Delivery time and presumption of loss in transport and logistics contracts
Under Turkish law, transport contracts are governed by the fourth book of the Turkish Commercial Code No. 6012 [“TCC“] under the name of “Transport Affairs“. In this article, the delivery time, which is one of the essential aspects of contracts of carriage, and the presumption of loss, namely the legal consequence of not meeting this time, will be briefly discussed.
The delivery time is governed by art. 873 of the ICC. Depending on the article, the delivery time is decided by the contracting parties. If the parties fail to determine the time, the carrier is required to deliver the goods within a reasonable time. When determining this reasonable time, various variables such as the specifics of the contract, the type of goods transported, the qualities of the vehicle and the determination of the route, must be taken into consideration.
Non-compliance with the delivery time can have two consequences, late delivery or presumption of loss. It is essential to understand the difference between these two legal consequences, as they produce different legal effects. In the event of late delivery, the carrier is liable for damages caused by the delay.
Meanwhile, according to art. 874 of the CCI, if delivery is not made within 20 [twenty] days of the delivery time, the goods in question are presumed lost. Loss of goods is defined as the condition where delivery is not possible. Goods are presumed lost, not only in situations of physical damage, but also in situations where the goods lose their economic value. Broken glass items, goods confiscated by the competent authorities or delivery to the wrong person without possibility of recovery are examples of loss of goods in the scope of this article.
The 20-day period is extended to 30 days in the case of cross-border transport. Convention relating to the contract for the international carriage of goods by road [“CMR”] regulates different deadlines for presumption of loss. As indicated in art. 20 of the CMR, the presumption of loss takes effect 30 days after the delivery date. According to the same article, if the delivery time has not been determined, the fact that the goods are not delivered within sixty days of receipt of the goods by the carrier will constitute a presumption of loss of the goods.
In the event of a claim, TCC gives the beneficiary several options. First, the beneficiary’s right to compensation comes into effect. In addition to compensation, art. 874/2 of the ICC allows the beneficiary to request notification in the event of discovery of the goods. This request for notification must be made at the time of receipt of payment of the indemnity. The situation in question engages the absolute responsibility of the carrier. In other words, even if the carrier is not responsible for the loss of the goods, he is obliged to compensate the damage to the beneficiary.
If the goods are found, the beneficiary may notify the carrier within 30 days that he wishes the goods to be delivered to him by reimbursing the compensation. In addition, the beneficiary is required to pay the transport costs. However, according to art. 874/3 CLC, the beneficiary can seek compensation if he has been harmed by the presumption of loss.
If the object is found after payment of compensation; the beneficiary may not wish to be informed or may not make use of his right to demand delivery of the goods despite having been informed, in such cases the carrier acquires the right of free disposal of the goods, in accordance with art. 874/4 of the ICC.
Therefore, the determination of the transport period in the transport contracts is of great importance for determining whether the transport is carried out on time or not and for calculating the claims for compensation for delays in delivery. For this reason, the parties must actively contribute to the designation of the delivery time, otherwise the practice of reasonable time will be implemented.
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