Maritime Claim, Security, Pledge and Collection Process

The receivables of firms providing repair, maintenance or technical services to a ship constitute a maritime claim in accordance with the Turkish Commercial Code. For these receivables, a provisional attachment can be placed on the ship; however, in practice, debtors often transfer the attachment to security by depositing cash or a bank guarantee letter and prevent the ship from being prohibited from sailing.

From this point onwards, the critical question for the creditor is:
“If the attachment has been transferred to security, how is the claim secured and collected?”

In a situation where a firm performing repair work on a ship obtains a provisional attachment order on the ship for its maritime claim, and the debtor lifts this attachment by depositing security (by transferring it to security), the legal remedies available to the creditor and an analysis of these processes are presented below:

1. Fulfillment of the Complementary Formalities for Provisional Attachment

When the provisional attachment on the ship is transferred to security, the attachment does not become void; it merely changes its subject and transfers to the deposited security (cash or bank guarantee letter). At this stage, it is mandatory for the creditor to initiate the “complementary formalities” within the statutory periods to convert the provisional attachment into a final attachment.

Enforcement Proceedings and Lawsuit Filing Periods: According to Article 1376 of the Turkish Commercial Code (TCC), for maritime claims, the commencement period for procedures complementing the provisional attachment is applied as one month. The 14th Civil Chamber of İzmir Regional Court of Justice (2023/1806 E.) ruled that in maritime claim disputes, the one-month period in TCC Art. 1376 should be taken as a basis, not the 7-day period in EBL Art. 264/2, and that initiating enforcement proceedings or applying for mediation within this period is sufficient for the continuation of the attachment.

Application for Mediation: Applying for mediation, which is a precondition for a lawsuit, within the prescribed period is considered an action that completes the provisional attachment.

2. Legal and Enforcement Remedies for the Collection of the Principal Claim

Although the ship is saved from being detained by depositing security, the creditor may resort to the following methods to collect their claim:

Action for Annulment of Objection: If the debtor objects to the initiated enforcement proceedings, the creditor may file an action for annulment of objection according to EBL Art. 67. As seen in the decisions of the Istanbul 8th Commercial Court of First Instance (2022/209 E. K) and the Istanbul Regional Court of Justice 43rd Civil Chamber (2024/760 E. K), creditors resort to proving the existence of the claim by filing an action for annulment of objection after the attachment is transferred to the security.

Establishment of Statutory Lien Right: The creditor may request the establishment of a statutory lien right on the collateral along with the principal debt lawsuit. The 11th Civil Chamber of the Court of Cassation (2024/4398 E. ) upheld the decision to establish a statutory lien right in favor of the plaintiff on the submitted letter of guarantee, pursuant to Articles 1321 and 1322 of the Turkish Commercial Code, for claims arising from services rendered to a ship, and to hold the collateral until the decision becomes final.

Arbitration and Enforcement Path: If there is an arbitration clause in the contract between the parties, the creditor may initiate proceedings in a foreign arbitration center (e.g., London/LMAA). In the example of Izmir 5th Commercial Court of First Instance (2014/396 E. K), the creditor initiated arbitration in London and aimed to collect from the deposited collateral by seeking the enforcement of the obtained decision in Turkey.

3. Protection of Collateral and Prevention of its Return

Preventing the return of the collateral deposited by the debtor is one of the creditor’s most critical moves.

Request for Provisional Injunction: The creditor can request a provisional injunction to stop the return of the collateral in the enforcement file to the debtor while the principal debt lawsuit is ongoing. The 15th Civil Chamber of Istanbul Regional Court of Justice (2018/830 E. K) found the injunction decision to suspend the payment of the money in the enforcement file until the end of the lawsuit, during the process of lien right and removal with collateral, to be appropriate.

Objection to the Return of Security: The 43rd Civil Chamber of Istanbul Regional Court of Justice (2023/1567 E. K), emphasized that when a precautionary attachment is registered as security, the attachment continues on this security, and the return of the security is not possible as long as the attachment on it is not lifted.

4. Procedural Complaints and Appeal Routes

Complaint to the Enforcement Court: In cases where the enforcement office lifts the attachment despite finding the security insufficient, or performs an unlawful procedure, a complaint can be filed with the enforcement court pursuant to Article 266 of the EBL (Enforcement and Bankruptcy Law) (Izmir 10th Enforcement Law Court, 2016/242 E. 

Appeal Application: If the debtor’s objection to the precautionary attachment is accepted and the attachment is lifted, the creditor may appeal this supplementary decision. The 43rd Civil Chamber of Istanbul Regional Court of Justice (2021/1888 E. K), overturned the decision to lift the attachment (which was based on an alleged change of ownership) on the grounds that the transfer could not be proven, and ruled for the continuation of the attachment.

Secondary Source Analysis

According to the information obtained from secondary sources, the following points should be emphasized:

Term and Enforcement Obligation: Pursuant to Article 1364 of the Turkish Commercial Code (TCC), the creditor must request the enforcement of the provisional attachment decision from the enforcement office within three business days from the date it was rendered. Furthermore, it is reminded that the main debt lawsuit must be pursued within 1 year from the attachment (TCC Article 1365) (Regional Court of Appeals Istanbul 13th Civil Chamber, 2024/1666 E. K; Regional Court of Appeals Istanbul 14th Civil Chamber, 2021/1949 E. K).

Approximate Proof: In the repair creditor’s attachment request, it is sufficient for the creditor to provide “approximate proof” of their claim with documents such as invoices, work lists signed by the ship captain, and work completion reports. Courts do not engage in in-depth examinations, such as the authenticity of documents, at this stage (Regional Court of Appeals Samsun 3rd Civil Chamber, 2024/1905 E. K).

Piercing the Corporate Veil: If the debtor company acts through different companies with the aim of evading assets, the creditor may request the piercing of the corporate veil in the main debt lawsuit, thereby expanding liability (Istanbul 17th Commercial Court, 2018/62 E. K).

Bankruptcy Status: In case of the debtor’s bankruptcy, the creditor may need to join the bankruptcy estate or for the lawsuit to be shaped according to waiver/acceptance processes (Istanbul 17th Commercial Court, 2015/179 E. Source).

In conclusion; when the attachment on the vessel is converted into security, the creditor must initiate enforcement proceedings or litigation within one month, establish a statutory lien on the security, and take measures to prevent the return of the security during the judicial process.

Frequently Asked Questions

Gemi üzerindeki ihtiyati haciz teminata kaydırılırsa haciz düşer mi?

Hayır. Haciz düşmez, sadece konusu değişir. Gemi yerine yatırılan teminat hacze konu olur ve haczin hukuki etkileri bu teminat üzerinde devam eder.

Deniz alacaklarında ihtiyati haczi tamamlamak için süre kaç gündür?

Deniz alacaklarında süre 7 gün değil, 1 aydır. TTK m. 1376 gereğince bu süre içinde icra takibi, dava veya arabuluculuğa başvurulması yeterlidir.

Teminat mektubu üzerine rehin hakkı tesis edilebilir mi?

Evet. Gemiye verilen hizmetten doğan deniz alacaklarında, yatırılan teminat mektubu üzerine kanuni rehin hakkı tesis edilmesi mümkündür ve yargı kararları bu yöndedir.

Borçlu teminatın iadesini isterse alacaklı ne yapmalıdır?

Alacaklı, teminatın iadesine karşı ihtiyati tedbir, itiraz ve gerekirse icra mahkemesine şikayet yollarına başvurmalıdır. Aksi halde teminat iade edilebilir.

Why is Expert Lawyer Support Necessary for Maritime Claims?

The process of provisional attachment on a vessel, converting it to security, statutory lien rights, and collection; is a field that is different from general enforcement law, technical, and highly time-sensitive. Especially in cases handled without the support of an Istanbul maritime trade lawyer or a Tuzla maritime trade lawyer, the most common mistake is missing deadlines and failing to protect the security.

Regarding maritime claims;

Incorrect application of deadlines (distinction between 7 days – 1 month),

Failure to demand a lien on the security,

Improper management of the arbitration-enforcement relationship,

Failure to take measures against the return of the security can result in the actual non-collection of the claim.

Especially the Tuzla shipyards region is a center where ship repair and maintenance receivables are concentrated. For companies operating in this region, working with a Tuzla maritime trade lawyer is critically important for the correct management of the process. At this point, 2M Hukuk aims to prevent receivables from remaining merely on paper by offering preventive and strategic legal consultancy in processes such as maritime receivables, ship arrest, conversion to security, legal pledge, arbitration, and enforcement. The conversion of a provisional arrest on a ship to security does not weaken the creditor’s position; however, if correct legal reflexes are not displayed, the receivable may effectively remain unsecured. Therefore, the process must be managed by a lawyer proficient in maritime trade law.