Undeclared Deck Carriage in Turkey: Cargo Claims and the Under-Deck Promise
Finding that cargo travelled on deck does not, by itself, answer whether the carriage was authorised or whether the carrier can limit compensation. Article 1151 of the Turkish Commercial Code distinguishes permitted deck carriage, an agreement missing from the transport document, unauthorised deck carriage causing loss, and breach of an express promise to carry in the hold. The last situation has a specific link to Article 1187, which removes the Article 1186 liability limits in the circumstances prescribed by the Code.
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This guide addresses the position of overseas cargo owners, buyers and insurers dealing with Turkey-linked sea shipments. It focuses on the documents and evidence needed when the actual stowage differs from the arrangement on which the cargo interest relied. Statutory references are to Turkish Commercial Code No. 6102, particularly Articles 1151, 1178–1179, 1186–1187 and 1243–1244. The applicable law, competent forum and claimant’s entitlement must be established for the particular shipment; arrival at a Turkish port does not decide all of those questions.
1. Separate permission, disclosure and actual performance
A deck-carriage dispute contains at least three distinct factual questions. Was carriage on deck permitted under the applicable arrangement or rule? Was the agreement recorded in the sea-carriage document as required? Where were the particular goods actually stowed? A positive answer to one does not supply the evidence needed for the others.
Start with the bill of lading or other transport document, the booking correspondence and the relevant stowage record. Identify the vessel, voyage, container or cargo marks and the exact leg of carriage. A photograph of another container on the same vessel does not establish where the disputed goods travelled. Equally, a document permitting deck carriage does not prove that deck carriage actually occurred.
Keep commercial terminology precise. A closed container is not the same thing as carriage in the vessel’s hold. An expression such as “protected cargo” also needs interpretation in its contractual context; it should not automatically be rewritten as an express under-deck promise. Preserve the words actually agreed rather than improving them after the damage is discovered.
2. Article 1151 starts with a prohibition and defined exceptions
Article 1151(1) states the rule against carrying goods on deck or hanging them from the bulwark. Paragraph 2 permits deck carriage where it accords with an agreement between the carrier and the shipper, a trade usage, or a requirement of legislation. These are distinct statutory grounds, not interchangeable descriptions of commercial convenience.
The party relying on an agreement should identify the agreement and its parties. A party relying on trade usage should identify the usage relevant to the carriage. A claim that legislation required deck stowage should identify the actual rule and why it applied to the goods. Describing a method as “normal practice” does not itself establish every element of one of those grounds.
Article 1151 uses the term yükleten for the shipper in its agreement rule. That capacity should not be confused automatically with the taşıtan, the party contracting for carriage, or with the overseas purchaser. Establish who supplied or acted for the cargo and who agreed to the stowage arrangement. Corporate names and representative authority matter as much as the operational contact’s job title.
3. An agreement to carry on deck must be recorded
Under Article 1151(3), where the carrier and shipper agree that the goods will or may be carried on deck, the carrier must put a written entry to that effect in the sea-carriage document. This is a documentary requirement in addition to the question whether an agreement existed between those parties.
Read the complete document, not just the freight box or the signature page. Identify the precise entry relied upon and whether it relates to the cargo in dispute. A general reference to another agreement raises a separate incorporation question. Our guide to charterparty terms and bill-of-lading holders explains why a reference does not automatically settle every term’s effect against a later holder.
Preserve both the issued version and any later amendment. A corrected copy supplied after the bill changed hands should be identified by its actual date. Do not silently replace the transferred document with a version bearing a new deck notation and then treat that notation as though the holder had always received it.
4. Missing disclosure has a special effect for a good-faith holder
Article 1151(3) places on the carrier the burden of proving the deck-carriage agreement where the required entry is absent. The paragraph then goes further: the carrier cannot invoke that agreement against a third party, including a consignee, who acquired the sea-carriage document in good faith. The original agreement and its enforceability against the later holder are therefore separate questions.
For a holder relying on this protection, retain the document acquired, the transfer date, the transfer records and the circumstances relevant to good faith. Do not assume that the labels “buyer” or “consignee” alone establish every required fact. The claimant’s position must be connected to the particular document and its acquisition.
The prohibition concerns reliance on the unrecorded agreement in the circumstances described. It should not be enlarged into a claim that every possible statutory ground for deck carriage disappears whenever the document is silent. If trade usage or a legislative requirement is also asserted, identify and assess that separate ground rather than treating it as an undocumented agreement.
5. Unauthorised deck carriage still requires a connection to the loss
Article 1151(4) addresses deck carriage contrary to paragraph 1 or 2. It makes the carrier responsible, under Articles 1178 and 1179, for loss, damage or late delivery arising from the deck carriage. The causal link is part of the rule. Proof that the goods were on deck should not be substituted for proof of the loss attributed to that carriage.
Identify the alleged mechanism of damage and the supporting observations. The survey should distinguish what was observed, when it was observed and what conclusion the expert draws. Separate findings concerning seawater exposure, physical impact, packaging condition and pre-existing deterioration rather than presenting them as one unexplained “deck damage” category.
Record the cargo’s condition at receipt, during any relevant handling and at discharge or delivery. The bill’s statements about apparent condition have their own evidential effect, explained in the clean-bill and cargo-evidence guide. Those statements should be read alongside the stowage evidence, not treated as a photograph of every stage of the voyage.
6. The general custody and diligence rules remain relevant
Article 1178 requires the care expected of a prudent carrier in performance of the carriage, including loading, stowage, handling, carriage, preservation, custody and discharge. Its responsibility rule concerns loss, damage or delay occurring while the goods are within the carrier’s control. Permission to carry on deck is not a general exemption from those duties.
Article 1179 addresses loss arising from causes not attributable to intention or negligence of the carrier or its personnel. The carrier bears the burden of proving that such intention or negligence did not cause the loss. The provision’s definition of personnel includes the relevant persons used in performance, while preserving the separate actual-carrier rules.
A claim should therefore distinguish the authority to use a deck position from the way the cargo was handled and protected in that position. Do not assume either that consent excuses every later act or that any adverse weather proves negligence. The evidence must address the particular duty, period of custody and alleged cause.
7. An express promise of carriage in the hold changes the limitation analysis
Article 1151(5) provides that carrying goods on deck contrary to an express agreement to carry them in the hold is treated as an act or omission of the carrier within Article 1187. This is a specific statutory consequence. It is different from simply showing that the transport document lacks a deck notation.
Identify the express undertaking, the party that accepted it and the goods it covered. Keep the final booking acceptance, any rider and subsequent variations. A request for under-deck stowage which was never accepted should not automatically be described as the completed agreement required by paragraph 5. Nor should a general preference be presented as an express contractual promise without examining its wording.
Once the relevant agreement and contrary performance are established, paragraph 5 supplies the statutory characterisation for Article 1187. The analysis should state that route expressly rather than relying on an unsupported accusation that the carrier intended to destroy the goods. The loss, claimant’s entitlement and recoverable amount still require their own proof.
8. Identify which liability limits are in issue
Article 1151(4) refers to Articles 1186 or 1187 as applicable. Article 1186 contains the cargo-liability limitation framework; Article 1187 removes the benefit of those limits for the conduct specified there. Article 1151(5) connects breach of the express under-deck agreement to that latter provision.
The conclusion should be expressed accurately: the statutory issue is the availability of Article 1186’s limits. Do not convert it into a universal statement that every maritime limitation regime, every defence and every procedural requirement has disappeared. A separate limitation regime or defence needs its own legal analysis rather than an assumption based on the word “unlimited.”
Even where a particular cap is unavailable, the amount claimed must be supported. Keep invoices, valuation evidence, repair or replacement information, salvage proceeds and the basis of any delay-related loss distinct. The absence of one liability limit is not evidence that every amount entered in a claim schedule is recoverable.
9. Declared and actual deck carriage matters to contractual exclusions
Article 1243 generally restricts advance contractual removal or narrowing of the specified statutory obligations and liabilities. Article 1244(1)(a) creates a defined exception for goods recorded in the sea-carriage document as to be carried on deck under Article 1151(3) and actually carried in that way. Both the documentary and performance elements matter.
A party relying on this exception should identify the entry and the actual stowage. A generic liberty to carry goods in different places should not be assumed, without analysis, to establish the precise exception. Conversely, where the statutory requirements are satisfied, the effect of the relevant contractual term must be examined instead of disregarding Article 1244 altogether.
Article 1244(3) preserves the mandatory rules of the Turkish Code of Obligations concerning advance exclusions or reductions of responsibility. The exception is therefore not a statement that every disclaimer concerning deck cargo is valid. The specific term, the applicable mandatory restrictions and the parties’ relationship remain relevant.
10. Assemble a stowage-and-document evidence file
Request the records which identify the actual cargo position on the relevant vessel and voyage, together with any changes during transshipment. Keep the source and date of each record. A later narrative prepared for a claim is not the same evidence as a contemporaneous stowage plan, loading record or signed survey.
| Issue | Evidence to isolate | Statutory focus |
|---|---|---|
| Permission for deck carriage | Agreement, identified trade usage or applicable legal requirement | Article 1151(2) |
| Written disclosure | Complete transport document and issue history | Article 1151(3) |
| Good-faith acquisition | Transfer records and the document actually acquired | Article 1151(3) |
| Actual deck stowage and resulting loss | Stowage records, surveys and custody chronology | Articles 1151(4), 1178–1179 |
| Express under-deck promise | Accepted contractual wording and contrary performance | Articles 1151(5) and 1187 |
| Contractual exclusion | Exact term, deck notation and actual carriage | Articles 1243–1244 |
Keep communications with the carrier, booking intermediary and local agent separately identified. A statement by an operational contact does not automatically establish which legal entity made the carriage promise. The carrier-identification guide explains the documentary starting point for identifying the proper defendant.
11. Preserve the claim without assuming that correspondence stops time
A request for a stowage plan, an insurer’s survey appointment and negotiations with a shipping agent serve different purposes. None should be treated as a universal substitute for the procedural step required to preserve a claim. Record the delivery date, discovery date, notices and any proceedings date separately.
The governing law and relevant notice and proceedings rules must be assessed promptly. This guide does not prescribe one deadline for every deck-related dispute or every defendant. Its focus is the statutory distinction between permission, disclosure and breach of an express under-deck agreement.
An overseas client should provide a concise chronology and complete documents through a confidential channel. For a Turkey-linked claim, identify the Turkish port, the legal parties and whether the goods have been delivered or remain in custody. Istanbul or Mersin office coordination does not, by itself, determine the competent court.
Frequently asked questions
Is every carriage of goods on deck prohibited?
Article 1151(2) permits deck carriage where it accords with the carrier–shipper agreement, a trade usage or a legislative requirement. The particular ground must be identified.
Must an agreed deck option appear in the transport document?
Yes. Article 1151(3) requires a written entry when the carrier and shipper agree that the goods will or may be carried on deck.
Who proves the agreement when the entry is missing?
Article 1151(3) places that burden on the carrier. It also prevents reliance on the unrecorded agreement against the protected good-faith third-party acquirer described in the paragraph.
Can an unrecorded agreement bind a consignee who acquired the document in good faith?
The carrier cannot invoke that agreement against the good-faith acquirer, including a consignee, under Article 1151(3). The acquisition and relevant facts must be established.
Does unauthorised deck carriage automatically prove every loss claimed?
No. Article 1151(4) addresses loss, damage or delay arising from the deck carriage under Articles 1178–1179. The causal connection and amount of loss still require evidence.
What is special about an express promise to carry in the hold?
Article 1151(5) treats contrary deck carriage as an act or omission within Article 1187. That provides the statutory route to loss of the Article 1186 limitation benefit.
Does losing Article 1186 limits eliminate every maritime defence?
No such universal conclusion follows. Other asserted regimes, defences, entitlement questions and procedural requirements require their own assessment.
Is a sealed container necessarily under-deck cargo?
No. The container’s enclosure and its position on the vessel are different facts. Establish the actual position from the relevant stowage and voyage records.
Does a deck notation validate every liability disclaimer?
No. Article 1244 requires the specified documentary entry and actual deck carriage for its exception, and preserves the Turkish Code of Obligations’ mandatory restrictions.
What should an overseas claimant send first?
The complete transport document, accepted stowage terms, available position records, survey and a dated chronology. Use a confidential channel for commercial records.
Primary legal sources
Ministry of Justice legislation database: Turkish Commercial Code No. 6102, Articles 1151, 1178–1179, 1186–1187 and 1243–1244. The Ministry also hosts a statutory text reproduction; it should not be treated as a separately certified 2026 consolidation. The Turkish statutory text controls over this English explanation.
Ask about a deck-carriage dispute
State the Turkish connection, the stowage promise and the date the discrepancy or loss was discovered. Provide a non-sensitive outline initially; arrange a confidential channel for the transport documents and survey.
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