LOGISTICS

Cargo in Türkiye: Rights of the Parties in Case of Damage, Delay or Detention

Türkiye is the main overland route for road haulage between Europe, the Middle East and the Caucasus. This volume of traffic inevitably brings problem cases with it: cargo delivered damaged, shipments delayed for days, and vehicles and goods held by customs or in the course of a criminal investigation.

Experience shows that in such cases the steps taken in the first days often carry more weight than the litigation that may follow. The following sets out the key points that shippers, consignees and carriers should know for transports involving Türkiye.

Applicable law

Türkiye is a party to the Convention on the Contract for the International Carriage of Goods by Road (CMR), and international transports whose place of taking over or place of delivery is in Türkiye are subject to this regime. Which national law governs matters not covered by the CMR is determined separately; where Turkish law applies, the carriage provisions of the Turkish Commercial Code come into play. Knowing that these provisions were largely modelled on German transport law explains why the system feels familiar to German and Austrian transport professionals. The similarity, however, ends in the details of practice, and that is exactly where disputes arise.

Where rights are most often lost: time limits

In transport law, rights are frequently lost not because of a weakness on the merits but because of missed time limits.

Apparent damage must be notified to the carrier at the latest at the time of delivery, and damage that is not apparent must be notified in writing within seven days of delivery, Sundays and public holidays excepted. Although written form is not required for apparent damage, written notice is the safest course for evidential purposes. The absence of a reservation does not extinguish the claim, but the goods are presumed to have been delivered in the condition described in the consignment note, and since the burden of proving otherwise then lies with the claimant, the claim becomes considerably harder to pursue in practice. The consequences of delay are stricter: if no written reservation is sent within 21 days from the time the goods were placed at the consignee's disposal, no compensation for delay can be claimed.

The limitation period is generally one year and is extended to three years in cases of wilful misconduct or default considered equivalent to wilful misconduct on the part of the carrier. How quickly one year passes in a cross-border case is often realised only when it is too late; correspondence with insurers, surveys and negotiations between the parties consume half of the period unnoticed. A written claim addressed to the carrier suspends limitation until the carrier rejects the claim in writing and returns the documents attached to it; mere negotiations do not have this effect, and once the claim has been rejected and the documents returned, the period continues to run. The date of receipt of the claim, its enclosures and the letter of rejection should therefore be documented separately. Time limits must consequently be monitored throughout any negotiations, and where necessary proceedings must be issued before the period expires.

The liability cap and when it falls away

The carrier's liability is generally capped at an amount calculated on the gross weight of the cargo, and for valuable goods this cap may fall well short of the actual loss.

The cap does not apply where the carrier acted with wilful misconduct or with gross fault considered equivalent to it. Turkish courts assess this threshold according to the circumstances of the individual case; there are, for instance, decisions awarding unlimited liability for thefts from a loaded vehicle left unattended in an unsecured area. This outcome does not follow automatically in every theft, as the nature of the parking place, the precautions taken by the driver and the foreseeability of the event are assessed separately. Nevertheless, this line of case law represents an opportunity for the claimant and, to the same extent, a significant risk for the carrier.

Detained cargo: the first question is the legal basis

In Türkiye, cargo and vehicles may be detained on three different legal bases, each with its own competent authority, procedure and timeframe.

Where the detention is customs-related, the customs administration is the competent authority and the matter proceeds through administrative remedies; where the conditions are met, the goods may also be released against security. Where the cargo is suspected of being the subject of an offence, the seizure takes place within a criminal investigation; the matter then proceeds before the public prosecutor and the criminal judge, and the return of the goods requires a separate application. The third possibility arises under private law, as a carrier whose freight or other charges remain unpaid may be exercising a lien over the cargo.

It is frequently seen that foreign parties confuse these three situations and correspond with the wrong authority for weeks. Obtaining a copy of the detention order and correctly identifying its legal basis in the first days is, by contrast, the most important factor for the overall duration of the process.

Enforcement in Türkiye and precautionary attachment

One of the most effective tools for pursuing claims against a Turkish carrier is the precautionary attachment ("ihtiyati haciz"). Where the existence of the claim and the statutory conditions are shown on a prima facie basis, the court may, as a rule against security, order a precautionary attachment, which can be enforced against the debtor's assets, including its fleet, before the main proceedings have concluded. Since having its vehicles blocked is commercially hard to sustain for an operating haulage company, a precautionary attachment in practice tends to move the parties towards a settlement without waiting for lengthy proceedings. However, as an unjustified attachment may give rise to liability for damages, the conditions should be assessed carefully before taking this step.

It should not be forgotten that the same mechanism also works in the opposite direction; vehicles of foreign carriers operating through Türkiye may likewise become subject to a precautionary attachment there. Every haulier whose fleet enters Türkiye should take this possibility into account in its contractual and insurance arrangements.

On jurisdiction, the CMR gives the parties flexibility; since the courts of the place where the goods were taken over or are to be delivered also have jurisdiction, proceedings for a transport into Türkiye can often be brought before a Turkish court. Where the other party's assets are located in Türkiye, bringing the claim there will in many cases be the more practical course.

When the insurer steps in

When the cargo insurer pays the loss, the insured's rights against the liable parties pass to the insurer to the extent of the payment, and the insurer then pursues the recourse claim. For the shipper or consignee, however, the matter is not closed; uninsured items of loss, the deductible and losses caused by delay often remain as claims that must be pursued separately. Where the insurer's recourse strategy and the insured's residual claims are not coordinated from the outset, two proceedings arising from the same event are often seen to weaken each other.

Conclusion

In transport disputes involving Türkiye, experience highlights three principles. The calendar for reservations and limitation must be set up from the very first day, because once time limits are missed even the strongest claim loses its value. With detained cargo, the legal basis of the detention must be established before anything else, since every week spent with the wrong authority is lost. And it should be kept in mind that enforcement tools in Türkiye, in particular the precautionary attachment, can resolve a dispute without it reaching the courtroom when used correctly.