What this guide covers

Topic-specific conditions and document preparation.

A short questionnaire explains which records may matter and produces a document checklist. It does not assess eligibility or predict a case outcome.

Documents discussed in this guide
  • Transport agreement and all CMR copies
  • Takeover photographs and reasoned reservations
  • Packing, loading and securing instructions/records
  • Expert report, preserved packing and damage records
  • Delivery, damage reservations and receipt of written claim
  • Any policy, payment order and service of objection

Full topic-specific Information Guide ↓

A carrier’s assertion that the packing was unsuitable does not resolve a cargo-damage dispute. CMR provides a special-risk defence for goods inherently susceptible to damage or wastage when unpacked or improperly packed, but the connection with the actual circumstances must be established. An observable problem at takeover, conduct during carriage and the real cause of damage require separate examination. Neither claimant nor carrier should build the file around a single consignment-note entry.

1. Establish first whether CMR applies

Article 1 requires consideration of carriage of goods by road for reward, agreed takeover and delivery places in two different countries and at least one of those countries being a contracting state, subject to scope exceptions. The letters CMR on a document are not sufficient by themselves. Examine the transport agreement, route and parties’ capacities together. Absence of a consignment note does not itself exclude an otherwise qualifying contract from CMR.

This article concerns cargo damage during carriage and the packing defence. A freight-only claim, a carrier’s claim against the sender for damage to other goods and an insurer’s subrogated claim are different claims. Before calculating liability, identify who claims, in what capacity, against whom and for which loss. Insurance coverage must also be compared separately with the carrier’s CMR liability.

2. What does a takeover reservation establish?

Article 8 governs the carrier’s checking of the apparent condition of the goods and packing at takeover. A reservation about an observable packing deficiency should be specific and reasoned: which crate, what external damage or which missing protection? A general statement that contents were unchecked is not equivalent to describing an apparent packing defect. Under Article 8(2), these reservations bind the sender only if expressly accepted in the consignment note.

Absence of specific reservations creates a rebuttable presumption under Article 9(2) that the goods and packing appeared in good condition at takeover. It is not an absolute warranty that a closed crate contained no concealed defect. Takeover photographs, loading images, packing design and technical examination should be considered together. An apparent defect and a problem discoverable only by opening the crate should not be treated as interchangeable.

3. How does proof work for the special-risk defence?

Article 17(4)(b) addresses a special risk connected with the nature of the goods, rather than every allegation of poor packing. When the carrier establishes that the loss or damage could, in the circumstances, be attributed to that risk, Article 18(2)’s presumption becomes relevant. The claimant may show that the loss or damage was not attributable wholly or partly to that risk. Merely recording a packing defect in a later report does not eliminate the need for a technical causal explanation.

Packing deficiency and loading or stowage by the sender under Article 17(4)(c) are different facts. They may coexist, but who did what and how that contributed to damage still require separate explanation. For example, even a suitable crate may be inadequately secured in the vehicle. Conversely, an externally sound crate may contain inadequate internal protection requiring technical investigation. These are possible examples, not conclusions about an individual file.

4. Where the carrier also contributed

Article 17(5) requires attribution where exempting factors combine with factors for which the carrier is liable. Identifying defective packing therefore does not remove all carrier conduct from examination. Article 41’s mandatory protection also prevents a general contractual disclaimer from being accepted as valid in every case. Any apportionment must be considered against the actual causes and their contribution to the damage.

In its judgment of 28 March 2012, E.2012/11-68, K.2012/244, the Court of Cassation General Assembly of Civil Chambers considered damage to glass carried to Russia and loading/stowage by the sender. It reversed dismissal against the carrier because the carrier’s own contribution required assessment in light of its supervision and warning duties concerning safe carriage. Dismissal against the liability insurer was, however, upheld on the particular policy coverage. The judgment establishes neither a fixed fault percentage for every case nor automatic insurance payment.

5. Which evidence and which calculation of loss?

Preserve the transport agreement, all consignment-note copies, takeover reservations, packing and loading instructions, dated images and delivery record together. An expert report should reveal not only its conclusion but its method, the goods’ condition when examined and why alternative causes were excluded. Preserving packing and damaged components appropriately, allowing the other party an opportunity to inspect and preventing further loss strengthen technical assessment.

For damage, Article 25 focuses on diminution in value and applicable ceilings; producing the sale invoice alone does not establish recovery of the entire price. Weight, the affected part, salvage value, liability limits and any special declaration require examination. Article 10 separately governs the sender’s liability to the carrier for damage to persons, equipment or other goods and expenses caused by defective packing, with an exception for an apparent or known defect accepted without reservation. That provision should not be confused with the cargo interest’s claim against the carrier.

6. Do not miss deadlines while debating packing

Article 30 addresses reservations at delivery for apparent damage and written reservations within seven days of delivery, excluding Sundays and public holidays, for non-apparent damage. The delivery date is excluded from calculation. The evidential effect of failing to reserve cargo damage is different from expiry of limitation under Article 32. Do not automatically apply the twenty-one-day written reservation for delay loss to packing-related cargo damage.

For damage claims, Article 32 ordinarily provides one year running from delivery; three years may apply to wilful misconduct or default equivalent under the law of the court seized. The starting day is excluded. A qualifying written claim under Article 32(2) may suspend limitation; written rejection and return of attached documents matter. Repeated claims with the same object do not create further suspension. This special calculation cannot be collapsed into the objection timetable under Turkish enforcement law.

7. How do Turkish litigation and enforcement differ?

Article 31 identifies country connections for litigation; it does not by itself determine the competent Turkish court or enforcement procedure. Commercial-court subject-matter jurisdiction requires examination under Articles 4–5 of the Commercial Code and the actual relationship. The Article 5/A mediation requirement must be considered separately for commercial monetary claims, compensation and actions to annul enforcement objections. Commencing enforcement and satisfying mediation before litigation are different stages.

In ordinary non-judgment enforcement by attachment, Article 62 of the Enforcement and Bankruptcy Law provides seven days from service to object to the payment order; timely objection suspends enforcement. Article 67 provides a separate one-year period from service of the objection on the creditor for an action to annul it. This does not add a year to CMR limitation; each starting point and any suspension or interruption must be examined separately. Establish causation and evidence first, then choose the demand, mediation, litigation or enforcement route accordingly.

Sources

General information; individual documents, facts and procedures need separate review.

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CMR defective packing: proof and document guide

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