Ulgener

-Canberk Tuygan

Maritime Liens in Turkish Law

The maritime lien is regulated under Article 1320 and the following articles of the Turkish Commercial Code (TCC). Pursuant to Article 1321 of the TCC, these claims give the shipowner the maritime lien over the ship and its attachments.

The maritime lien comes into existence with the birth of one of the claims stated in the law and it is not possible to register it in the ship registry. Mentioned lien holders obtain their claims from the ship and its attachments, including mortgaged claims, in priority over other claimants. The claims listed in Article 1320 are accepted as the claims that give maritime lien, including the transfer of these claims through succession or assignment of the claims, depending on the principle of the limited number of claims. Claims other than these do not confer maritime lien.

When the article justifications of the TCC in Turkey are examined, it is stated that the articles on Maritime Liens are based on the provisions of the "International Convention on Maritime Liens and Mortgages" (1993 Pledge Convention) adopted in Geneva on 06/05/1993. Turkey became a party to the 1993 Pledge Convention with the "Law No. 6940 on the Ratification of the Ratification of the International Convention on Maritime Liens and Mortgages" published in the Official Gazette dated 25/3/2017.

Claims arising from duties payable for ports, canals, other waterway dues, quarantine and pilotage and Transferability of Lien

Dues to be paid for ports, canals, other waterways, quarantine and pilotage (Art. 1320/1 - subparagraph (d) of the TCC) are also among the claims that are listed in the relevant article in a limited manner and entitle the claim holder to maritime liens. These claims are the payments to be made pursuant to the financial obligations stipulated in return for the utilisation of public services and facilities within the scope of the operation of the ship. The claimants of these claims are, as a rule, the State, public institutions and organisations. However, pilotage services may also be provided by private law persons who have been granted operating licences and service permits to provide pilotage services on behalf of the administration, and the operation of some privatised ports has also been transferred to private law persons. Considering this situation, the ship claims specified in Article 1320/1 (d) of the TCC should be interpreted narrowly as "public claims", and it should be accepted that the service fee provided on behalf of the administration and the fees for the use of the facilities to which the administration has transferred the operating rights are also within the scope of these claims.

In practice, these payments to public institutions are made by the ship's agent. Therefore, the main problem in determining the claimants arises in the event that these claims are paid to the owners by a third party, whether this third party who makes the payment will have the title of the owner of the maritime lien. The most important question in this regard, in a sense, points to the transferability of this right: "In the event that the claim which gives a maritime lien is paid by a third party, does this lien pass to the third party?” The answer to this question has been given by the Turkish legal doctrine by referring to both the references to Article 109 of the abrogated Code No. 818 / Article 127 of the Code No. 6098, which regulates the legal succession of the Code in the application of the TCC No. 6762, and the explicit provision of Article 1325 in the TCC No. 6102.

In practice, it is considered that the transferability of ship claims will have beneficial consequences, for example, in the event that a company engaged in maritime salvage works is sold, the transfer of the ship claims of the company together with the company will benefit the buyer and facilitate the sale for the seller. Regarding the owner of the maritime lien, in connection with the transferability of the right, it is possible that the examples given for the new owners of the salvage company and the ship agents can also be given for the master in case he pays the seafarer's wages, as it is encountered in practice. In the doctrine, the situation of the payment of the duties stipulated in subparagraph (d) of Article 1320/1 of TCC No. 6102 by the ship's agent on behalf of the shipowner is discussed and it is stated by various authorities that the agent may rely on maritime lien in the pursuit of these claims. It is also stated that the assignment of the claimant's statutory maritime lien is most important for the payments made by the insurance companies to the claimants and by the agents on behalf of the owner of the ship, and in this case, it is stated that all the consequences attached to the claimant’s maritime lien will be transferred to the insurance company through subrogation.

Again in practice, the decisions of the Court of Cassation[1] regarding the disputes concerning the assertion of the maritime liens by the agents are quite numerous. At the common point of the judgements subject to these decisions; in order for the agents to become the owner of the maritime lien by paying the ship's claim, it is deemed necessary to prove that they also act as the agency of the ship subject to the lawsuit. If the agency has provided the services to the ship upon the master's request, and if it is able to submit the service invoices including the ship's name and stamp to the file, it will be able to take over the maritime lien pursuant to Article 1325 of the TCC.

 

[1] 11. HD., 11.10.2005, E. 2004/10073, K. 2005/9577; 11. HD., 04.04.2005, E. 2004/6503, K. 2005/3219; 11. HD., 05.04.2004, E. 2003/9099, K. 2004/3548; 11. HD., 30.03.2004, E. 2003/8610, K. 2004/3323; 11.HD., 10.06.2003, E. 2003/313, K. 2003/6151 ve 11. HD., 02.03.2004, E. 2003/7560, K. 2004/1980.