Turkish Law Blog

Precautionary Arrest of Ships

Mehmet Burak Küçükislamoğlu Mehmet Burak Küçükislamoğlu/ Nesil Law Group
16 July, 2019
152

The Turkish legislation on maritime trade law is inadequate. There are no special regulations under Turkish Law regarding the seizure of ships.

Our main source of reference is the Enforcement and Bankruptcy Law[1], the Turkish Commercial Code[2], Law on Procedures of Collection of Public Receivables [3] and other laws.

The general principles on law enforcement about maritime and see law are generally reviewed in Turkish Commercial Code numbered 6102. On the other hand, there are further regulations which Turkey has bound legally. These are the International Convention on Maritime Liens and Mortgages[4], which has been signed in Geneva on 6 May 1993 and the International Convention on the Arrest of Ships[5], which has been signed in Geneva on 12 March 1999 and both conventions have been entered into force on 25 March 2017.

The conclusions of these two conventions have already been taken into consideration by the competent authorities and organs, the relevant conclusions have been regulated with the Turkish Commercial Code by the Drafting Committee.

Precautionary Distraint Proceeding on Maritime

The only temporary legal guardian foreseen in the Turkish Commercial Code is the seizure. The retained of ships has been provided for “maritime claims” and that are listed following under Article 1352 of the Turkish Commercial Code. A ship could only be retained for the maritime claims which are provided in the Commercial Code. Thus, if there are no claims on maritime law which are made against the ship-owner, the claimant might appeal for a seizure under the general conclusions of Turkish Enforcement and Bankruptcy Code numbered 2004 to be enforcing law on any property other than a ship[6].

According to Article 1352, a maritime claim comes to mean out of one or more.

Jurisdiction for the Seizure

The Turkish Commercial Code adopts the principle of lex fori. Thus, all matters relating to the procedure of enforcement are subject to the law of the State, if the enforcement comes into question.

In this regards, aside from that whether the ship is foreign-flagged or Turkish-flagged if the ship is located within Turkish waters, Turkish law will be practicable to the seizure application, and to all stages of procedure and enforcements.

Warrant

The Turkish Commercial Code demands the applicant to provide a guarantee. The amount of the guarantee is fixed to an amount equal to Special Drawing Rights 10,000. The guarantee can be provided as a cash deposit or as a Bank Guarantee Letter[7]. A warrant is a pre-condition for the seizure application, and the court will not review the application if the warrant is not deposited. The debtor may request that the court increase the warrant amount, and the applicant may also apply to the court for a decrease of the same.

Enforcement of the Seizure Order

Once the seizure order is granted by the court, the claimant must apply to the enforcement office. The application to the enforcement officer must be made within three working days as of the date of the order. If not, the application would be void and abate[8].

According to the application, the enforcement office enforces and takes the ship under the custody. After the ship has been a seizure and taken under the custody, the master of the ship or the ship-owner, the operator will be served one of their agents. The coast guard, harbormaster, and customs authority are informed by the enforcement office about the seizure of the ship.


[1] Offical Gazette 19/06/1932, S. 2128

[2] Official Gazette 09/07/1956, S.9353

[3] Official Gazette 28/07/1953, S.8449

[4] https://unctad.org/en/PublicationsLibrary/aconf162d7_en.pdf.

[5] https://unctad.org/en/PublicationsLibrary/aconf188d6_en.pdf.

[6] Pekcanıtez/Atalay/Özkan/Özekes, s. 530.

[7] Pekcanıtez/Atalay/Özkan/Özekes, s. 548.

[8] Turkish Commercial Code, Article 1364.

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