Contracts for the Carriage of Goods by Sea under Turkish Law

April 2026 | Başaran Law Firm

Introduction

Approximately 90 per cent of global trade is conducted by sea. Yet contracts for the carriage of goods by sea, which form the legal backbone of maritime transport, are still liable to be misinterpreted or confused with other types of contract by many exporters, importers and logistics professionals. This confusion has practical consequences. Mischaracterising the contract can expose the parties to unforeseen and commercially burdensome legal liabilities.

In this first instalment of Başaran Law Firm’s new maritime law series, we examine in detail the legal definition of a contract for the carriage of goods by sea, its essential elements, the features that distinguish it from similar contracts, and the parties to it.

The Legal Framework for Contracts of Carriage of Goods by Sea

A contract for the carriage of goods by sea, known under Turkish law as a contract of affreightment (navlun sözleşmesi), is a bilateral (synallagmatic) contract. One party, the carrier, undertakes to carry goods by sea, and the other, the contracting shipper, undertakes to pay a charge known as freight in return.

The Turkish Commercial Code (Law No. 6102, the “TCC”) governs contracts for the carriage of goods by sea in Part Four of Book Five, Articles 1138 to 1245. The Code gives no express definition of the contract. Article 1138 identifies its types and specifies that carriage is to be performed by sea. The Code thus confines this category of contract to the carriage of goods by sea.

In legal character, the contract is consensual. It is concluded when the parties express their mutual and concordant assent. Neither a written instrument nor actual delivery of the goods is a condition of validity. Article 1139 TCC nevertheless entitles either party to a voyage charter to request, at its own expense, that a charterparty recording the terms of the agreement be drawn up. Standard charterparty forms prepared by international organisations such as BIMCO (the Baltic and International Maritime Council) and INTERTANKO (the International Association of Independent Tanker Owners) are widely used in practice because uncertainty always comes at a high cost in maritime trade.

Five Essential Elements and Their Practical Consequences

Under Article 1138 TCC, five essential elements must be present for an agreement to qualify as a contract for the carriage of goods by sea. If any of these elements is absent, the relationship is subject to a different contractual classification and, consequently, a different liability regime.

Carriage by Sea and the Limits of Its Scope

Carriage by sea is the contract’s most distinctive essential element. Carriage on inland waters, such as rivers, lakes and canals, generally falls outside its scope. On mixed routes, where carriage takes place partly by sea and partly on inland waters, the rules governing contracts for the carriage of goods by sea are understood to apply where the sea leg is predominant. Arrangements combining more than one mode of transport are separately classified as multimodal transport contracts.

Article 1138(2) TCC creates a specific exception for the postal administration. The provisions governing contracts for the carriage of goods by sea do not apply to carriage of goods by sea undertaken by the postal administration. The exception applies only where the postal administration itself acts as carrier. Where it contracts with a carrier in its own name, that relationship remains subject to those provisions.

What Constitutes Cargo?

The subject matter of the contract is cargo. As defined in legal scholarship, cargo encompasses any tangible thing capable of being carried, excluding human beings. In practice, this definition is broad enough to include live animals, human remains, waste and rubbish, irrespective of their commercial character or economic value. The carriage of living persons and their accompanying luggage is governed by the provisions on contracts for the carriage of passengers in Article 1247 et seq. TCC.

The cargo need not physically exist or be individually identified when the contract is concluded. The parties may validly agree to carry cargo whose kind and quantity will be determined later.

The Vessel Requirement and the Carrier’s Ability to Provide a Vessel

Carriage must be performed using a vessel within the meaning of Article 931 TCC. Under the statutory definition, any floating craft of more than very small size whose designated purpose requires it to move on water qualifies as a vessel, even if it is incapable of self-propulsion. In practice, the vessel to be used need not be individually identified or owned by the carrier when the contract is concluded. The carrier may perform the agreed carriage using a vessel owned by another party or selected at a later date.

Freight as the Financial Basis of the Contract

The contract’s synallagmatic nature entails reciprocal obligations. In return for the carrier’s performance of the carriage, the contracting shipper undertakes to pay freight. The parties are free to agree the amount of freight. They may set a unit rate based on the weight, volume or number of items of cargo, or agree a fixed lump-sum freight based on the vessel’s capacity. Leaving the amount of freight undetermined at the time of contracting does not affect the validity of the agreement. Under Article 1195(1) TCC, the customary freight at the time and place of loading applies in that case.

Transfer of Possession and the Distinction from Passenger Carriage

One of the essential elements of the contract is the transfer of possession of the goods to the carrier. A passenger retains possession of their luggage. Under a contract for the carriage of goods by sea, the carrier acquires possession of the goods at least in the capacity of a subordinate possessor. In a sub-contract of carriage, the carrier’s indirect (subordinate) possession of the goods is likewise regarded as sufficient for the contract to exist.

Lease or Contract for Work? Why Legal Characterisation Matters

In practice, a contract for the carriage of goods by sea is often confused with a vessel lease. The distinction has significant legal consequences.

The essence of a lease under Article 299 of the Turkish Code of Obligations (“TCO”) is that the lessee is granted use and possession of the leased property. Under a contract for the carriage of goods by sea, the carrier retains possession and technical management of the vessel throughout. The vessel remains under the carrier’s actual control for the duration of the contract. The carrier’s retention of technical management, crew and equipment is the clearest indication that the relationship is one of carriage.

The prevailing view in legal scholarship characterises a contract for the carriage of goods by sea as a contract for work. The requirement to produce a work under Article 470 TCO is interpreted broadly, covering both the making of a tangible object and the achievement of an intangible result. The carrier undertakes to achieve a defined result by taking the goods and delivering them safely to another place. The carrier’s obligation is discharged when that result is achieved. Merely carrying out the activity does not constitute performance. A minority view considers an agreement that contains no undertaking to carry goods ineligible for classification as a contract of carriage. It also rules out an ordinary lease where technical management is retained and classifies the agreement as a sui generis contract for the provision of a vessel. The prevailing scholarly classification remains that of a contract for work.

How Two Related Contracts Allocate Liability

Comparing contracts for the carriage of goods by sea with the two types of contract most commonly confused with them in practice is essential to understanding who holds possession and how risks are allocated.

Vessel Lease (Demise Charter) and Transfer of Possession

Under Article 1119(1) TCC, the lessor undertakes to make the vessel available for the lessee’s use for a specified period in return for rent. The lessee takes possession of the vessel and is entitled to use it at its discretion in accordance with the purpose for which it was made available. Under a contract for the carriage of goods by sea, the vessel remains under the carrier’s actual control. The carrier undertakes to achieve the agreed result of carriage and does not transfer the right to use the vessel. The distinction turns on the subject matter of the obligation and the allocation of possession.

Time Charter and the Allocation of Commercial Employment and Technical Management

Under Article 1131 TCC, the party providing the vessel under a time charter undertakes, in return for hire, to place the commercial employment of an equipped vessel at the time charterer’s disposal for a specified period. Under a contract for the carriage of goods by sea, the carrier’s principal obligation is to carry a particular cargo. Under a time charter, the principal obligation concerns the vessel’s commercial employment. The party providing the vessel retains possession and technical management under a time charter, a feature that distinguishes it from a vessel lease.

The prevailing view in legal scholarship regards the time charter essentially as a type of contract for the carriage of goods by sea because time charters are concluded in practice predominantly for the carriage of cargo. The two contracts allocate risk in fundamentally different ways. Under a contract for the carriage of goods by sea, freight is determined by reference to the cargo carried, and the carrier bears bunker costs and the risk of voyage delays. Under a time charter, hire is calculated by reference to the charter period. Bunker costs and risks arising from operational delays pass to the time charterer, who directs the vessel’s commercial employment. Identifying the contract type is therefore necessary to know which of these risks you have assumed.

Voyage Charter or General Cargo Contract? How the Contract Type Defines the Scope of Liability

Article 1138 TCC divides contracts for the carriage of goods by sea into two principal types. The classification has practical consequences for the contracting shipper’s right to terminate, the demurrage regime and the rules on the allocation of vessel space.

Voyage charter. In return for freight, the carrier undertakes to carry goods by allocating to the voyage charterer the whole vessel, part of it or a specified space on board. The allocation of the vessel is the defining element. The specific identification and technical characteristics of the vessel to be used in performance are therefore legally significant. In practical terms, the voyage charterer reserves all or a specified part of the vessel’s carrying capacity.

General cargo contract (kırkambar sözleşmesi). The carrier undertakes to carry specified goods by sea. In the context of Article 1144 TCC, the goods are specified by kind and quantity and need not be individually identified. The contracting shipper is concerned with the safe delivery of the goods to the designated destination. The choice of vessel and the space used on board are immaterial to that party. The carrier must accept substitute goods provided that doing so does not make its position more onerous.

The Vessel Owner, the Cargo Owner and the Recipient of the Goods: Four Distinct Legal Capacities

A contract for the carriage of goods by sea involves the direct parties to the contract as well as third parties who take part in its performance. Distinguishing these four capacities is essential to exercising rights and determining liability.

The carrier (taşıyan). The carrier is the person who undertakes to carry goods by sea in return for freight. The TCC provides no express definition of the carrier. Article 1138 et seq. TCC indicate that carrier status arises from the undertaking to perform the carriage. The undertaking alone is sufficient. Ownership or operation of the vessel, whether as shipowner or as the operator of another person’s vessel, is unnecessary. The shipowner (donatan, the person who outfits the vessel and uses it in maritime trade within the meaning of Article 1061 TCC) and the carrier are distinct legal capacities. Both a shipowner and the operator of another person’s vessel may act as carrier. Carrier status may also arise under a contract concluded through the master, an agent or a broker.

The contracting shipper (taşıtan). This is the natural or legal person who undertakes to pay freight in return for carriage of goods by sea. Under Article 1200 TCC, the contracting shipper is the principal debtor for freight payable under the contract. The contracting shipper need not own the goods and may arrange the carriage of goods owned by another person. One view in legal scholarship holds that the contracting shipper must at least possess the cargo or intend to transfer possession to the carrier. Otherwise, no legal entitlement to demand performance of the carrier’s obligation arises. In practice, the contracting shipper may exercise its right under the head contract to have goods carried by entering into sub-contracts of carriage with third parties. The contracting shipper under the head contract then acts as carrier in relation to the third party.

The delivering shipper (yükleten). This is the natural or legal person who, pursuant to an existing contract of carriage, brings the goods to the vessel and delivers them to the carrier or its authorised representative. The delivering shipper and the contracting shipper are often the same person. A third party independent of the contracting shipper can also act as delivering shipper. After delivering the goods, the delivering shipper acquires an independent status as a cargo interest, may require the carrier to issue a bill of lading under Article 1228 TCC and may take various steps to dispose of the cargo.

The consignee (gönderilen). The consignee is the person entitled to demand delivery of the goods at the port of destination under the contract of carriage or the bill of lading issued under it. The consignee has the status of an interested party without being a direct party to the contract. The consignee need not be identified at the time of contracting. The contracting shipper, the delivering shipper, an overseas buyer or a bank may act as consignee. The consignee may also be liable for freight and discharge costs where the bill of lading expressly so provides or the consignee accepts liability.

Misclassifying the Contract Means Misallocating Liability

Understanding the definition, essential elements and legal character of a contract for the carriage of goods by sea is a practical necessity. Misclassifying it, particularly by confusing it with a vessel lease or a time charter, directly affects who has possession, which party directs the vessel’s commercial employment and technical management, and who bears bunker costs and the risk of operational delays. The consensual nature of the contract means it can be concluded without a written instrument. An ambiguous charterparty or an oral agreement can give rise to a substantial risk of disputes.

The second article in the series will examine the contracting shipper’s rights under the TCC in detail, from the right to require a vessel that is seaworthy, fit for the intended voyage and cargoworthy to the issuance of a bill of lading and the right to dispose of the cargo.

*This publication is for general information only and does not constitute legal advice.