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 forced execution in Maritime Law; specifically covering the precautionary attachment of a ship, the precautionary attachment of a sister ship, the re-attachment of a released ship for the same claim, and the precautionary attachment of a sister ship for the same maritime claim.
First and foremost, it is necessary to clarify the concepts of precautionary attachment and precautionary injunction within the scope of the Turkish Commercial Code. Although both precautionary attachment and precautionary injunction are temporary legal protection measures, they have different procedures and principles.
Precautionary attachment is the act of seizing the debtor's assets in advance and temporarily by a court order, with the aim of ensuring the timely payment of a monetary claim.
Precautionary injunction, a legal protection we frequently resort to in our legal system, is a legal guarantee established to ensure that the requesting party can obtain the right they claim, either through a lawsuit to be filed or as a result of an ongoing lawsuit.
Precautionary attachment is one of the primary legal measures that must be resorted to for the collection of monetary and security claims. It is a legal action that serves as security for the creditor's claim at the conclusion of the lawsuit. A precautionary injunction, on the other hand, was introduced to take 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 Enforcement and Bankruptcy Law.
Article 257 of the EBL: A creditor with a due monetary debt not secured by a pledge may have the debtor's movable and immovable properties, as well as their receivables and other rights held by the debtor or a third party, provisionally attached. For a debt that has not yet matured, precautionary attachment can only be requested in the following cases:
1 – If the debtor does not have a fixed place of residence
2 – If the debtor is preparing to hide or escape their assets, or is preparing to flee or is fleeing to escape their commitments, or engages in fraudulent transactions that violate the rights of the creditor for this purpose;
If a precautionary attachment is placed in this manner, the debt becomes due only with respect to the debtor.
In Turkish law, precautionary attachment is a temporary legal measure resorted to exclusively to secure the outcome of proceedings regarding monetary and security claims. As clearly regulated in Article 257 of the Enforcement and Bankruptcy Law, it is possible to seize the movable and immovable properties and receivables 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 over the assets and rights in question during a precautionary attachment. While these assets and rights do not constitute the subject of the proceedings, they serve as a measure for the payment of a monetary claim. If the legal conditions for precautionary attachment are met and the debtor fails to make payment, the creditor has the right to file for a definitive attachment on the file and request that sales 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 specifically subjected to legal regulation. The practical equivalent of the matter of precautionary attachment is regulated in Article 1352 of the Turkish Commercial Code, titled "Maritime Claims".
Article 1352 of the Turkish Commercial Code - (1) "Maritime claim" means a claim 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 personal injury occurring on land or on water, directly related to the operation of the ship.
c) Salvage operations or any salvage contract, including special compensation payable in respect of salvage operations relating to a ship or cargo that poses 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 payable for such damage; costs of reasonable measures actually taken or to be taken for the restoration of the environment; losses incurred or likely to be incurred by third parties in connection with such damage; and losses, expenses, or damages of a similar nature to those specified in this clause.
e) Costs and expenses incurred for the floating, removal, recovery, destruction, or rendering harmless of a ship that is sunken, wrecked, stranded, or abandoned, including things found or having been found on board the ship, as well as costs and expenses related to the preservation of an abandoned ship and the maintenance of the crew.
f) Any agreement relating to the use or chartering of the ship, whether or not a charter party is concluded.
g) Any agreement relating to the carriage of goods or passengers on board the ship, whether or not a charter party is concluded.
h) Loss or damage to, or in connection with, goods carried on board the ship, including luggage.
i) General average.
j) Towage.
k) Pilotage.
l) Goods, materials, provisions, fuel, equipment including containers, supplied for the operation, management, preservation, or maintenance of the ship, and services provided for these purposes.
m) Construction, reconstruction, repair, outfitting, or modification of the ship.
n) Port, canal, dock, pier, and wharf dues, and other charges for quarantine.
o) Claims regarding wages and other amounts payable to crew members in respect of their employment on board the ship, including costs of repatriation and 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 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 connection with the ship.
t) Any dispute relating to 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 obtained from the ship.
v) A ship pledge, ship mortgage, or an encumbrance of a similar nature on the ship.
y) Any dispute arising from a contract for the sale of the ship.
To secure a maritime claim, the act of prohibiting the ship from sailing or detaining the ship by court order, thereby removing it from the debtor's disposal, is called precautionary attachment. The concept of precautionary attachment regulated under the Enforcement and Bankruptcy Law, in addition to securing a limited number of real and personal claim rights, allows for the seizure of the ship and its prohibition from sailing as a temporary legal protection measure. The precautionary attachment of ships is a specific and important field in maritime law and enforcement law, and it is the most frequently encountered in practice. The precautionary attachment decision is notified by the enforcement office to the relevant Port Authorities, and it is executed in the form of prohibiting the ship from sailing and denying permission for its voyages. Thus, the creditor prevents the debtor's ship from sailing to secure their claim, protecting their right to the claim 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 against a ship, a maritime claim must first arise, and this claim must be due. As I detailed above, what constitutes a maritime claim is regulated in Article 1352 of the Turkish Commercial Code. A precautionary attachment cannot be decided for a ship for a claim that is not a maritime claim. The existence of a ship against which a precautionary attachment order can be issued is also one of the very first rules to be followed. When the creditor requests a precautionary attachment order, if the claim is among the types for which a security deposit must be made, the court decides that the security be deposited in the court cashier within the legal period. By depositing this security into the court cashier within the legal period, the creditor can ensure that the precautionary attachment is established on the ship following the completion of the complementary procedures for the precautionary attachment order.
It is also expressly stipulated in Article 1353 of the Turkish Commercial Code that a precautionary attachment order cannot be issued for claims other than maritime claims.
Article 1353 of the Turkish Commercial Code - (1) To secure maritime claims, only the precautionary attachment of the ship can be ordered. For these claims, it cannot be requested to impose a precautionary injunction on the ship or otherwise prohibit the ship from sailing.
(2) The provision of the first paragraph also applies to maritime claims secured by a contractual or legal pledge.
(3) No precautionary attachment order can be issued against a ship for claims other than maritime claims.
(4) The fact that the claim is a maritime claim listed in Article 1352 is a cause for precautionary attachment.
(5) In the case of maritime claims that are not yet due, a precautionary 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 fall under this scope to be considered a maritime claim are of importance in the concept of precautionary attachment within the scope of Maritime Law. An application for precautionary attachment for a claim that is not a maritime claim is prevented.
The limits of the right to claim against a ship are regulated in Article 1369 of the Turkish Commercial Code, titled "Exercising the right to precautionary attachment".
Article 1369 of the Turkish Commercial Code - (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 at the time the maritime claim arose is also responsible for this debt and is the owner of the ship at the time the precautionary attachment is executed; or
b) The person who was the charterer of the ship at the time the maritime claim arose is also responsible for this debt and is the owner of the ship at the time the precautionary attachment is executed; or
c) The maritime claim is secured by a ship pledge, ship mortgage, or an encumbrance of a similar nature on the ship; or
d) The dispute relates to the ownership or possession of the ship; or
e) The claim gives rise to a maritime lien under 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 executed, the ships are owned by a person responsible for this maritime claim and, at the time the claim arose, this person was;
a) The owner of the ship on which the maritime claim arose, or
b) Its charterer, assignee, or shipper.
(3) In disputes relating to the ownership or possession of the ship, a precautionary attachment order can only be issued against 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 request for precautionary attachment should only be made for claims that have become due. Since precautionary attachment is a temporary legal protection measure, it does not require a trial, and it is considered sufficient to provide evidence proving that a maritime claim exists and that the claim is due in terms of its monetary value.
The procedures and principles that the court deems sufficient are stipulated in Article 1362 of the Turkish Commercial Code, titled "Providing evidence for the issuance of a precautionary attachment".
Article 1362 of the Turkish Commercial Code - (1) It is sufficient for the creditor to provide evidence that will convince the court that the claim is one of the maritime claims listed in Article 1352 and regarding its monetary value.
In the first stage, the court takes into account the evidence presented by the creditor regarding not only that the claim is the maritime claim in question but also that the claim has matured. Given that deciding to prohibit ships from sailing and their precautionary attachment for every claim would create problems in practice, maritime claims have been regulated in the Turkish Commercial Code without opening the way for detailed interpretation methods.
Attorney Gizem GONCE