INTRODUCTION
Port operations occupy a position of particular importance, as ports constitute the point at which the carriage process physically begins or ends. Port operators perform a wide range of technical and organizational services, including the operation of port infrastructure, loading and discharging of cargo, storage, stowage, terminal services, pilotage, towage, and mooring operations.
This multifaceted scope of activity makes it difficult to delineate the boundaries of the legal liability of port operators. In practice, disputes frequently arise—particularly in cases involving cargo damage and stowage errors—regarding whether liability should be attributed to the carrier, the port operator, or the cargo interests.
This study examines the legal status and liability of port operators in light of the provisions of the Turkish Commercial Code (“TCC”) and the Turkish Code of Obligations (“TCO”), as well as the decisions of the Court of Cassation and the Regional Courts of Justice. In particular, it provides a systematic analysis of the circumstances under which liability for cargo damage arising from loading, discharging, and stowage operations may be attributed to the port operator.
A. LEGAL STATUS OF THE PORT OPERATOR WITHIN THE CARRIAGE RELATIONSHIP
Pursuant to Article 1178/1 of the TCC, the carrier is obliged to exercise the care and diligence expected of a prudent carrier during the stages of loading, stowage, handling, carriage, preservation, supervision, and discharge of the goods. This provision defines the scope of the carrier’s duty of care with respect to the cargo and establishes, as a general rule, the carrier’s liability for damage occurring during the carriage process.
In practice, however, the carrier does not personally perform all of these obligations. Especially with respect to loading, discharging, and stowage operations carried out within the port area, the carrier frequently makes use of third-party services. At this point, determining the legal position of port operators within the carriage relationship becomes crucial.
Under Article 1179/2 of the TCC, the concept of the “carrier’s servants or agents” also encompasses persons who, even if they do not work within the carrier’s transport enterprise, are used in the performance of the contract of carriage. When the wording and purpose of this provision are considered together, it is clear that the notion of the carrier’s servant or agent is construed very broadly, covering all persons who make an actual contribution to the carriage process.
In performing loading, stowage, and discharging operations, the port operator serves the performance of the contract of carriage and, in this respect, assumes the status of a performing auxiliary (agent) of the carrier.
The port operator is not an actual carrier who transports the goods from one place to another in its own name and under its own responsibility. Accordingly, the legal status of the port operator should not be characterized as that of an actual carrier, but rather as that of a performing auxiliary of the carrier. This determination is decisive in terms of identifying the liable party and the applicable legal regime.
B. LIABILITY OF THE PORT OPERATOR ARISING FROM FAULTY LOADING AND STOWAGE OPERATIONS
Where the port operator personally performs loading, discharging, and stowage operations, liability for cargo damage occurring during these activities is not limited solely to the carrier’s liability. As the party that directly performs the act causing the damage, the port operator has an independent sphere of liability based on its own fault.
In such cases, the liability of the port operator is primarily assessed within the framework of tort liability under Article 49 of the TCO. Where cargo damage occurs as a result of improper stowage, the use of unsuitable equipment, incorrect placement of containers, or failure to take necessary safety measures within the port area, the port operator will be obliged to compensate the damage provided that fault, damage, and a causal link are established.
In addition, where a contract exists between the port operator and the carrier or the cargo interests concerning the services to be provided at the port, liability must also be evaluated within the scope of breach of contract. Failure by the port operator to duly perform its contractual obligations constitutes non-performance or improper performance within the meaning of Article 112 of the TCO. In such a case, the port operator will be liable for the damage unless it proves the absence of fault.
Since port operations are activities requiring expertise and subject to administrative authorization, limitation or exclusion of liability agreements are interpreted narrowly pursuant to Article 115 of the TCO. In particular, clauses excluding liability for slight negligence are deemed invalid. Moreover, where the port operator carries out its activities through its own employees or auxiliaries, it is directly liable for their acts pursuant to Article 116 of the TCO.
This approach is concretized in the decision of the 43rd Civil Chamber of the Istanbul Regional Court of Justice dated 22 September 2022 (File No. 2020/996, Decision No. 2022/986). In that decision, the court found that the damage occurring during the loading of the cargo onto a vehicle within the port area was unrelated to the navigation of the carrier and had arisen during the loading activity performed by port personnel. The court emphasized that the port operator’s actual activities and fault must be examined independently.
A similar view is adopted in legal doctrine. In his work The Legal Liability of Ports and Marinas and Their Insurance, Attorney H. Cem Congar states that loading and discharging operations performed by port operators are, as a rule, in the nature of a service contract, whereas where such activities are carried out by an independent company, the provisions governing contracts for work apply. This distinction is significant in determining defective performance and the scope of liability.
C. ABSENCE OF LIABILITY OF THE PORT OPERATOR FOR CARGO DAMAGE AND STOWAGE ERRORS UNDER FIO / FIOS / FIOST CLAUSES
In carriage contracts containing such clauses, the port operator does not perform loading and stowage operations in its own name and under its own responsibility, but rather within the organizational sphere of the cargo interests and within a limited technical execution framework. Particularly in container transport, the port operator has neither factual nor legal authority to intervene in the stowage, lashing, or securing of cargo inside the container.
Accordingly, the mere performance by the port operator of external container movements within the terminal area does not give rise to liability for damage to the cargo inside the container or for deficiencies in internal stowage.
Indeed, in its decision dated 1 July 2014 (File No. 2013/6330, Decision No. 2014/12627), the 11th Civil Chamber of the Court of Cassation held that maritime carriage had ended at the port and that the port operator could not be held liable for damage occurring during the preparation and securing of the cargo for road transport. The court specifically emphasized that securing and stowage operations fell outside the intervention area of the port operator.
Similarly, in its decision dated 15 September 2014 (File No. 2014/6136, Decision No. 2014/13723), the same chamber stated that under FIO terms, loading and discharging operations are allocated to the cargo interests and that the port operator cannot be deemed automatically liable.
This sphere of responsibility is further narrowed in carriage involving full and closed (FCL) containers. In such cases, internal container stowage and cargo safety fall entirely within the responsibility of the shipper, and the port operator has no duty to inspect or supervise the internal arrangement of the container. This principle was explicitly affirmed in the decisions of the 11th Civil Chamber of the Court of Cassation dated 16 November 2020 (File No. 2020/691, Decision No. 2020/5087) and of the General Assembly of Civil Chambers dated 2 November 2021 (File No. 2017/3080, Decision No. 2021/1312).
Consequently, in carriage subject to FIO / FIOS / FIOST clauses, it is not possible to hold the port operator liable for cargo damage and stowage errors, even in its capacity as a performing auxiliary of the carrier. The liability of the port operator may arise only if the existence of an independent fault, specific to terminal operations and relating to the exterior of the container or directly attributable to the port operator’s own acts, is proven.
CONCLUSION
The legal liability of port operators for cargo damage and stowage errors varies depending on the nature of the carriage relationship, contractual arrangements, and the party actually performing the relevant activities. As a rule, the port operator acts as a performing auxiliary of the carrier; however, where it personally and faultily performs loading, discharging, and stowage operations, an independent sphere of liability arises under the provisions of the TCO.
Conversely, in carriage subject to FIO/FIOS/FIOST clauses, the allocation of loading and stowage responsibility to the cargo interests renders the liability of the port operator exceptional. When the case law of the Court of Cassation and the Regional Courts of Justice, together with the prevailing views in legal doctrine, are considered as a whole, it may be concluded that the liability of the port operator should be determined on the basis of fault and limited to its actual sphere of activity.
References:
- Amasya, S. (2020). Denizyoluyla Yapılan Eşya Taşımalarında Fiili Taşıyan Kavramı. Galatasaray Üniversitesi Hukuk Fakültesi Dergisi, (2). 1125-1151. https://dosya.gsu.edu.tr/docs/hukukfakultesi/tr/fakultedergisi/GSUHFD-2020 2.pdf#page=581
- Congar, H. Cem. Liman ve Yat Limanlarının Hukuki Sorumluluğu ile Sigortaları. Seçkin Yayıncılık, 2023.
- Kender, Rayegân, Ergon Çetingil ve Emine Yazıcıoğlu. Deniz Ticaret Hukuku. 16. bs., 2020/10, 548 s.
