NEWSLETTER-2019-metin

79 COMMERCIAL LAW presented to the consignee is on the carrier, and the carrier failed to prove that the charter party was presented to the holder of the B/L. In another case that was subject to a decision dated 2017 of the 11th Civil Chamber of the Court of Cassation 2 , a lawsuit was filed before the Turkish courts against a carrier by the insurer that compen- sated the loss of its insured with regard to the goods that were found to be deficient at the port of arrival. The carrier argued that there is an arbitration clause provided in the charter party, and that there is a reference to the charter party in the B/L that was held by the insured; therefore, the insured, as the holder of the B/L, is bound by the arbitra- tion clause provided in the charter party. The court of first instance dismissed the case due to the existence of the arbitration agreement. However, the Court of Cassation overruled the decision of the first instance court on the basis that the court of first instance failed to review whether the conditions stipulated in Article 1237/3 of TCC had been met. Conclusion The relation between the contract of carriage and the B/L becomes an issue at times when there is a reference in one to the other. The TCC clearly sets forth that the provisions of a contract of carriage, where the nature of such provisions so allows, may only be binding on the holder of the B/L if a copy of the contract of carriage is represented to the holder of the B/L. Although there are only a few decisions with respect to this issue, the decisions show that the Court of Cassation examines, in such cases, whether or not the contract of carriage, which is referred to in the B/L, has been provided to the holder of the B/L. 2 11th CC of the Court of Cassation, E. 2016/1662, K. 2017/4494,19.09.2017.