to the High Court of Justice in London.” | Court is named — the certainty requirement is highly likely to be met. |
| “Disputes shall be settled in the courts of Singapore.” | Country is specified, but not the court by name. Debatable; risky given the majority opinion in the Supreme Court’s aforementioned decision. |
| “All disputes shall be settled in the flag-state of the ship.” | Neither court nor country is directly specified; varies by flag. It is the weakest type of clause in terms of certainty. |
| “…or otherwise in the place mutually agreed between the Carrier and the Merchant.” | An alternative clause left for subsequent agreement. It is difficult to consider it a standalone jurisdiction agreement. |
| “Courts at the place of the Carrier’s principal place of business.” | The carrier’s principal place of business may change; its ascertainability is debatable. |
9. Is the “Flag State Courts” Clause Valid?
This clause, frequently encountered in practice, can be questioned from three different perspectives.
- Regarding certainty: The clause does not contain any court or country name; it ties the competent jurisdiction to the flag of the vessel. According to the criterion in the aforementioned decision of the Court of Cassation, this cannot meet the requirement of explicit designation.
- Regarding determinability: The flag is a changeable element. Vessels can be sold and re-flagged even during a voyage. For a vessel carrying the flag of one state on the loading date and another state on the unloading date, it is unclear which moment should be taken as the basis.
- Regarding consensus of will: The consignee, at the moment of taking over the bill of lading, may not know which flag the vessel is flying and, consequently, in which country to file a lawsuit. This results in the jurisdiction clause not being foreseeable.
- When read together with an alternative clause: If the text states ‘either in the flag state or in a place to be subsequently agreed upon by the parties’, there is not a finalized jurisdiction agreement, but a promise of a future agreement.
Ready argument for the petition
On the part of the cargo interest, the following threefold argument can be established: (i) since the clause does not explicitly name any court, it does not meet the certainty requirement under Article 47 of the IPCAP; (ii) since the flag is a changeable criterion, the clause is also not determinable; (iii) the alternative structure of the text indicates that the parties have not reached a definitive will regarding jurisdiction.
10. Does the Jurisdiction Clause Bind the Consignee and the Holder of the Bill of Lading?
The bill of lading is the document that forms the basis of the legal relationship between the carrier and the consignee; the provisions of the charterparty between the parties do not directly affect the holder of the bill of lading. This distinction is particularly important in carriage based on charterparties.
The practical consequence is this: an arbitration or jurisdiction clause in the charterparty does not automatically pass to the holder of the bill of lading. If there is no clear and sufficient reference (incorporation clause) to the charterparty in the bill of lading, the holder cannot be bound by that clause. However, a clause on the reverse side of the bill of lading itself can bind the holder if it meets the above conditions.
In this regard, the correct establishment of the transport chain is crucial. We have also addressed the issue of who signed the bill of lading, in what capacity, and who the carrier is, in our article titled can a ship be seized if the ship owner is not the carrier.
11. Insurer’s Subrogation and Jurisdiction Clause
When a cargo insurer makes a payment to the insured, they are subrogated to the insured’s rights. Subrogation means taking over the right as is; therefore, a valid jurisdiction clause binding the insured generally also binds the subrogated insurer.
The reverse is also true: a clause that does not bind the insured also does not bind the insurer. Therefore, in the insurer’s recourse action, the first step is to check whether the clause meets the conditions of Article 47 of the Law on International Private and Procedural Law.
12. Review of General Terms and Conditions and the Rule of Good Faith
Turkish Code of Obligations No. 6098 articles 20–25, subjects pre-prepared and unilaterally imposed general terms and conditions to scrutiny. The printed clauses on the back of the bill of lading are typical general terms and conditions.
The scope of this scrutiny in relations between merchants is debatable; in Supreme Court practice, the merchant’s obligation to act prudently is also taken into consideration. In contrast, an evaluation based on the rule of good faith is possible in any case.
Argument of Good Faith
The following argument can be made by the cargo interested party: forcing the Turkish buyer to file a lawsuit in a distant country for a claim of hundreds of thousands of dollars in every dispute arising under the bill of lading, considering the strong connection of the dispute with Turkey (port of discharge, place of delivery, place where the damage occurred, place where the evidence is located), makes obtaining justice practically impossible or extremely difficult. This is worth evaluating in terms of a violation of the rule of good faith and the right of access to a court.
13. Derogation Effect and Two Exceptions
If the conditions are met, the jurisdiction of the Turkish court ceases. However, Article 47 of the Private International Law and Procedural Law states that the jurisdiction of the Turkish court will revive in two cases:
| Exception | Explanation |
|---|---|
| Foreign court declaring itself without jurisdiction | The authorized court decides whether it has jurisdiction according to its own law. If it declares itself without jurisdiction, the Turkish court gains international jurisdiction. In this case, the foreign court’s decision of lack of jurisdiction is documented and submitted to the Turkish court. |
| Failure to raise a jurisdiction objection in the Turkish court | The jurisdiction clause is not taken into account ex officio. If the defendant does not raise a jurisdiction objection in due time and in accordance with the procedure, the Turkish court will hear the case. |
The second exception occurs more frequently in practice than is generally assumed. If the foreign carrier’s representative in Turkey does not raise a jurisdiction objection among the preliminary objections and within the specified period, the clause effectively becomes inoperative.
14. When and How is a Jurisdiction Objection Raised?
- It is a preliminary objection. The jurisdiction objection is among the preliminary objections in the HMK (Code of Civil Procedure) and must be raised in the statement of defense.
- All must be raised together. All preliminary objections must be stated together in the statement of defense; they cannot be raised subsequently.
- The competent court must be indicated. The party raising the jurisdiction objection must clearly indicate the court it claims to be competent. Otherwise, the objection will not be taken into consideration.
- If not done within the period, the right is forfeited. An objection to jurisdiction not raised within the period cannot be evaluated later, and the second exception of MÖHUK art. 47 comes into play.
Practical outcome for the cargo interest: when a lawsuit is filed in Turkey, the opposing party’s statement of defense must be carefully examined. If there is no objection to jurisdiction or if the competent court has not been indicated, this matter should be immediately brought to the court’s attention with a declaration.
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15. Effect on Provisional Attachment of Ship: TCC art. 1356
This section contains the most useful information in cargo damage cases. A foreign jurisdiction or arbitration clause in the bill of lading does not prevent the request for provisional attachment of a ship in Turkey.
Turkish Commercial Code No. 6102 pursuant to art. 1356, even if a foreign court or arbitral tribunal is competent to rule on the merits of the claim, or even if the law of a foreign state is applied to the merits of the maritime claim, a Turkish court is competent to issue an order for provisional attachment to secure the claim for a maritime claim.
In addition, Article 1355 of the TCC grants the authority for a provisional attachment on foreign-flagged vessels only to the court of the place where the ship is located. This means that if the ship is docked in a Turkish port, the competent court is a Turkish court, and this cannot be altered by a clause in the bill of lading.
Practical implications
The consignee whose cargo arrives damaged can have a provisional attachment placed on the vessel in Turkey without waiting for the discussion on where the main lawsuit will be heard, and thus secure their claim. For the process and conditions, you can refer to our articles titled provisional attachment of vessels due to cargo damage and preparation of the application petition for vessel provisional attachment.
16. Main Case, Enforcement, and Statute of Limitations Risk
Pursuant to Article 1357 of the TCC, even if a lawsuit concerning a maritime claim has been filed in a foreign court or before an arbitrator, the provisional attachment order must still be sought from a Turkish court until a final judgment is rendered. Article 1360 of the TCC also grants jurisdiction for the enforcement of a foreign court or arbitral award to the court that issued the provisional attachment order; the condition for this is that the vessel must be located within that judicial district or the deposited security must be held in the court’s treasury.
The biggest risk: statute of limitations
Pursuant to Article 1188 of the TCC, the right to claim compensation arising from the loss, damage, or late delivery of goods lapses if legal action is not taken within one year. This period is observed ex officio by the judge.
The prolongation of the jurisdiction dispute does not stop this period. If the case filed in Turkey might result in a lack of jurisdiction, and the period is also running in the foreign court, making a separate protective application in the authorized country to interrupt the statute of limitations should be considered. Alternatively, an explicit time extension clause should be included in the guarantee/LOU text.
17. Practical Checklist
| Check | Why it’s important |
|---|---|
| Is the REVERSE SIDE of the bill of lading in the file? | Otherwise, the existence and content of the record will not be deemed proven by written evidence. |
| Has a sworn translation of the reverse side been submitted? | A document in a foreign language cannot be evaluated without a translation. |
| Which court does the record explicitly name? | This indicates whether the criterion of certainty is met. |
| Is the record alternative (“either … or the place agreed upon by the parties”)? | An alternative record may not contain a definitive intention regarding jurisdiction. |
| Has the flag changed during the voyage? | Directly affects the determinability of the flag state record. |
| Is the dispute within the scope of exclusive jurisdiction? | For example, in the provisional attachment of a ship, jurisdiction lies where the ship is located. |
| Has the opposing party raised a timely objection to jurisdiction, indicating the competent court? | If not, the second exception of Article 47 of MÖHUK comes into play. |
| Is there a reference to the charter party, and if so, is it sufficient? | In case of insufficient reference, the condition in the charter party does not pass to the holder. |
| Is the one-year forfeiture period on the calendar? | Jurisdiction disputes do not stop the period. |
18. Why Is It Important to Conduct the Process Correctly?
The jurisdiction clause in the bill of lading can determine the fate of the case as early as the first hearing. If the clause is deemed valid, the Turkish consignee is forced to file a lawsuit thousands of kilometers away from the country where the evidence, witnesses, and damage are located; which often means practically abandoning the claim. If the clause is deemed invalid, the dispute will be heard where the evidence is located and at a reasonable cost.
On the cargo interest side
- Complete provision of the front and back of the bill of lading and its sworn translation
- Literal analysis of the jurisdiction clause in terms of certainty and ascertainability
- Dating of flag, owner, and operator changes from registry records
- Documentation of connecting factors with Turkey (port of discharge, place of delivery, place where damage occurred)
- Securing the claim through a precautionary attachment while the vessel is in a Turkish port
- Monitoring the one-year statute of limitations and, if necessary, a protective foreign application
On the carrier/owner side
- Raising the objection of jurisdiction among preliminary objections, within the time limit, and by indicating the competent court
- Complete submission of the reverse side text and its translation to the file
- Supporting with case law that the clause meets the criterion of certainty
- Demonstrating the charter party–bill of lading relationship and the reference clause
Regional focus
These disputes are concentrated along Turkey’s port and shipyard line. Prominent areas include Tuzla, Pendik, Kartal, Maltepe, Ataşehir, Ümraniye, Üsküdar, Sancaktepe, Sultanbeyli, and Beykoz on the Anatolian Side of Istanbul; Gebze, Çayırova, Darıca, Dilovası, İzmit, Körfez, and Başiskele in Kocaeli; and also the Yalova region. Since it is possible to secure the claim as long as the ship remains in port, a parallel security strategy should be implemented instead of allowing the jurisdiction dispute to be protracted.
Our Related Articles
- Ship Arrest — our service page
- Provisional Arrest of Ships — detailed guide under TCC art. 1352–1381
- How to Prepare a Ship Arrest Application Petition? — essential elements and list of evidence
- Controversial Items in the Concept of Maritime Claim and Case Law Trends — qualification of the claim
- Who is Responsible for Cargo Damaged During Loading and Unloading? — principles of carrier’s liability
- Where to Find Ship Information for Ship Arrest? — confirmation of flag and registration details
- You Supplied Provisions to a Ship, Payment Was Not Made — jurisdiction and security in other maritime claims
Basis Legislation (Official Sources)
- Law No. 5718 on International Private Law and Civil Procedure Law — Art. 40 (international jurisdiction of Turkish courts), Arts. 44–46 (special jurisdiction rules), Art. 47 (jurisdiction agreement and its limits)
- Turkish Commercial Code No. 6102 — provisions regarding bills of lading (Art. 1228 et seq.), Art. 1188 (one-year peremptory period), Arts. 1352–1356 (maritime claims, provisional attachment, and jurisdiction), Arts. 1357 and 1360 (main action and enforcement)
- Code of Civil Procedure No. 6100 — Arts. 17–18 (jurisdiction agreement), provisions regarding preliminary objections
- Turkish Code of Obligations No. 6098 — Arts. 20–25 (control of general terms and conditions)
- International Convention on Arrest of Ships, 1999 (Geneva)
The law texts are the current consolidated texts available on the Presidency Legislation Information System (mevzuat.gov.tr).
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19. Frequently Asked Questions
The back of the bill of lading states “disputes to be heard in London”. Can I still file a lawsuit in Turkey?
For this clause to remove the jurisdiction of a Turkish court, all conditions in Article 47 of the Private International Law and Procedure Act (MÖHUK) must be met: the absence of an exclusively authorized Turkish court, an element of foreignness, a debt relationship, proof of the agreement by written evidence, and the certainty required by jurisprudence. Furthermore, the clause is not taken into account ex officio; if the opposing party does not raise a timely objection to jurisdiction, the Turkish court will hear the case.
Is the clause “the courts of the vessel’s flag state have jurisdiction” valid?
It is debatable and a weak clause. It does not explicitly name any court or country; it links the competent jurisdiction to a variable element, the ship’s flag. Since a ship can be sold and re-flagged during a voyage, it is also uncertain which moment should be taken as the basis. In light of the certainty criterion in the decision of the 11th Civil Chamber of the Court of Cassation numbered 2015/7244 E., such clauses are questionable.
I did not sign the bill of lading. Does the clause on the back still bind me?
The bill of lading is the fundamental document in the relationship between the carrier and the consignee, and the holder is subject to its contents. However, this does not mean that every clause is automatically considered valid. The clause must also pass a certainty review and be submitted to the file along with the text on the back and its translation. If not submitted, the condition of proof by written evidence would not have been met.
Does the arbitration clause in the charter party bind me?
As a rule, no. The relationship between the carrier and the holder is determined according to the bill of lading; charter party provisions do not automatically pass to the holder. If there is no clear and sufficient reference to the charter party in the bill of lading, the holder cannot be bound by that condition.
While there is a jurisdiction clause, can I have a vessel provisionally attached in Turkey?
Yes. Pursuant to Article 1356 of the Turkish Commercial Code, even if a foreign court or arbitral tribunal is authorized to rule on the merits, and even if foreign law applies to the merits, a Turkish court is competent to issue a provisional attachment order to ensure security is obtained. Furthermore, for foreign-flagged vessels, the jurisdiction for provisional attachment belongs solely to the court of the place where the vessel is located.
What happens if the foreign court declares itself incompetent?
Article 47 of the Private International Law and Procedural Law explicitly regulates this situation: if the authorized foreign court declares itself incompetent, the international jurisdiction of the Turkish court arises. In this case, the foreign court’s decision of incompetence is documented and submitted to the Turkish court.
Does the statute of limitations run while the jurisdiction dispute continues?
Yes, and this is the biggest risk. Pursuant to Article 1188 of the Turkish Commercial Code, the right to claim compensation for cargo damage lapses if a lawsuit is not filed within one year from delivery, and this period is observed ex officio by the judge. The prolongation of the jurisdiction dispute does not stop the period; if necessary, a protective application should be made in the authorized country or an explicit extension of time clause should be included in the security text.
As an insurer, I am filing a subrogation claim. Does the jurisdiction clause bind me too?
Subrogation means taking over the right as it stands. A valid jurisdiction clause binding the insured generally also binds the subrogated insurer; conversely, a clause not binding the insured does not bind the insurer either. Therefore, in a subrogation claim, the first step is to check whether the clause meets the conditions of Article 47 of the Private International Law and Procedural Law.
Legal Notice
This article has been prepared for general informational purposes; it does not constitute legal opinion or advice. Each dispute should be evaluated within its own specific circumstances. Court decisions cited in the text are taken from open-source compilations and should be verified via UYAP / Supreme Court Decision Search before being used as a basis for petitions. Since legislation and case law may change, it is recommended to check the current status and seek legal assistance from a lawyer before taking any action.
