The sources of the substance are the provision of Article 17 (4) of the CMR and paragraph 427 of the German Commercial Code(GCC). While German law provided for six reasons for which the carrier was not liable, our provision(Turkish Commercial Code) also included clause (g). The reason in question is also absent in the CMR. If the loss, damage, or delay of the goods carried falls within the scope of one or more of the seven reasons envisaged in the provision, the carrier will be exempt from the liability. The difference between articles 876 and 878 is that the reasons foreseen in article 878 form presumption(s) in favor of the carrier, the burden of proof of the carrier are lighter the article 876. There is no obstacle for the carrier to withstand multiple specific conditions.

 

In the TCC, the reasons for getting rid of the general and private liability of the carrier with two different articles are foreseen. According to Article 876 of TCC, if the loss and damage (and delay) occur due to the reasons that the carrier cannot avoid and prevent the results despite the utmost diligence, the carrier will be exempt from the liability. When loss, damage, or delay occurs, the carrier is liable for the losses of the cargo concerned, unless the carrier can demonstrate the existence of the reasons that the carrier is exempt from their liability.

 

In the article 878 of the TCC, the carrier can exempt from the liability by using the proof of the first appearance for the reasons listed in the twisted condition. The basis for special causes for these reasons is that the carrier benefits from the ease of proof. The carrier can exempt from the liability by proving that the damage is caused by these reasons (prima facia) without directly proving that these causes cause damage. For this reason, we also remember the reasons here as possible irresponsibility, in accordance with the terminology of maritime law.

 

The carrier may exempt from the liability based on the reasons specified in CMR article 17/paragraph 2, 4. The reasons for exempting from the liability, regulated in CMR article 17 are divided into two as general and specific causes. In the CMR article 17/2, the incident that the carrier cannot avoid and prevent the consequences, the fault of the person who has the right to make a request, the instruction and the reasons for exempting from the general liability in the form of a special defect in the cargo; valid for loss, damage and delay losses.

 

According to Article 17/2 of the CMR: "If the loss, damage or delay is due to the demandant's failure or negligence, not the fault of the carrier, the instructions given by the demandant, a defect specific to the load or the situations that the carrier cannot prevent, the carrier cannot be held liable."

 

According to Article 17/4 of the CMR: "By following Article 18, paragraphs 2 and 5, the carrier cannot be held liable if the loss or damage situations arise from the special risks, which are the concomitant of one or more of the following conditions. a) The use of open vehicles not covered with a metal plate, as agreed in its use and clearly stated in the referral letter, / b) When they are not packaged or badly packaged, the goods that cause wastage or damage due to their properties are not packaged or incorrectly packaged, / c) Taking, carrying, loading, stacking or unloading of the load by the sender, consignee or persons acting on their behalf, / d) Especially the property of the goods that can be partially or completely damaged by breaking, rusting, rotting, drying, normal fire or moth pests, / e) Brands or numbers on crates or packages are inadequate or incorrect, / f) The carriage of livestock"

 

Considering the aspects of the regulation in the TCC that are different from CMR; while the reasons stated in CMR article 17/4 are specific to loss and damage cases, the regulation in the TCC applies to all three liabilities(loss, damage, and delay).

 

Possible Irresponsibility of the Carrier according to CMR and TCC

 

1. Using the open-top vehicle or shipping the goods on deck in accordance with the contract or custom;

​

If during carriage, an open-top vehicle has been used in accordance with the contract or is not stipulated in the contract, or if the item has been loaded on the deck, if damage, damage and/or delay arises due to this reason, a presumption arises not to be held liable. The open-top vehicle is a vehicle that does not have a closed place suitable for carrying the load. The tilt vehicle is not closed even if the awning is fixed. In accordance with CMR article 17/4 (a), the goods may be carried by the open vehicle, provided that the parties clearly agree and are written on the carrier's receipt. The goods carried with such a vehicle are likely to suffer damage due to greater exposure to external factors. Therefore, for the exclusions of the liability of the carrier, it is necessary to agree with the sender that the goods are carried by open vehicle and this agreement should be written to the carrier's receipt as a condition of validity. In the event that the carriage is made within these conditions, the carrier is exempt from the liability of damage or delay of the goods.

 

In accordance with article 878/1 (a) of the TCC, the carrier is exempt from the liability if the delay or delivery occurs due to the carriage or loading on the deck in accordance with the contract or custom. Unlike CMR, in the TCC, it is not required to write the agreement on the carriage with the open vehicle on the carrier's receipt. In this sense, it is understood that regulation was brought in favor of the carrier in accordance with article 17/4 (a) of the CMR in terms of exemption from the liability and ease of proof. In accordance with paragraph 2 of article 878/2 of the TCC, the carrier cannot benefit from the provision of the TCC article 878/1 (a) in the case of unusual damage or damage in the carriage with the open-top vehicle. With this regulation, adherence to article 18/3 of the CMR is ensured. Also see in the same direction: Article 1151/4 of the TCC regulating unauthorized deck carriage, number of TBMM S.: 96, p: 820.

​

2.Insufficient packaging of the goods by the sender;

​

If the good is inefficaciously packaged by the sender, a presumption is formed in the way that the carrier is not held liable. The word "insufficient" is identical in terms of content and scope to the paragraph (a) of the first paragraph of Article 864; It covers the meanings of incomplete, damaged and disabled, as well as undoubtedly absent packaging. The important point of practice is that the packaging was made by the sender or his/her acting on behalf of the sender.

In accordance with CMR article 17/4 (b), the carrier is exempt from the liability in the event that the goods are not damaged at all due to packaging or abuse packaging. According to the article 8/2 of the CMR, the carrier who is receiving the good has a liability to check the packaging and external condition. However, to benefit from CMR Article 17/4 (b), the control liability that the carrier must fulfill, it is sufficient to be understood when viewed from the outside. In accordance with Article 878/1 (b) of the TCC, if the goods are damaged or delayed in delivery due to insufficient packaging by the sender, the carrier will be exempt from the liability. Insufficient packaging, it means that the packaging, which is not suitable for the purpose, is missing or damaged, and that the packaging has never been made(Justification of Article 878/1 (b) of Turkish Commercial Code, Number of TBMM S.: 96, p: 301).

 

3.Processing (loading, unloading) of the goods by the sender/consignee;

​

In accordance with CMR Article 17/4 (b) (c) and Article 878/1 (b) (c) of the Turkish Commercial Code, if the sender or the consignee has been lost, damaged, or delayed due to processing, loading or unloading the good, the presumption of carrier's possible irresponsibility is ensued. The concepts of loading and unloading are understood in accordance with the transportation law as in article 855 of the TCC. The processing, first of all, means stacking and fixing. It provides a presumption for its favor, which is the reason for exempting from this liability, and allows the burden of proof to be displaced.

 

• According to the precedent of the civil department no. 11 of the Supreme Court of Appeals of Turkey(dated: 12.04.2011 and merits no: E.2009/11135, decree no: K.2011/4287): …in case the loading and stacking error is easily noticeable without the need for an investigation, the carrier must warn the sender by announcing, in accordance with article 2 of the Turkish Civil Code, so that the carrier may have a concurrent negligence under article 44 of the TCO(Turkish Code of Obligation)…emphasis is on whether the carrier has a concurrent negligence due to duty of care…

 

If the vehicle unloads its good on a ramp, the chauffeur must supervise such an unloading, since they should be disposed to testify against any claim stating that the goods are defective or lacking in quantity, or to note on the minute of the proceedings that such problems occurred during the unloading process; however, in practice, conducting such documentation proceedings can be troublesome. One of the main characteristics of carriage in containers is to ensure the safety of goods; therefore, if there is a physical defect or a lack of quantity only in some parts of the goods, the chances are it happened during the loading or unloading process, thereby making it necessary to supervise the unloading process to prove claims regarding such issues if need be. The consignee may exercise an exemption of liability of the contract agreed with the consigner who misstated the weight of the good if damages, resulting from a carrying an excessive amount of the goods, led by the miscalculation by the consignee, occur due to a control procedure. However, this exemption cannot be exercised against other parties, whose goods carried in the same shipment by the same consignee. The consignee can claim what they incurred from the consigner, keeping in mind that all the damages of the other parties involved must be paid by them at first. The consignee cannot be held liable for the natural malformations of the goods.

 

4. The natural feature of the good(such as breaking, rusting, deterioration, drying, infiltration, ordinary extinguishing ...);

​

Such as breaking, rusting, deterioration which are counted in the provision which is article 878/b.d of the TCC and arising from the goods. As a rule, the carrier cannot be held liable for such reasons. While the concept of a special defect of the load (ein besonderer Mangel) is used in Article 875/2 of the TCC, as in article 425/2 of GCC(German Commercial Code), the concept of load defect (inherent vice) is used in the translation of CMR article 17/2. Damage of the unpainted load from rainwater, some parts of a machine with a manufacturing defect, being damaged in a shaking that can be considered normal, causing lighters with gas leaks to explode; As the quality of the vehicle is appropriate, it is not deemed to be delivered to the carrier at the required temperature, as the quality of the vehicle is appropriate.

 

• According to the precedent of the civil department no. 11 of the Supreme Court of Appeals of Turkey(dated: 18.10.2004 and merits no: E.2004/850, decree no: K.2004/9961): According to CMR 17/2, the defendant(the carrier) cannot be held liable for any damage that appears to be caused by a load defect(inherent vice).

• The load to be carried by a vehicle equipped with cold air must be cooled before delivery to the carrier. If the load is not sufficiently cooled before delivery to the carrier, this indicates that it is defective(ARKAN, p.113 dn.16).

There are some criteria to determine if goods are susceptible to natural malformations:

a) Whether malformations occur during carriage due to miscellaneous reasons (e.g. length of the trip, climactic conditions).

b) Whether can these goods be carried without having to take special measures or not.

 

5. Insufficient labeling of packages by the sender;

​

As a rule, the sender is liable for the packing of the goods, but if it carries the goods in its warehouse and packs it according to its qualities, it is not possible to rely on the reason for exempting from this liability. The article 878 of the TCC states that insufficient packaging also encompasses no packaging. Also, it cannot be expected from the consigner that they must be liable from extremely onerous circumstances in the packaging (GLASS/CASHMORE, p.115; KAYA (CMR), p.257; ÖZDEMİR, p.248).

The length of the carriage, time and climatic conditions must be taken into account, and the packaging system should be planned accordingly( AYDIN, p.78. ). For instance, in a judgment of the German Supreme Court, when packing, the bad road conditions should be taken into account as the load is carried from Austria to Baghdad. In a judgment of the French Court, the carriage of pineapples in uncooled vehicles in cardboard boxes in July was described as improper packaging.

The article 17/4(e) of the CMR indicates that the sender must be held liable for such packaging procedures as long as the consignee has not participated in the proceedings. The very same article mentions that even in the case of consignee's involvement, only an external check-up on goods must be deemed sufficient to avoid liability. This exemption can be proven by referring to the relevant article on the contract. (Adıgüzel, MBD, p. 40; Aydın, Sorumluluk, p. 91.)

 

6. The carriage of livestock;

​

Livestock carriage brings some harmful consequences to animals: such as injury, illness, harm to each other. Due to the said risk, the CMR clause 17/4 (f) provided the carrier with the opportunity to exempt from this liability. For this reason, the ruling included a presumption in favor of the carrier. Unlike the general rule, the burden of proof has been aggravated in terms of the carriage of livestock, which are special hazards. Because of, in accordance with CMR article 18/5, the carrier will not be able to exempt from the liability in terms of the characteristics of the event, unless it proves that it has taken all precautions for the carriage of livestock and that it has acted in accordance with any special instructions given. The carrier may benefit from article 878/4 (f) of the TCC by proving that it has taken all the measures and acts in accordance with the instructions in accordance with Article 878/5 of the TCC. The possibility of salvation will be possible if the carrier, as in the CMR application, proves that the damage is primarily caused by the carriage of livestock, takes all the precautions and complies with all instructions.

 

7. Just cause that justify the carrier's exemption from the liability in accordance with the provisions of the Customs Law and other laws and regulations;

​

Regulations included in the customs law and other legislation may lead to delay in shipment. The carrier cannot be held liable for the reasons that are directly connected to the goods and are outside the risk area of the carrier.

· According to the precedent of the civil department no. 11 of the Supreme Court of Appeals of Turkey(dated: 31.10.1994 and merits no: E.1994/3912, decree no: K.1994/7994): "… the delay of the carriage arises from the confusion created by the civil war and this is a force majeure and the defendant cannot be attributed to the defendant..."

According to article 17/3 of the CMR, the carrier cannot be exempted from liability based on the defect in the vehicle used to make the carriage or the defect of the person and the assistants of the person who rented the vehicle from him/her and with this provision, possible irresponsibility has been regulated. Because the carrier does not have the right to prove that this result will occur even if the damage or delay caused by the vehicle's internal parts or exercises the utmost diligence.

According to Article 877/1 of the TCC, the carrier cannot be exempted from the liability based on the vehicle malfunction or the defect of the person who rented the vehicle and its representatives or employees. The carrier is obliged to make the carriage suitable for operational safety in accordance with article 863/1 of the TCC and for this reason, use a convenient and safe vehicle during the carriage.

The burden of proof on vehicle failure will be on the carrier in terms of TTK. As a matter of fact, as in GCC(German Commercial Code), the rule regarding the burden of proof contained in CMR article 18/1 is not included in the TCC. For this reason, in accordance with Article 6 of the TMK, the carrier will prove that the damage is caused by the claims it claims and is not liable.

 

Evidence of the possible irresponsibility and special cases

​

According to the characteristics of the concrete case, the carrier is exempt from the liability by proving that the loss/damage or delay is primarily caused by one of the reasons listed in article 878/1 of the TCC. The first proof of appearance(prima facie Beweis) in article 878/2 of the TCC is included in the provision with the expression "if possible" or "likely to be attributed". Once the first proof of appearance(prima facie Beweis) has taken place, it must demonstrate that the damage associated with the load is not caused by the reasons in question. If the load fails to carry out the related "refutation" activity successfully, the carrier is considered not liable. However, in the following cases, certain exceptions are brought to this general rule or the burden of proof of the carrier is increased:

 

1-IN OPEN VEHICLE CARRIAGE: If the damage was caused by the failure to comply with the private instructions regarding the carriage of the goods, the carrier cannot be exempted from the liability based on the article 878/1 / b (a) of the TCC(art. 878/3). Also, if the damage or loss is extraordinary, first appearance proof(prima facie Beweis) has not occurred.

​

2-IN PRIVATELY PROTECTED CARRIAGE: If the carrier is under an obligation to protect the good against heat, cold, temperature changes, humidity, jolts or similar effects in accordance with the contract, it can withstand Article 878/b (d) of the TCC only in accordance with the characteristics of the concrete event, in particular, if it has taken all the precautions for the selection, maintenance and use of the necessary equipment and has acted in accordance with the private instructions.

​

3-IN THE CARRIAGE OF LIVESTOCK: The carrier is exempt from the liability by proving that carrier has taken all the precautions that carrier has, and according to the characteristics of the concrete case, and that carrier has also complied with the private instructions due to such carriages(the article 878/5 of the TCC).

​

Based on Absolute Irresponsibility

​

If the loss, damage or delay has occurred due to the reasons that the carrier cannot avoid and prevent the consequences despite exercising the "utmost diligence", the carrier is exempt from the liability. With this provision, the carrier's exemption from the liability is based on the highest care, not on average care. The carrier will prove the existence of these reasons within the framework of general proof rules.

​

EXCEPTION: VEHICLE MALFUNCTION AND FAULT OF THE LESSOR(article 877 of the TCC);

​

The carrier cannot be exempt from the liability based on the malfunctions occurring in the vehicle or the reasons arising from the defect of the lessor. These reasons are excluded from the possibility of getting rid of liability in terms of operational safety principles.