Land transportation is one of the most used and preferred types of transportation in the world. For this reason, issues such as in which cases the carrier will be responsible for the losses and damages that will occur in the commodities transported by land, in which cases the liability will be removed, the limits of liability and the statute of limitations for these damages are of great importance.
The carrier owes to the carrier to take the commodities to the destination with the contract of carriage and to deliver them to the person sent there or to deliver the passenger to the destination; in return, the sender in the carriage of commodities and the passenger in the carriage of passengers owe to the carrier to pay the carriage fee. (Article 850/2 of the Turkish Commercial Code) Therefore, in addition to the transportation of the commodities from one point to another, the carrier has the obligation to deliver the commodities to the consignee at the place of arrival.
Delivery of the commodities to the consignee in full is only possible by carrying the commodities to the destination without any damage or damage. The "duty of care for the commodities" serving this purpose generally refers to taking the necessary measures for the maintenance and preservation of the commodities during transportation. The care envisaged here is at a higher level than the care regulated in Article 18 of the TCC, which stipulates the need to act like a prudent businessman. ¹
The liability arising from the failure of the carrier to fulfill its obligations as required is regulated in the Turkish Commercial Code in parallel with the liability system in the CMR. The liability system regulated in the CMR is seen in the decision of the Court of Appeals for the 11th Circuit, with the file number 2015/817, 2015/2126 Decision, dated 18.02.2015:
"The basic rule regarding the responsibility of the carrier is regulated in Article 17 of the CMR. Pursuant to the provision of this article, the carrier is responsible for the total or partial loss and damage of the commodities from the time of receipt of the commodities until the time of delivery of the commodities and also for the delay. In terms of the burden of proof, there is no need to prove that the damage is caused by the fault and fault of the carrier if the shipper or the shipper proves that the commodities subject to transportation are delivered to the carrier in full and free from all kinds of defects, but not in the same shape and quality. Although the carrier's liability is a defect liability, the burden of proof has been reversed exception of the general rules. The carrier, who argues that he/she is not responsible for the damage, must prove that there is no fault attributable to him/her due to this damage.
The situations that release the carrier from liability are listed in Article 17/2 of the CMR, and one of these situations is that the damage is caused by a situation that the carrier cannot avoid and prevent. For the existence of an unavoidable situation, the carrier must have shown the care that an experienced and prudent carrier must show. ''
In Article 875 of the TCC No. 6102, which is regulated in parallel with this, titled "Liability for loss or damage and damage arising from delay", it is stipulated that the carrier is responsible for loss, damage or damage arising from delay in delivery of the commodities within the period from the receipt of the commodities to their delivery.²
In addition, Article 876 of the TCC stipulated that the bearer would be relieved of responsibility if he proved that loss or damage occurred due to events that he could not avoid and prevent the consequences despite showing the highest care. The care to be taken here is determined as "highest care" and if this care is not taken, the carrier's liability for compensation will arise. As can be understood from this situation, the carrier shall also be responsible for its negligence level fault.
In Article 878 of the TCC, some special cases were regulated and it was decided that the carrier would be released from responsibility by proving that the damage occurred due to these reasons. These special reasons are listed in our Law as follows:
a) The use of a convertible vehicle or loading on board in accordance with the contract or custom. b) Inadequate packaging made by the sender. c) Processing, loading or unloading of the commodities by the sender or the sender. d) The natural nature of the commodities, which causes easy damage especially through breakage, rust, deterioration, drying, leakage, ordinary waste. e) Inadequate labeling of the packages to be transported by the sender. f) Live animal transport. g) The provisions of the Customs Law No. 4458 dated 27/10/1999 and other laws and regulations justify the carrier's release from liability.
In the event that the damage is likely to be attributed to one of these reasons, it is assumed that it is caused by these reasons. However, in the event that a convertible vehicle is used in accordance with the contract or custom or loading on the deck, this provision shall not apply in case of extraordinary damage or damage.
On the other hand, in the TCC, the carrier is not allowed to get rid of responsibility by relying on the faults in the vehicle, the faults of the persons rented by the vehicle or the representatives or employees of the renter. (m. 877) In addition, the carrier is responsible for the acts and omissions of its own people and the persons it uses for the fulfillment of the duties of the transportation, as if they were its own acts and omissions. (m.879)
According to the TCC, it is not possible to mitigate or remove the liabilities arising from the failure to fulfill the auxiliary debts stipulated in the law at all or properly, as well as the loss and damage, since the mitigation or removal of the responsibilities imposed by the law in advance is considered invalid.4 However, since it is prohibited in our Law to relieve or remove liability in advance, it is necessary to accept that the agreements made after the occurrence of the damage are valid.
If the carrier fails to prove the matters stipulated in the law in order to get rid of the liability arising from the loss and damage, it is obliged to compensate the damage and the lawsuit regarding the compensation includes the compensation of the damage arising from the failure to meet the interest of the debtor, the carrier, the sender or the sender in the status of a creditor.³
The limits of the compensation to be paid are regulated in Article 882 of the TCC. Accordingly, in the event of loss or damage to the entire shipment, the compensation payable pursuant to Articles 880 and 881 shall be limited to the amount meeting the 8,33 Special Drawing Right for each kilogram of the unclear weight of the shipment. In case of loss or damage of individual parts of the shipment, the responsibility of the carrier is regulated in different ways. It is foreseen that if the entire shipment of the carrier has lost its value, the part of the shipment that has lost its value will be limited to the amount that meets the 8.33 Special Drawing Right for each kilogram of the unclear weight of the part of the shipment that has lost its value. However, the liability of the carrier arising from the exceeding of the transportation period is limited to three times the transportation fee. The Special Right of Withdrawal shall be converted into Turkish Lira according to the value determined by the Central Bank of the Republic of Turkey on the date of delivery of the commodities to the carrier for transportation or on another date agreed by the parties, and the amount of compensation to be paid in this way shall be determined.
In order to claim these damages, different periods are foreseen in our Law. In the case of transportation subject to the provisions of the fourth book titled "Transportation Works" of the TCC; in the event that the passenger dies as a result of an accident or suffers a damage that damages the physical integrity, his/her rights of claim shall be subject to statute of limitations in ten years; in other damages, it shall be subject to statute of limitations in one year. (m.855/1) Claims arising from wrongful acts shall also be subject to the same statute of limitations. This period starts to run from the date of delivery of the commodities to the sender, if the commodities are completely lost, from the date of delivery of the commodities. (m.855/2) Provided that the recourse creditor has notified the recourse debtor about the damage and the recourse debtor within three months from the date of the expiration of the recourse rights; if there is no finalized court decision against the recourse creditor, it starts to process from the date the recourse creditor performs the debt. (m. 855/3)
In TCC, it is regulated that the sender or the consignee can always claim their rights against the carrier, provided that they have requested within 1 year in accordance with Article 18/3 of the TCC. In addition, if the damage is caused by the intention or reckless behavior of the carrier and the awareness of the possibility of such damage; a) If the commodities are damaged, damaged or delivered late, b) If the passenger arrives late, the liability of the carrier expires in three years. The statute of limitations in the Highways Traffic Law dated 13/10/1983 and numbered 2918 is reserved.