Ulgener
- Aybike Kopuz
One of the most effective means of securing claims in maritime trade is, undoubtedly, the precautionary attachment (arrest) of a vessel. This time-competitive legal remedy serves as a strong pressure mechanism against the debtor.
Under the Turkish Commercial Code No. 6102 (“TCC”), the existence of a “maritime claim” constitutes grounds for an arrest. Maritime claims, which are subject to the numerus clausus principle, are set out in Art.1352 of the TCC, as incorporated from the 1999 United Nations International Convention on Arrest of Ships.
Pursuant to Art.1352 of the TCC, a maritime claim means a claim arising from one or more of the following:
a) Loss or damage caused by the operation of the ship;
b) Loss of life or personal injury occurring, whether on land or on water, in direct connection with the operation of the ship;
c) Salvage operations or any 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;
d) 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 (d);
e) 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;
f) any agreement relating to the use or hire of the ship, whether contained in a charter party or otherwise;
g) any agreement relating to the carriage of goods or passengers on board the ship, whether contained in a charter party or otherwise;
h) loss of or damage to or in connection with goods (including luggage) carried on board the ship;
i) General average;
j) Towage;
k) Pilotage;
l) Goods, materials, provisions, bunkers, equipment (including containers) supplied or services rendered to the ship for its operation, management, preservation or maintenance;
m) Construction, reconstruction, repair, converting or equipping of the ship;
n) Port, canal, dock, harbour and other waterway dues and charge;
o) Wages and other sums due to the 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;
p) Disbursements incurred on behalf of the ship or its owners;,
r) Insurance premiums (including mutual insurance calls) in respect of the ship, payable by or on behalf of the shipowner or demise charterer;
s) Any commissions, brokerages or agency fees payable in respect of the ship by or on behalf of the shipowner or demise charterer;
t) Any dispute as to ownership or possession of the ship;
u) Any dispute between co-owners of the ship as to the employment or earnings of the ship;
v) A mortgage or a "hypothèque" or a charge of the same nature on the ship;
y) Any dispute arising out of a contract for the sale of the ship.”
An arrest decision may be ordered for any vessel located in Turkish waters, regardless of her flag. In fact, even where there is an agreement between the parties on jurisdiction, arbitration, or the applicable law regarding the maritime claim, Turkish courts are still authorized to grant an arrest. The flag of the vessel is relevant only in determining the competent court. While the law provides various alternatives for competent courts, in practice, due to the need for speed and the element of surprise effect in such measures, applications are typically made to the court located where the vessel is anchored.
In order to obtain an arrest decision, the claimant must demonstrate that the claim falls within one of the maritime claims listed above and must present evidence sufficient to satisfy the court of the monetary value of the claim.
Furthermore, to secure an arrest, the claimant is required to provide security in the amount of 10,000 Special Drawing Rights (“SDR”). (While we reiterate our recommendation that the exchange rate applicable on the date of security be used in the calculation, as of today, SDR = TRY 51.5618)
The claimant must apply for enforcement of the arrest order at the enforcement office located where the vessel is present within three business days from the date the order is issued. Otherwise, the arrest order will automatically lapse. Upon request, the enforcement office promptly enforces the arrest.
The vessel subject to the arrest order will be detained by the enforcement officer. Notice of the arrest and detention will be served on the master, the owner, the disponent owner (if any), or their representatives.