Liability of actual carrier

In the carriage of goods by sea, it is common for the carrier to entrust the carriage undertaken by the carrier to another carrier. It is therefore not uncommon for the loss or damage of goods or for late delivery to occur during the performance of this carrier. In such a case, if the concept of the actual carrier did not exist, the cargo interests would not be able to rely on the provisions of the Turkish Commercial Code (TCC) on the liability of the carrier against the carrier who performs this carriage. This is due to the fact that there is no contractual relationship between the carrier who performs this carriage and the cargo interests. However, the concept of the actual carrier regulated under Art. 1191 TCC and Art. 1192 TCC enables the cargo interests to rely on the provisions of the TCC against the carrier performing the carriage. The TCC provisions are in favour of the cargo interests. Since, in the event of loss or damage occurring during the actual carriage, the carrier shall be deemed to be at fault against the cargo interests in accordance with the presumption set out in Art. 1179 of the TCC. The first international convention that includes the concept of the actual carrier in the carriage of goods by sea is Hamburg Rules (HR) dated 1978. HR constitutes the basis of the provisions of art. 1191 of the Turkish Commercial Code (TCC) and art. 1192 of the TCC, which regulates the liability of the actual carrier. The concept of the actual carrier is not defined in the provisions of Art. 1191 of the TCC and Art. 1192 of the TCC. The goal of this study is to define the concept of the actual carrier, to express the limits of the concept of the actual carrier, and to analyse the liability of the actual carrier against the cargo interests in accordance with the provisions of the TCC. In this analysis, the provisions of the TCC regarding the liability of the carrier are examined, taking into account the specific issues of the actual carriage period. Since, according to art. 1191/2 of the TCC, all the provisions of the TCC governing the liability of the carrier also apply to the liability of the actual carrier for the carriage performed by him. In the methodology of the study, the provisions of the TCC and the preamble of the TCC, the HR and the arguments obtained from the official records of the negotiations of the HR, the necessity of the concept of the liability of the actual carrier, the opinions in the doctrine and the judicial decisions are taken into consideration. Furthermore, the concept of the maritime performing party as defined in the Rotterdam Rules of 2009 is compared with the concept of the actual carrier.