Turkey – Cases

Court of Appeal 11th Civil Division (T.C. Yargitay 11. Hukuk Dairesi)
File no. 2010/15962, Decision no. 2011/3420, Date: 28.03.2011

Damage to luggage during air carriage- Action for non-pecuniary damages- Proof required as to whether luggage carried in the flight deck- Warsaw Convention not containing any provision as to non-pecuniary damages- Dispute to be solved according to section 40 of the Turkish Code of Obligations

 

Court of Appeal 11th Civil Division (T.C. Yargitay 11. Hukuk Dairesi)
File no. 2008/10742, Decision no. 2010/1694, Date: 15.02.2010

Contractual and Actual carrier- Delay in delivery of luggage by actual carrier- Non-pecuniary damages- Whether passenger can sue the actual carrier in tort

 

Court of Appeal 11th Civil Division (T.C. Yargitay 11. Hukuk Dairesi)
E.2008/8588 K. 2010/98 T. 11.01.2010

Short-delivery of goods- Whether the Claimant (Cargo Insurer) entitled to sue the Sub-Carrier

 

Court of Appeal 11th Civil Division (T.C. Yargitay 11. Hukuk Dairesi)
E. 2005/13465 K. 2007/835 T. 25.01.2007

Warsaw Convention art.26/I- Receipt of goods without prejudice- Unsigned delivery record

 

Court of Appeal Assembly of Civil Divisions (T.C. Yargitay Hukuk Genel Kurulu)
E. 2006/11-452 K.2006/481 T. 28.06.2006

Contract on carriage of passengers by air-Carrier’s liability for non-pecuniary damages – Whether Carrier acted diligently during delay to prevent non-pecuniary damages – Warsaw Convention art.19-20-23/I-Turkish Civil Aviation Code s.122-123

The Claimant had bought a return ticket from the Defendant’s company for a trip between Ankara-Montreal which included changes in Paris and Istanbul. On the return leg, the departure of the plane for Montreal-Paris had been delayed which had caused the Claimant to miss the flight Paris-Istanbul. With the guidance of the Defendant’s branch in Montreal, another airline’s plane had been arranged for  the part of the trip Paris-Istanbul. However due to the fact that the airline rejected the passengers stating that they did not have visas, another airplane of the Defendant had been arranged with a further delay of 7-8 hours. After landing in Paris, the Claimant waited several hours for the trip Paris-Istanbul and after landing in Istanbul they found out that the plane Istanbul-Ankara was on the next day. The Claimant filed an action on the ground that he and his family were left alone in the airport in Paris without the company of the Defendant’s employees, suffered mental anguish because of delays in Montreal, Paris and Istanbul and that they claimed non-pecuniary damages. The Defendant argued that delays are ordinary considering the complexity of international air traffic and technicalities of air transport; that these facts are also stipulated in the Claimant’s ticket and that the Claimant must accordingly have been aware of them.

The Court of 1st Instance decided that according to Turkish Civil Code s.24 and Code of Obligations s.49, moral and personal rights of the Claimant must have been violated by the act or omission of the Defendant for him to be entitled to non-pecuniary damages. It concluded that delays in air transport are ordinary and should have been known to the Claimant and held that the personal rights of the Claimant were not prejudiced by the Defendant’s act. The Claimant appealed.

The Court of Appeal 11th Civil Division held that the disputed matter was not whether the delays were ordinary but whether the Defendant acted with diligence during such delays and returned the file to the Court of 1st Instance for review. The Court of 1st Instance resisted.

The Court of Appeal Assembly of Civil Divisions held that the issue of whether the Carrier is liable must be resolved according to Warsaw Convention s.19-20 and Turkish Civil Aviation Code s.122-123 stating that the Carrier can be discharged from liability for delay by proving that he and his servants have taken all necessary measures to avoid damage or that it was impossible for them to take such measures; that whether the Claimant is entitled to claim non-pecuniary damages is to be resolved according to s.98 and 49 of the Code of Obligations. It accordingly dismissed the decision of the Court of 1st Instance and ordered the review according to these provisions.

 

Court of Appeal 11th Civil Division (T.C. Yargitay 11. Hukuk Dairesi)
E.2004/5511 K. 2005/2057 T.07.03.2005

International carriage by air – Carrier’s limited liability – Loss of goods – M/F clause

The goods were lost during carriage by air and the Air Carriage Invoice included the following statement “For Passengers: 222.00, For Cargo: M/F” in the part entitled “Value Stated by Consignor”.

The Claimant (Cargo Insurer) claimed that the goods were lost during carriage by air, that the assured was indemnified, that the Claimant started enforcement proceedings against the Defendant (Carrier) for the indemnified amount and that the Defendant’s unjustifiable objection to the proceedings should not be allowed.

The Defendant counter argued that their liability was limited by Warsaw Convention and that the amount of that limit was USD 10.

The Court of 1st Instance held that the Defendant was liable for the loss; that their liability was unlimited owing to the fact that they were aware of the value of the goods; and accordingly that the enforcement proceedings would be resumed.

The Court of Appeal held that the Court of 1st Instance was to inquire into the meaning of the “M/F” clause for the purposes of international carriage by air and whether the statement had a specific meaning as to the value of the goods and that the Defendant’s defense of limited liability was to be assessed according to art.22/II(a) of the Warsaw Convention as amended by the Montreal Protocol.

 

Court of Appeal 11th Civil Division (T.C. Yargitay 11. Hukuk Dairesi)
E.2003/8441 K. 2004/3252 T. 29.03.2004

Warsaw Convention- Lost baggage- Pecuniary/Non-Pecuniary damages

 

Court of Appeal 11th Civil Division (T.C. Yargitay 11. Hukuk Dairesi)
File no. 2003/7096, Decision no. 2004/1662, Date: 23.02.2004

Air passenger losing his air ticket- Provisions on the ticket stating that the airline shall not be liable in case of loss of ticket- Passenger having to buy a new ticket- Action for pecuniary and non-pecuniary damages

The clauses on an air ticket lessening or removing the liability of an air carrier are void by way of section 766 of the Turkish Commercial Code which is a mandatory provision.

 

Court of Appeal 11th Civil Division (T.C. Yargitay 11. Hukuk Dairesi)
E. 2002/7012 K. 2002/11698 T. 16.12.2002

Carrier’s liability for lost luggage- Warsaw Convention art.22- Calculation of damages according to Hague Protocol instead of Montreal Protocol

The Claimant sued the Defendant on the ground that some of his belongings were not in the luggage when the initially lost luggage was found. The Defendant did not respond to the claims and the Court of 1st instance decided that the Claimant was to be indemnified with TL 2.334.301.528, taking into consideration the expert report issued about the incident.  The decision was appealed by the Defendant.

The Court of Appeal held that

1 – The lost luggage was carried by air on 28 September 2000 when the Montreal Protocol was already in force although in the expert report considered by the 1st Instance Court damages were calculated according to the Hague Protocol amending Warsaw Convention. The Defendant’s limited liability should have been assessed according to the Montreal Protocol instead of the Hague Protocol.

2 – In the expert report damages were calculated by deducting the value of the belongings in the luggage found later on from the Defendant’s overall limited liability for the lost luggage. However considering that art.22 of the Warsaw Convention amended by the Hague and Montreal Protocols determines the maximum limit of the Carrier’s liability, the actual damage must first be identified and  the Claimant  is to be indemnified by the Defendant by this amount where the actual damage is below the limit. The limits shall apply where the actual damage is above the stated limits.

 

Court of Appeal 11th Civil Division (T.C. Yargitay 11. Hukuk Dairesi)
E. 2002/865 K. 2002/4785 T. 14.05.2002

Air bill- Loss of goods – Whether the Claimant has capacity to sue the Defendant

According to the sale between the Claimant (Buyer) and the Seller, the goods sold were delivered to the Head-Carrier by an air bill dated 30 October 1999 under which the freight was paid by the Claimant. The Head-Carrier then appointed the Sub-Carrier (the Defendant) to deliver the goods to its agent. The goods were eventually received neither by the agent of the Head-Carrier nor by the Claimant. The Claimant argued that the goods were lost within the premises of the Defendant and claimed damages. The Defendant counter-argued that the Claimant did not have title to sue owing to the fact that it is neither the Consignor, the Consignee nor the Carrier stated in the air bill.

The Court held that the Claimant is stated as Notify Address in the air bill and that the invoice annexed to the air bill is also made out to the name of the Claimant. Moreover Claimant is shown as Receiver in the manifest referred to by the transport document. For all these reasons although the Claimant was not party to the air bill and the transport document, the fact that it is the Receiver of the goods according to the above mentioned documents entitles him to sue the Defendant.

 

Court of Appeal 11th Civil Division (T.C. Yargitay 11. Hukuk Dairesi)
E. 2001/2983 K. 2001/3333 T. 19.04.2001

Loss of luggage- Whether the Defendant’s liability is unlimited-Articles 22 and 25 of Warsaw Convention 1929 amended by The Hague Protocol 1955

The Claimant’s luggage was lost while returning from New York to Istanbul. The Defendant made a partial payment. The Claimant argued that the paid amount was insufficient to compensate the damage and accordingly claimed USD 6.546.46 (TL 2.029.390.200). The Defendant argued that their liability was limited to USD 4.156 for luggage weighing 30 kg.

The issue turned on whether the Defendant’s liability was unlimited according to art.25 of the Warsaw Convention 1929 amended by the Hague Protocol 1955. The expression “ act or omission of the carrier, his servants or agents, done with intent to cause damage and recklessly and with knowledge that damage would probably result” stated in art.25 has been consistently interpreted by the Court in accordance with the interpretation given to the translation of the French expression “temerairement”, i.e. recklessness, imprudence beyond carelessness. Art. 25 states that the Claimant shall also prove the act or omission of the defendant.

The Court of Appeal considered that luggages weighing around 30 kg are of the sort that can be carried by all passengers and that it is also an ordinary fact that they are passed through security checks and delivered to their owners by conveyor belts; that luggages are therefore subject to a risk of getting lost by other passengers mistakenly taking bags. The Court held that in these circumstances the Claimant should have proven to what extent the Carrier acted with recklessness in the absence of which the Carrier would benefit from the limits of liability.

 

Court of Appeal 11th Civil Division (T.C. Yargitay 11. Hukuk Dairesi)
E. 2000/8158 K. 2000/9558 T. 04.12.2000

International carriage by air- Warsaw Convention- Carrier not complying with timely delivery- Pecuniary/Non-Pecuniary damages- Loss of reputation

 

Court of Appeal 11th Civil Division (T.C. Yargitay 11. Hukuk Dairesi)
E. 1999/9863 K. 2000/699 T. 04.02.2000

Warsaw Convention art.26- Late delivery of goods- Period for notification of loss- Whether Claimant lost his cause of action

 

Court of Appeal 11th Civil Division (T.C. Yargitay 11. Hukuk Dairesi)
E. 1999/3578 K. 1999/8206 T. 21.10.1999

Whether Warsaw Convention applies-Convention art.26/II-IV – Damage to goods caused by delay – Notification of Damages – Final term

The Claimant delivered the goods (flowers) to the Carrier (1st Defendant) who transfered them to the Sub-Carrier (2nd Defendant) for carriage by air. The goods of the Claimant were damaged due to delay in the carriage. The Claimant claimed GBP 6.014,20 as damages arguing also that the Defendants were not entitled to earn freight.

The 1st Defendant agreed on the loss of the Claimant but contented that the 2nd Defendant was liable as it did not act  as a prudent merchant. The 2nd Defendant argued that it was responsible for the carriage by air part and that the landing in England was cancelled at the last minute and that accordingly the carriage was delayed by force majeure and that the claim was excessive.

The Court of 1st Instance held that although the carriage was divided between the Head-Carrier and the Sub-Carrier, according to Warsaw Convention art.1/III the carriage was one and undivided; that it was undisputed that the Claimant suffered a loss due to delay in the carriage but that according to the Warsaw Convention art.26 the Claimant lost its right to sue by not having notified the Defendant within 14 days starting from the date where the goods were delivered to the Receiver.

The Court of Appeal held that the carriage was an international carriage by air and accordingly must be decided according to the Warsaw Convention; that according to art.26/II -IV the Claimant should have tendered a notice within 14 days of the receipt of goods; that the provision of 14 days is a final term and therefore must be considered ex officio by the Court even though it has not been pleaded by the Defendants. For all these reasons the judgment of the 1st Instance was approved.

 

Court of Appeal 11th Civil Division (T.C. Yargitay 11. Hukuk Dairesi)
File no. 1999/5531, Decision no. 1999/7886, Date: 15.10.1999

Successive air carriage- Successive carriage to be deemed as one undivided carriage (the criterion that parties should regard it as a single operation)- Carriage to be subject to Warsaw Convention

In order for a successive air carriage to be subject to Warsaw Convention, either there must be an agreement between the consignor and the carriers, or that one of the successive carriers must give an undertaking to the consignor on behalf of the other carriers.

 

Court of Appeal 11th Civil Division (T.C. Yargitay 11. Hukuk Dairesi)
E. 1998/5499 K. 1999/136 T. 26.01.1999

Loss of goods- Short delivery- Warsaw Convention- Consequential losses- Whether Carrier’s liability is unlimited

 

Court of Appeal 11th Civil Division (T.C. Yargitay 11. Hukuk Dairesi)
E.1996/7537 K.1997/389 T. 30.01.1997

Warsaw Convention art.25- Non delivery of goods- Whether the Carrier’s liability is unlimited

 

Court of Appeal 11th Civil Division (T.C. Yargitay 11. Hukuk Dairesi)
E.1995/3924 K. 1995/7980 T. 26.10.1995

Warsaw Convention- Damage to goods- Delay- Limitation of liability- Actual damages

 

Court of Appeal 11th Civil Division (T.C. Yargitay 11. Hukuk Dairesi)
E. 1990/5647 K. 1992/2015 T. 21.02.1992

International carriage by air- Loss of luggage- Scope of application of the provisions of Warsaw Convention, Turkish Commercial Code and Turkish Civil Aviation Code in calculation of damages

 

Court of Appeal 11th Civil Division (T.C. Yargitay 11. Hukuk Dairesi)
E.1989/4773 K. 1989/3854 T. 23.06.1989

International carriage by air- Non payment of air freight- Time-bar for non-payment of air freight- Turkish Commercial Code s.767/I

 

Court of Appeal 11th Civil Division (T.C. Yargitay 11. Hukuk Dairesi)
E. 1985/1624 K. 1985/1626 T. 22.03.1985

Conventions Limiting the Carrier’s Liability (Warsaw Convention)- Death by air crash

 

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