- 04 December 2023
- Av. Arb. Köksal YILDIRIM
- Publications
MARITIME CLAIMS AS A REASON FOR PROVISIONAL ATTACHMENT
I. Introduction
Maritime trade has been the lifeblood of economic activity throughout history and has contributed significantly to the development of international trade. However, the lively and dynamic nature of trade has also brought with it various legal responsibilities.
Precautionary seizure is a legal procedure that grants creditors the authority to seize the debtor's assets based on a court order issued to secure their claims. Precautionary seizure due to maritime claims is a frequently used method for resolving disputes arising from commercial relations between businesses and parties involved in maritime trade.
This article aims to examine the issue of provisional seizure due to maritime claims and to address the fundamental elements in this area in detail in light of the provisions of the Turkish Commercial Code (TCC).
The provisions of the TCC play a decisive role in provisional seizure processes arising from maritime claims. In this context, fundamental issues such as securing claims with collateral, the maturity of claims, the characteristics of ships subject to provisional seizure, the nature of claims, the court's duties and authority, and the amount of collateral will be addressed.
In provisional attachment proceedings arising from maritime claims, the provisions of the TCC play a decisive role. In this context, fundamental issues such as securing claims with pledges, the maturity of claims, the characteristics of ships subject to provisional attachment, the nature of claims, the court's duties, jurisdiction, and the amount of security will be addressed.
At the same time, our article will examine in detail the important elements to be considered in provisional attachment due to maritime claims within the framework of the provisions of the TCC. Factors such as whether receivables are secured by pledge, the maturity of receivables, the characteristics of ships subject to provisional attachment, and the nature of receivables will be addressed; the scope of provisional attachment will be emphasized, and issues such as the court's duties, authority, and the amount of security will be explained in detail.
Additionally, topics such as avenues for appeal against provisional attachment and compensation claims arising from unjustified provisional attachment will be addressed, focusing on the parties' ability to protect their rights and establish a fair balance within the legal process. In this context, understanding the role of provisional attachment practices in maritime trade and the impact of these processes on the parties will provide an important perspective for those engaged in commercial law.
II. Applicable Provisions
The fundamental international sources containing provisions on compulsory enforcement in maritime law are as follows:
These international agreements have been incorporated to the extent that they are consistent with the provisions of the Turkish Commercial Code, and an effort has been made to establish common provisions with international legislation. In accordance with the general principle adopted in the TCC system, in matters relating to procedural and enforcement law not regulated in the agreements, the law of the court where the application for provisional seizure is made or where the decision is enforced (lex fori) shall prevail.
In cases where there are no provisions regarding compulsory enforcement in the provisions of TTK m.1350 et seq., a connection will be established with the provisions of the Enforcement and Bankruptcy Law in accordance with TTK m.1351. Accordingly, the provisions of the TTK will be applied first, but if there is no provision here, the provisions of the İİK relating to "movable property" will apply. However, if an exception is provided for in the EBC or the TCC, the provisions relating to "immovable property" shall apply.
III. Provisional Attachment Pursuant to the Provisions of the TCC
In general, enforcement proceedings in enforcement law commence with a request for enforcement (EBC Art. 42). This fundamental understanding has been modified in the TCC system. In the TCC system, enforcement proceedings now commence with provisional attachment. This ensures that the short limitation periods applicable to ship claims are protected by the provisional attachment of the ship (TCC Art. 1326). While the doctrine accepted that provisional attachment would interrupt the statute of limitations under the old system, the Court of Cassation held the opposite view. This debate has lost its significance in light of TCC Art. 1326, and it is now accepted that provisional attachment interrupts the limitation period and the statute of limitations.
Pursuant to TCC Art. 1353, only provisional seizure may be sought for maritime claims. As the law only provides for this remedy, no other provisional protection may be applied to the ship other than a provisional seizure order. Therefore, not only can provisional measures not be taken for maritime claims, but it is also not possible to prevent the ship from sailing by any other decision.
a. Claim
In line with the system adopted by the TCC, provisional seizure of ships is only possible for maritime claims. (TCC Art. 1353) In contrast, the provisional seizure route has not been closed for claims that do not qualify as maritime claims, thus preventing the provisional seizure of the ship and the impairment of interests on the ship due to claims that have no connection whatsoever with the ship.
Maritime claims that allow for the possibility of requesting provisional attachment are listed in Article 1352 of the Turkish Commercial Code. Accordingly, maritime claims that allow for the possibility of requesting provisional attachment can be listed as follows: a) Loss or damage caused by the operation of the ship, b) Loss of life or other bodily injury occurring on land or at sea directly related to the operation of the ship, c) Rescue operations or any type of rescue contract, special compensation payable for rescue operations involving a ship or cargo posing a threat of environmental damage, d) Damage or threat of damage caused by a ship to the environment, the coastline, or related interests; measures taken to prevent, limit, or eliminate such damage; compensation payable for such damage; costs of reasonable measures actually taken or to be taken to restore the environment to its original state; losses incurred or likely to be incurred by third parties in connection with such damage; and damages, costs, or losses of a similar nature to those specified in this paragraph, e) Expenses and costs incurred for floating, lifting, removing, destroying, or rendering harmless a ship that has sunk, become wrecked, run aground, or been abandoned, including items that were or are on board the ship, as well as expenses and costs related to the protection of an abandoned ship and the sustenance of the ship's crew, f) Any contract made for the use or charter of a vessel, regardless of whether a charter party has been drawn up, g) Any contract made for the carriage of goods or passengers on a vessel, regardless of whether a charter party has been drawn up, h) Loss or damage to goods carried on board a vessel, including baggage, or relating to such goods, i) General average, j) Towing, k) Pilotage, l) Goods, materials, provisions, fuel, equipment, including containers, provided for the operation, management, protection, or maintenance of the vessel, and services provided for these purposes, m) The construction, rebuilding, repair, outfitting, or alteration of the vessel, n) Fees and other charges payable for ports, canals, docks, piers, and quays, other waterways, and quarantine, o) Claims relating to wages payable to seafarers for their work on board the ship, including the costs of bringing them to their countries and the social insurance contributions payable on their behalf, p) Expenses incurred on behalf of the ship or its owner, including loans taken out for the ship, r) Insurance premiums, including reciprocal insurance contributions, to be paid by or on behalf of the shipowner, s) Any commissions, brokerage fees, or agency fees payable by or on behalf of the shipowner in relation to the ship, t) Any dispute relating to the ownership or possession of the ship, u) Any dispute arising between the co-owners of the ship relating to the operation of the ship or the proceeds from the ship, v) Ship mortgage, ship lien, or any other similar encumbrance on the ship, y) Any dispute arising from a contract relating to the sale of the ship.
As can be seen, provisional seizure is only possible for maritime claims. However, it should be noted that only the possibility of provisional seizure of the ship is limited here; if the creditor has obtained a judgment for a claim other than a maritime claim or if the enforcement has become final, final seizure may be requested in accordance with the Enforcement and Bankruptcy Law. This rule is stipulated in Article 1382/f.2 of the Turkish Commercial Code (TTK) as follows: "In the attachment of ships through enforcement, it is not required that the claim be a maritime claim as listed in Article 1352." It should also be noted that the TCC system does not impose any restrictions on the application of a provisional attachment order regarding the shipowner's assets other than maritime assets. Furthermore, in order to request a provisional attachment order, the creditor is required to deposit security in accordance with Article 1363 of the TCC. The fulfillment of these two conditions will be sufficient for a provisional attachment order to be issued.
aa. Whether the claim is secured by a pledge
Under Enforcement and Bankruptcy Law, the claim must not be secured by a pledge for a provisional attachment order to be issued. This requirement is expressed in IBL Art. 257 as follows: "The creditor of an unsecured and unmatured monetary debt..." This general principle has been abolished under TCC Art. 1353. Pursuant to this provision, a provisional attachment order may also be applied to maritime claims secured by a contractual or statutory pledge (Turkish Commercial Code, Article 1353/f.2). Under the old TCC, this general provision of Enforcement and Bankruptcy Law only recognized a difference for ship claims in terms of recognized statutory lien rights. However, the TCC recognizes a difference in terms of both contractual and statutory lien rights. In Enforcement and Bankruptcy Law, this difference is only recognized for bill of exchange proceedings.
bb. Whether the claim is due or not
As another general rule of the Enforcement and Bankruptcy Code, the debt must be due for a provisional attachment order to be issued. In accordance with the Turkish Commercial Code, and in line with this general rule of enforcement and bankruptcy law, the claim must also be due for maritime claims (Turkish Commercial Code, Article 1353). Pursuant to Turkish Commercial Code Article 1353, in accordance with the reference made to Article 257 of the Enforcement and Bankruptcy Code, for maritime claims that are not yet due, if the debtor has no place of residence or if the debtor prepares to hide or abscond with his/her assets or absconds in order to evade his/her obligations, or if he/she engages in fraudulent transactions that violate the rights of the creditor for this purpose, provisional attachment may be requested. However, if provisional attachment is imposed in this manner, the debt becomes due only against the debtor.
cc. Vessels subject to provisional attachment
Special provisions relating to compulsory enforcement in maritime law apply to all merchant ships, pleasure/research vessels, and ships under construction falling within the jurisdiction of Turkish courts, regardless of their flag or whether they are registered in a registry. Pursuant to Article 1352 of the Turkish Commercial Code, any dispute concerning the ownership or possession of a ship may be provisionally seized because it constitutes a maritime claim; the seizure of other ships is not possible.
However, pursuant to Article 1320 of the Turkish Commercial Code, a vessel on which a statutory lien has arisen for vessel claims may be provisionally seized.11 In this case, it is not necessary for the debtor to be the owner of the vessel. Even if the lessee, manager, or operator of the vessel, other than the owner, is the debtor, provisional seizure may be applied to the vessel for the vessel claim that has arisen.
The vessel may be seized due to a ship mortgage, ship lien, or any other real obligation of the same nature established on the vessel. For these claims, it is also not necessary for the debtor to be the owner of the vessel.
As a rule, in all other maritime claims not related to rights in rem on the ship, only the provisional seizure of the ship owned by the debtor is possible (Turkish Commercial Code, Article 1369). Accordingly, for a vessel related to the maritime claim to be provisionally seized, it must be owned by the debtor both at the time the claim arose and at the time the seizure is applied 12 13. Therefore, at the time the provisional seizure is applied, the debtor must be the owner of the vessel to be provisionally seized. In the event of a transfer, the right of provisional seizure cannot be exercised against the new owner. Furthermore, pursuant to Article 1369 of the Turkish Commercial Code, the vessel subject to the maritime claim may be provisionally seized for the lessee's debt only if the lessee subsequently becomes the owner of the vessel. In light of all this, Article 1369/f.2 of the TCC sheds light on the possibility of provisionally attaching other vessels owned by the debtor that are not subject to maritime claims. Accordingly, for the attachment of other vessels owned by the debtor,
These conditions must be met. If these conditions are met together, it will be possible to provisionally seize other vessels owned by the debtor. The seizure of other vessels owned by the debtor may also be applied to contractual and statutory liens arising on the vessel subject to the maritime claim. In this case, the ship mortgagee or ship creditor may attach not only the ship on which the lien arose but also another ship belonging to the debtor. However, in this case, the priority rights provided for maritime claims in the order of priority cannot be exercised in the attachment of the debtor's other ship.
dd. Effect of the nature of the claim (monetary or otherwise) on provisional seizure
Under the Turkish Commercial Code system, provisional seizure of the ship is accepted for all maritime claims. The fact that some of these claims relate to real rights will not change the outcome, but the procedures completing the provisional seizure relating to real rights will be different.
b. Jurisdiction
The rules of jurisdiction for applications for provisional seizure of maritime claims are subject to general provisions. Jurisdictional disputes shall be resolved in accordance with the general provisions of the Code of Civil Procedure. Accordingly, if there is a Commercial Court of First Instance in the competent place, this court shall have jurisdiction; if not, the Civil Courts of First Instance shall have jurisdiction regardless of the value and amount.
c. Jurisdiction
The jurisdiction of courts regarding provisional attachment is specifically regulated in Articles 1354-1357 of the Turkish Commercial Code. During the period when the repealed law was in force, jurisdiction was determined in accordance with the provisions of Article 258 et seq. of the Enforcement and Bankruptcy Code. However, problems encountered in practice necessitated the adoption of specific regulations. Accordingly, jurisdiction is determined as follows:
Before the Main Case is Filed,
For Turkish-flagged vessels, a provisional attachment order may only be issued by the court where the vessel is anchored, moored to a buoy or buoy, docked, or beached; or
✓ For vessels registered in a Turkish Ship Registry, the court of the registry location,
✓ For vessels not registered in the registry, the court of the owner's place of residence,
✓ For vessels registered in the special registry maintained pursuant to the third paragraph of Article 941 of the Turkish Commercial Code, the court of the lessee's place of residence has jurisdiction (Article 1354 of the Turkish Commercial Code).
► Regarding foreign-flagged ships, only the court where the ship is anchored, moored, berthed, or dry-docked in Turkey has jurisdiction to issue a provisional attachment order (TTK.m.1355). With the adoption of this regulation, in order for a court in Turkey to issue a provisional attachment order regarding foreign-flagged vessels, it is required that the vessel subject to attachment suspend its voyage within the jurisdiction of that court. For this reason, since the courts have no jurisdiction over vessels in transit, it is not possible to issue a provisional attachment order.
Articles 1354-1355 of the TCC state that the jurisdiction of the courts mentioned therein is exclusive and that a request for provisional attachment must be made exclusively to these courts.
► If there is an agreement regarding jurisdiction, arbitration, and the applicable law, even if an arbitration panel or a foreign court has jurisdiction to rule on the merits of the maritime claim subject to the provisional attachment order, or even if the law of a foreign state applies to the merits of the maritime claim, the courts with jurisdiction under Articles 1354-1355 of the Turkish Commercial Code are authorized to issue a provisional attachment order to secure a maritime claim.
After a lawsuit has been filed regarding the principal claim;
► A provisional attachment order may be requested even after a lawsuit has been filed regarding the maritime claim or after enforcement proceedings have been initiated. After enforcement proceedings without a judgment or after enforcement through conversion of the pledge into cash, a provisional attachment order may be requested from the courts with jurisdiction under Articles 1354-1355 of the Turkish Commercial Code. However, regarding a maritime claim, after a lawsuit has been filed in a domestic court, a provisional attachment order may only be requested from the court hearing the case. However, if a lawsuit regarding a maritime claim has been filed before an arbitrator or a foreign court, until a final judgment is rendered, a provisional attachment order may only be requested from the competent courts specified in Articles 1354-1355 of the Turkish Commercial Code.
d. Security
Pursuant to Article 1363 of the TCC, a creditor requesting a provisional attachment order to secure a maritime claim must provide security in the amount of 10,000 Special Drawing Rights. However, maritime claims listed in Article 1320(a) of the TCC are exempt from the obligation to deposit security (Article 1363 of the TCC). Although not regulated in the TCC, pursuant to Article 320/fs.c.1 of the EBC, if the confirmation of the composition is rejected, the court shall issue a provisional attachment order against all of the debtor's assets; the creditor is not required to provide security pursuant to Article 259 of the EBC for the enforcement of this order.
Considering the special nature of the composition, it must be concluded that immunity from security will also apply in the event of provisional seizure of ships based on this provision. Furthermore, there is no requirement to provide security for provisional seizure applications made for the pursuit of claims covered by the Banking Law. Furthermore, if the claim is based on a judgment, no security shall be required in the provisional seizure decision concerning ships (Turkish Commercial Code, Article 1382). Furthermore, pursuant to Article 48 of Law No. 2675, foreign natural and legal persons applying for provisional seizure in a Turkish court must deposit security determined by the court to cover the costs of the proceedings and enforcement and the damages and losses of the opposing party, in addition to the security to be deposited pursuant to Article 1363 of the TCC (Article 48 of the MÖHUK).
The opposing party may request the court to increase the security at any stage. If the court decides on additional security and the additional security is not deposited, the provisional attachment decision shall lapse automatically without the need for a new ruling (Turkish Commercial Code, Article 1363/f.2).
IV. Procedures Complementing the Provisional Attachment
a. Application to the Enforcement Office
The creditor must request the enforcement of the decision from the enforcement office within the jurisdiction of the court that issued the provisional attachment decision or from the enforcement office where the ship is located within three business days from the date of the provisional attachment decision. Otherwise, the provisional attachment decision shall lapse automatically (Turkish Commercial Code, Article 1364). This provision grants discretionary authority in the enforcement of the provisional attachment decision. The 10-day period granted to the creditor for the enforcement of the provisional attachment decision under Article 261/f.1 of the Enforcement and Bankruptcy Code has been reduced to three business days for provisional attachment decisions issued under the TCC. Filing an application with the enforcement office within three business days shall be sufficient for the preservation of the period for the enforcement of the decision. The enforcement officer is obliged to examine whether the application was made within the time limit due to his/her duties. If the decision has been revoked due to the time limit being missed, the creditor may reapply to the court and obtain the same decision. The enforcement office shall immediately enforce the provisional attachment upon request. Provisional attachment is also carried out at night and on official holidays in accordance with the Enforcement and Bankruptcy Law (Article 1365 of the TCC).
b. Seizure of the vessel/Prohibition of the vessel from sailing
All ships subject to a provisional seizure order shall be detained and placed under custody by the enforcement director, regardless of their flag or registry. The captain, owner, non-owner operator, or their representative shall be notified of the ship's detention. In the case of foreign-flagged vessels, notification may be made to the agent appointed by the owner or charterer, provided that the conditions stipulated in Article 105 of the Turkish Commercial Code are met.18 The vessel shall be left with the person notified as a custodian.
The director of the enforcement office to which the application for provisional seizure is made shall immediately notify the coast guard command or security organization responsible for the area where the vessel is located, the port authority, and the customs administration of the provisional seizure decision. In addition, the provisional seizure decision shall be notified to the registry where the vessel is registered and, in the case of foreign-flagged vessels, to the nearest consulate of the state whose flag the vessel flies, on the first working day following the implementation of the decision (TTK Art. 1366/f.1-3). Furthermore, the provisional seizure decision shall be notified to the registry where the vessel is registered and, in the case of foreign-flagged vessels, to the nearest consulate of the state whose flag the vessel flies, on the first working day following the implementation of the decision (Turkish Commercial Code, Article 1366/f.4).
It is sufficient to indicate the name of the vessel in the seizure record to be drawn up by the enforcement officer executing the seizure; it is not necessary to state its value. At the request of one of the parties, the value of the vessel shall be determined by the enforcement court; the interested parties identified from the file shall be summoned to this determination (TTK Art. 1366). This provision in the second paragraph of Article 1366 of the TCC differs from the provision in Article 262 of the EBC, which states, "The officer executing the attachment shall draw up a record. This record shall indicate the items attached and their values and shall be submitted to the enforcement office immediately." However, it is in the interest of the parties to determine the value of the ship as soon as possible. In this case, after the provisional seizure has been applied, either party must apply to the enforcement court to request that the value be determined.
If the vessel is actually in motion or on a voyage at the time the provisional seizure is to be applied;
► For Turkish-flagged vessels, the provisional seizure decision is served on the owner, the non-owner operator, and the person personally liable for the debt, and a warning is issued that security must be provided within ten days for the maritime claim, otherwise the vessel must be surrendered to the enforcement office on its next voyage. If the vessel is not surrendered, the offender shall be punished in accordance with Article 289 of the Turkish Penal Code. (TTK m.1367/f.1).
► In foreign-flagged vessels, the provisional seizure decision may be enforced with the assistance of the coast guard command until the vessel leaves Turkish territorial waters (TTK m.1367/f.2). Accordingly, the vessel may be pursued and stopped by the Coast Guard Command until it leaves the territorial waters over which the Republic of Turkey can exercise its jurisdiction, and may be instructed to anchor in a safe place.
c. Scope of Provisional Attachment
The provisional seizure of a ship also covers the income and benefits derived by the debtor from that ship (Turkish Commercial Code, Article 1368/f.1). Therefore, the debtor's receivables arising from contracts, such as lease age fees, allocation fees, freight, passenger transportation fees, and salvage fees, must be seized.20 Furthermore, the enforcement office is authorized to take all necessary measures for the management, operation, maintenance, and protection of the ship (Turkish Commercial Code, Article 1368/f.2). This provision of the article, which appears to be mandatory, should be understood as an authorization.21
V. Remedies Against Provisional Attachment
In applications for the provisional seizure of ships, the court will generally decide based on the file without holding a hearing.
a. Jurisdiction
If no lawsuit has been filed regarding the principal maritime claim prior to the provisional attachment decision, the court that issued the provisional attachment decision has jurisdiction over objections to this decision. If a lawsuit has been filed in Turkey regarding the principal claim, this court has jurisdiction; if a lawsuit has been filed before an arbitrator or a court abroad regarding the principal claim, the court that issued the provisional attachment decision has jurisdiction. Claims of entitlement in the provisional seizure of ships are limited to the cases listed in Article 1369 of the Turkish Commercial Code (TTK). The courts listed in Article 1358 of the TTK are competent to rule on these claims of entitlement. Complaints regarding the application of provisional seizure shall be filed with the court of the place where the enforcement office executing the seizure is located, in accordance with Article 261/f.3 of the Enforcement and Bankruptcy Code.
b. Objection Procedure:
The TCC does not contain any specific provisions regarding objections to provisional attachment; objections to provisional attachment must be made in accordance with Article 265 of the EBC. Accordingly;
► The debtor may file an objection within seven days from the date of the provisional attachment in attachment proceedings involving the debtor, or from the date of notification of the attachment record in provisional attachment proceedings not involving the debtor (Article 265/f.1 of the Enforcement and Bankruptcy Code).
► Persons with the right to object to provisional attachment may object to provisional attachment in accordance with Article 265 of the Code of Civil Procedure, namely the debtor and third parties whose interests are infringed.
► The grounds for objection are listed in EBC Art. 265. Accordingly, the debtor may object to the grounds for the provisional attachment issued without hearing the debtor, the court's jurisdiction, and the security. However, third parties whose interests are infringed cannot object to the court's jurisdiction under the EBC. Such a distinction does not apply to the provisional attachment of ships. In order to enable the owner, who may be a person other than the debtor, to object to the jurisdiction, especially if the debtor has not objected, Article 1358 of the Turkish Commercial Code (TTK) provides for "objections by persons," granting persons other than the debtor whose interests have been infringed the right to object to the court's jurisdiction. Furthermore, pursuant to Article 1374 of the TCC, this can be done at any time without being subject to a seven-day period.
► An appeal may be lodged against the decision rendered on the objection. The regional court of appeal shall examine this appeal as a matter of priority, and its decision shall be final. Lodging an appeal shall not prevent the lifting of the provisional attachment decision.
VI. Lifting of the Provisional Attachment
For the release of provisionally seized property in exchange for security, pursuant to Article 263 or Article 266 of the Enforcement and Bankruptcy Code, the party may request the court to lift the provisional attachment on condition that they deposit money equivalent to the value of the attached property or the claim, or a pledge, shares, or bonds acceptable to the court, or provide a real estate mortgage or a valid bank guarantee. After the commencement of enforcement proceedings, this authority passes to the enforcement court. Pursuant to Article 1370 of the Turkish Commercial Code (TTK), it is stipulated that the seized ship shall be released in exchange for collateral covering the claim, in accordance with Article 1371 of the TTK.
TTK m.1370 provides for two possibilities for the provisional seizure of a ship to be released to the debtor, provided that the seizure remains in effect. The first possibility provides for the direct deposit of the value of the ship. In this case, the enforcement director has no discretion. The second possibility provides that, subject to the approval of the enforcement director, real estate collateral or a ship mortgage covering the value of the ship or a guarantee from a reputable bank may be provided (Article 1370 of the TCC). It should be emphasized here that, according to the last paragraph of the article, even if the court decides to pay the security to the creditor at the end of the lawsuit filed for the continuation of the provisional seizure, other maritime creditors may seize this portion until the money deposited as security is withdrawn from the enforcement office.
Pursuant to Article 1371 of the TCC, the owner or debtor of the ship may request the court to lift the provisional seizure by providing sufficient security for the entire maritime claim, interest, and expenses, provided that it does not exceed the value of the ship. After the commencement of enforcement proceedings, this authority passes to the enforcement court. It should again be emphasized that if, at the end of the lawsuit filed for the continuation of the provisional attachment, it is decided that the security should be paid to the creditor, other maritime creditors cannot attach this security.
In accordance with the provisions of the 1976 International Convention on Limitation of Liability for Maritime Claims and the 1992 International Convention on Civil Liability for Oil Pollution Damage, it is possible to limit liability by establishing a fund. Therefore, where this possibility exists, it shall be sufficient to provide security up to the amount of the fund, rather than the full value of the ship (Turkish Commercial Code, Article 1370/f.4). In addition to all this, in accordance with TTK m.1370, it is necessary to notify the institutions listed in TTK m.1366 that the vessel has been released subject to the continuation of the provisional attachment on the vessel and to preserve the decision on the provisional attachment in the registry. Furthermore, pursuant to TTK Art. 1371, the lifting of the provisional attachment on the ship must be notified to the institutions listed in Article 1366, and the record of the provisional attachment must be deleted (TTK Art. 1370/f.2, TTK Art. 1371/f.2).
The creditor and the owner or non-owner operator of the ship may freely determine the type and amount of security to be provided in accordance with TTK Art. 1370 and TTK Art. 1371 (TTK Art. 1372). If the charterer of the ship is someone other than the owner pursuant to TCC Art. 1061, the right to determine the security with the creditor shall belong to the charterer. The court must accept the security determined by the parties and cannot decide otherwise. Pursuant to Articles 1370 to 1372 of the TCC, the person providing the security may always apply to the court for a reduction in the amount of the security, a change in its type, or its cancellation. In such applications, the competent court shall be determined in accordance with the provisions on jurisdiction pursuant to Article 1358 of the TCC.
VII. Procedures Complementing the Provisional Attachment
Article 1376 of the TCC stipulates that the provisions of Article 264 of the EBC shall apply to proceedings following a provisional attachment decision under the TCC regarding maritime claims. However, it is stipulated that the periods to be applied pursuant to Article 264 of the EBC shall be one month. According to these regulations,
► A creditor who obtains a provisional attachment order without filing a lawsuit on the merits or initiating enforcement proceedings must, within one month from the date of the attachment or, if the attachment was made in absentia, from the date of notification of the attachment record, either file a request for enforcement (attachment or bankruptcy) or initiate a lawsuit.
► In enforcement proceedings, if the debtor objects to the payment order, this objection shall be immediately notified to the creditor. The creditor is obliged to file a lawsuit in the enforcement court within one month from the date of notification. If the enforcement court rejects the request to lift the objection, the creditor must file a lawsuit within one month from the date of notification or service of the decision.
► If the provisional attachment was imposed while the claim was being heard in court, or if the creditor filed a lawsuit regarding the merits after the provisional attachment was imposed, the creditor must file an enforcement request within one month from the date the court's decision on the merits is notified.
► If the creditor misses these deadlines, withdraws from the lawsuit or enforcement request, or if the enforcement request lapses due to the expiration of the statutory time limits, or if the case file is removed from proceedings and not renewed within one month, or if the creditor is found to be unjustified in the lawsuit, the provisional attachment becomes invalid and, if requested by the parties concerned, the necessary parties are notified.
► If the debtor does not object to the payment order within the time limit, or if the objection is definitively dismissed or annulled by the enforcement court, the provisional attachment automatically converts into an enforcement attachment.
Completing these procedures as required by law is sufficient. Furthermore, there is no need to submit a document proving that these procedures have been carried out to the enforcement file. It should also be noted that the one-month period stipulated here is subject to a statute of limitations. Once the provisional attachment has been finalized, the court that issued the provisional attachment decision cannot decide to lift the provisional attachment. The general jurisdiction rule will apply to any lawsuits filed or enforcement proceedings initiated after the provisional attachment. Pursuant to Article 1359 of the Turkish Commercial Code, "The court authorized to issue a provisional attachment order regarding maritime claims under Articles 1354 and 1355 shall have jurisdiction over the lawsuit to be filed to complete the provisional attachment and the enforcement office applying the provisional attachment shall have jurisdiction over the enforcement proceedings if there is no jurisdiction or arbitration agreement made regarding the substance of the maritime claim."
VIII. Provisional Attachment for the Same Claim or a New Claim
As a rule, if security has been obtained for a maritime claim through provisional attachment of the vessel pursuant to the provisions of Articles 1370-1374 of the Turkish Commercial Code (TTK), provisional attachment of the vessel subject to the maritime claim or another vessel belonging to the debtor is not possible. However, in the exceptional cases provided for in Article 1375 of the TCC, it is possible to provisionally seize the ship subject to the maritime claim or another ship belonging to the debtor. The exceptional cases provided for in Article 1375 of the TCC can be listed as follows:
► The vessel is released by unlawful means to evade provisional seizure or to escape,
► If the type or amount of the initial security is insufficient, provided that the total amount of security to be obtained does not exceed the value of the vessel,
► If the person who provided the initial security fails to fulfill their debts in whole or in part or is unable to fulfill them,
► The vessel subject to provisional seizure or the initial security is released because the creditor, acting on reasonable grounds, fails to take reasonable measures to prevent the release.
IX. Compensation Claim Arising from Unjustified Provisional Attachment
If the creditor is found to be unjust in the provisional seizure, the owner of the ship and other interested parties may request compensation for the damage they have suffered due to the provisional seizure. The principles relating to this legal situation can be listed as follows;
► Compensation claims in this regard are subject to the provisions of the Turkish Code of Obligations regarding the statute of limitations for wrongful acts. Accordingly, the claim for compensation shall be time-barred after two years from the date on which the injured party learned of the damage and the party liable for compensation, and in any case, after ten years from the date on which the act was committed (TCOB Article 72).
► Although there is no specific provision regarding the court with jurisdiction in a compensation lawsuit, the provisions on general jurisdiction pursuant to HMK Art. 16 shall apply. However, pursuant to TTK Art. 1354-1355, the court authorized to issue a provisional attachment order also has jurisdiction over the compensation lawsuit to be filed against the creditor in the event that the provisional attachment is found to be unjust.
► Pursuant to Article 1361/f.2 of the Turkish Commercial Code, if a lawsuit has been filed in a court or before an arbitrator in Turkey or abroad regarding the substance of a maritime claim, the outcome of this lawsuit shall constitute a suspensive issue with respect to the compensation lawsuit.
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