Carrier's Limit of Liability When the Value of the Goods is Declared

Safa Murat Tekin

Makale detayları

Carrier's Limit of Liability When the Value of the Goods is Declared

Yazarlar:

Safa Murat Tekin

Yayıncı:

Erciyes University

Ana Başlıklar:

Ticaret Hukuku (Diğer)

Dergi:

Erciyes Üniversitesi Hukuk Fakültesi Dergisi Vol.19 Issue 1, pp.177-218

Belge Tipi:

Makale

Yayın Tarihi:

4/2024

Belge Dili:

Türkçe

Document ID (Org No.):

2001316537

pISSN:

1306-3839

Anahtar kelimeler:

Özet:

 The responsibility of the carrier is regulated in the first paragraph of Article 17 of the CMR and the first paragraph of Article 875 of the TCC. These articles explain that the carrier is responsible for any loss or damage that occurs to the goods from the receipt of the goods to the moment they are delivered. However, the liability of the carrier is limi-ted in terms of both CMR and TCC. As a rule, the objective calculation method has been accepted in the determination of the damage related to the goods in both the CMR and TCC. The carrier will only compensate for the decrease in the value of the goods, not all the damages caused by the loss or damage to the goods subject to transportation. So, the loss of profit or other economic losses will not be compensated by the carrier. In calculating the compensation, it is important to determine when the value of the goods will be taken into account. While calculating the objective value of the goods, the place and time at which they were accepted for carriage will be taken as a basis. The value of the goods shall be fixed according to the commodity exchange price. If there is no such price, then the current market price of the goods will be accepted as the value. If the goods dont have a commodity exchange price or current market price, the value of the goods will be determined by reference to the normal value of goods of the same kind and quality. The amount of compensation to be paid by the carrier is limited to a certain upper limit. The upper limit of the carriers liability is determined on the basis of kilograms of goods, which is a unit of weight measurement. Both CMR and TCC set the rule that compensation shall not exceed 8.33 units of account per kilogram of gross weight. Because of this upper limit, if the objective value of the goods is higher than 8.33 units of account per kilogram of gross weight, the carrier will not be liable for the exceeding amount. Although the general rule is limited liability for the carrier, increasing the liability limit for the carrier is allowed in some exceptional cases. An exception to this rule is made in Article 24 of the CMR. According to this article, the carriers limited liability stipulated in paragraph 3 of Article 23 of the CMR is allowed to be increased to the declared value of the goods. But in order for the limited liability of the carrier to increase to the declared value, some conditions specified in Article 24 of the CMR must be met. These conditions are that the parties must agree to this situation by mutual agreement, a payment of a surcharge must be agreed upon, and the value of the goods must be declared in the consignment note. When all these conditions are met, the liability limit of the carrier can be determined above the upper limit. In this case, the carrier will be responsible for the entire value of the goods. There is no regulation similar to Article 24 of the CMR in the TCC. The absence of regulation does not mean that an increase in the carriers liability limit for the goods declared in the consignment note is not possible for national transports. But because there is a hiatus in the law, it can be said that the only condition required in the TCC in order to increase the liability limit of the carrier is the mutual agreement of the parties. So other conditions, like the payment of a surcharge agreed upon and declaring the value of the goods in the consignment note, are not required for TCC. This being said, declaring the value of the goods in the consignment note is recommended in national transportation too, for it is the best way to increase the carriers liability limit to the goods value.

 The responsibility of the carrier is regulated in the first paragraph of Article 17 of the CMR and the first paragraph of Article 875 of the TCC. These articles explain that the carrier is responsible for any loss or damage that occurs to the goods from the receipt of the goods to the moment they are delivered. However, the liability of the carrier is limi-ted in terms of both CMR and TCC. As a rule, the objective calculation method has been accepted in the determination of the damage related to the goods in both the CMR and TCC. The carrier will only compensate for the decrease in the value of the goods, not all the damages caused by the loss or damage to the goods subject to transportation. So, the loss of profit or other economic losses will not be compensated by the carrier. In calculating the compensation, it is important to determine when the value of the goods will be taken into account. While calculating the objective value of the goods, the place and time at which they were accepted for carriage will be taken as a basis. The value of the goods shall be fixed according to the commodity exchange price. If there is no such price, then the current market price of the goods will be accepted as the value. If the goods dont have a commodity exchange price or current market price, the value of the goods will be determined by reference to the normal value of goods of the same kind and quality. The amount of compensation to be paid by the carrier is limited to a certain upper limit. The upper limit of the carriers liability is determined on the basis of kilograms of goods, which is a unit of weight measurement. Both CMR and TCC set the rule that compensation shall not exceed 8.33 units of account per kilogram of gross weight. Because of this upper limit, if the objective value of the goods is higher than 8.33 units of account per kilogram of gross weight, the carrier will not be liable for the exceeding amount. Although the general rule is limited liability for the carrier, increasing the liability limit for the carrier is allowed in some exceptional cases. An exception to this rule is made in Article 24 of the CMR. According to this article, the carriers limited liability stipulated in paragraph 3 of Article 23 of the CMR is allowed to be increased to the declared value of the goods. But in order for the limited liability of the carrier to increase to the declared value, some conditions specified in Article 24 of the CMR must be met. These conditions are that the parties must agree to this situation by mutual agreement, a payment of a surcharge must be agreed upon, and the value of the goods must be declared in the consignment note. When all these conditions are met, the liability limit of the carrier can be determined above the upper limit. In this case, the carrier will be responsible for the entire value of the goods. There is no regulation similar to Article 24 of the CMR in the TCC. The absence of regulation does not mean that an increase in the carriers liability limit for the goods declared in the consignment note is not possible for national transports. But because there is a hiatus in the law, it can be said that the only condition required in the TCC in order to increase the liability limit of the carrier is the mutual agreement of the parties. So other conditions, like the payment of a surcharge agreed upon and declaring the value of the goods in the consignment note, are not required for TCC. This being said, declaring the value of the goods in the consignment note is recommended in national transportation too, for it is the best way to increase the carriers liability limit to the goods value.

 The responsibility of the carrier is regulated in the first paragraph of Article 17 of the CMR and the first paragraph of Article 875 of the TCC. These articles explain that the carrier is responsible for any loss or damage that occurs to the goods from the receipt of the goods to the moment they are delivered. However, the liability of the carrier is limi-ted in terms of both CMR and TCC. As a rule, the objective calculation method has been accepted in the determination of the damage related to the goods in both the CMR and TCC. The carrier will only compensate for the decrease in the value of the goods, not all the damages caused by the loss or damage to the goods subject to transportation. So, the loss of profit or other economic losses will not be compensated by the carrier. In calculating the compensation, it is important to determine when the value of the goods will be taken into account. While calculating the objective value of the goods, the place and time at which they were accepted for carriage will be taken as a basis. The value of the goods shall be fixed according to the commodity exchange price. If there is no such price, then the current market price of the goods will be accepted as the value. If the goods dont have a commodity exchange price or current market price, the value of the goods will be determined by reference to the normal value of goods of the same kind and quality. The amount of compensation to be paid by the carrier is limited to a certain upper limit. The upper limit of the carriers liability is determined on the basis of kilograms of goods, which is a unit of weight measurement. Both CMR and TCC set the rule that compensation shall not exceed 8.33 units of account per kilogram of gross weight. Because of this upper limit, if the objective value of the goods is higher than 8.33 units of account per kilogram of gross weight, the carrier will not be liable for the exceeding amount. Although the general rule is limited liability for the carrier, increasing the liability limit for the carrier is allowed in some exceptional cases. An exception to this rule is made in Article 24 of the CMR. According to this article, the carriers limited liability stipulated in paragraph 3 of Article 23 of the CMR is allowed to be increased to the declared value of the goods. But in order for the limited liability of the carrier to increase to the declared value, some conditions specified in Article 24 of the CMR must be met. These conditions are that the parties must agree to this situation by mutual agreement, a payment of a surcharge must be agreed upon, and the value of the goods must be declared in the consignment note. When all these conditions are met, the liability limit of the carrier can be determined above the upper limit. In this case, the carrier will be responsible for the entire value of the goods. There is no regulation similar to Article 24 of the CMR in the TCC. The absence of regulation does not mean that an increase in the carriers liability limit for the goods declared in the consignment note is not possible for national transports. But because there is a hiatus in the law, it can be said that the only condition required in the TCC in order to increase the liability limit of the carrier is the mutual agreement of the parties. So other conditions, like the payment of a surcharge agreed upon and declaring the value of the goods in the consignment note, are not required for TCC. This being said, declaring the value of the goods in the consignment note is recommended in national transportation too, for it is the best way to increase the carriers liability limit to the goods value.

 Taşıma sözleşmesinde taşıyıcı yükü teslim aldıktan sonra varma yerinde teslim edene kadar yükte meydana gelen ziya ya da hasardan kural olarak sorumludur. Ancak hem ulusal hem de uluslararası taşımalarda taşıyıcının sorumluluğu sınırlandırılmıştır. Bununla birlikte Karayolu ile Uluslararası Yük Taşıma Sözleşmesine İlişkin Konvansiyonun 24. maddesinde gönderenin yük değerini beyan etmesi ve yük değerinin taşıyıcının sorumlu olduğu sınırın üzerinde olması halinde sorumluluk sınırının beyan edilen değere yükseleceğine ilişkin düzenleme bulunmaktadır. Yük değerinin beyan edilmiş sayılması için tarafların sorumluluğun arttığı konusunda anlaşması, taşıyıcıya ek ücret ödenmesinin kararlaştırılması ve yük değerinin taşıma senedinde beyan edilmesi gerekir. Türk Ticaret Kanununda yük değerinin beyan edilmesi halinde taşıyıcının sorumluluk sınırının yükseleceğine ilişkin bir düzenleme bulunmamaktadır. Ancak uygulamada taşıma sözleşmesine, yük değerinin beyan edilmesi halinde taşıyıcının sorumluluk sınırının yükseleceğine ilişkin şartlar eklenmektedir. Çalışmada öncelikle konunun anlaşılması açısından önem taşıyan yükün objektif değeri ile sorumluluğa ilişkin üst sınır açıklanmıştır. Daha sonra sorumluluk sınırının yükselmesi için Karayolu ile Uluslararası Yük Taşıma Sözleşmesine İlişkin Konvansiyonun 24. maddesinde aranan şartlar öğretide yer alan farklı görüşler de dikkate alınarak açıklanmıştır. Son olarak ise taşıyıcının sınırlı sorumluluğunun yükseltilmesinin Türk Ticaret Kanunu açısından da mümkün olup olmadığı değerlendirilmiştir.

Makale detayları

Carrier's Limit of Liability When the Value of the Goods is Declared

Yazarlar:

Safa Murat Tekin

Yayıncı:

Erciyes University

Ana Başlıklar:

Ticaret Hukuku (Diğer)

Dergi:

Erciyes Üniversitesi Hukuk Fakültesi Dergisi Vol.19 Issue 1, pp.177-218

Belge Tipi:

Makale

Yayın Tarihi:

4/2024

Belge Dili:

Türkçe

Document ID (Org No.):

2001316537

pISSN:

1306-3839

Article 24 of CMR

increase of the carrier’s liablity

consignment note

declaration of the goods value

surchargeCMR’nin 24. maddesi

taşıyıcının sorumluluğunun yükseltilmesi

taşıma senedi

yük değerinin beyan edilmesi

ek ücret

Sayı

Makale detayları

Yazarlar: Safa Murat Tekin

Yayıncı: Erciyes University

Ana Başlıklar: Ticaret Hukuku (Diğer)

Dergi: Erciyes Üniversitesi Hukuk Fakültesi Dergisi Vol.19 Issue 1, pp.177-218

Belge Tipi: Makale

Yayın Tarihi: 4/2024

Belge Dili: Türkçe

Document ID (Org No.): 2001316537

pISSN: 1306-3839

Sayı

Yazarlar:

Safa Murat Tekin

Yayıncı:

Erciyes University

Ana Başlıklar:

Ticaret Hukuku (Diğer)

Dergi:

Erciyes Üniversitesi Hukuk Fakültesi Dergisi Vol.19 Issue 1, pp.177-218

Belge Tipi:

Makale

Yayın Tarihi:

4/2024

Belge Dili:

Türkçe

Document ID (Org No.):

2001316537

pISSN:

1306-3839