NEWSLETTER-2019-metin

78 NEWSLETTER 2019 tions provided in the carriage of contracts are not applicable to the holder of the Bill of Lading. On the other hand, the relation between the carrier and the charterer are governed by the provisions of the con- tract of carriage. As per Article 1237/3 of the TCC, where there is reference in the B/L as to the voyage charter party, a copy of that charter party, being a contract of carriage, shall be represented in the event of endorsement of the bill of lading to the new holder. In such case, the provisions set forth in the charter party may be pursued against the holder of the B/L, where the nature of such provisions allows. In other words, the charter party should be attached to the B/L, and it should be presented to the holder of the B/L. In a dispute where this issue is discussed, the Court of Cassation held that unless the contract of carriage is represented to the holder of the B/L, the provisions set forth in the contract of carriage shall not bind the holder of the B/L 1 . The subject of the dispute derived from the goods that were damaged during sea carriage. The consignee, as holder of the B/L, filed a lawsuit before the Turkish courts against the carrier for compensation of the damage that occurred to the goods. The carrier argued that the claim should be rejected based on the fact that the arbitration clause set forth in the contract of carriage concluded between the shipper and the carrier, as well as the provisions of the contract of carriage, are binding upon the holder of the B/L, as there is a reference to the provisions of the charter party in the B/L. The court of first instance accepted the carrier’s argument and found that the consignee, the holder of the B/L, is bound by the provisions of the charter party, as there is a reference in the B/L as to the charter party clauses. The Court of Cassation, reviewing the case upon appeal of the consignee, overruled the decision of the first instance court stating that the provisions of the charter party binds the consignee, where the nature of such provisions allows, only if a copy of that charter party is also presented to the holder of the B/L, along with the B/L itself, in accordance with Article 1237/3 of the TCC. The Court of Cassation further stated that the burden of proof that the charter party has been 1 11th CC of the Court of Cassation, E. 2016/8794, K. 2017/6687, 29.11.2017.