Although the contract of carriage is not subject to any form in the Turkish Commercial Code, there are detailed regulations regarding the consignment note, which is the evidence of the contract. This study focuses on the proof power of the consignment note.
The proof power of the consignment note plays an important role in resolving disputes arising during transportation transactions. The consignment note is an important evidence that records many stages from the moment the goods are received to the moment the goods are delivered. The information on the consignment note includes the details of the transportation process such as the type, quantity, carrier, sender and consignee of the goods. This information makes the consignment note a means of proof. Article 858 of the Turkish Commercial Code, which contains regulations on the power of proof of the consignment note, strengthens the power of proof of the document by stipulating various presumptions regarding the consignment note signed jointly by the consignor and the carrier. In our study, we have endeavored to discuss these presumptions in detail.
Carrier Sender Contract of Carriage Consignment Note Power of Proof.
The purpose of this study is to examine the provisions of the Turkish Commercial Code regarding the power of proof of the bill of carriage within the scope of the provisions regarding the carriage of goods by road. Although the study is limited to Turkish law, the German Commercial Code regulations and the opinions in the German doctrine and German judicial decisions regarding these regulations have been mentioned in our study.
Although the contract of carriage is not subject to form in the Turkish Commercial Code, detailed regulations regarding the bill of carriage, which serves to prove the contract, are included.
The bill of carriage signed by both parties to the contract of carriage is a presumption of the existence of the contract. However, if the bill of carriage is not issued, the rules of proof of the Code of Civil Procedure shall apply in proving the contract of carriage.
The bill of carriage signed by both parties constitutes a presumption as to the content of the contract of carriage (Art. 858/1 TCC). The power of proof of the bill of carriage in terms of the content of the contract is limited to the extent that the matters stipulated in the contract are transferred to the bill of carriage.
The bill of carriage also constitutes a presumption that the goods and their packaging are in good condition in terms of their external appearance at the time of receipt of the goods by the carrier, and that the number, markings and numbers of the packages carried are in accordance with the records in the bill of carriage (Art. 858/2 TCC). This presumption may be rebutted by a reservation made by the carrier in the bill of carriage. In this case, a reservation may be made in the bill of carriage for a justifiable reason, or the carrier may stipulate a reservation that he does not have the appropriate means to check the accuracy of the entries in the bill of carriage (Art. 858/2 TCC). As can be understood from the expression “for a just cause”, the reservation to be made by the carrier must be justified.
The bill of carriage signed by both parties shall also constitute a presumption that the number, markings and numbers of the parcels are in accordance with the records in the bill of carriage (Art. 858/2 TCC). In this case, the person claiming that the records regarding the aforementioned matters are not correct shall be obliged to present evidence to refute the presumption in question. In this case, the rule of proof by deed against deed shall become operational. In addition, the reservation to be annotated by the carrier pursuant to Article 858 of the TCC may also be based on the reason that the carrier does not have the appropriate means to check the accuracy of the records.
If the unspecified weight or otherwise declared quantity of the goods or the contents of the packages to be carried have been inspected by the carrier and the result of the inspection has been written in the bill of carriage signed by both parties, the bill of carriage shall also constitute a presumption in respect of these entries. Writing down the weight of the goods is particularly important for determining the carrier’s limited liability in case of loss or damage to the goods. The carrier is obliged to inspect the weight, quantity or content of the goods upon the request of the consignee and if he has the means suitable for inspection (Art. 858/4, c. 1 TCC). It is expressly stipulated that the carrier may claim from the consignee the expenses incurred due to the inspection activity carried out upon the request of the consignor (Art. 858/4, c. 2 TCC). However, there is no clear provision in the Law as to whether the carrier may claim the expenses incurred by the shipper in case the carrier carries out the inspection without the request of the consignor. In this context, it should be accepted that the carrier may claim the expenses incurred by being considered as an gestor.
Pursuant to Art. 868/4 TCC, if a bill of carriage has been signed by both parties, the consignor may make dispositions such as stopping the carriage, returning the goods, taking them to another place of destination or delivery, or delivering them to another consignee, provided that it is stipulated in the bill of carriage, only by submitting the copy belonging to him.
The power of proof of a bill of carriage signed only by the consignee is more limited compared to a bill of carriage signed by both parties, and in this case, the power of proof of the records in the bill of carriage is determined according to the general rules of proof.
