The bill of lading is regulated between articles 1228 and 1241 of the Turkish Commercial Code numbered 6102 (hereinafter referred to as the “TCC”). According to the Article 1228 of the TCC, bill of lading is a bill that proves that a contract of carriage has been concluded, shows that the goods have been received by the carrier or loaded on the ship, and that the carrier is obliged to deliver the goods only in return for its presentation.
In terms of its legal nature, the bill of lading is a document containing a declaration of acceptance and recognition that the carrier has received the goods that shipped . The commitment to deliver the cargo to be transported with the bill of lading to the legally authorized carrier at the end of the voyage is also declared, and a debt arises for the delivery of the cargo at the end. In order to demand the delivery of the goods written on the bill of lading, the bill of lading must be submitted, and the bill of lading must be delivered to transfer this right. Upon presentation and delivery of the bill of lading, the captain or agent of the carrier or its legal representative is obliged to deliver the goods declared in the bill of lading.
The bill of lading is regulated in two types: a “received for shipment” and an “on-board bill of lading” according to its legal function in the TCC. A “received for shipment” can be issued for goods received for carriage but not yet loaded onto the ship. The on-board bill of lading is a type of bill of lading that is issued after the goods to be transported are loaded onto the ship; that is, the goods are completely under the control of the carrier. As soon as the goods are taken on board, the carrier is obliged to issue as many copies of the bill of lading as the shipper wishes in return for the return of the temporary receipt or received for shipment, which was given at the time of receipt of the goods.
The bill of lading is drawn up on behalf of the captain or a representative authorized by the carrier or a representative authorized by the captain in this regard upon the request of the shipper. It is obligatory to issue an on-board bill of lading in as many copies as requested by the shipper.
The bill of lading must include the records of types of the goods loaded on the ship, the mandatory signs for identification, information about whether it is dangerous goods, the number and weight of the parcel or piece, the externally obvious state and condition of the goods, the name and surname of the carrier, the trade name and the operating center, the name and surname of the captain, the name and nationality of the ship, the name and surname or trade name of the shipper, the name and surname or trade name of the consignee if notified by the shipper, the port of loading and the date the carrier received the goods at the port of loading, the port of discharge, the place and date of issuance of the bill of lading, the signature of the carrier or his representative, record of if the freight will be paid by the consignee, the amount to be paid, the date and time that the goods will be delivered at the unloading port, any conditions that expand the limits of liability and other records deemed appropriate by the parties.
In the absence of one or more of these records, this document retains its title of bill of lading. It is sufficient for the document to be considered a bill of lading if it proves that a contract of carriage has been made and shows that the goods have been received by the carrier or loaded on the ship.
According to the TCC, bills of lading have features such as being a negotiable instrument and serving as proof of the cargo and freight.
For the bill of lading to be a negotiable instrument, this document must represent a commodity, and the said commodity must be delivered to the authorized bill of lading holder. According to the TCC, the legitimate holder of the bill of lading is authorized to receive the goods. The goods are delivered only in return for the return of the copy of the bill of lading with an annotation stating that the goods have been received.
A bill of lading is a document that has the functions of proving the legal relationship between the carrier and the holder of the bill of lading, the carrier, the type of goods, their signs, the number of parcels or pieces, the weight, the quantity, the freight and the guarantees given by the shipper.
The bill of lading is taken as a basis in the legal relations between the carrier and the holder of the bill of lading. The legal relations between the carrier and the charterer shall be subject to the provisions of the freight contract.
The person who signs the bill of lading as the carrier or the person whose bill of lading is signed on his behalf is considered the carrier. If the identity of the carrier is not specified in the bill of lading, the shipper is considered the carrier until the shipper, upon the request of the holder of the bill of lading, provides documentation of the name, surname, or trade name, along with the business address of the actual carrier.
In case the name, surname, or trade name of the carrier and the operating center are reported incorrectly or late, the carrier, the owner, or the carrier's representative are jointly responsible for the damages that may arise from the wrong or late notification.
As mentioned above, the bill of lading contains the general type of the goods loaded on the ship or received for loading, the mandatory markings for their identification, clear information about whether they are dangerous goods when necessary, the number of parcels or pieces and their weight or otherwise expressed.
If the carrier knows that these quantities specified by the shipper are not shown correctly and completely, or if he doubts the amounts, or he does not have sufficient means to control them, he must put a reservation on the bill of lading explaining that these statements do not comply with the truth, the reasons justifying his suspicion or the lack of sufficient control possibility. If the carrier does not make these reservations, the bill of lading establishes the presumption that the carrier has received or loaded the goods as stated in the bill of lading.
According to Article 1234 of the Turkish Commercial Code (TCC), a bill of lading can be considered a valuable document only if the cargo has been taken for the purpose of transportation, meaning that the carrier has acquired ownership of the cargo, the bill of lading has been physically handed over, and the cargo has been properly transferred to the authorized person to take delivery, in other words, it has been delivered to the person specified on the bill of lading.
Since the freight contract is a legal transaction, the claims arising from this contract must be proven by deed. The bill of lading is the document proving the existence and terms of the freight contract.
The shipper may guarantee to indemnify the carrier if the carrier is liable to the person responsible for the load.
If the reservation not placed on the bill of lading relates to the records notified by the shipper to be written on the bill of lading, the carrier cannot claim compensation from the shipper. In case of intent to deceive, the carrier is liable to third parties acting by relying on the records in the bill of lading.
The bill of lading emerges as a cornerstone in maritime trade, reinforcing efficiency and accountability across borders and regions, while empowering authorized holders to manage goods confidently within a framework of legal stipulations. This document's main aspects are proving the cargo's existence and the legitimacy of the freight contract as outlined within articles 1228 to 1241 of the Turkish Commercial Code (TCC). The bill of lading's attributes, such as its role in validating the legal relationship between carrier and holder, verifying carrier identity, substantiating cargo details, proving freight obligations, and acknowledging shipper warranties, contribute to its role in maritime trade.
• Central Anatolian Exporters' Unions Website
Bilgi Merkezi İhracat Belgeleri Taşıma Sevk Evrakları-Konşimentolar
• Turkish Commercial Code numbered 6102
• Sözer, B., (2022), Deniz Ticareti Hukuku– I, (6. Bası), Vedat Kitapçılık, İstanbul
Demet OZKAYA
|
İrem TOPSAKAL
|