The rules and procedures for ship arrest in Turkey are specified under the Turkish Commercial Code no. 6102 (“TCC”) and the Enforcement and Bankruptcy Code no. 2004 (“EBC”) (The general rules of the EBC apply to the enforcement of ship arrest unless otherwise stated in the TCC.) This memo has been prepared to explain the fundamental points of ship arrest briefly.
By way of a general introduction, it needs to be highlighted that the 1999 Geneva “International Convention on Arrest of Ships” (“Convention”) has entered into force for Turkey on 11 December 2019. Indeed, Turkey’s letter of accession was deposited on 11 September 2019 in accordance with Article 12(3) of the Convention. Pursuant to its Article 14(2), the Convention became binding for Turkey 3 months following this step. On a strict literal reading of its Article 8(1), the Convention must now be applied by Turkish Courts directly. However, given that the Convention has already been implemented almost verbatim in the TCC, which has come into force on 1 July 2012, it is highly likely that the Courts will continue applying the provisions of the Convention as enacted in the TCC. There is also a rather practical reason for such approach: in the TCC, the provisions of the Convention are brought together systematically with many domestic rules on ship arrest. As such, it will presumably be easier for Courts and practitioners to continue referring to the TCC as a whole, rather than applying the Convention and the residual provisions of the TCC as two-tier-legislation. Therefore, we will continue to refer in this memo to the corresponding provisions of the Convention as enacted in the TCC.
Ship arrest
Article 1353 of the TCC provides that in order to secure maritime claims (described herein below), a vessel can only be arrested on the basis of a precautionary attachment (arrest order) (ihtiyati haciz). This rule also applies for maritime claims secured by contractual or statutory lien rights. Thus, it is not possible to request the establishment of a precautionary injunction (ihtiyati tedbir) or the detention of the vessel by other means.
It is also not possible to rule for an arrest order (and therefore arrest a vessel) for receivables other than maritime claims.
Maritime claims
The maritime claims which are listed under Article 1352 of the TCC and which are protected by the right of the creditor to apply for the arrest of the ship are as follows:
- loss or damage caused by operation of the ship;
- loss of life or personal injury occurring, whether on land or on water, in direct connection with the operation of the ship;
- salvage operations or any other salvage agreement, including, if applicable, special compensation relating to salvage operations in respect of a ship which by itself or its cargo threatened damage to the environment;
- damage or threat of damage caused by the ship to the environment, coastline or related interests; measures taken to prevent, minimize, or remove such damage; compensation for such damage; costs of reasonable measures of reinstatement of the environment actually undertaken or to be undertaken; loss incurred or likely to be incurred by third parties in connection with such damage; and damage, costs, or loss of a similar nature to those identified in this subparagraph (4);
- costs or expenses relating to the raising, removal, recovery, destruction or the rendering harmless of a ship which is sunk, wrecked, stranded or abandoned, including anything that is or has been on board such ship, and costs or expenses relating to the preservation of an abandoned ship and maintenance of its crew;
- any agreement relating to the use or hire of the ship, whether contained in a charter party or otherwise;
- any agreement relating to the carriage of goods or passengers on board the ship, whether contained in a charter party or otherwise;
- loss of or damage to or in connection with goods (including luggage) carried on board the ship;
- general average;
- towage;
- pilotage;
- goods, materials, provisions, bunkers, equipment (including containers) supplied or services rendered to the ship for its operation, management, preservation or maintenance;
- construction, reconstruction, repair, converting or equipping of the ship;
- port, canal, dock, harbour and other waterway dues and charges;
- wages and other sums due to the master, officers and other members of the ship’s complement in respect of their employment on the ship, including costs of repatriation and social insurance contributions payable on their behalf;
- disbursements incurred on behalf of the ship or its owner, including the loans taken for the ship;
- insurance premiums (including mutual insurance calls) in respect of the ship, payable by or on behalf of the shipowner or demise charterer;
- any commissions, brokerages or agency fees payable in respect of the ship by or on behalf of the shipowner or demise charterer;
- any dispute as to ownership or possession of the ship;
- any dispute between co-owners of the ship as to the employment or earnings of the ship;
- a mortgage or a “hypothèque” or a charge of the same nature on the ship;
- any dispute arising out of a contract for the sale of the ship.
A receivable that is within the scope of the above-mentioned maritime claims constitutes a ground for an arrest order.
Court Procedure
Jurisdiction
An arrest order may be granted by a Turkish court both for foreign flagged vessels and for Turkish flagged vessels. However, the flag of the vessel is relevant in determining the jurisdiction of the court and the competent court.
TURKISH FLAGGED VESSELS
An arrest order for Turkish flagged vessels can only be granted by the court located at the place where the vessel is anchored at, moored to a buoy or a vault, is berthed at, or is taken into dry dock, or by the courts indicated below:
- in case of vessels registered with a Turkish Ship Registry; the court at the place of the registry.
- in case of vessels not registered with a registry; the court at the place of residence of the ship owner.
- in case of vessels registered with the special registry retained in accordance with paragraph 3 of Article 941, the court at the place of residence of the charterer.
FOREIGN FLAGGED VESSELS
An arrest order for a foreign flagged vessel in Turkey can only be granted by the court located at the place where the vessel is anchored at, moored to a buoy or a vault, is berthed at, or is taken into dry dock.
According to Article 1356 of the TCC, the competent court as provided above shall be authorised to grant an arrest order, even if, according to a jurisdiction or arbitration provision included in the relevant agreement or a jurisdiction or arbitration agreement which was separately made, an arbitration tribunal or a foreign court is authorised to grant a ruling in relation to the merits of the maritime claim with respect to which an arrest order will be enforced, or the merits of the maritime claim is subject to the jurisdiction of a foreign state.
If no such agreement has been made between the parties, the court which is competent to grant the arrest order shall also have jurisdiction to hear the merits of the claim.
After a court action is commenced in Turkey in relation to a maritime claim, an arrest order can only be requested from the court hearing the said claim.
Power of Attorney
To make an arrest application, a power of attorney is necessary. The power of attorney can be granted before a notary public if the client is able to execute the power of attorney in Turkey. If not, the power of attorney needs to be notarized and apostilled in the relevant country.
Evidencing the Claim
Provided that the court has found that all the procedural requirements have been met (i.e. the power of attorney, jurisdiction, competence, etc.), the claimant will need to provide the court with prima facie evidence showing the existence of the relevant maritime claim as listed under Article 1352 of the TCC (as specified above). It is now settled by the courts that the claimant is not required to bring conclusive evidence for the claim; only a prima facie showing is required. In practice, it is noted that some courts construe this requirement in a rather sharp manner. Accordingly, the level of evidence may vary according to the approach of the court.
According to Article 1362 of the TCC, the applicant should submit documentation evidencing the value of the claim, and that, the claim falls within the scope of the mentioned maritime claims. The documents that are not in Turkish need to be translated by a sworn translator in Turkey; furthermore, any official documents (if any) need to be legalised by way of apostille and translated by a Turkish sworn translator.
Counter Security
The applicant who requests the arrest order is first required to deposit counter security with the court in the amount of 10,000 special drawing rights (SDR) unless otherwise specified in the TCC. It is now settled in case law that this requirement is a pre-condition for the court to review the application of the claimant.
The opponent party can request from the same court that the counter security amount be increased at any stage. In evaluating such request, the daily operation expenses in relation to the vessel and of the loss of earnings due to the arrest order shall be taken into account. If it is decided that the security amount will be increased, the court shall also determine the period within which the additional counter security will be submitted. Having said that, in practice, the courts are generally hesitant to increase or decrease the amount of the counter security. If the court rules for additional counter security and if it is not submitted by the applicant in time, the arrest order shall be automatically lifted. The claimant may also request from the same court for the counter security amount to be decreased.
Claimants making claims for wages and other sums due to seafarer in respect of their employment on the vessel, including costs of repatriation and social insurance contributions payable on their behalf, are exempt from the obligation of submitting counter security.
Time bars
As a matter of private international law, time bars are subject to the law that governs the underlying legal relationship. In the practice of ship arrest cases, however, courts and parties tend to refer to the time bar provisions of the TCC alone. There are various time bars applicable to different maritime claims.
Enforcement Procedure
In case an arrest order is granted, the applicant should request the enforcement thereof within three business days from the date of the decision. Otherwise, the arrest order shall be ex officio lifted.
The application for enforcement should be made to the bailiff’s office at the location within the jurisdiction of the court which has granted the decision, or at the place where the vessel is located.
Following the application by the creditor, the bailiff’s office shall immediately implement an arrest order.
All vessels subject to an arrest order will be arrested by the bailiff irrespective of their flag and the registry they are registered with. The master or the owner or the disponent owner or representative of the mentioned persons will be notified of the fact that the vessel has been detained by way of an arrest order.
The bailiff will immediately notify the coast guard responsible for the region in which the vessel is located or the police as well as the harbour master’s office and the customs office. Furthermore, the bailiff will notify the registry of the vessel, or in case of foreign flagged vessels the consulate of the flag state of the vessel (if there is no consulate of the flag state of the vessel in Turkey, they will inform the nearest consulate) on the first business day following the implementation of the arrest order.
If, at the time of execution of an arrest order, the vessel has actually set sail or is performing a voyage,
- in case of Turkish flagged vessels, the arrest order shall be served on the owner; the disponent owner and the person who is personally liable for the debt. Furthermore, it shall be notified that security must be provided for the maritime claim within ten days, and that the vessel must be delivered to the bailiff’s office during its first succeeding voyage if such security is not provided.
- in case of foreign flagged vessels, an arrest order can be applied until the time the vessel leaves Turkish territorial waters, by obtaining assistance of the coast guard.