Ulgener

-Canberk Tuygan

With the development of technology, vehicles such as crates, sacks, boxes in which the cargo is placed have also diversified and developed. Over time, with the design and construction of container ships, a period called containerisation has started in which carriers attach importance to container transport and liner transport has developed further. Container trade has reached a volume of 775 million TEU (twenty-foot equivalent unit) today.

As a result of the easy transfer of cargo from transport vehicles to each other, combined transport was born, and container transport has become the most widely used type of transport in the world today due to the ease of loading-unloading operations and the reduction of transport costs.

Nowadays, the entire container can be filled with only one person's goods, or it is also possible for the shipper to request that part of the goods be loaded into the same container on condition that it is sent to the port at another time. In particular, if a customer who wants to export his goods has space left when the goods are loaded into the container, forwarders collect more than one customer for the remaining space, organise their goods and load the goods. This type of container is called LCL (Less Container Load) or Partial Container. If there is only one shipper's goods in the container, the container is called FCL (Full Container Load) container. In a transport with FCL clause, it is accepted that the container approaches a type of packaging rather than a ship's hold.

If the shipper can only use part of a container, he/she will take his cargoes to the container terminal and the cargoes brought in will be stowed in a container by the carrier, together with cargoes brought in by other carriers in a similar position. A contract on this basis is known as 'partial carriage' (LCL).

The use of containers causes significant proof problems for cargo creditors in proving that the goods placed in the container were damaged in the carrier's custody. If the shipper loads them into the container and then seals it, the carrier has no way to verify what is inside the container. Accordingly, when the carrier issues the bill of lading or sea waybill, it will protect itself by qualifying any statement as to the contents of the container with wordings such as 'said to contain'. The effect of these words would be to oblige the cargo creditor to prove by independent evidence exactly what was in the container at the time of the carrier's receipt and the condition it was in at that time. In most cases, this will be an insurmountable burden of proof.

Pursuant to Article 1239 of the Turkish Code of Commerce (TCC), if the bill of lading contains declarations as to the general type, markings, number of parcels or pieces, weight or quantity of the goods, but the carrier knows or suspects with good reason that these declarations do not accurately and completely represent the goods actually received or, if a bill of lading has been issued, the goods actually loaded, or if he does not have sufficient means to check these declarations, he is obliged to make a reservation in the bill of lading explaining that these declarations do not correspond to the truth, the reasons justifying his suspicion or the lack of means of control. Therefore, if the cargoes are delivered to the carrier in sealed containers (FCL) or packed, the carrier must insert a said to contain clause. In this case, the bill of lading shall not constitute a presumption in respect of the entries mentioned in the bill of lading. Almost every bill of lading contains the phrase said to contain. This phrase means that the carrier approves the shipper's inclusion of the number and condition of the goods in the document while loading, without any control. In other words, the carrier does not open the container in order to check its contents and compare its accuracy with the bill of lading. This clause gives the carrier the right of defence that it is not liable for any damage caused by the incomplete goods in the container at the end of the carriage and the shipper's failure to stow the goods properly in the container. For all these reasons, removing the seal of the container for any control purpose will deprive the carrier of the defences provided by this clause and will give the shipper the right to attribute the stowage problem in the container to the carrier. Once the seal is removed, the burden of proving that this act has no effect on the damage to the container will shift to the carrier who removed the seal.

Based on the relationship between the carrier and the shipper, there is a complex burden of proof, also known as the shifting of the burden of proof like a ping-pong match. In case of cargo damage, of course, the claimant is the cargo owner; therefore, the initial burden of proof is on him. However, this burden of proof is only on proving that the carrier received the cargo clean and in good condition at the beginning of the journey (which can be seen in a clean bill of lading) and that the damage occurred during the period of carriage, which is the carrier's area of responsibility. After this point, the burden of proof passes to the carrier. The carrier may pass the burden of proof to the shipper only under certain conditions. These are the presence of an error in the packaging of the shipper and the existence of a force majeure (Act of God, compulsory state quarantine) or unseaworthiness despite all efforts of the carrier to make the ship seaworthy (cases where the carrier and the ship owner are different). Even if the carrier, for security reasons, unseals and inspects a shipping container, the carrier will find it difficult to discharge the burden of proof, as the carrier will be the last person to open the container. In the US, it is clear that the carrier is under no obligation to open and inspect a container supplied by the shipper, and it is probably accepted that an English court would reach the same conclusion on the same issue. Therefore, breaking the seal for security reasons cannot be considered as an excuse.

Containers are sealed and delivered to the carrier after the goods are stowed by the shipper in FCL clause carriage. As it is fixed in the decision of the Court of Cassation (11th circuit, numbered 1984/2187, decision numbered 1984/2760, dated 11.05.1984), it can be said that the carrier, who does not have information about the nature of the cargoes, will not be liable for damage and loss, unlike conventional transports, upon the carrier's placing the mentioned clauses. Again, the SLSC (Shipper's Load, Stow and Count) clause in container transport also supports this view. This clause may also be imposed when the carrier is not present during stowage. As in the decision of the 11th Civil Chamber of the Court of Cassation dated 27.06.2019 and numbered 2018/3460, 2019/4978, the issues of by whom and in whose presence the container is stowed and when the sealing procedures are carried out are very important.

It is vitally important for the shipper or consignee that the carrier uses accurate and clear wording in the bill of lading to indicate the quantity and condition of the goods to be carried. If these statements are missing from the bill of lading, the consignee will bear the burden of proving the number and condition of the goods at the time of loading due to incomplete delivery of the goods or damage during unloading. As a natural reaction, the carrier's agent may add clauses such as 'weight, quantity and condition unknown' or 'shipper's load, count and stow' before signing the bill of lading prepared by the shipper. Therefore, the carrier will be able to prevent the presumption of the accuracy of the description of the condition and quantity of the goods in the bill of lading with clauses appropriate to the facts.

The interpretation of the courts regarding these clauses is that if the amount stated by the shipper in the bill of lading contradicts the actual situation, the parts written by the shipper in the bill of lading will remain only as a declaration since the carrier cannot approve what is written in the bill of lading from the beginning. It should not be forgotten that the validity of the clauses will be discussed in detail according to the facts. For example, in one of its decisions, the 11th Civil Chamber of the Court of Cassation ruled that the damage to the commodity (glass) transported in open-top containers occurred during carriage since it could not be determined in the bill of lading but was included in the container exchange report, and the defence of delivery of the container to the carrier in sealed form (FCL) was not accepted since the carrier did not stretch the container during carriage and held the carrier liable for the damage. Since the carrier cannot know the condition of the goods inside the container, it is difficult to hold the carrier liable by proving that the goods were damaged during carriage; however, it may be possible to hold the carrier liable in cases where the seal of the container has been removed or it is determined that the goods have been damaged by sea water or it is proved that the refrigerated container was transported in an improper way. In cases where there is no impossibility of control, i.e. where the container is stowed by the carrier (as in LCL), such a clause will not be included. Nevertheless, if the cargoes stowed in the container are packaged, a (said to contain) clause may be included for each package. In this scenario, the bill of lading will be presumed only with respect to the number of packages. It will not constitute a presumption in terms of the type of cargo.

As a result, although the Turkish Court decisions have uniformly stated that "if the maritime carriage is carried out with a container (e.g. standard container, high container, tank container, reefer container, etc.) which cannot be seen from the outside, the carrier cannot be held liable for the damage caused by the goods which he cannot control the stacking, packaging and binding inside the container due to the closed delivery". ), the carrier cannot be held liable for the damage caused by the goods that he cannot control the stacking, packaging and binding of the goods in the container due to the closed delivery", the carrier's obligation to observe whether the container is suitable for a safe maritime transport in terms of its visible elements and to stack the container appropriately for the safety of carriage continues in such cases. [General Assembly of Civil Chambers numbered 2017/3080, decision numbered 2021/1312, dated 02.11.2021]