Ship arrest in Türkiye: maritime claims, security and three working days

The time a vessel spends in port is measured in hours. For a claimant this means that the time available to put a legal case together is measured in hours as well: once the ship sails, the most valuable moveable asset the debtor owns leaves the jurisdiction, and in most cases it does not return to the same port. The Turkish Commercial Code therefore sets up a separate enforcement regime for ships, and at the centre of that regime standsarrest.

There is no interim injunction against a ship

For vessels the Code reduces interim protection to a single route. No interim injunction may be granted over a ship, and no other interim measure that would result in the vessel being detained — including detention from sailing — may be sought. Arrest is the only route left, and its door opens only to one category of claim.

This restriction is often overlooked in practice. A claimant whose claim does not qualify as a maritime claim applies for an injunction to stop the vessel, the application is refused, and the ship leaves port in the meantime. The decision to be taken in the first hours of a file is the correct classification of the claim.

A maritime claim first, arrest second

Arrest may be sought only for the maritime claims listed in article 1352 of the Turkish Commercial Code. The list is closed: a claim that does not appear on it will not support the arrest of a vessel, however large the sum.

The principal claims on the list are these: loss or damage arising from the operation of the ship; death or personal injury occurring at sea or ashore in direct connection with the operation of the ship; remuneration for salvage services or under a salvage agreement, and special compensation tied to the prevention of environmental damage; general average; towage and pilotage; goods, materials, provisions and bunkers supplied to the ship; shipyard services and the cost of construction; port, canal and dock charges; crew wages; freight and claims under a contract of carriage; ship mortgages and other charges over the vessel; disputes over ownership or possession of the ship; and insurance premiums.

Falling within the list is not enough on its own — the claim must also be due. No arrest may be granted for a claim that has not yet matured.

Security: 10,000 Special Drawing Rights

The Code requires a claimant applying for arrest to put up security of 10,000 Special Drawing Rights. The purpose of that security, taken from the international convention, is to cover the loss the vessel side would suffer if the arrest turns out to have been wrongful. It may be provided in cash or by a security letter issued by a bank.

The amount does not vary with the size of the claim; the same figure is required for a modest bunker claim. This makes it necessary to work out at the outset whether arrest is economically worthwhile for a low-value claim. The court's power to reduce or lift the security in light of the circumstances is separately provided for, and crew wage claims are assessed differently in this respect.

Three working days

Obtaining the arrest order is half the exercise. The claimant must apply to the enforcement office for execution of the orderwithin three working daysof the date it was granted. The application is made to the enforcement office within the jurisdiction of the court that issued the order, or to the office at the place where the vessel lies. If the period is missed the order lapses of its own accord and cannot be revived; by then the ship has usually sailed.

In practice this period is lost while waiting for the order to be served, or because the security has not yet been lodged. When an arrest file is prepared, how the security will be lodged, which enforcement office will be approached and at which port and hour the vessel will be lying should already have been settled.

Release of the vessel

An arrested vessel is released once security covering the claim is provided. In practice that security takes one of two forms: a security letter issued by a bank, or a letter of undertaking from the protection and indemnity club with which the vessel is entered. Whether a club letter will be accepted depends on the scope of the undertaking and on whether it can be enforced in Türkiye; the wording is negotiated at this point.

Once security is in place the vessel sails, but the claim is not left unsecured: the security stands in place of the ship and becomes the fund the claimant looks to at the end of the dispute.

Arrest is a beginning, not a result

Arrest is interim protection; it does not recover the claim by itself. The claimant must commence substantive proceedings or enforcementwithin one monthof the arrest application or of service of the arrest record. If that period is missed the arrest falls away and the security lodged becomes available to meet the other side's loss.

How short a month is becomes clearer in files with a foreign element: jurisdiction and governing law have to be read out of the contract, arbitration must be commenced where there is an arbitration clause, and foreign documents have to be translated and legalised. This is why work on the substantive file begins as soon as the arrest order is obtained.

What the file needs

An arrest application rests on documents showing that the claim is a maritime claim and that it is due. The backbone of the file is usually this: the bill of lading or charterparty; invoices and statements of account; the survey report and damage records; delivery documents and tally records; ship registry extracts and identification of the operator; and the correspondence. Sworn translations of every foreign-language document must be ready when the application is made — hours spent waiting for a translation come straight out of the deadline.