ABSTRACT
In this study, what are the waybills in Turkish Maritime Trade Law, the differences between bills of lading and seaway bills, the definition of the bill of lading, by whom the bill of lading is issued and the legal nature of the bill of lading shall be discussed. In addition, the role of the bill of lading in proving the legal relationship between the parties involved, the role of the carrier, the general type of the goods, their signs, the number of parcels or pieces, the role of proving the weight and quantity, and the significance of the bill of lading will all be examined and evaluated. While in principle, the carrier delivers the cargo in exchange for presenting the bill of lading; the emergence of delivery without a bill of lading will be discussed due to the development of shipbuilding technology, the speed of shipbuilding, the slowness of postal services, and the delays in providing bills of lading to the destination port. None the less, in this study, four different types of delivery without bill of lading will be discussed and it will be explained what problems will arise in delivering the cargo without presenting a bill of lading. Lastly, with the emergence of delivery without a bill of lading and the potential issues brought on by the various types of delivery without a bill of lading, the subject of an electronic bill of lading has been examined in response to the issues brought on by the traditional bill of lading.
I. INTRODUCTION
As a result of the development of national and international trade in the world, the creation of new markets by technology, with the ease of access to information and developments through technology, national and especially international transportation has started to gain importance. In the international transport of goods, distinctions regarding road transport, air transport and maritime transport have begun to be elaborated and regulations have been made at the international level regarding these concepts. Within the framework of these regulations, waybills are used in order to protect the rights of the parties and to regulate transportation activities. In the continuation of our article, in this context, the waybills and bill of lading which is a waybill in general, will be examined and the effect of the delivery without a bill of lading on the carriage transaction and the its parties will be detailed.
II. WHAT IS WAYBILL ?
In article 856 of the Turkish Commercial Code No. 6102 (“TCC”)1, the waybill is defined as “issued upon the request of one of the parties.”. In Article 858 of the same code, “The waybill signed by both parties constitutes proof of the contract of carriage, its content and the receipt of the goods by the carrier.”2 the evidence function of the waybill is regulated. In line with the references made in the aforementioned code, it is possible to define the waybill as “a bill prepared upon the request of one of the parties and which constitutes evidence of receipt of the goods”.
In the legislative intention of the TCC, it is stated that the waybills are not negotiable instrument, but are a means of proof that becomes evidence if signed by both parties. In addition, it is stated that in order for the waybill to have the quality of evidentiary function as stated in the code, it must be arranged in accordance with the law in its form, first of all, it must primarily contain the signature and the records contained in Article. The solution to the problem of whether the deficiencies in the aforementioned records will completely eliminate the evidentiary power of the deed or will it lose its power only in relation to the incomplete record are found in the doctrine and judicial decisions. In the continuation of the legislative intention; it is stated that unilateral changes in the waybills, as a rule, will not affect the evidentiary function of the waybill, the evidentiary function is against the consignee and its effect begins with the delivery and acceptance of the goods and the contrary can be proved. While it is explained that the waybills have an important function in terms of payment, it is also explained that it means that the goods have been delivered appropriately3.
With the development and change of the commercial life, in addition to the bill of lading, other sea waybills have also been used. Sea waybill (“seawaybills”), ship’s delivery order (“ship’s delivery order”) and electronic bill of lading are among the mentioned waybills4. Sea waybill (“sea waybills”) is a waybill used in maritime trade and is a non-negotiable bill of lading. Ship’s delivery order (“ship’s delivery order”) is the document used in national and international transportation and signed by the carrier, in which it approves the delivery of the cargo.
Sea waybills other than bills of lading, which will be examined within the scope of this article, are defined as;
“Any bill, other than the bill of lading drawn up by the carrier to show that he/she has received the goods to be transported, constitutes a presumption that the contract of carriage has been made and that the goods have been received by the carrier as written in the bill of lading; but this presumption can be disproved.”
in article 1242 of the TCC. Considering the records they contain and the way they are arranged, it will be seen that there is no significant difference between the sea waybill and the bill of lading. The biggest difference that distinguishes sea waybills and bill of lading is that the bill of lading is negotiable. The second important point is the record in the sea waybill stating that “the right to demand the delivery of the cargo is not dependent on the possession of the sea waybill”5. In addition, it should be noted that, “sea waybill … does not give title to the goods”6.
III. DEFINITION OF BILL OF LADING
In the TCC, a distinction has been made regarding the transport bills at sea between bills of lading and other sea waybills. Bill of Lading is defined as,
“Bill of lading is a bill that proves that a contract of carriage has been concluded, shows that the goods have been received by the carrier or loaded on the vessel, and that the carrier is obliged to deliver the goods only in return for its presentation”7.
in Article 1128 of the TCC. The obligation mentioned in the definition of the code is an accessory obligation arising from the law and the contract8.
In the doctrine, the bill of lading is defined as a valuable document that includes the acknowledgment that the goods have been delivered for the purpose of transportation and the commitment that the goods will be delivered to the holder, who seems to be holder of the right, in exchange for the return of the bill after the goods are transported at the port of destination9.
Bill of lading is a negotiable instrument signed before loading or to prove to confirm that the cargo has been received at the port of loading for transportation. “This document shows the relationship between the shipper and the carrier”10. The bill of lading is issued by the carrier upon the request of the shipper and in the amount requested by the shipper. In order for the shipper to exercise the relevant right, all of the transported goods must have been loaded or delivered. Unless otherwise openly agreed, the shipper is not permitted to request the issuance of a partial bill of lading for the portion of the goods that have already been put into the ship. The right to claim to issue bill of lading rests with the shipper, and the authority to issue the bill of lading rests with the carrier. “Regardless of whether the carrier is also the owner, the bareboat charterer, the sub-carrier or not, every person who undertakes to transport goods by sea is authorized to issue a bill of lading”11. On the contrary, in practice, this right is transferred to the shipper due to some needs. A Bill of lading; is a transportation document that bears witness to the conclusion of a transportation contract between the shipper and the carrier. The TCC states that there are two ways to arrange bills of lading: loading and receiving. “Bill of lading received for shipment, is a bill of lading issued for the goods received for carriage with the permission of the shipper but not yet loaded on the vessel”12. “The onboard bill of lading, is the bill of lading issued in the number of times requested by the shipper as soon as the goods are taken on board, in return for the return of the provisional receipt or bill of lading received for shipment which was given to the carrier at the time of receipt of the goods”13. Since it is arranged after the goods to be transported are loaded on the vessel, onboard bill of lading is used in charter transportation; contrarily, the bill of lading recieved is used in transports carried out under contracts for the Common Carriage of Goods by Sea, as it is in situations when it is unclear whose ship the goods would be transported on.
IV. LEGAL NATURE OF THE BILL OF LADING
Pursuant to Article 1228 of the TCC, bill of lading is a bill proving that the contract of carriage has been concluded, indicating that the goods have been received by the carrier or loaded on vessel, and that the carrier is obliged to deliver the goods only in exchange for its presentation. The related definition made in the TCC also reveals the functions of proving the carrier, proving the goods and proving the freight of the bill of lading. The bill of lading also has the quality of a document indicating that the cargo to be transported has been received by the carrier for transportation as specified in the bill of lading, or that the goods to be transported have been loaded onto the vessel. Due to the negotiable nature of the bill of lading, the right specified in the bill of lading cannot be asserted separately from the bill itself. In exchange for presenting the bill of lading, the carrier may only deliver the items to a person who is related to the products. With the expression in paragraph 1 of Article 1228 of the TCC, “it is a bill in which the carrier is obliged to deliver the goods only upon its presentation.”, this function of the bill of lading is also regulated.
The bill of lading also has the function of evidence in the legal relationship. “The carrier, the shipper and the person shown as consignee on the bill of lading are the parties to the relationship proven by the bill of lading”14. Regarding the function of evidence the carrier of the bill of lading, the provision “The bill of lading may be drawn up in the name and behalf of the carrier by the master or the carrier or a representative authorized by the captain in this regard” regulated in article 1228/2 of the TCC states that the carrier is authorized and obligated to issue bills of lading by stipulating that the bill of lading can be issued in the name and account of the carrier. In this context, the bill of lading may be issued by the carrier himself or by the captain who has legal authority in this regard or, in general, within the framework of the law of obligations, by a person authorized by the carrier in this regard15.
The function of evidence of the bill of lading has two different effects as it creates a presumption that a contract of affreightment exists between the parties and that the transported goods are received in the type, quantity and condition written on the bill of lading16. In this context, a clean bill of lading (“clean”) is a type of bill of lading that is issued by the carrier, which does not have a said to contain record, that is, the carrier assumes that the cargo has been received undamaged, complete and whole. Unless otherwise stated on the bill of lading, the bill of lading is considered “clean”. On the other hand, it would be useful to state that the “said to contain”, “shipper load, count and seal” records, that is, a kind of “said to contain” record placed on the bill of lading, are added in order to eliminate the responsibility of the carrier in cases of loss and damage that may occur in the cargo.
V. FORCE OF PROVING OF THE BILL OF LADING
The bill of lading has four different functions of proving such as proving the legal relationship of bill of lading, proving the carrier, proving the general type, signs, the number of the parcels or pieces, the weight and the quantity of the goods, and proving the freight and the regulations regarding this has been made between the Article 1237-1240 of TCC.
A. Function of Proving the Legal Relationship
A carriage contract is a bilateral contract, whose parties are the carrier undertaking to carry the cargo and the shipper undertaking to pay the freight17. The concepts of carrier and shipper are adjectives arising from the contract, and people other than these people are defined as third parties as a rule18. These third parties are the people who are outside the parties in the transportation business and obtain rights or are liable for debts arising from the contract. The shipper who will perform the loading, the authorized holder of this bill, and the consignee, owner of the goods, who does not have the title of sender, are examples of the parties involved in the performance of the contract. If a bill of lading, waybill, or waybill with a characteristic of negotiable instruments is issued, it is specified to whom the goods will be delivered when they arrive at the port of registry19.
In Article 1237/1 of TCC20, it is stated that the bill of lading will be taken as the basis in the legal relations between the bill of lading holder, who is not a party to the carriage contract, and the carrier, which is a party to the contract. Therefore, if the bill of lading is issued by the carrier at the request of the shipper, the legal relationship between the bill of lading holder and the carrier will be determined by the bill of lading. The cargo is delivered by the carrier to the person holding the bill of lading at the port of destination, and the bill of lading gives that person the right to ask the carrier to deliver the cargo. When examined in terms of the consignee, the rights and obligations of the consignee with having the bill of lading are independent from the carriage contract21.
In the Article 1237/2 of TCC, there is a provision regarding the legal relations between the carrier and the shipper are bound by the provisions of the carriage contract. Generally, the parties write the contractual issues between them on the bill of lading and do not make any other contract. Especially in contracts of carriage of goods, since the bill of lading is a means of proving the carriage contract, it regulates not only the relations between the carrier and the consignee, but also the relations between the carrier and the shipper22.
In Article 1237/3 of TCC with reserving the second sentence of the Article 1245/1 of TCC, a copy of the charter party must be given to the new holder when the bill of lading is transferred, if the bill of lading contains a reference to the voyage charter contract. In this case, it may be argued against the bill of lading holder to the extent that the provisions in the charter party give the characteristics. Therefore, in the event that a copy and the bill of lading are not submitted, it is acknowledged that the conditions in the charter party cannot be asserted to the carriers of the bill of lading other than the shipper. However, if the qualification of the relation between the carrier and the shipper is suitable, the conditions in the charter party can be asserted to the bill of lading holders except the shipper23.
B. Function of Proving the Carrier
Unless occurred differently, the bill of lading arrangement is optional ; however, it is obligatory to be arranged upon the request of the shipper. The bill of lading is a written declaration of intention that is drawn up by the carrier or the captain and reveals a unilateral debt relationship24.
Article 1238 of TCC, titled “Proof the Carrier”, is related to the function of the bill of lading to prove the carrier. It is important to know who the carrier is, since the carrier is obliged to deliver the goods in return for the presentation of the bill of lading25. That’s why it was regulated that the person who signed the bill of lading as the carrier or the person on whose own name and account would be deemed to be the carrier in the Article 1238/1 of TCC.
In practice, it may be the case that individuals hide the carrier on the bill of lading in order not to be liable, and therefore the carrier cannot be identified from the bill of lading. In order to prevent this situation, provisions have been made by the legislator stating that the carrier from the bill of lading must be proven and that if the bill of lading does not have the quality of proving, certain persons other than the carrier will be deemed as the carrier and these persons will be held liable.
In Article 1238/2 of TCC, it is stated that in cases where the name and surname or trade name and the business centre of the carrier are not shown in the bill of lading or the carrier are not clearly understood from the bill of lading, the owner will be deemed as the carrier. For this reason, the responsibility of the owner also comes to the fore; however, if the owner wants to avoid this responsibility, he/ she must inform the name and surname or trade name and business centre of the carrier upon the express request of the bill of lading holder. “If the name of the carrier is not shown on a bill of lading drawn up by the captain or another representative of the owner, the owner is deemed as the carrier. If the name of the carrier is reported incorrectly, the owner is responsible to the consignee for the damage arising from the inaccuracy of the declaration.” was regulated under the Article 1099 of Turkish Commercial Code No. 6762 (“oTTC”)26. According to Demir27, the different arrangement in the new TCC is not accurate. Because, in cases where the name and surname or trade name and the business centre of the carrier are not shown or cannot be clearly understood from the bill of lading, directly considering the owner as the carrier puts the owner in a heavy position in the legal sense. Pursuant to Demir, the oTTK clause that states that in cases when the captain or the owner’s representative drafts the bill of lading, the owner shall be deemed to be the carrier is more appropriate, due to the fact that the owner may not be aware of a bill of lading issued by persons other than the captain or a representative of the owner.
In Article of 1238/3 of TCC, it is regulated that if the bill of lading is issued by the captain or another representative of the carrier, in cases where the name and surname or trade name and the business centre of the carrier are not shown or are not clearly understood, the representative will be deemed to be the carrier together with the owner held responsible pursuant to the second paragraph, and the representative should also report the information and make documentation related to the carrier in order to avoid liability. According to Süzel28, this provision poses a danger in transports where exports are made from Turkish ports, in cases where the carrier cannot be understood and documented in terms of the Turkish agency issuing the bill of lading, the owner will be deemed as the carrier and will be responsible. However, it should be noted that it is not highly likely that the agent cannot certify that it is the representative of the carrier.
When the TCC’s article 1238, which establishes the carrier and places responsibility on parties other than the carrier, is taken into consideration, it can be said that the article’s goal is to protect the holders of the bill of lading in order to determine to whom the claim arising from the bill of lading will be directed29. Therefore, evaluating the ratio legis of the Article, although the Article 1238/2 of TCC assumes the owner as the carrier and puts the owner in a heavier position, in our opinion, Demir’s opinion saying the Article 1099 of oTCC is a more reasonable solution30 compared to the Article 1238/2 of TCC, is not appropriate. Due to the result of the new rule, the owner now has the chance to disprove the presumption established by the Article 1099 of oTCC by notifying the name and surname of the absent carrier or by notifying and certifying the location of the company’s headquarters.
C. Function of Proving the General Type, Signs, The Number of The Parcels or Pieces, The Weight and The Quantity of The Goods
The function of proving the goods, which is another function of the bill of lading, is regulated in Article 1239 of the TCC titled “Proving The General Type, Signs, The Number Of The Parcels Or Pieces, The Weight And The Quantity Of The Goods”.
According to Article 1239/1 of the TCC, a reservation must be made explaining if the carrier knows or reasonably believes that the bill of lading containing the declarations about the goods does not accurately and completely depict the goods as they were actually loaded, or if the carrier lacks the opportunity to specifically check these declarations. In contracts for international sales of goods, it is possible that the goods are purchased by the buyers according to the conditions in the bill of lading without seeing the goods, and the assurance is accepted by the banks according to these conditions31. Arranging a clean bill of lading, in the letter of credit applications of banks, is important for the acceptance of the document32. A regulation regarding a clean bill of lading is included in the Uniform Rules Regarding Letters of Credit No. 600 published by the International Chamber of Commerce. In the Article 27 of these rules, it is regulated that the bank will only accept a clean waybill and a clean waybill is a document that does not contain a record expressing the condition of the goods or their packaging33. In practice, it is not possible for the carrier to inspect the goods due to the late submission of the bill of lading and in such cases, if the carrier refrains from signing or if a defect or deficiency appears on the outside of the goods, the carrier should not remain silent and state the truth. If this situation is not stated on the bill of lading or the signing is not rejected by the carrier, there will be a presumption that the goods have been delivered in good condition under the terms of the bill of lading34. The provision of the Article 1239/2 of TCC confirms that if the carrier neglects to declare the external condition of the goods on the bill of lading, the goods will be deemed to have declared that they are in good external condition.
The Article 1239/3 of TCC contains the provision of “Without prejudice to the declarations made on the bill of lading based on the first paragraph, the bill of lading establishes a presumption that the carrier has received the goods as declared in the bill of lading or, if a bill of lading has been issued, that it has loaded it. The contrary of this presumption cannot be proved against the third party who has taken over the bill of lading in good faith, including the consignee, relying on the description of the goods it contains; The fourth paragraph of article 1186 is reserved.” It is not possible to prove the contrary of what is stated in the bill of lading against bona fide third parties. In the event that the third party takes over the bill of lading by relying on the definition of the goods in it, if there is damage or loss despite the absence of reservation at the time of receipt, then the contrary of the presumption in the Article 1239 of TCC can be only proved by claiming that it was not delivered properly like it was written on the bill of lading. The person concerned with the cargo does not have to prove the fault of the carrier and that the damage occurred during transportation. It is sufficient for the person who took over the bill of lading to prove that the delivery did not take place under the conditions stated in the bill of lading, and the burden of proof is changed35.
The exception to the regulation in the Article 1239/3 of TCC, which states that the presumption cannot be proven otherwise, appears to have been issued in the Article 1186/4 of TCC36. In the Article 1186/4 of TCC, there is a regulation as “If the shipper’s notification in accordance with the first paragraph is written on the waybill, these records constitute a presumption, but this presumption is not binding for the carrier. The third paragraph of Article 1239 does not apply to the records in question.” This provision includes other waybills and the records of the goods in the bill of lading within the meaning of Article 1239/3, states that it does not have the effect of irrefutable presumption in favour of the third-party bill of lading holder37.
D. Function of Proving the Freight
Regulations regarding the function of proving the freight of the bill of lading are included in the Article 1240 of TCC. In the justification of the Article38, it was stated that the regulation regarding the first paragraph was transferred from the 4th paragraph of Article 16 of the Hamburg Rules.
The Article 1240/1 of TCC concludes a regulation regarding in accordance with the subparagraph (l) of the first paragraph of Article 1229, the bill of lading, which does not include a record stating the freight will be paid by the consignee, or the bill of lading not including a record of the demurrage to be paid by the consignee at the loading port, creates a presumption that the consignee is not obliged to pay the freight or the demurrage. Considering the reference to Article 1229, it is stated that the bill of lading will contain the records that the freight will be paid by the consignee and the amount if it is to be paid.
There are two problems with the interpretation of the Article due to its transposition from the Hamburg Rules. The first problem is the reference to the subparagraph (l) of Article 1229/1 of the TCC; when looking at the provision, it is possible to say that only records such as “freight payable” or “freight collect” may not be sufficient and must be shown with the amount of freight to be paid. However, considering that the conjunction “or” in English is not reflected in this provision, this conclusion is not correct. In other words, if there is a record containing these statements, it should be concluded that the consignee can be held responsible for the freight. A second problem is that if the bill of lading does not contain a record that the freight has been paid or will be paid, it is understood that the consignee cannot be held responsible for the freight from the wording of the Article 1240/1 of TCC. However, it should be noted that it should be evaluated whether there is a reference to the charter contract and whether the record stating that the consignee will pay the freight in this agreement is a record within the meaning of paragraph 1 of Article 1240 of TCC. If the consignee takes over the charter party together with the bill of lading, it must be accepted that he/she has seen the record that she is responsible for the freight and has taken over in this way. Therefore, even if there is no “freight payable” record, the record should be concluded that it meets the condition in the Article 1240/1 of TCC39.
The freight is determined according to the size, number or weight of the goods specified in the bill of lading, unless otherwise concluded a condition in the bill of lading, as stated in the Article 1240/2 of TCC. It is stated in the continuation of the Article that the reservation regarding the declaration in the bill of lading issued in the Article 1239/1 of TCC are not true, and the reasons justifying the suspicion, or the lack of adequate control are not a condition to the contrary as mentioned in the Article 1240/2 of TCC40.
In Article 1240/3 of TCC, it is regulated that in the case of a reference to the carriage contract, the discharge period, the demurrage period and the demurrage money shall not be included within the scope of this reference. There must be clear provisions for this reference to cover the discharge period, the demurrage period and the demurrage money41.
VI. SITUATIONS OF DELIVERY WITH OUT BILL OF LADING
Under the Article 1230 of TCC, it was regulated that the legitimate holder of the bill of lading was authorized to take delivery of the goods. As a rule, the carrier must deliver the cargo in return for the presentation of the bill of lading. The purpose of this is to protect the carrier by the fact that the carrier will be freed from the carriage contract and its debts arising from the bill of lading upon the delivery of the goods in return for the presentation of the bill of lading, and to protect the bill of lading holder since bill of lading holder will be safe knowing that the bill of lading will be delivered in return for the presentation of the bill of lading42. However, there are some situations that the delivery without presentation of the bill of lading is possible.
When we examine the first situation, we must say that in the case where there is a provision in the contract contrary to the fact that the cargo can be delivered if the bill of lading is presented, then the delivery without a bill of lading is possible43.
If the goods are delivered without presenting the bill of lading, the debt does not expire and the obligation to deliver continues in carriage transactions by sea. On the other hand, if the carrier wants to avoid liability, the carrier may request the letter of guarantee and bank guarantee from the consignee. With this guarantee, if the bill of lading is not delivered on time, it is provided that the consignee and the bank undertake to pay the amount corresponding to the full value of the goods44. Therefore, the second situation of delivery without bill of lading is the situation of giving a letter of guarantee to the carrier in return for delivering the cargo without a bill of lading. With the letter of guarantee to be given, the carrier is protected against the compensation of the damages that may occur because of the fact that the carrier delivers the cargo to the wrong person45. In case there is not a letter of guarantee and the goods are delivered without presenting of the bill of lading, the carrier can compensate for the damages that may arise due to non-delivery or late delivery46.
The third situation is that the bill of lading, which is a valuable paper, is lost. In the first paragraph of Article 651 titled “Cancellation Decision” in the section of the TCC on negotiable instruments, it is regulated that in case of loss of negotiable instruments, the court may decide to cancel the negotiable instruments. In addition, in the second paragraph includes “The person who has the right on the bill at the time that the negotiable instrument is lost or the loss occurs may request the cancellation of the bill.”. According to Article 652 of TCC, upon to a decision to cancel, it is possible for the right holder to claim his/her right without an instrument. For this reason, as a result of someone proving that he/she is the right holder on the bill with a cancellation decision, the delivery can be occurred to the person without a bill of lading47.
Electronic bill of lading is the last situation where the cargo delivery without bill of lading is possible48. Although the delivery of the cargo without presenting the bill of lading is possible in the above-mentioned ways possible, these methods do not completely solve the problems that can be caused by the delivery without the bill of lading. However, since the loss is not possible and providing promptly at the port of destination, the electronic bill of lading prevents the damages that may be caused by the delivery without presentation of the bill of lading49.
VII. CONSEQUENCES OF DELIVERY WITHOUT BILL LADING
With the development of technology, the construction of vessels accelerated and voyage times were shortened. However, bills of lading cannot be delivered to the unloading port before the vessels arrive at the unloading port due to the fact that the postal service hasn’t had an accelerated growth in the same way50. Hence, although delivery without bill of lading is not recommended, since it may cause liability for the carrier, it is applied in international trade.
In case the cargo is delivered without a bill of lading, it may be possible to be faced with different risks and it may be in question. One of the risks in question is the cargo to be delivered to the wrong party related to delivery without bill of lading. In this case, the owner may be sued for delivery to the wrong person. The owner in this position will be deprived of the support of the P&I insurer and will need to resolve this issue on his/ her own responsibility with a letter of guarantee. For this, it is necessary to be careful when determining the person who will receive the cargo, to record all information carefully, and not to deliver the cargo without confirming that it is the same as the information on the letter of guarantee or the person notified by the lessee. The second risk is at the point of insurance coverage since the problems that the owner will face in case the bill of lading is not delivered will not be covered by the P&I insurance coverage. Another risk is that the owner, who accepts the delivery without bill of lading with the letter of guarantee, does not pay attention to the content of the letter of guarantee presented by the lessee. As a result, the carrier may be sued and the vessel may be arrested by the actual owner of the cargo51.
In general, against the risks that may be caused by the delivery types without bill of lading, the electronic bill of lading is kept in an electronic environment, it is not lost, and it can be obtained at the port of destination faster than a traditional bill of lading. If tampered with, the transactions can be recorded in the electronic environment as a result of the examination, allowing it to be determined who can do it. Due to the opportunity to track the bill of lading it has delivered, it reduces the likelihood of fraud and acts as a deterrent52, the electronic bill of lading substantially prevents the damages that can be caused by the delivery without bill of lading arising from the traditional bill of lading.
VIII. CONCLUSION
Consequently, the bill of lading, which has the qualities of a negotiable instrument, is crucial given the growth of global trade and the consequent expansion of international sales contracts. In this sense, the regulations have been made between the Art. 1237-1240 of TCC regarding four different proving functions such as proving the legal relationship of bill of lading, proving the carrier, proving the general type, signs, the number of the parcels or pieces, the weight and the quantity of the goods, and proving the freight. In accordance with the regulations of proving the legal relationship under the TCC, it is stated that the bill of lading will be taken as a basis in the legal relationship between carrier-holder of the bill of lading, the legal relations between carrier and shipper who are parties to charter party will be bound by the terms of the contract, and the copy of charter party must be submitted to a new holder of the bill of lading for alleging the terms of charter party against bill of lading holder in case of reference to voyage charter in the bill of lading. When we evaluate the function of proving the carrier of the bill of lading, it can be said that the article is compatible with its ratio legis, while considering that imposing responsibility to other people in return for concealing the carrier in order to avoid responsibility, and this regulation with also providing the possibility to disprove the presumption is conformable. Relating to the regulation on making reservations on the bill of lading and the function of proving of the bill of lading, in case there is a defect or deficiency that is obvious from the outside, the carrier should not remain silent and notify what is true. Otherwise, it is possible to say that the presumption that it was delivered well. Also, according to application of banks, in case of the presence of reservation in the bill of lading, in other words, in the absence of the clean bill of lading, the bank may avoid to pay, and therefore it may be stated that the regulation of clean bill of lading is important. Except this, although the bill of lading has the function of proving the freight, due to the transfer of the Article 1240/1 of the TCC from the Hamburg Rules, which contains the relevant regulations, we can say that the problems emerged regarding the interpretation of Article.
Despite the important function of proving of the bill of lading, the notion of the delivery without bill of lading emerged in the international trade with the progression of shipbuilding technology and because of the delay for not conveying the bill of lading to the port of destination before the cargo. Although the carrier has to deliver the cargo in return for the presentation of the bill of lading, it is possible to deliver the cargo without bill of lading with the electronic bill of lading, if the carrier demands a letter of guarantee against the delivery of the load, in line with the requirements in the freight transport by sea, with a contrary provision in the contract. However, the delivery without the bill of lading, causes some responsibilities and damages such as delivering the cargo to the wrong person, the insurance guarantee and the responsibility of the carrier. Nevertheless, it should be indicated that the preventing of damages, which is caused by the other delivery without the bill of lading types, is possible by using electronic bill of lading against such risks posed by the traditional bill of lading arriving late to the port of destination.
BIBLIOGRAPHY
AHMET SAİD BER, Elektronik Konişmento, 1st Edition, Ankara 2018. ALİ BOZER/ CELAL GÖLE, Kıymetli Evrak Hukuku, 10th Edition, Ankara 2021.
BURCU BERRAK, Konşimento Kaynaklı En Sık Karşılaşılan Problemler Ve Taşıyanlara Tavsiyeler, 2018, https://turkpandi.com/assets/ page_docs/press/sirkuler/Konsimento-Kaynakli-Problemler.pdf (Date of Access: 12.11.2022).
BURCU BERRAK, Türk Pandi Mayıs 2018, https://turkpandi.com/ assets/page_docs/press/sirkuler/Konsimento-Kaynakli-Problemler. pdf (Date of Access: 27.09.2022). BÜLENT SÖZER, Deniz Ticareti Hukuku, 6th Edition, Sapanca 2021. CANSU AYTAŞ, “Konişmentonun Rolü ve İşlevi”, İstanbul Ticaret Üniversitesi, İstanbul 2018.
CÜNEYT SÜZEL, “Deniz Ticareti Hukukunda Taşıtan ve Yükleten Kavramları: Hakları, Borçları ve Sorumlulukları”, Doctoral Thesis, İstanbul 2013.
CÜNEYT SÜZEL, Navlun Sözleşmesinden Doğan Sorumluluğun Sınırlandırılması, İstanbul 2021. EMRE CUMALIOĞLU, “Kırkambar Sözleşmesi”, Dokuz Eylül Üniversitesi Sosyal Bilimler Enstitüsü Özel Hukuk Anabilim Dalı Özel Hukuk Programı, Doctoral Thesis, 2010.
FATMA AYDOĞDU, Konişmentonun İspat Fonksiyonu, İstanbul 2006.
FEVSİ TOPSOY, Deniz Ticareti Hukuku 1, 1st Edition, İzmit 2020.
G. VENÜS CÖMERT, Taşıyanın Gemiyi Denize, Yola ve Yüke Elverişli Bulundurma Borcu, 1st Edition, İstanbul 2022.
H. MURAT DEMİRKIRAN, “Taşıyanın Konişmento İçeriğinden Sorumluluğu”, Doctoral Thesis, İstanbul 2007.
HACI KARA, “Deniz Ticaretinde Elektronik Konişmento ve Siber Güvenlik”, Journal of Türkiye Adalet Akademisi, Volume 10, No. 37, 2019.
İLKER ERDİNÇ ERGÜN, “Gemi Acenteliğinin Hukuki Çerçevesi”, Master’s Thesis, İstanbul 2019.
İSMAİL DEMİR, Deniz Ticareti Hukuku Ders Kitabı, Ankara 2021. MEHMET BAHTİYAR, Makaleler I, 1st Edition, İstanbul 2008.
MELTEM DENİZ GÜNER ÖZBEK, “Yeni Türk Ticaret Kanunu’nda Konişmento ve Konişmentonun İspat Kuvveti”, Journal of Marmara Üniversitesi Hukuk Fakültesi Hukuk Araştırmaları, Volume 18, No. 3, 2012. NATİG ASGAROV, Yükle İlgililerin Taşıma Sözleşmesi Gereğince Beyanda Bulunma Yükümlülüğü, Ankara 2012.
RAYEGÂN KENDER/ ERGON ÇETİNGİL/ EMİNE YAZICIOĞLU, Deniz Ticareti Hukuku Temel Bilgiler, İstanbul 2017. ŞABAN KAYIHAN, Deniz Ticareti Hukuku, 2nd Edition, İstanbul 2021.
TAHİR ÇAĞA/ RAYEGAN KENDER, Deniz Ticareti Hukuku II, 10th Edition, İstanbul 2010.
TAHİR ÇAĞA/ RAYEGAN KENDER, Deniz Ticareti Hukuku, Navlun Sözleşmesi, C. II, 8th Edition, İstanbul 2006.
TAMER BOZKURT, Deniz Ticareti Hukuku, 1st Edition, Ankara 2021.
TAYFUN ERCAN, Türk Hukukunda Konişmentonun Rolü ve İşlevi, 1st Edition, İstanbul 2020. TIBA MEXİCO (2017). What is the difference between a Bill of Lading and a Sea waybill?. Mexico City, Mexico. https://www.tibagroup. com/mx/en/difference-bill-of-lading-sea-waybill#top (Date of Access: 12.10.2022).
ZEYNEP ÖZGENÇ, “Milletlerarası Özel Hukukta Navlun Sözleşmesi”, Doctoral Thesis, 2014.
ZEYNEP TUNCA ÖZCAN, “Yükleten Tarafından Temiz Konişmento Karşılığında Verilen Garanti Mektubu ve Geçerliliği”, Journal of Legal Hukuk, Volume 18, No. 214, 2020.
ZİYA AKINCI, Milletlerarası Tahkim, 6th Edition, İstanbul 2021.
FOOTNOTE
1 Turkish Commercial Code No. 6102 m. 856, Official Gazette dated 14.02.2011, and numbered 27846 (OG).
2 Turkish Commercial Code No. 6102 m. 858, Official Gazette dated 14.02.2011 and numbered 27846 (OG).
3 Turkish Commercial Code No. 6102 m. 858, Turkish Commercial Code Draft and Justice Commission Report (1/324). Web site: https://www5.tbmm. gov.tr/tutanaklar/TUTANAK/TBMM/ d23/c032/tbmm23032022ss0096.pdf (Date of Access: 12.10.2022).
4 Meltem Deniz Güner Özbek, “Yeni Türk Ticaret Kanunu’nda Konişmento ve Konişmentonun İspat Kuvveti”, Journal of Marmara Üniversitesi Hukuk Fakültesi Hukuk Araştırmaları, Volume 18, No. 3, 2012, p. 233-254. https://dergipark.org.tr/tr/pub/maruhad/issue/48098/608162.
5 Hacı Kara, “Deniz Ticaretinde Elektronik Konişmento ve Siber Güvenlik”, Journal of Türkiye Adalet Akademisi, Volume 10, No. 37, 2019, p. 75-106.
6 Tıba Mexico, “What is the difference between a Bill of Lading and a Sea waybill?”. Mexico City, Mexico. 2017, https://www.tibagroup.com/mx/ en/difference-bill-of-lading-sea-waybill#top (Date of Access: 12.10.2022).
7 Turkish Commercial Code No. 6102 m. 856, Official Gazette dated 14.02.2011, and numbered 27846 (OG).
8 Emre Cumalıoğlu, “Kırkambar Sözleşmesi”, Dokuz Eylül Üniversitesi Sosyal Bilimler Enstitüsü Özel Hukuk Anabilim Dalı Özel Hukuk Programı, Doctoral Thesis, İzmir 2010, p. 98.
9 Tahir Çağa/ Rayegan Kender, Deniz Ticareti Hukuku, Navlun Sözleşmesi, Volume II, 8th Edition, İstanbul 2006, p. 65.
10 Burcu Berrak, Türk Pandi Mayıs 2018, https://turkpandi.com/assets/ page_docs/press/sirkuler/Konsimento-Kaynakli-Problemler.pdf (Date of Access: 27.09.2022)
11 H. Murat Demirkıran, “Taşıyanın Konişmento İçeriğinden Sorumluluğu”, Doctoral Thesis, İstanbul 2007, p. 22.
12 Zeynep Özgenç, “Milletlerarası Özel Hukukta Navlun Sözleşmesi”, Doctoral Thesis, İstanbul 2014, p. 94.
13 Özgenç, p. 94.
14 Çağa/ Kender, p. 3-6.
15 Güner Özbek, p. 240.
16 Rayegân Kender/ Ergon Çetingil/ Emine Yazıcıoğlu, Deniz Ticareti Hukuku Temel Bilgiler, İstanbul 2017, p. 194; Demirkıran, p. 23; Güner Özbek, p. 239; Tamer Bozkurt, Deniz Ticareti Hukuku, 1st Edition, Ankara 2021, p. 154; Fatma Aydoğdu, Konişmentonun İspat Fonksiyonu, İstanbul 2006, p. 26; Özgenç, 2014, p. 96; Özçelik, 2007, p. 24.
17 Cansu Aytaş, Konişmentonun Rolü ve İşlevi, İstanbul 2018, p. 10.
18 Fevzi Topsoy, Deniz Ticareti Hukuku 1, 1st Edition, İzmit 2020, p. 309.
19 Natig Asgarov, Yükle İlgililerin Taşıma Sözleşmesi Gereğince Beyanda Bulunma Yükümlülüğü, Ankara 2012, p. 33.
20 Turkish Commercial Code No. 6102 (“TCC”) Art. 1237.
21 Bozkurt, p. 169.
22 Mehmet Bahtiyar, Makaleler I, 1st Edition, İstanbul 2008, p. 63.
23 Bozkurt, p. 170.
24 Bülent Sözer, Deniz Ticareti Hukuku, 6th Edition, Sapanca 2021, p. 450.
25 İsmail Demir, Deniz Ticareti Hukuku Ders Kitabı, Ankara 2021, p. 324.
26 Turkish Commercial Code No. 6762 (“oTCC”) Art. 1099.
27 Demir, p. 324.
28 Cüneyt Süzel, Navlun Sözleşmesinden Doğan Sorumluluğun Sınırlandırılması, İstanbul 2021, p. 60.
29 Sözer, p. 451.
30 Demir, p. 324.
31 Zeynep Tunca Özcan, “Yükleten Tarafından Temiz Konişmento Karşılığında Verilen Garanti Mektubu ve Geçerliliği”, Journal of Legal Hukuk, Volume 18, No. 214, 2020, p. 4500.
32 Topsoy, p. 374.
33 Özcan, p. 4499, 4501.
34 Özcan, p. 4502.
35 G. Venüs Cömert, Taşıyanın Gemiyi Denize, Yola ve Yüke Elverişli Bulundurma Borcu, İstanbul 2022, p. 327.
36 Şaban Kayıhan, Deniz Ticaret Hukuku, 2nd Edition, İstanbul 2021, p. 186.
37 Süzel, Navlun Sözleşmesi, p. 247.
38 Justification of TCC No. 6102
39 Süzel, Deniz Ticareti Hukukunda Taşıtan ve Yükleten Kavramları: Hakları, Borçları ve Sorumlulukları, Doctoral Thesis, İstanbul 2013, p. 312.
40 Ali Bozer/ Celal Göle, Kıymetli Evrak Hukuku, 10th Edition, Ankara 2021, p. 542.
41 Demir, p. 326.
42 Demirkıran, p. 105.
43 İlker Erdinç Ergün, Gemi Acenteliğinin Hukuki Çerçevesi, Master’s Thesis, İstanbul 2019, p. 76.
44 Tayfun Ercan, Türk Hukukunda Konişmentonun Rolü ve İşlevi, 1st Edition, İstanbul 2020, p. 47-48.
45 Ergün, p. 76.
46 Ercan, p. 48.
47 Ergün, p. 76.
48 Ergün, p. 77.
49 Ahmet Said Ber, Elektronik Konişmento, 1st Edition, Ankara 2018, p. 50.
50 Ber, p. 93
51 Burcu Berrak, Konşimento Kaynaklı En Sık Karşılaşılan Problemler Ve Taşıyanlara Tavsiyeler, 2018, https:// turkpandi.com/assets/page_docs/ press/sirkuler/Konsimento-Kaynakli-Problemler.pdf (Access Date: 12.11.2022).
52 Ber, p. 100-102
