When a container is opened in Gebze or Ambarlı, the common scenario is as follows: a marble block has shifted and pierced the container floor; a machine has tipped over because it wasn’t chocked; big-bags have intertwined and the bottom layer has been crushed because no dunnage was used; or the pipe stowage on deck has shifted due to slackened chains. In almost all of these damages, the parties utter the same phrases: “I didn’t load it, the carrier didn’t exercise due diligence.” and the other party: “You stuffed and sealed the container.”

In this article, we address the resolution of disputes arising from stowage and securing errors within the framework of the Turkish Commercial Code No. 6102, the Civil Procedure Code (HMK) No. 6100, and the Private International Law and Procedure Code (MÖHUK) No. 5718; the criteria for determining liability, notice and preclusive periods, the competent/authorized court, and the fate of foreign jurisdiction clauses in bills of lading.

Table of Contents

1. Stowage, dunnage, and securing: concepts and typical damages
2. Carrier’s two fundamental obligations: cargo worthiness and stowage care
3. In-container stowage: FCL/LCL distinction and “shipper’s load, stow and count”
4. Presumption of perfection: TTK art. 1182/1-(e) and its limit
5. Container and vessel damage: master’s authority and transshipment costs
6. International technical standards: CTU Code, CSS Code and Loading Safety Regulation
7. Who can sue whom, for what?
8. Notification period and one-year statute of limitations
9. Competent and authorized court
10. Foreign jurisdiction clauses in bills of lading: jurisprudence divided
11. Applicable law and mandatory limits
12. Proof: which documents win the case?
13. Liability checklist
14. Eight most common mistakes in practice
15. Conclusion
16. Frequently asked questions
17. References and disclaimer

1. Stowage, Dunnage, and Securing: Concepts and Typical Damages

The correct use of technical terms in disputes determines the direction of the expert examination and the court’s decision:

• Stowage: Placement of cargo in the hold, on deck, or within a container, considering weight distribution, cargo compatibility, and accessibility.
• Dunnage: Protection of cargo from moisture, friction, and point loading by placing planks, plywood, airbags, cardboard, or mats under and between it.
• Lashing / securing: Immobilization of cargo using chains, straps, wire ropes, tensioning rods, wedges, and turnbuckles.
• Chocking / blocking: Placement of wooden or steel chocks to prevent lateral and longitudinal shifting of cargo.

Deficiencies in these operations typically lead to the following damages: cargo shifting and capsizing, crushing of lower tiers, tearing of packaging, puncturing of the container floor or sidewall, straining of door hinges, loss of ship’s stability, deck cargo falling overboard, and leakage in dangerous goods.

2. Two Fundamental Obligations of the Carrier

a) Obligation to provide a ship fit for cargo (TCC art. 1141)

According to TCC art. 1141/1, in every type of charter party, the carrier is obliged to ensure that the ship is seaworthy, fit for the voyage, and fit for cargo. Fitness for cargo refers to the suitability of the parts used for the carriage of goods, including refrigeration equipment, for the acceptance, carriage, and preservation of the goods.

In the context of lashing, its practical significance is great: if lashing eyes (lashing eye / D-ring) are broken, deck eyes are rusted, the base beams of the container provided by the carrier are rotten, or the lashing equipment is uncertified or fatigued, the damage is not “stowage error” but “unfitness for cargo” and liability reverts to the carrier (TCC art. 1141/2).

b) Stowage and preservation diligence (TCC art. 1178)

This provision indicates that liability is based on the actual control over the goods. When the damaged party demonstrates that the damage occurred during the period of the carrier’s control, the carrier is presumed to be at fault; the burden of proving their innocence lies with the carrier.

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

In container transportation, the determination of liability varies according to the bill of lading records and by whom the container was stuffed.

When goods are stowed and sealed in a container by the consignor/shipper themselves, the notations on the bill of lading “loaded, stowed and counted by the shipper” are generally valid. In the practice of the 11th Civil Chamber of the Court of Cassation, it has been accepted that, according to the provisions of the sea waybill, the responsibility for stowing belongs to the consignor, and when damage occurs due to incorrect stowage within the container and the contrary cannot be proven, the carrier cannot be held liable.

Typical facts that break the effect of this notation are: the seal being broken or having a different number at the port of destination, the container having been opened during the voyage, traces indicating that the damage occurred outside the container (handling, dropping, impact), the carrier having restowed the container with its own crew, and the container provided by the carrier proving to be defective.

4. Presumption of Faultlessness: TCC Art. 1182/1-(e) and its Limit

TCC Art. 1182/1 stipulates that the carrier and its employees shall be deemed faultless if the damage arises from certain causes. Among these sub-paragraphs, three are critical for stowage disputes:

• (e) Acts or omissions of the shipper, charterer, and owner of the goods, as well as their representatives and employees,
• (f) Natural shrinkage in volume or weight, or hidden defects of the goods, or the inherent nature and characteristics of the goods,
• (g) Insufficient packaging.

Faulty internal stowage and securing typically fall under sub-paragraph (e); inadequate pallets, thin stretch wrap, or fragile crates fall under sub-paragraph (g). In cases where the damage is likely to have arisen from these causes, the damage is presumed to have resulted from this cause, and unless proven otherwise, the carrier is relieved of liability.

5. Container and Ship Damage: Captain’s Authority and Transshipment Costs

Lack of stowage and securing causes damage not only to the cargo but also to the container facilitating the carriage or to the ship’s equipment. In an incident addressed in a decision by the Istanbul 17th Civil Court of Commerce (acting as a Maritime Specialization Court), the container bottom was damaged because block marble cargo was not properly dunnaged (or shored) and secured inside the container. The Court held the shipper personally responsible for the stowage and securing error under the terms of the FCL bill of lading.

In the same decision, the costs of transferring the cargo in the damaged container to another container at the transshipment port were also examined. The court determined that the ship’s captain acted within the scope of his obligation to protect the interests of those concerned with the cargo and his legal representation authority, pursuant to Article 1112/2 of the Turkish Commercial Code (TTK), and accepted that the mandatory transshipment and port costs incurred to prevent damage could be collected from the shipper.

This is an item of claim often overlooked in practice. Damages that can be claimed by the carrier typically include:

• Repair cost of the container or replacement cost in case of total loss,
• Loss of use for the period the container was out of service (off-hire / detention),
• Discharging, restowing, handling, and storage costs incurred at the transshipment port,
• Survey and supervision fees,
• Repair of ship’s equipment (hatch cover, deck plating, lashing eye),
• Recourse for compensation paid to other cargo interests.

6. International Technical Standards

“Care expected from a prudent carrier” and “negligence of the shipper” are abstract concepts; an expert witness measures these according to concrete standards. Basing the case on these standards facilitates connecting technical discussion to legal outcomes:

• CTU Code (IMO/ILO/UNECE Code of Practice for Packing of Cargo Transport Units): container internal stowage, weight distribution, securing forces, and dunnage principles.
• CSS Code (IMO Code of Safe Practice for Cargo Stowage and Securing): on-board stowage and lashing calculations.
• Cargo Securing Manual: each vessel’s approved cargo securing manual; the type, number, and maintenance records of lashing equipment are inspected here.
• SOLAS and VGM application: declaration of the verified gross mass of the container; misdeclaration changes both the stowage plan and the balance of liability.
• Regulation on the Sea Carriage of Dangerous Goods and Loading Safety (November 14, 2021) and IMDG Code: loading safety obligations for dangerous goods and shore facility compliance certificates.

The establishment by survey that securing was done contrary to the CTU Code or CSS Code makes the presumption of Turkish Commercial Code Article 1182/1-(e) practically decisive. Conversely, documentation that the lashing equipment is uncertified or unmaintained shifts the discussion to unseaworthiness under Article 1141.

7. Who Can Sue Whom for What?

Consignee and bill of lading holder

If damage has occurred on board the vessel due to faulty stowage or the carrier’s breach of its supervision obligation, contrary to the records in the bill of lading, the consignee or the holder who acquired the bill of lading by endorsement may file a claim for compensation pursuant to Article 1178 of the Turkish Commercial Code (TTK).

Carrier’s Counterclaims

If the container or vessel is damaged due to faulty lashing and dunnage application by the shipper or charterer, the carrier may claim the repair cost, supervision expenses, and transshipment costs. This claim can also be asserted as a counterclaim or a defense of set-off in a lawsuit filed by the cargo owner.

Insurer’s Subrogation Lawsuit

A transport insurer that has paid compensation to its insured may file a recourse action against the carrier in its capacity as subrogee, pursuant to Article 1472 of the Turkish Commercial Code (TTK). However, if the faulty stowage clause is considered among the exclusions in cargo insurance policies, the balance of liability in the recourse relationship changes accordingly; if the insurer has not made payment, subrogation does not arise. Therefore, the exclusion clauses of the policy should be read before establishing legal action.

Party to be Sued: Contractual Carrier, Actual Carrier, or Forwarder?

The contractual carrier who issued the bill of lading and the actual carrier who physically carried out the transport are jointly and severally liable to the extent they are responsible for the same damage. If the freight forwarder issued the bill of lading in its own name, it is liable as a carrier; if it only acted as an intermediary, its liability is subject to different principles. Incorrectly identifying the party to be sued leads to consequences that are difficult to remedy within the one-year forfeiture period.

8. Notice Period and One-Year Forfeiture Period

9. Competent and Authorized Court

Cases arising from maritime trade and freight contracts are absolute commercial cases. Specialized Maritime Courts are competent to hear these cases, and in places where such courts are not established, civil courts of first instance for commercial matters are responsible. In Istanbul, this duty is carried out by the Istanbul 17th Civil Court of First Instance for Commercial Matters. The rule of competence is a matter of public order and is observed ex officio by the court.

Regarding territorial jurisdiction (venue) in domestic law, there are two main options:

• Code of Civil Procedure Art. 6: the court of the defendant’s domicile as a general rule of venue,
• Code of Civil Procedure Art. 10: the court of the place where the contract is to be performed — in maritime transport, the port of loading or the port of discharge.

If the cargo was discharged in Turkey and the damage was determined in Turkey, the court of the port of discharge is usually the most appropriate choice in terms of both jurisdiction (venue) and evidentiary economy.

10. Foreign Jurisdiction Clauses in Bills of Lading: Case Law Divided

In international transport, carrier companies include printed clauses on the back of the bill of lading, granting exclusive jurisdiction to foreign courts such as the High Court of London or an American state court. The fate of these clauses is evaluated within the framework of Articles 40 and 47 of the IPCPL.

At this point, presenting the practice unilaterally would be misleading. There are two different lines in Turkish jurisprudence, and the fate of the case often depends on which line is applied:

First line: decisions validating the clause

In a series of decisions by the 11th Civil Chamber of the Court of Cassation, it has been accepted that the jurisdiction agreement is valid under IPCPL Art. 47 if the dispute contains a foreign element, does not fall within the exclusive jurisdiction of Turkish courts, and arises from a contractual debt relationship; and that the consignee who receives the bill of lading by endorsement and presents it to the carrier is also bound by the terms of the bill of lading. Within this line of reasoning, it is concluded that the clause is binding even in subrogation lawsuits filed by the insurer in its capacity as successor, and that the case should be dismissed on procedural grounds due to lack of jurisdiction (e.g., Court of Cassation 11th Civil Chamber, 13.02.2015, M. 2014/16212, D. 2015/1885; 07.01.2019, M. 2017/2638, D. 2019/71).

Second line: decisions deeming the clause ineffective

In contrast, there are also decisions to the effect that the printed clause unilaterally stamped on the back of the bill of lading was not explicitly negotiated and accepted by the parties, and therefore did not establish exclusive jurisdiction against the consignee or the transferee of the bill of lading; furthermore, that the carrier domiciled in Turkey or having an agent/center in Turkey, relying on the printed clause while the evidence and elements of performance are in Turkey, would constitute a violation of the good faith rule in Article 2 of the Turkish Civil Code (TMK) and an abuse of right.

11. Applicable Law and Mandatory Limits

Bills of lading often contain a “paramount clause” referring to the Hague or Hague-Visby Rules along with English law. When an objection to jurisdiction is rejected and the case is heard in a Turkish court, the applicable law is determined within the framework of Article 29 of MÖHUK and related provisions.

However, the chosen foreign law is not without limits. The provisions of the Turkish Commercial Code regarding the liability of the sea carrier are relatively mandatory in nature: while contractual clauses that reduce or eliminate the carrier’s statutory liability are considered invalid, clauses increasing liability are permitted. Therefore, the choice of foreign law cannot circumvent the carrier’s minimum liability framework and the mandatory provisions related to public order.

12. Proof: Which Documents Win the Case?

• Front and back of the bill of lading: STC / shipper’s load-stow-count record, reservation records, authority and paramount clause.
• Container and seal information: seal number, seal condition at discharge, EIR (Equipment Interchange Receipt) entry-exit records — these indicate whether the container’s damage occurred before or after the voyage.
• Stowage and securing proofs: loading photos, packing list, lashing plan, VGM declaration, CTU Code compliance documents.
• Survey report: should include an opinion on the mechanics of the damage (direction of shifting, crush marks, friction stains) and causality; a report merely quantifying the damage is insufficient.
• Ship documents: Cargo Securing Manual, lashing equipment certificates, stowage plan, ship’s logbook, weather report and route records.
• Correspondence: notice of damage, protest, delivery receipt, terminal and agent emails.
• Insurance documents: policy, exclusion clauses, adjuster’s report, payment receipt and waiver (basis of subrogation).

Some of the evidence is solely in the possession of the opposing party; therefore, the provisions of the HMK regarding document submission should be utilized and, if necessary, a request for evidence determination should be made, while the traces are still fresh at the port of discharge.

13. Liability Checklist

14. Eight Most Common Mistakes in Practice

1. Missing the three-day hidden damage notification. When the container is moved to the warehouse and opened days later, the time limit will have already expired.
2. Not documenting the seal status. If it’s not recorded that the seal is intact, the strongest defense for an internal stowage error is lost; the reverse is also true.
3. Only obtaining a survey that determines the cost of damage. A report lacking an opinion on causality does not resolve the liability dispute.
4. Neglecting container damage. Repair, loss of use, and transshipment costs on the carrier’s side often remain unclaimed.
5. Incorrectly establishing the opposing party. Is it the forwarder or the contractual carrier, who is the actual carrier — if not corrected within one year, the right lapses.
6. Underestimating the jurisdiction clause. When a decision of non-jurisdiction is rendered, the time limit might have expired.
7. Initiating recourse without reading the policy’s exclusion clauses. If faulty stowage is excluded from coverage, the basis for subrogation is undermined.
8. Not obtaining a written extension of time. An extension is only meaningful after the cause of action arises and in writing.

15. Conclusion

In disputes regarding stacking and lashing, there are three questions that determine the outcome: who did the stacking, during whose dominion did the damage occur, and what does the bill of lading state?

• If the stacking was done under the carrier’s dominion, the carrier must exercise the diligence expected of a prudent carrier in accordance with Article 1178 of the TCC (Turkish Commercial Code) and is liable if unable to prove its faultlessness.
• If the container was stuffed, stowed, and sealed by the shipper as FCL, the presumption of Article 1182/1-(e) of the TCC comes into play, and liability remains with the shipper unless proven otherwise.
• The presumption is not absolute: in accordance with Article 1182/2 of the TCC, if an event for which the carrier is responsible caused the occurrence of the reason, the carrier cannot be relieved of liability.
• If faulty lashing has caused damage to the container or the ship, the carrier can demand repair, transfer, and port expenses from the shipper; the captain’s duty of protection under Article 1112/2 of the TCC justifies the necessity of these expenses.
• Before all these, there is a procedural threshold: three days’ notice for hidden damage, a one-year forfeiture period, an additional ninety-day period for recourse, and the jurisdiction clause in the bill of lading.

16. Frequently Asked Questions

I stuffed the container myself, can the carrier still be liable for the damage?

Yes, it is possible. According to Article 1182/2 of the TCC, if an event for which the carrier is responsible (defective container, faulty deck stowage, measures not taken during navigation) caused the internal stowage error to be effective, the presumption is rendered inoperative.

Does the “Shipper’s load, stow and count” clause always exempt the carrier?

No. The record is a statement of reservation; it is not a definitive ruling. It loses its effect if the seal is broken, the container is opened en route, or if it is shown that the damage resulted from an external cause.

Will my case be dismissed if I do not report hidden damage within three days?

Your right to sue is not forfeited; however, it is presumed that the goods were delivered undamaged, and you will have to rebut this presumption. In practice, this significantly weakens the case file.

When does the one-year period begin?

Pursuant to Article 1188/2 of the TCC, it runs from the date the carrier delivered the goods or a part thereof; if the goods were not delivered at all, it runs from the date they should have been delivered.

Does enforcement proceedings preserve the one-year period?

According to the rationale of the article, “resorting to judicial remedies” also includes enforcement proceedings. However, since there are Supreme Court decisions stating that the period restarts upon the debtor’s objection and that an action for annulment of objection must be filed within one year, one should not wait after an objection.

As an insurer, by when can I file my recourse action?

Pursuant to Article 1188/3 of the TCC, a recourse action can also be filed after the end of the one-year period; however, the right is forfeited if it is not exercised within ninety days from the date you paid the compensation or received the petition of a lawsuit filed against you.

My policy has a “faulty stowage” exclusion, what happens?

If the insurer does not make payment for this item, no subrogation arises and they cannot file a recourse action. In this case, the cargo interested party must directly address the carrier or the consignor. Policy exclusions should be reviewed before a legal dispute is formally established.

Is the London jurisdiction clause in the bill of lading valid in Turkey?

There is no single answer. There are examples in the decisions of the 11th Civil Chamber of the Court of Cassation where clauses meeting the conditions of PIL Art. 47 are deemed valid, as well as decisions where a printed clause is deemed ineffective on the grounds that it was not negotiated and was invoked contrary to the rule of good faith. The clause must be evaluated separately before the file is established.

If foreign law is chosen, are Turkish mandatory provisions not applied?

They are applied. Clauses that reduce or eliminate the carrier’s liability are invalid; the choice of law cannot override mandatory provisions related to public order and minimum liability.

Which court should I file a lawsuit in?

The court of jurisdiction is the maritime specialized court (or, if not available, the civil court of commerce); the court of venue is either the defendant’s domicile according to CCP Art. 6 or the court of the loading/unloading port according to CCP Art. 10.

What can the carrier demand from me for container damage?

Repair or replacement cost, loss of use, discharge and restowage costs at the transshipment port, survey fees, and ship equipment repair may be claimed. It is accepted that compulsory transshipment costs can be collected from the shipper within the scope of the captain’s duty to protect.

What happens if the cause of the damage cannot be fully determined?

In this case, the burden of proof becomes decisive. If it can be shown that the damage occurred during the carrier’s custody, the carrier is presumed to be at fault; however, if there is an FCL clause and an intact seal, the presumption of article 1182/1-(e) puts the cargo owner in a difficult position. Uncertainty is overcome by the quality of the survey.

17. Resources and Disclaimer

• Turkish Commercial Code No. 6102, arts. 1112, 1141, 1178, 1182, 1185, 1188, 1191, 1472 — mevzuat.gov.tr official text
• Civil Procedure Code No. 6100, arts. 6 and 10
• Private International Law and Procedure Code No. 5718, arts. 29, 40 and 47
• Regulation on the Transport of Dangerous Goods by Sea and Loading Safety (14.11.2021); IMO/ILO/UNECE CTU Code; IMO CSS Code
• Court of Appeals 11th Civil Chamber, 13.02.2015, M. 2014/16212, D. 2015/1885 and 07.01.2019, M. 2017/2638, D. 2019/71 (jurisdiction clause in bill of lading)
• Istanbul 17th Commercial Court of First Instance (Maritime Specialization Court) decision — block marble / container floor damage and transfer costs

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