ACTUAL LIABILITY OF THE CARRIER WITHIN THE SCOPE OF CMR CONVENTION AND TURKISH TRADE ACT
The CMR Convention was issued on May 19, 1956, considering the verdicts of private law in road transportation. After the CMR Convention was accepted by Turkey in 1995, it was introduced in the domestic legal order as a rule of law. The verdicts of CMR Convention have the force of law pursuant to Article 90/5 of the Constitution as they were put into practice duly. CMR is also considered as a domestic rule of law in the Supreme Court of Appeal’s decision.
Pursuant to this, in the decision of the Supreme Court of Appeals numbered 11. HD., E. 2013/8194 K. 2013/23266 T. 19.12.2013, it is clearly stated that the CMR Convention is considered as equal to the verdicts determined in its domestic legal system in regards to the verdict regulated as following; “...The case is about the request referring to the recourse collection of the damage amount paid in accordance with the X1 Insurance Draft. The parties are not at issue that the transport subject to the case is an international transport, and this is also accepted by the court. Our country accepted the CMR Convention on 30.10.1995 and the verdicts stated above Convention came into practice on this date. In the last paragraph of Article 90 of the Turkish Constitution, "International Treaties duly put into effect have the force of law." regulation is given. Although the provisions of the Turkish Trade Act on carriage are still in force, the CMR Convention, which came into practice later in terms of international transports and became a rule of domestic law, should be applied with priority, it was not considered as correct to establish a verdict according to the verdicts of Turkish Trade Act regarding transportation by ignoring the verdicts of the afore given Convention for illegal reasons. In that case, the court should regulate the liability of the defendant carrier by evaluating the verdicts of the CMR Convention through the board of experts on international transportation, but it was not considered as correct to make a decision based on incomplete enquiry as in written form…”.
In the Turkish Legal System, the verdicts of road transportation have been ensured in the m850 et al. of the fourth book, in regards to the Turkish Trade Act numbered 6102, which was put into practice on January 13, 2011.
CMR Convention has a more special scope compared to the present regulations related to road transportation. The opinion of the majority in the doctrine is that if there are different verdicts regarding the same subject within the context of CMR and Turkish Trade Act, although the TTA has a more up-to-date regulation, the CMR should be applied. Moreover, the verdicts set by the revised version of the Turkish Trade Act on January 13, 2011 are in line with the matters included in the CMR.
In order for the CMR verdicts to be applied to any possible discrepancy, the conditions of implementation regulated in the first article of the Convention must be present.
Aforesaid conditions in regards to the first article of the first part of the CMR Convention;
● The existence of a transportation contract that requires taking on the transport work for a fee
● Goods as the subject of transportation
● The transportation being held by a vehicle on the road
● The place transportation commences and ends being located in the countries of two different states.
Liability of the Carrier
Liability of the Carrier Within the Scope of CMR Convention
One of the most popular issues within the scope of road transportation would be about the "liability of the carrier". Liability of the carrier is ensured in the Article 17 of the CMR Convention. In regards to the Article 17/1 of the Convention, it is set when the risk of the carrier would commence and when it ends.
Liability of the carrier commences right when the specified goods are received in accordance with the verdict of "The carrier is responsible for the partial or entire loss of the cargo and the damage that may emerge from the time it receives the cargo until it is delivered."
Within the extent of the CMR Convention, the carrier is responsible for the damage which may happen from the time it receives the cargo until the delivery. At the same time, it is again the carrier's liability in case the carrier delays the delivery of the goods on the date set by the parties of the contract as the delivery of the goods under the contract. In order for the carrier to get clear of liability under the CMR, it must have put in more care than would be expected from a cautious carrier.
Damage arising in the cargo is considered separately as "complete damage - partial damage" in regards to the provisions of CMR. 2a and 2b sects of the Article 25 of CMR include regulations regarding the complete or partial damage to the goods. Damages occurring in the goods are similar to the provisions of the Turkish Law of Obligations (TBK) and Turkish Trade Act (TTK) within the scope of CMR. In the case of a damage to a cargo under the responsibility of the carrier, the item is not considered as completely damaged if it can be reinstated, the damaged part can be repaired and sold. However, even if rehabilitation is possible and the appearance of damage has disappeared, the expenses incurred by the owner of the right of disposal to fix the goods can be claimed under the name of damage compensation.
It would be sufficient if the carrier proves that the damage or delay took place in line with the reasons rooted to Article 17/2 and Article 17/4 of the CMR Convention in order to get clear of liability.
1- Liability of the Carrier Within the Scope of Turkish Trade Act
Liability of the carrier is based on the carrier contract. The carrier has to deliver the goods to the addressee as received. In other words, the carrier is under the liability of delivering the goods as well as the protection of the goods. Failure of the carrier to fulfill its obligation leads to liability arising from the loss and damage of the goods.
Liability of the carrier is all set within the context of Article 875 of Turkish Trade Act (TTK) and stated as “The carrier is responsible for the harm that may arise from the loss, damage or delay of the delivery of the cargo from the time it receives the cargo until the delivery. ”.
When the relevant verdict is in consideration, it is clearly seen when the liability of the carrier commences- when it ends and under what conditions the liability of the carrier can be taken:
● Liability of the carrier commences right when the cargo is received according to the Turkish Trade Act (TTK). As understood from the verdict, it is sufficient for the carrier to commence the liability within the context of the TTA when only the actual control of the goods subject to the contract of carriage is left to the carrier. Liability ends when the cargo is delivered to the addressee stated in the contract.
● In regards to Turkish Trade Act, the carrier is responsible for the damage arising from not delivering the cargo to the location determined in the contract, delayed delivery or the cargo being delivered in a different form than it was received in the first place.
Pursuant to Article 25 of the CMR Convention, damage occurring in the goods are considered as complete and partial damages. In regards to Article 882 within the scope of Turkish Trade Act, some regulations were made in keeping with the CMR regarding whether the damage has occurred in whole of the goods or only in certain parts. On this matter, present verdicts in TTA and CMR are inline.
The liability of the carrier is determined in Article 876 of Turkish Trade Act; according to the article in question, it was stated that the carrier should practice the "highest duty of care" expected from him in the protection of the goods. What should be understood from the highest duty of care here would be that the damage and delays happening in the goods or in the delivery of the goods are caused by unexpected conditions that could not be foreseen by the carrier. It is possible for the carrier to get clear of liability in case if he can prove that the damages or delays which took place were caused by conditions present within the scope of Article 878 of Turkish Trade Act.
In case of discrepancies in road transportation, as can be understood in the afore given information, the regulations made within the scope of the CMR Convention and the Turkish Trade Act numbered 6102 are in line with one another and do not run into a contradiction. It is determined that the present regulations in the CMR Convention were taken into consideration to come up with the verdicts of Turkish Trade Act numbered 6102.