Att. Dr. Mustafa Aykanat
Aug 9, 2023
Turkish Supreme Court Decision On Subrogation Right of the Seller's Insurer
Republic of Türkiye Supreme Court
11th Civil Chamber 2017/682 E. , 2018/8066 K.
"Case Law Text"
COURT : COMMERCIAL COURT
In the case between the parties ... against the decision of the Chamber dated 21/11/2016 and numbered 2015/11819-2016/8979, which approved the decision dated 27/02/2014 and numbered 2012/238-2014/31 given by the 6th Commercial Court of First Instance, the defendant ... ... S.A., the defendant ... Denizcilik ve Nak. A.Ş. attorney, and it is understood that the petition for correction of the decision was submitted within the time limit, and after the report prepared for the file was heard and the petitions, pleadings, hearing minutes and all documents in the file were read and examined, the necessity was discussed and considered:
The plaintiff's attorney stated:
that his client had a transportation commodity insurance policy with the non-suiting ...Import Ihr Ltd Şti, that the transportation of the goods subject to the policy from Turkey to Russia is covered,
that the containers containing the insured commodity were determined to be empty at the destination, on 14.07.2011, a container was purchased from ... for the loading of goods to be exported,
that the commodity was loaded into this container,
that the container was transported by sea from Marport,
that there was no commodity found at Russian Customs,
Claiming that his client paid 18.723,97 TL to the insured on 24.08.2011 and became subrogated to his rights, he demanded the collection of this amount from the defendants with advance interest to be accrued from the date of payment.
The defendants requested the dismissal of the lawsuit.
The court's decision on the partial acceptance of the lawsuit according to the claim, defense and the entire file scope was upheld by our Chamber upon the appeal of the defendant's attorney.
This time, the defendant's attorney has requested for correction of the decision.
1- The lawsuit is related to the claim for subrogation arising from the transportation commodity insurance policy. In the concrete case, the defendant ... Ith Ihr Tekstil San ve Tic Ltd Şti exported to Russia, the plaintiff took out a transportation commodity insurance policy. In the controls made at the destination, it was determined by the customs authorities that the goods were stolen from the container in which the goods were transported, and a report was kept regarding this, and as a result of the expertise studies carried out by the plaintiff, the damage fee was paid to the insured and a subrogation claim was filed against the defendant companies that were stated to have carried out the transportation. As a result of the trial conducted by the court, there is no inconsistency in the determinations and evaluations that the road transportation of the goods after the port is not covered by the insurance and that the damage occurred during the sea transportation.
However; it is understood from the invoice issued by the insured seller in the file, which includes the goods subject to damage, that the sales contract was made according to the FOB sales method.
In the FOB sales method, the exporter delivers the goods to the deck of the ship at the port determined by the buyer on the date specified in the contract and transfers the costs and risks that will occur from that moment to the importer. The exporter is obliged to fulfill the formalities related to export and to cover the port and loading costs.
The exporter of the insured goods in the policy, which is shown as the basis for the subrogation relationship by the plaintiff is .... Ith Ihr Tekstil San ve Tic Ltd Şti and the damage amount was paid to this company after the expertise examination.
In accordance with these explanations, in the resolution of the dispute, it is important whether the sales price of the goods exported by the insured company was collected by the insured. Namely; in the event that the price of the goods subject to export is collected in advance, since all the damage and benefit of the transported goods will pass to the buyer from the moment the insured goods are loaded on the deck of the ship that will carry out the transportation in accordance with the FOB sales contract, the out-of-case insured, who is in the position of exporter due to transportation, will not have an insurable interest and therefore the payment made to the insured will be in the nature of a souvenir payment.
In the event that the price of the exported goods has not been collected, since the insured has an insurable interest until the delivery to the buyer within the framework of the obligation regarding the delivery of the goods, the payment made will be considered a valid payment and accordingly, the carrier and / or its liability insurer may be recourse.
In that case, it was not correct for the court to make a written judgment with an incomplete examination and written judgment without conducting research and evaluation regarding this issue, and it was necessary to decide to revoke the court decision on the above-mentioned grounds by accepting the decision correction objections of the defendant's attorney, by removing the approval decision of our Chamber dated 21.11.2016 and numbered 2015/11819 Esas, 2016/8979 Decision....
CONCLUSION: For the reasons explained in subparagraphs (1) and (2) above, the request for correction of the decision of the defendant's attorney is accepted and:
It was unanimously decided on 19/12/2018 that the confirmation decision of our Chamber dated 21.11.2016 and numbered 2015/11819 Main, 2016/8979 Decision should be revoked and the judgment should be DISMISSED in favor of the named defendant, for the reasons explained in subparagraph (3), it is not necessary to examine the other decision correction requests of the defendant's attorney, and the pre-paid appeal, appeal writ and decision correction fees should be returned to the decision correction requestor upon request, it was decided unanimously on 19/12/2018.
For a detail review and comments about this decision please see :
KARAARSLAN, Tekincan Akif. "Yargıtay 11. Hukuk Dairesinin FOB Satışlarda Sigorta Menfaatine İlişkin E. 2017/682-K. 2018/8066 Sayılı Kararının Değerlendirilmesi." Çukurova Üniversitesi Hukuk Araştırmaları Dergisi 1 (2023): 160-175.