Precautionary Attachment of Ships in Maritime Law
Precautionary Attachment of Ships in Maritime Law
In this article, I will attempt to discuss with my dear readers the rules regarding the most frequently encountered enforcement proceedings in Maritime Law, specifically concerning the precautionary attachment of ships, the precautionary attachment of sister ships, the re-attachment of a released ship for the same claim, and the precautionary attachment of sister ships for the same maritime claim.
First and foremost, it is necessary to clarify the concepts of precautionary attachment (ihtiyati haciz) and precautionary injunction (ihtiyati tedbir) within the scope of the Turkish Commercial Code. Although both are measures of temporary legal protection, they possess different procedures and principles.
Precautionary attachment is the process of temporarily seizing a debtor's assets in advance, by court order, to ensure the timely payment of a monetary claim.
Precautionary injunction, a legal protection often resorted to in our legal system, is a legal guarantee established to ensure that the requesting party obtains the right they are claiming through a lawsuit to be filed or as a result of an ongoing lawsuit.
Precautionary attachment is among the primary legal measures that should be resorted to for the collection of monetary and collateral claims. It is a legal process that serves as security for the creditor's claim upon the conclusion of the lawsuit. A precautionary 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 precautionary injunction regarding maritime claims has been abolished, and only the possibility of precautionary attachment has been introduced.
The conditions for precautionary attachment are regulated in detail in Article 257 of the Execution and Bankruptcy Law.
Article 257 of the Execution and Bankruptcy Law (İİK): A creditor with a due monetary debt that is not secured by a pledge may have the movable and immovable property and claims and other rights of the debtor in the possession of the debtor or third parties, attached as a precaution. For a debt that has not yet fallen due, a precautionary attachment may only be requested in the following cases:
1 – If the debtor has no fixed place of residence
2 – If the debtor is preparing to hide or smuggle their assets to escape their obligations, is fleeing, has fled, or is engaging in fraudulent transactions that violate the creditor's rights for this purpose;
If a precautionary attachment is placed in this manner, the debt only becomes due with regard to the debtor.
In Turkish Law, precautionary attachment is a temporary legal measure resorted to in order to guarantee the result of proceedings related to monetary and collateral claims. As explicitly regulated in Article 257 of the Execution and Bankruptcy Law, it is possible to seize the movable and immovable properties and claims of the debtor or a third party to secure the outcome of the proceedings. A point that must be emphasized to avoid confusion is that there is no dispute regarding the assets and rights in a precautionary attachment. These assets and rights do not constitute the subject of the proceedings but are merely in the nature of a measure for the payment of a monetary claim. In the event that the legal conditions for a precautionary attachment are met and the debtor does not make a payment, the creditor has the right to demand a final attachment in the file and request that sale proceedings be initiated. For these reasons, precautionary attachment is a protective and guarantee-providing practice.
The concept of precautionary attachment in Maritime Law has been subject to specific legal regulation. Article 1352, titled "Maritime Claims" under the Turkish Commercial Code, regulates the practical application of precautionary attachment.
Turkish Commercial Code Article 1352- (1) "Maritime claim" means a request arising from one or more of the following matters:
a) Loss or damage caused by the operation of the ship.
b) Loss of life or other bodily injury occurring on land or in water directly related to the operation of the ship.
c) Salvage operations or any salvage contract, special compensation to be paid for salvage operations related to 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 eliminate such damage; compensation to be paid for such damage; expenses for reasonable measures actually taken or to be taken to restore the environment; losses suffered or likely to be suffered by third parties in connection with such damage, and damages, expenses, or losses of a similar nature to those specified in this clause.
e) Expenses and costs incurred for floating, raising, removing, destroying, or rendering harmless a ship that has sunk, become a wreck, run aground, or been abandoned, including items currently or previously on board the ship, as well as expenses and costs related to the protection of an abandoned ship and the sustenance of its crew.
f) Any contract for the use or chartering of the ship, regardless of whether a charter party has been prepared.
g) Any contract for the carriage of goods or passengers on board, regardless of whether a charter party has been prepared.
h) Loss of or damage to goods carried on board, including luggage.
i) General average.
j) Towage.
k) Pilotage.
l) Goods, materials, provisions, fuel, equipment, including containers, provided 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) Fees and other monies to be paid for ports, canals, docks, piers, wharves, other waterways, and quarantine.
o) Claims regarding wages to be paid to the crew for their work on board, including repatriation expenses and social security contributions to be paid on their behalf, and other amounts to be paid to them.
p) Expenses incurred on behalf of the ship or its owner, including loans obtained for the ship.
r) Insurance premiums, including mutual insurance dues, to be paid by or on behalf of the shipowner.
s) Any commission, brokerage, or agency fees to be paid by or on behalf of the shipowner 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 the operation of the ship or the proceeds derived from it.
v) 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.
Precautionary attachment is the prohibition of the ship from sailing or the detention of the ship, thereby removing it from the debtor's disposal by court order, in order to secure a maritime claim. The concept of precautionary attachment regulated under the Execution and Bankruptcy Law, in addition to securing a limited number of rights in rem and in personam, enables the seizure and prohibition of the ship as a measure of temporary legal protection. The precautionary attachment of ships is a significant field in maritime law and enforcement law, and is one of the most frequently encountered areas in practice. The precautionary attachment order is communicated by the enforcement office to the relevant Port Authorities, resulting in the ship being prohibited from sailing and not being permitted to depart. Thus, the creditor prevents the debtor's ship from setting sail to secure their claim, thereby protecting their right to payment through precautionary attachment, which is a temporary measure.
Certain conditions arising from the law must be met for a precautionary attachment to be placed on a ship.
For a precautionary attachment order to be issued for a ship, a maritime claim must first arise, and this claim must be due. As I have detailed above in Article 1352 of the Turkish Commercial Code, what constitutes a maritime claim is regulated. A precautionary attachment for a ship cannot be ordered for a claim that is not a maritime claim. The existence of a ship upon which a precautionary attachment order can be issued is also one of the fundamental rules that must be met. When the creditor requests a precautionary attachment order, if the claim is of a type that requires the deposit of security, the court orders the deposit of such security in the court treasury within the legal time frame. The creditor can ensure the establishment of the precautionary attachment on the ship after the completion of the formal requirements of the precautionary attachment order by depositing this security into the court treasury within the legal period.
It is also explicitly stipulated in Article 1353 of the Turkish Commercial Code that a precautionary attachment order cannot be issued for claims other than maritime claims.
Turkish Commercial Code Article 1353 - (1) In order to secure maritime claims, only the precautionary attachment of the ship may be ordered. It cannot be requested that a precautionary injunction be placed on the ship or that the ship be prohibited from sailing by any other means for these claims.
(2) The provision of the first paragraph also applies to maritime claims secured by a contractual or legal pledge.
(3) A precautionary attachment order cannot be issued for a ship for claims other than maritime claims.
(4) The fact that the claim is a maritime claim listed in Article 1352 is a ground for precautionary attachment.
(5) In the case of maritime claims that have not yet fallen due, the precautionary attachment of the ship may be requested if the conditions stipulated in the second paragraph of Article 257 of the Execution and Bankruptcy Law are met.
Thus, what constitutes a maritime claim and which claim items falling within this scope can be legally considered a maritime claim are of importance in the concept of precautionary attachment under Maritime Law. Applications for precautionary attachment for claims that are not maritime claims are prohibited.
The limits of the right to claim against a ship are regulated in Article 1369 of the Turkish Commercial Code, titled "Exercise of the right of precautionary attachment."
Turkish Commercial Code Article 1369- (1) The precautionary 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 the owner of the ship at the time the precautionary attachment is applied and is liable for this debt; or
b) The person who was the charterer of the ship when the maritime claim arose is the owner of the ship at the time the precautionary attachment is applied and is liable for this debt; 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 precautionary 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 who is liable for this maritime claim and if this person, at the time the claim arose, was;
a) The owner of the ship on which the maritime claim arose, or
b) The charterer, manager, or operator of the ship.
(3) In disputes regarding the ownership or possession of a ship, a precautionary attachment order can only be issued for the ship that is the subject of this dispute.
With this regulation, it is aimed to prevent confusion in practice by establishing the limits and framework of the right to claim against a ship. Except for certain exceptional cases arising from the law, a precautionary attachment request should only be made for claims that have become due. As precautionary attachment is a temporary legal protection measure, it does not require a trial, and providing evidence to convince the court of the existence of the maritime claim, its monetary value, and that it has become due is accepted as sufficient.
In Article 1362 of the Turkish Commercial Code, titled "Evidence to be provided for the granting of a precautionary attachment," the procedures and principles deemed sufficient by the court are stipulated.
Turkish Commercial Code Article 1362- (1) It is sufficient for the creditor to provide evidence that convinces the court that the claim is one of the maritime claims listed in Article 1352 and its monetary value.
The court primarily takes into account the evidence presented by the creditor to prove that the claim is the aforementioned maritime claim and that this claim has become due. Since prohibiting ships from sailing and ordering their precautionary attachment for every claim would create problems in practice, maritime claims in the Turkish Commercial Code have been regulated without providing room for detailed interpretation methods.
Attorney Gizem GONCE