Precautionary Attachment of Ships in Maritime Law
Provisional Attachment of Ships in Maritime Law
In this article, I will address my valued readers regarding the rules of compulsory execution most frequently encountered in Maritime Law; I will attempt to cover topics such as the provisional attachment of ships, the provisional attachment of sister ships, the re-attachment of a released ship for the same or a different claim, and the provisional attachment of sister ships for the same maritime claim.
First and foremost, it is necessary to clarify the concepts of provisional attachment and preliminary injunction within the scope of the Turkish Commercial Code. Although both provisional attachment and preliminary injunction are, by definition, measures for temporary legal protection, they possess different procedures and principles.
Provisional attachment is the procedure of seizing a debtor's assets in advance and temporarily via a court order for the purpose of guaranteeing the timely payment of a monetary debt.
Preliminary injunction, a legal protection frequently resorted to in our legal system, is a legal guarantee established to ensure that the requesting party can obtain the right they claim through a lawsuit to be filed or as a result of an ongoing lawsuit.
Provisional attachment is among the primary legal measures that should be sought for the collection of monetary and collateral claims. It is a legal action that serves as security for the creditor's claim at the end of the lawsuit. Preliminary injunction, on the other hand, was introduced to provide temporary measures regarding legal proceedings. With the new regulation in the Turkish Commercial Code, the path of preliminary injunction regarding maritime claims has been abolished, introducing instead only the possibility of provisional attachment.
The conditions for provisional attachment are regulated in detail in Article 257 of the Enforcement and Bankruptcy Law.
Article 257 of the Enforcement and Bankruptcy Law (EBL): A creditor of a monetary debt that is not secured by a pledge and is due may provisionally attach the debtor's movable and immovable assets, claims, and other rights in the possession of the debtor or third parties. For a debt that is not yet due, provisional attachment may be requested only in the following cases:
1 – If the debtor does not have a fixed place of residence
2 – If the debtor is preparing to conceal or abscond their assets to avoid their obligations, is preparing to flee, is fleeing, or engages in fraudulent transactions to violate the rights of the creditor for this purpose;
If a provisional attachment is placed in this manner, the debt becomes due only for the debtor.
In Turkish Law, provisional attachment is a temporary legal measure resorted to exclusively for the purpose of guaranteeing the outcome of proceedings regarding monetary and collateral claims. As clearly regulated in Article 257 of the Enforcement and Bankruptcy Law, it is possible to seize the movable and immovable assets and claims in the possession of the debtor or a third party to guarantee the result of the proceedings. A point that must be emphasized to avoid confusion is that there is no dispute regarding the assets and rights subject to the provisional attachment. While these assets and rights do not constitute the subject of the proceedings, they serve as a precautionary measure for the payment of a monetary debt. Should the legal conditions for the provisional attachment be met and the debtor fails to make payment, the creditor has the right to request a definitive attachment in the file and proceed with sale transactions. For these reasons, provisional attachment is a protective and guarantee-providing practice.
The concept of provisional attachment in Maritime Law has been subject to specific legal regulation. Article 1352 of the Turkish Commercial Code, titled "Maritime Claims," regulates the practical application of provisional attachment.
Turkish Commercial Code Article 1352- (1) “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 other personal injury occurring on land or on water in direct connection with the operation of the ship.
c) Salvage operations or any salvage contract, including special compensation payable for salvage operations regarding a ship or goods on board that pose a threat of environmental damage.
d) Damage or threat of damage caused by the ship to the environment, coastline, or related interests; measures taken to prevent, limit, or remove such damage; compensation payable for such damage; costs of reasonable measures actually taken or to be taken for the restoration of the environment; losses suffered or likely to be suffered by third parties in connection with such damage; and damages, costs, or losses of a similar nature to those mentioned in this sub-paragraph.
e) Costs and expenses incurred for the floating, removal, recovery, destruction, or rendering harmless of a sunken, wrecked, stranded, or abandoned ship, including things found or previously found inside the ship, as well as costs and expenses related to the protection of an abandoned ship and the maintenance of the crew.
f) Any contract for the use or hire of the ship, whether or not a charter party has been drawn up.
g) Any contract for the carriage of goods or passengers on the ship, whether or not a charter party has been drawn up.
h) Loss or damage to goods carried on the ship, including luggage, or in relation to such goods.
i) General average.
j) Towage.
k) Pilotage.
l) Goods, materials, provisions, fuel, equipment including containers supplied for the operation, management, protection, or maintenance of the ship, and services provided for these purposes.
m) Construction, reconstruction, repair, outfitting, or modification of the ship.
n) Dues and other monies payable for ports, canals, docks, piers and wharves, other waterways, and quarantine.
o) Claims regarding wages and other amounts payable to crew members for their work on the ship, including repatriation costs and social insurance contributions payable on their behalf.
p) Expenses made in the name of the ship or its owner, including loans taken for the ship.
r) Insurance premiums, including mutual insurance dues, payable by or on behalf of the owner of the ship.
s) Any commission, brokerage, or agency fees payable by or on behalf of the owner of the ship in relation to the ship.
t) Any dispute regarding the ownership or possession of the ship.
u) Any dispute between co-owners of the ship regarding its operation or the proceeds derived from it.
v) A ship pledge, ship mortgage, or an encumbrance of the same nature on the ship.
y) Any dispute arising from a contract for the sale of the ship.
Provisional attachment is defined as the banning of the ship from sailing or the detention of the ship by court order, removing it from the debtor's disposal to guarantee a maritime claim. The concept of provisional attachment regulated under the Enforcement and Bankruptcy Law, in addition to guaranteeing a limited number of rights in rem and in personam, provides for the seizure of the ship and banning it from sailing as a measure of temporary legal protection. The provisional attachment of ships is a significant field in maritime law and enforcement law and is a specific area most frequently encountered in practice. The decision for provisional attachment is communicated by the enforcement office to the relevant Port Authorities, resulting in the ship being banned from sailing and denied permission for voyages. Thus, the creditor protects their right to the claim with provisional attachment—a temporary measure—by preventing the ship belonging to the debtor from setting sail in order to secure their claim.
Certain conditions arising from the law must be met for a provisional attachment to be placed on a ship.
For a court to issue a decision for the provisional attachment of a ship, there must first be a maritime claim, and this claim must be due. As I mentioned in detail above, Article 1352 of the Turkish Commercial Code regulates what constitutes maritime claims. A decision for the provisional attachment of a ship cannot be granted for a claim that is not a maritime claim. The existence of a ship upon which the provisional attachment order can be granted is also at the very top of the rules that must be met. When the creditor requests a provisional attachment order, if the claim is of a type that requires the deposit of security, the court orders the deposit of security into the court's treasury within the statutory period. The creditor, by depositing this security into the court's treasury within the statutory period, can ensure the establishment of the provisional attachment on the ship after the completing formalities of the provisional attachment order.
It is also explicitly stipulated in Article 1353 of the Turkish Commercial Code that a provisional attachment order cannot be granted for claims other than maritime claims.
Turkish Commercial Code Article 1353 - (1) For the purpose of guaranteeing maritime claims, only the provisional attachment of the ship may be ordered. It cannot be requested that a preliminary injunction be placed on the ship or that the ship be banned from sailing in any other way for these claims.
(2) The provision of the first paragraph also applies to maritime claims secured by a contractual or legal pledge.
(3) No provisional attachment order can be granted for the ship regarding claims other than maritime claims.
(4) The fact that the claim is a maritime claim listed in Article 1352 is a cause for provisional attachment.
(5) For maritime claims that are not yet due, the provisional attachment of the ship may be requested if the conditions stipulated in the second paragraph of Article 257 of the Enforcement and Bankruptcy Law are met.
Thus, what constitutes a maritime claim and which claim items can be considered as maritime claims within the scope of the concept of provisional attachment under Maritime Law is of importance. Applying for a provisional attachment for a claim that is not a maritime claim is prohibited.
Article 1369 of the Turkish Commercial Code, titled "Exercise of the Right to Provisional Attachment," regulates the limits of the right to a claim on a ship.
Turkish Commercial Code Article 1369- (1) The provisional attachment of any ship against which a maritime claim is asserted is possible if;
a) The person who was the owner of the ship when the maritime claim arose is also liable for this debt and is the owner of the ship at the time the provisional attachment is applied; or
b) The person who was the charterer of the ship when the maritime claim arose is also liable for this debt and is the owner of the ship at the time the provisional attachment is applied; or
c) The maritime claim is secured by a ship pledge, ship mortgage, or an encumbrance of the same nature on the ship; or
d) The dispute relates to the ownership or possession of the ship; or
e) The claim confers a maritime lien in accordance with Article 1320.
(2) The provisional attachment of ships other than those listed in the first paragraph is possible if, at the time the attachment is applied, the ships belong to a person liable for this maritime claim, and when the claim arose, this person was;
a) The owner of the ship upon which the maritime claim arose, or
b) Its charterer, allocated party, or shipper.
(3) In disputes regarding the ownership or possession of the ship, a provisional attachment order can only be granted for the ship that is the subject of this dispute.
With this regulation, it is intended to prevent confusion in practice by establishing the limits and framework of the right to a claim on a ship. Except for certain exceptional cases arising from the law, a request for provisional attachment should only be made for claims that have become due. As it is a temporary legal protection tool, provisional attachment does not require a trial, and it is accepted as sufficient to provide evidence proving the existence of a maritime claim and the monetary value and maturity of the claim.
Article 1362 of the Turkish Commercial Code, titled "Provision of Evidence for Granting Provisional Attachment," lays down the procedures and principles deemed sufficient by the court.
Turkish Commercial Code Article 1362- (1) It is sufficient for the creditor to provide evidence to convince the court that their claim is one of the maritime claims listed in Article 1352 and regarding its monetary value.
The court initially takes into account the evidence presented by the creditor not only regarding the claim being a maritime claim but also regarding the proof that the debt has become due. Since banning ships from sailing and ordering their provisional attachment for every claim would create problems in practice, maritime claims in the Turkish Commercial Code have been regulated without clarifying the interpretation methods in detail.
Attorney Gizem GONCE