Verdict of the Council of state that awakens firms engaged in foreign trade
After the verdict of the Council of state to cancel the “delivery order” in imports, chameleon expenses that were issued by various names such as “cargo delivery certificate” and caused $ 5 billion additional costs to the country's economy each year is terminated. But agencies working on behalf of forwarder companies that are used to charging this price for years continue to receive money by changing its name again in conjunction with temporary customs warehouses.
The only document in international transport is the “bill of lading”, that is, the transport bill, which determines by contract how and under what conditions the goods will be transported and delivered. In order to clarify the minds on these issues, we interviewed with Istanbul University faculty member, also logistics lawyer, Dr. Turkay Özdemir about “delivery order” in international transport.
Can you tell us about the delivery process of the imported goods to the buyer and how the cargo delivery order is issued?
In fact, goods subject to import are mostly supplied through a sales contract or finance lease. A “sales contract” is made between the seller and the buyer of a good subject to an international sales contract, and where and how the seller will deliver the goods, at what costs, is the subject of the sales contract. For example, a buyer who buys a machine sold by a German seller and needs it in Turkey-Ordu can buy the goods in Germany, as well as in Ordu to be delivered in the area he needs. According to this agreement, the person who will transport the goods and take delivery from the carrier also changes. In fact, the buyer can buy the goods on the basis of level of taxes, according to the payment time plan and the supply situation, as delivered in the customs warehouse or in a way that will be delivered in another place, such as the port area, terminal delivery. Here, according to the terms of the sales contract; the obligation of transporting the goods is organized by either the seller or the buyer. The carrier must also deliver the goods at the end of the transport to the relevant person and place in accordance with the contract between the buyer and seller.
At the end of the transport process, the delivery of the goods to whom and where was determined. So, it will be delivered to the buyer, seller or person at the specified place, but for what will the carrier deliver when it reaches its destination and how?
A person who wants to take delivery of the goods at the end of the transport process often proves himself with a type of transport document, such as an air freight bill, bill of lading or a bill of goods, or CMR of transport. A person who proves the authority to import the goods will receive the goods because it is written on the transport bill or because there is an instruction. In the transport bill, the person who will receive the goods or the place where the goods will be delivered are also informed to the carrier, and this person is written as the receiver on the bill. If so, the person who wants to receive the goods will be able to receive the goods when customs permits as they prove that they are the buyer according to the Transport Bill. The carrier has no discretion here. However, unlike road transport, especially in airline, sea and rail transport, the transport process ends at the port, airport or terminal. In this case, the buyer must receive the goods not directly from the carrier, but from temporary storage places where the goods are left at these destinations by the carrier.
Then doesn't the buyer have to pay a price when buying their goods in areas other than temporary storage? How can the buyer get the goods from here when the imported cargo is left to these temporary storage enterprises, especially in places such as ports, airports, terminals?
Goods left in temporary storage areas, port or terminal or airport temporary storage areas are left here for the buyer to whom cargo is shipped. In fact, it is not in the carrier's own interest to leave the goods here. As the interest belongs to the buyer, the obligations arising here will belong to the buyer. If the vehicle does not have an instruction to the contrary or an instruction to the contrary in the transport document, the persons who can receive the goods from these places are still the persons specified as the buyer-sender in the transport bills. Persons who prove to customs that the buyer/receiver or authorized by them with a transport bill will be able to receive the goods from here. But in transport made by deciding on delivery to temporary storage, operations performed in areas before temporary storage do not cause a surplus cost to the buyer.
Is person who leaves the goods in storage areas such as a port, terminal or airport another person- carrier and person who will receive the goods from here- buyer different parties?
Yes, the carrier is already 3rd party who holds goods for interest of another party. It cannot use the load and benefit from the load, it cannot dispose the load. The 3rd party, the right holder for the load; may be sender or seller as well buyer or receiver. In fact, sometimes both the sender and the receiver and the rightful owner of the goods can be the same person. But the rightful owner of the property is never a carrier. If the carrier has a right to the goods, the contract of carriage cannot be mentioned, the carrier carrying its own goods is not legally a carrier. For this reason, whoever will receive the goods from the temporary storage place where goods are left the will also be the rightful owner of the cargo, not the carrier.
During the delivery of the goods from the storage place to the buyer, is it not necessary to receive an instruction from the carrier to notify the carrier who left the goods here?
Carriers and therefore agencies representing them have the right to imprisonment on the goods due to the mandatory-necessary costs that they will receive or make for the cost of transport, as can be understood from the bills of carriage. But this right requires constant retention, not imprisonment; it requires recourse to legal means for collection. At that time, the carrier should warn the place of temporary storage, claiming that it has such a right to leave the goods in the place of temporary storage. In other words, if the goods were delivered to the storage area by asserting their right from the beginning, the temporary storage place will be able to avoid delivery to the buyer of the goods due to these rights of the carrier. In this case, the carrier must give orders and instructions and deliver the cargo to the buyer or exercise the unfulfilled carrier's right to imprisonment by way of enforcement. If such a legal process is not carried out; and if the carrier's right to imprisonment has not been put forward when delivering the goods to the place of storage; after it was left here there is no right to imprisonment in favor of carrier. For this reason, the temporary storage operator must deliver the goods to the person who proves that he is entitled to a bill of lading or other transport bill of lading, without the need for the carrier to give instructions. In short, if there is no legally protected claim, there cannot be a right to imprisonment that can be used. Enforcement agencies and the legal system have to determine the process of execution of the right to imprisonment, or the carrier has no right to imprisonment without justification, because he wants such. Even in the face of the claim of unfair and permanent right to imprisonment; malice or reckless conduct defect may be suggested, as cases against the carrier will be subject to delay. A carrier who does not deliver the goods to its buyer and prevents delivery will also not be fully entitled to the right to freight. Already sender is the main freight debtor. Agencies may not create a claim on their behalf and account against the buyer for service fees that they must receive from the carrier. How much can be received for what should initially be determined in the Transport Bill. Of course, a contract that creates a non-consensual debt against a third party in violation of the country of destination legislation and international transport agreements does not apply even if it is concluded between the vehicle and the carrier.
Then the verdict of the Council of State is equitable
The verdict is really equitable in accordance with the law. After this stage, when the trial process is observed, it is a verdict made by dozens of valuable jurists, evaluating the legislation in total. It lifts a significant burden on the Turkish transport sector and foreign traders. Such a legal obligation can never be mentioned in the form of a delivery order, a cargo delivery bill, or a similar document. By this verdict, after receiving the work in the transport cost-freight competition, an illegal practice of destination carrier agencies that settled in the form of buyer abuse was terminated.