The relationship between the contract of carriage and the B/L becomes a problem when one refers to the other. The TCC makes it clear that the provisions of a contract of carriage, where the nature of those provisions so permits, may be binding on the holder of the B/L only if a copy of the contract of carriage is presented to the holder of the B/L. Although there are few decisions on this subject, it is apparent from the decisions that, in such cassations, the Court of Cassation examines whether the contract of carriage referred to in B/L has been made available to the holder of the B/L. The carriage of goods in an international freight shipment has been standardized by international conventions. These requirements ensure uniform application of rules and laws. In a dispute under discussion, the Court of Cassation ruled that the provisions of the contract of carriage are not binding on the holder of B/L1, unless the contract of carriage is represented vis-à-vis the holder of B/L1. The subject matter of the dispute arose from goods damaged during maritime transport. The consignee, as the holder of the B/L, brought an action against the carrier in the Turkish courts for compensation for the damage caused to the goods. The carrier argued that the claim should be dismissed because the arbitration clause of the contract of carriage between the shipper and the carrier, as well as the provisions of the contract of carriage, were binding on the holder of the B/L, since the B/L referred to the provisions of the charter. The trial court followed the carrier`s arguments and concluded that the consignee, the holder of the B/L, was bound by the provisions of the charter party, since the B/L refers to the charterpart clauses. The Court of Cassation, which examined the case on appeal by the addressee, annulled the decision of the Court of First Instance according to which the provisions of the Charter party are binding on the addressee, if the nature of those provisions so permits, only if a copy of that Charter party is also submitted to the holder of the B/L, as well as the B/L itself in accordance with Article 1237/3 of the TCC. The Court of Cassation also held that the burden of proof that the Charter Party has been presented to the Consignee lies with the Carrier and that the Carrier has not demonstrated that the Charter Party has been presented to the holder of the B/L. A contract of carriage defines the legal responsibilities of the carrier and the user.
The carrier can be a freight forwarding company, an air freight company, a sea freight company, etc., and the user is either the shipper or the consignee. Under Turkish law, two types of contracts of carriage are recognized, according to which the carrier undertakes to carry the goods in relation to the cargo, namely (i) voyage charter contracts and (ii) regular service contracts. The B/L acts as an acknowledgment of receipt between the cargo by the carrier. Once the B/L has been issued by the carrier, it serves as a receipt that the goods have been received by the carrier in accordance with the contract of carriage and that the goods have been received in good condition. In accordance with Article 1237/3 of the CTC, in the case of a reference in B/L to the charterer of voyage, a copy of that charterer, which is a contract of carriage, shall be represented in the event of approval of the bill of lading to the new holder. In such a case, the provisions of the Charter Party may be prosecuted against the holder of the B/L, provided that the nature of those provisions so permits. In other words, the charter party should be assigned to the B/L, and it should be presented to the holder of the B/L. According to aviation analyst Henry Harteveldt, the airline`s contract of carriage[3] favours the company, not the passenger. Involuntary denied boarding is not uncommon[4], but the distance after boarding because the seat is necessary for others is “extremely rare”. However, according to him, an airline has the right to do so on the basis of the contract.
“Remember, this is their plane and their seat — you only rent it to get from point A to point B,” Harteveldt told Business Insider. [5] When entering into a contract of carriage, negotiations are conducted by the consignor and the carrier, and the conditions are determined by the above-mentioned parties […].