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TURKISH SUPREME COURT’S INTERPRETATION OF WARSAW CONVENTION ARTICLE 22 ON LIABILITY FOR ACTUAL LOSS DURING CARRIAGE BY AIR

THE TURKISH SUPREME COURT ruled that an air carrier is liable to pay the actual loss where the consignor made, at the time when the package was handed over to the carrier, a special declaration of interest in delivery at destination as per Warsaw Convention Article 22 as amended by the Hague Protocol. In the case, a Turkish Bank delivered a cheque with the surn of DF 43.261 on 09.09.92 to DHL Courier carrier to be delivered to Amro Bank N.V. The consignor bank had written the serial number of the cheque on the receipt and DHL had received the envelope being aware that it contained a bank cheque with the serial number as indicated on the envelope. (The decision does not mention whether the sum of the cheque had also been declared and if a supplementary fee had been paid by the consignor). The envelope was lost during the carriage by air and the insurance company who insured the envelope paid TL 161.019.172 as compensation to the consignor bank and claimed this amount from the carrier DHL. The Turkish Supreme Court has decided in this case as follows: In the subject case; the consignor has written the serial number of the consigned cheque in the air carriage receipt and the defendant has received the cheque seeing this remark. According to the Article 22/paragraph (a) of the Hague Protokol, the rule of limitation of liability will not be applicable if the consignor has made a special declaration of interest in delivery at destination and the consignor will be able to claim his actual loss. The cheque is a remittance made for the payment of a certain sum of money without any condition or clause. As the kind of carried good has been written as cheque in the air carriage receipt and the sum of the cheque could be fixed and there is not any conflict on the amount paid to the insured by the insurance company, there is no need to consider gold value in the subject event. As the actual loss is evident and it has been accepted that the complete value could be claimed in this kind of situations in the Article 22/a Warsaw Convention as amended by the Hague Protocol, the judgment of the Court has been considered correct. Decision of the Turkish Supreme Court, No. 1994/6282, 1995/182 (Turkish Sup. Ct., 11th Law Dep’t Jan. 19,1995)

Yasar Ozturk

Attorney at Law