In cargo damage cases, the most time-consuming discussion is about the proper defendant. The defendant forwarder says “I only did the organization, the shipowner performed the carriage”; the shipowner says “there is no contract between me and the plaintiff”; the file circulates in expert witness rounds for two years. However, the Turkish Commercial Code has already shut down both of these defenses from the outset.

In this article, we examine the legal status of the contractual carrier, actual carrier, and freight forwarder in maritime carriage of goods, the scope of joint and several liability, the validity control of exemption clauses, and the recourse relationship. This article pertains only to maritime transport.

Contents

1. Concepts: contractual carrier, actual carrier, forwarder
2. TCC Art. 1191: the contractual carrier’s liability continues
3. Status of the actual carrier and the limit of its liability
4. Joint and several liability and judicial practice
5. Total cap on compensation: art. 1191/5
6. Are special agreements binding on the actual carrier? (art. 1191/3)
7. Right of recourse and fault distribution in internal relations
8. When is a forwarder considered a carrier? (art. 921, 926, 927)
9. Pure organizer: circumstances where not held liable
10. Exemption clause and validity review (art. 1192)
11. Area of control and burden of proof (art. 1178/2)
12. Effect of damage notification made to the actual carrier
13. Comparative table of precedent decisions
14. Document checklist for status determination
15. Strategy by parties
16. Eight most common mistakes in practice
17. Conclusion
18. Frequently asked questions
19. Sources and disclaimer

1. Concepts

The most common scenario in practice is this: A Turkish cargo owner contracts with a logistics company; the logistics company issues a bill of lading in its own name and transfers the sea leg to a shipping company. In this case, the logistics company is the contractual carrier, and the shipping company is the actual carrier.

2. TCC art. 1191: Liability of the Contractual Carrier Continues

The phrase “regardless of whether it has such a right to relinquish” in the first paragraph is the harshest aspect of the provision. The contractual carrier, whether or not it has the authority to transfer the carriage, is not relieved of liability with the transfer. The provision is mandatory.

Judicial practice consistently reiterates this principle. In the ruling of the 11th Civil Chamber of the Court of Cassation dated 08.07.2024, with file no. E. 2023/2682, K. 2024/5672, it was determined that if the carriage is partly or entirely entrusted to an actual carrier, the carrier would remain responsible for the entire carriage — regardless of whether it had the right to relinquish it — and would also be responsible for the acts and omissions of the actual carrier and its agents.

In the ruling of the Istanbul 17th Commercial Court of First Instance dated 20.02.2024, with file no. E. 2022/332, K. 2024/79, after stating that “the carrier may transfer the carriage it has undertaken to sub-carriers instead of performing it personally,” it was emphasized that this transfer does not terminate the contractual carrier’s liability; and the clear provision of Article 1191 was reiterated in the same Court’s ruling dated 13.03.2024, with file no. E. 2021/294, K. 2024/135.

3. Status and Scope of Liability of the Actual Carrier

There is no direct contract between the actual carrier and the cargo owner; its liability arises from law. Article 1191/2 of the TCC stipulates that all provisions of the Law regarding the carrier’s liability also apply to the actual carrier. Therefore, the actual carrier’s passive objection of lack of standing, stating “there is no contractual relationship between me and the plaintiff,” is rejected.

In contrast, the actual carrier’s liability is not unlimited; it is limited only to the portion of the carriage it personally performed. If damage occurs during the inland transport stage in a door-to-door shipment, the actual carrier performing the sea leg cannot be held liable for this damage; the liability remains with the contractual carrier. This distinction forms the backbone of the defense in multimodal transport.

In the judgment of the Istanbul Regional Court of Justice, 43rd Civil Chamber, dated 28.11.2024, numbered E. 2021/1158, K. 2024/1736, the specific characterization was clearly made: since the logistics company delegated the sea transport portion of its undertaken carriage commitment to a shipping company, the former is the contractual carrier, and the latter is the actual carrier. The same structure was also established in the same Chamber’s judgment dated 24.10.2024, numbered E. 2021/56, K. 2024/1537.

4. Joint and Several Liability and Judicial Practice

Pursuant to Article 1191/4 of the TCC, the liabilities of the carrier and the actual carrier are joint and several if and to the extent they are liable for the same damage. The phrase “and to the extent” in the provision is important: joint and several liability is limited to the item of damage for which both parties are liable; joint and several liability cannot be established for damage arising from a stage in which the actual carrier did not participate at all.

The practical outcome is this: the cargo interest can claim the entire loss from the contractual carrier, the actual carrier, or both jointly. From the perspective of ease of collection, this is a significant advantage for the plaintiff; especially if the actual carrier is a foreign shipowner, recourse to the contractual carrier established in Turkey determines the speed of the case.

Examples from court decisions:

• Istanbul 17th Civil Court of Commerce, 13.03.2024, E. 2021/294, K. 2024/135: within the framework of the provision regulating liability in external relations, it was assessed that one defendant was liable to the cargo interest for damages arising from the fault of the other defendant, and that the liability was joint and several pursuant to Article 1191/4.
• Istanbul 17th Civil Court of Commerce, 02.07.2024, E. 2021/457, K. 2024/288: the case was partially accepted on the grounds that the defendants were jointly liable pursuant to Articles 1178 and 1191 for not properly fulfilling the carriage conditions during the maritime transport of the goods.
• Istanbul Regional Court of Justice 12th Civil Chamber, 19.12.2024, E. 2021/46, K. 2024/1872: in a dispute concerning delivery contrary to the sender’s instructions, it was stated that the actual carrier was responsible for the fault of its agent, and the contractual carrier was also responsible for the acts and omissions of the actual carrier and its servants, concluding that the contractual and actual carriers were jointly and severally liable pursuant to Article 1191/1, 2, and 4.
• Istanbul 19th Commercial Court of First Instance, 09.02.2026, E. 2024/204, K. 2026/79: the transport commission agent’s defense “the actual transport was carried out by a third party” was not deemed valid; it was ruled that the commission agent has joint and several liability with the carrier for damages arising from the transport work, and that the actual and contractual carrier are jointly responsible for the damages.
• Istanbul 4th Commercial Court of First Instance, 24.02.2022, E. 2020/457, K. 2022/167 and Istanbul Regional Court of Justice 13th Civil Chamber, 05.11.2020, E. 2019/532, K. 2020/1217: it has been determined that regardless of whether the damage occurred during sea transport or rail transport, the contractual carrier is jointly and severally liable with the sub-carriers for damages occurring at all stages of transport.

5. Total Ceiling of Compensation: Art. 1191/5

Joint and several liability does not mean that the compensation is multiplied. According to Article 1191/5 of the Turkish Commercial Code, the total amount of compensation to be paid by the carrier, the actual carrier, and their servants cannot exceed the liability limits stipulated in the Law. In other words, the Special Drawing Rights (SDR) ceiling per package or kilogram, which is stipulated, is not doubled simply because there are two defendants.

A similar rule applies to servants: the total amount of compensation that can be claimed from the carrier and its servants also cannot exceed the legal limit, subject to the preservation of the right to limit liability. Therefore, increasing the number of defendants does not raise the compensation ceiling; what it increases is collectibility.

In the judgment of the Istanbul Regional Court of Justice, 43rd Civil Chamber, dated 24.10.2024, numbered E. 2021/56, K. 2024/1537, it was reminded that the total compensation to be paid by the carrier, the actual carrier, and their agents cannot exceed the limits of liability stipulated in the Law.

6. Do Special Agreements Bind the Actual Carrier?

A provision often overlooked in practice is Article 1191/3. According to this, special agreements that result in the carrier assuming a debt or obligation not legally imposed on them, or waiving a recognized right, do not take effect against the actual carrier unless there is their express and written consent; however, such an agreement continues to bind the contracting carrier even without the actual carrier’s consent.

The practical implication of this is clear. If the contracting carrier has included a clause in the bill of lading to satisfy their customer, which raises the limit of liability, introduces a delivery time commitment, or waives a legal defense, this clause binds only themselves. It cannot be invoked against the actual carrier. From the perspective of the cargo owner, this determines against whom extended commitments can be used; and from the carrier’s perspective, where the scope of recourse will be narrowed.

7. Recourse Relationship and Distribution of Fault in Internal Relations

Joint and several liability is valid in external relations; it does not determine the sharing in internal relations. Article 1191/6 of the TCC (Turkish Commercial Code) explicitly states: “The provisions of this article do not affect the recourse relationship between the carrier and the actual carrier.”

In the decision dated 08.07.2024, E. 2023/2682, K. 2024/5672 of the 11th Civil Chamber of the Court of Cassation, this balance was established as follows: if and to the extent that the carrier and the actual carrier are responsible for the same damage, their liability is joint and several, and these provisions do not affect the recourse relationship; in joint and several liability, as a rule, each of the debtors is responsible for the entire debt, the responsible parties have the right of recourse against each other according to their fault ratio in their internal relationship.

There are three decisive elements in a recourse file: the provisions of the sub-freight contract (slot, space charter, sub-carriage), the technical determination of at which stage the damage occurred, and the manner in which the provisions limiting liability are applied. In order to protect the right of recourse of the party making the payment, notifying the other party in the main lawsuit makes a big difference in practice.

8. When is a Forwarder Considered a Carrier?

Freight forwarding is regulated in articles 917 to 930 of the TCC (Turkish Commercial Code). According to article 917, the freight forwarder undertakes to arrange the carriage of goods in return for the agreed fee; meaning they are generally under an obligation to organize and cannot be held responsible for the actions of the carrier. However, in three cases, this position changes, and the freight forwarder becomes liable like a carrier:

In this context, if the organizing company; has determined a fixed/single freight charge, issued a bill of lading in its own name, or undertaken the carriage of consolidated cargo, it acquires the status of a contractual carrier and becomes jointly and severally liable with the actual carrier. In this case, the commission agent is liable not according to Article 928 concerning liability for carriage, but according to the provisions applicable to the carrier.

These criteria were concretely applied in the judgment of Bakırköy 4th Civil Court of Commerce, dated 28.12.2023, numbered E. 2021/615, K. 2023/1019: as it was observed that the carriage was arranged by the defendant organizer and the freight invoice was issued by them to the plaintiff’s insured in accordance with the transport document, the objection to standing (to sue) was not deemed valid, with the organizer being accepted as the contractual carrier and the company actually performing the carriage as the actual carrier; if a single fee including transport costs was agreed upon, applying the principle that the commission agent would have the rights and obligations of the carrier, it was assessed that the defendants were jointly and severally liable for the damage.

9. Pure Organizer: Cases Where Not Held Liable

The other side of the coin is equally important: pure organizers who do not meet the legal conditions cannot be held liable as a carrier. In the decision of Istanbul 17th Civil Court of Commerce, dated 13.03.2024, numbered E. 2021/294, K. 2024/135, it was concluded that this defendant could not be held liable for the damage as a carrier, on the grounds that the defendant was a freight forwarding agent and that the provisions of TCC Articles 926, 927, and 921 were not met in the dispute, and no liability was established against them.

This gives rise to a concrete strategy on the defense side. The broker’s agent relies on the following to demonstrate that the capacity did not transform into that of a carrier: that the fee was invoiced separately as commission and freight, that no bill of lading or consignment note was issued in its own name, that consolidated cargo transport was not undertaken, and that the contract contained an undertaking to arrange carriage, not an undertaking to carry.

When the broker’s capacity is maintained, the liability regime also changes: according to Article 928/1, the broker is liable for the loss of and damage to goods in their possession; according to Article 928/2, for damage not resulting from the loss of or damage to goods in their possession, they are only liable if they violate one of their obligations under Article 918 and are exempt from liability if the damage could not have been prevented despite the care shown by a prudent merchant.

10. Exemption from Liability Clause and Validity Control: TCC Art. 1192

A clause may be included in the freight contract stating that a specific part of the carriage will be entrusted to the actual carrier and that the contractual carrier will not be liable for damages arising in that part. However, this exemption is subject to two strict conditions:

These two conditions make the exemption clause quite fragile in practice. The questions to be asked from the perspective of the cargo interested party are simple: Are the identity and address of the actual carrier indicated in the contract, or is there only a general phrase “sub-carrier may be used” on the bill of lading? Can a lawsuit be filed against the actual carrier in Turkey? If one of these questions is answered negatively, the clause is invalid, and the contractual carrier’s liability continues.

Furthermore, the burden of proof also lies with the contractual carrier: the carrier wishing to benefit from the exemption must prove that the damage occurred during the period of the actual carrier’s custody. If this proof cannot be provided, the exemption does not apply.

11. Scope of Custody and Burden of Proof

Pursuant to Article 1178/2 of the Turkish Commercial Code (TCC), the carrier’s liability is contingent upon the loss, damage, or delay in delivery occurring while the goods were under the carrier’s custody. In the judgment of the Istanbul 17th Commercial Court of First Instance, dated 02.07.2024, file no. 2021/457, decision no. 2024/288, this rule was underlined and stated: the defendants can be held liable provided that the damage occurred while the goods were under the carrier’s custody.

Since the actual carrier’s liability is limited to the sea leg personally performed by them, determining the stage at which the damage occurred becomes central to the case file. This determination is made with the following documents: delivery notes, port tallies and terminal records, container interchange reports (EIR), ship’s log and stowage plan, marine survey reports, customs and warehousing records.

12. Effect of Damage Notification to the Actual Carrier

TCC Art. 1185/6 also unifies the chain of liability in terms of notification: if the goods have been delivered by the actual carrier, every notification made to them is considered as made to the carrier, and every notification made to the carrier is considered as made to the actual carrier. A notification made to a person acting on behalf of the carrier or the actual carrier, including the captain and the responsible ship officer, is also considered as made to the carrier or the actual carrier.

In the decision dated 02.07.2024 of the Istanbul 17th Commercial Court of First Instance, it was also stated that every notification made to the actual carrier is deemed as made to the carrier. The practical consequence is this: your notification of damage to the agent or the ship’s side will also produce a valid result for the contractual carrier. Nevertheless, the safer approach is to also send the same text to the contractual carrier.

We have also addressed the notification periods and the consequences of not making a notification within the period separately in our maritime commercial law articles.

13. Comparative Table of Precedent Decisions

14. Document Checklist for Status Determination

The first task of the file is to document who holds what status. Items to be examined:

• Bills of lading and waybills: issued in whose name, with whose letterhead; does it state “as carrier” or “as agent only”; how is the distinction between house B/L and master B/L established?
• Freight invoice: is it a single charge, or are commission and freight itemized separately? This alone determines the debate regarding Article 921.
• Offer and contract text: is the commitment to “carry” or “arrange carriage”; is the authority to use a sub-carrier and the identity of the actual carrier specified?
• Agency relationships: on whose behalf did the agent act; what title was used in correspondence?
• Groupage/consolidation records: was groupage carriage performed (Article 927)?
• Documents indicating the stage of damage: dispatch note, port tally, EIR, ship’s log, survey report.

15. Strategy by Parties

For the cargo owner and insurer

It is the safest way to direct the lawsuit to the contractual carrier and the actual carrier jointly; when the stage at which the damage occurred becomes clear during the trial, there will be no issue of standing. If the contractual carrier is based in Turkey, collectability is there. When encountering an exemption clause, the two conditions of Article 1192 must be immediately questioned.

For the contractual carrier and forwarder

The defense of “I did not perform the carriage” is futile. Realistic lines of defense are: the capacity remained as a brokerage (conditions of articles 921, 926, 927 were not met), the damage did not arise during the carrier’s period of control, one of the cases of non-liability under article 1182 is present, the application of limits of liability, and exemption if the conditions of article 1192 are met. Furthermore, notice of the lawsuit to the actual carrier should not be neglected.

For the actual carrier and P&I club

The objection that there is no contractual relationship is ineffective. In contrast, the defense that liability is limited to the portion of carriage actually performed is strong: if the damage arose before loading, during inland transport, or during handling after unloading, the actual carrier cannot be held liable. Furthermore, extended commitments unilaterally undertaken by the contractual carrier do not bind the actual carrier according to article 1191/3.

16. Eight Most Common Mistakes in Practice

1. Proceeding against only one defendant. Proceeding against a single defendant without clarifying which leg of the journey the damage occurred on may not be rectifiable within the one-year forfeiture period.
2. Asserting the defense of “I am just the organizer” without documentation. A single-charge invoice or a bill of lading issued in its own name refutes this defense.
3. Relying on the actual carrier’s objection of “no contractual relationship”. This is not admissible in the face of article 1191/2.
4. Assuming an exemption clause is valid. The clause is invalid unless both conditions of article 1192 are met.
5. Believing joint and several liability is unlimited. According to article 1191/5, the total compensation cannot exceed the statutory limit.
6. Not protecting the right of recourse in the main case. Failure to notify the other party causes evidentiary problems in a subsequent recourse lawsuit.
7. Going to an expert witness without documenting the stage of the damage. Without an EIR, port tally, and logbook, liability distribution cannot be established.
8. Skipping Article 1191/3. It is often not discussed in most petitions that additional commitments made by the contractual carrier do not bind the actual carrier.

17. Conclusion

• Defenses based on passive legal standing are inadmissible. The contractual carrier’s defense of “I transferred the work to a sub-carrier” is not heard according to Article 1191/1; and the actual carrier’s objection of “no contractual link” is not heard according to Articles 1191/2 and 1191/4.
• Collection is easy in external relations. The cargo interest can claim their damage from the contractual carrier, the actual carrier, or both jointly; the party making the payment will seek recourse according to Article 1191/6 based on the distribution of fault in the internal relationship.
• Joint and several liability does not multiply compensation. The total compensation to be paid according to Article 1191/5 cannot exceed the statutory limits of liability.
• The forwarder’s position is conditional. A pure organizer not meeting the conditions of articles 921, 926, or 927 cannot be held liable as a carrier; if they do carry, they become jointly and severally liable with the actual carrier.
• The exemption clause is fragile. If the actual carrier’s identity and address are not disclosed, or if a lawsuit cannot be filed against them in a Turkish court, the clause is invalid; furthermore, the burden of proof that the damage occurred under the actual carrier’s control lies with the contractual carrier.

18. Frequently Asked Questions

I transferred the carriage to a sub-carrier; am I relieved of liability?

No. According to Article 1191/1 of the Turkish Commercial Code, the contractual carrier remains liable for the entire carriage, regardless of whether they have the right to subcontract under the carriage contract.

There is no contract between me and the actual carrier; can I still sue them?

Yes. The actual carrier’s liability arises from the law; according to Article 1191/2, all provisions of the Law regarding carrier’s liability are also applicable to them in respect of the carriage they personally performed.

From whom can I claim my damages?

Since their liability is joint and several (Article 1191/4) to the extent that they are responsible for the same damage, you can claim from the contractual carrier, the actual carrier, or both jointly.

Does having two defendants double the compensation limit?

No. According to Article 1191/5, the total compensation payable by the carrier, the actual carrier, and their agents cannot exceed the liability limits stipulated in the Law.

Is the forwarder always liable as a carrier?

No. They are considered a carrier if they have personally undertaken the carriage (Art. 926), if they have carried consolidated cargo (Art. 927), or if a single price including carriage expenses has been agreed upon (Art. 921). If these conditions are not met, they cannot be held liable as a carrier.

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

Issuing a bill of lading in one’s own name is one of the strongest indicators of undertaking carriage and gives rise to the status of a contractual carrier. In this case, you become jointly and severally liable with the actual carrier.

Can I insert a clause in the contract stating “I am not responsible for the sea leg”?

Yes, you can, but Art. 1192 requires two conditions: the name, title, and business address of the actual carrier must be apparent from the contract (or notified to the consignee at the latest upon delivery), and it must be possible to file a lawsuit against the actual carrier in a competent Turkish court. Otherwise, the clause is invalid.

Who bears the burden of proof in an exemption clause?

The contractual carrier. According to Art. 1192/1, the burden of proving that the loss, damage, or delay in delivery occurred while the goods were under the control of the actual carrier rests with the carrier.

Am I bound by an additional commitment given by the contractual carrier to their customer?

As a general rule, no, if you are the actual carrier. According to Art. 1191/3, special agreements that result in the carrier undertaking an obligation not legally imposed on them or waiving a right are not binding on you unless you provide explicit written consent; however, this agreement continues to bind the carrier.

Is the actual carrier liable if the damage occurred during inland transport?

No. The actual carrier’s liability is limited to the part of the carriage they personally performed. In contrast, the contractual carrier remains responsible for the entire carriage.

Is it sufficient to report the damage to the agent?

According to art. 1185/6, a notice given to a person acting on behalf of the carrier or actual carrier is deemed to have been given to the carrier or actual carrier; a notice given to the actual carrier also has the effect as if it were given to the carrier. Nevertheless, it is safe to send the same text to the contractual carrier as well.

I made the payment; can I seek recourse from the other party?

Yes. According to art. 1191/6, the provisions of the article do not affect the right of recourse between the carrier and the actual carrier; jointly and severally liable parties may seek recourse from each other based on their fault ratio in their internal relationship.

19. Sources and Warning

• Turkish Commercial Code No. 6102, art. 917, 918, 921, 926, 927, 928, 1178, 1185, 1186, 1187, 1190, 1191, 1192 — mevzuat.gov.tr official text
• Rationale for TCC art. 1191 (source: 1968 Brussels-Visby Rules and Hamburg Rules)
• Court of Cassation, 11th Civil Chamber, 08.07.2024, E. 2023/2682, K. 2024/5672
• Istanbul Regional Court of Justice 12th Civil Chamber, 19.12.2024, E. 2021/46, K. 2024/1872; Istanbul Regional Court of Justice 43rd Civil Chamber, 28.11.2024, E. 2021/1158, K. 2024/1736 and 24.10.2024, E. 2021/56, K. 2024/1537; Istanbul Regional Court of Justice 13th Civil Chamber, 05.11.2020, E. 2019/532, K. 2020/1217
• Istanbul 17th Commercial Court (E. 2022/332 K. 2024/79; E. 2021/294 K. 2024/135; E. 2021/457 K. 2024/288); Istanbul 19th Commercial Court (E. 2024/204 K. 2026/79); Istanbul 4th Commercial Court (E. 2020/457 K. 2022/167); Bakırköy 4th Commercial Court (E. 2021/615 K. 2023/1019)

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