Provisional Attachment of a Ship Due to a Maritime Claim and the Process of Prohibition of Departure

1. Legal Path to be Followed by the Creditor and Forfeiture Periods 

A creditor who obtains a provisional attachment order against a ship due to a maritime claim must request the enforcement of the order within three business days from the date the order was issued, in accordance with Article 1364 of the Turkish Commercial Code (TCC). This request must be made to the enforcement office within the jurisdiction of the court that issued the order or where the ship is located. If this period is exceeded, the provisional attachment order is automatically lifted (BAM-Istanbul 12th Civil Chamber – 2023/604 Decision, Court of Cassation 12th Civil Chamber – 2016/6938 Decision).

2. Procedure to be Followed by Enforcement Directorates and Prohibition of Departure 

The enforcement office is obliged to immediately implement the precautionary attachment decision upon the creditor’s request. Pursuant to Article 1366/1 of the TCC, ships subject to a precautionary attachment decision are, regardless of their flag or registry, prohibited from sailing and taken into custody by the enforcement officer. According to Supreme Court precedents, the prohibition from sailing is a natural and mandatory consequence of the execution of a precautionary attachment; the creditor does not need to specifically request a prohibition from sailing, the enforcement officer must carry out this process ex officio (Supreme Court 12th Civil Chamber-2023/79 K, 2016/25597).

3. Execution Specific to Ships Underway and Exiting Territorial Waters (TCC Art. 1367)

If the ship has actually set sail or is underway, the special procedure in Article 1367/1-a of the TCC applies:

Notification and Warning: The precautionary attachment decision is served on the owner, the non-owner operator, or the person personally liable for the debt.

Period of Security: Court of Cassation, 12th Civil Chamber, File No. 2015/3161, Decision No. 2015/12109, Date 04.05.2015: “In Article 1366/1 of the Turkish Commercial Code; ”All ships for which a precautionary attachment has been decided, regardless of their flag and registration, shall be prevented from sailing by the enforcement officer and taken into custody.” this provision is included. Also, in Article 1367/1-a of the same Law; ”If, at the time the precautionary attachment order is to be enforced, the ship has actually moved or is at sea… for Turkish-flagged ships, the precautionary attachment order is served on the owner, the non-owner bareboat charterer, and the person personally liable for the debt, and they are warned to provide security for the maritime claim within ten days, otherwise the ship must be delivered to the enforcement office on its next voyage; if the ship is not delivered, the perpetrator shall be punished according to Article 289 of the Turkish Penal Code.” this regulation is included. Relevant persons are warned to provide security for the maritime claim within ten days, otherwise the ship must be delivered to the enforcement office on its next voyage. According to Article 1370/1 of the Turkish Commercial Code, however; ‘‘A ship provisionally attached may be left to the debtor, and if the ship was provisionally attached while in the hands of a third party, it may be left to that person upon taking a promissory note, provided that the ship is delivered to the enforcement office whenever requested, and for the purpose of ensuring this, the value of the ship is deposited or a real estate pledge, ship mortgage, or a reputable bank guarantee acceptable to the enforcement officer is provided.”“They are warned to deliver it.

Penal Sanction: In case the ship is not delivered, it is stated that penal action will be taken against the responsible parties under Article 289 of the Turkish Penal Code (misuse of custody duty) (Court of Cassation 12th Civil Chamber – 2015/3161 

4. Inter-agency Coordination in Practical Enforcement and Concrete Examples 

Enforcement offices must promptly issue a writ to the relevant port and security units for the actual detention of the ship and its prohibition from sailing. Concrete examples of implementation reflected in local court rulings are as follows:

Example from Gebze 1st Enforcement Office: By issuing a writ to the General Directorate of Coastal Safety, Kocaeli Port Authority, and Kocaeli Coast Guard Command, the vessel was prohibited from sailing (Supreme Court 12th Civil Chamber – 2016/10721 

Example from Izmir 5th Civil Court of Commerce: In addition to the writs issued to the Customs Directorate, Coast Guard, and Port Authorities, actual seizure was carried out by notifying the ship’s captain and the Consulate General to which the vessel belongs (Izmir 5th Civil Court of Commerce – 2023/109

Example from Istanbul Anatolian 6th Civil Court of Commerce: As a result of a writ issued to the Port Authority for a vessel on a transit voyage, the ship was stopped, anchored at Zeyport port, and prohibited from sailing (Istanbul Anatolian 6th Civil Court of Commerce – 2018/147

Example from Trabzon Civil Court of Commerce: An injunction was implemented through Trabzon and Bandırma Port Authorities and Coastal Safety, with a decision to prohibit from sailing “including transit passages” (Trabzon Civil Court of Commerce – 2015/389 

5. Secondary Sources and Additional Context 

The following points have been highlighted with data obtained from secondary sources due to the limited information available in the decision texts:

Coast Guard Intervention and Risk of Escape: It is stated that Coast Guard boats may be deployed to stop a moving vessel, and a “stop” warning may be issued via radio and megaphone. However, in concrete cases, it has been observed that actual enforcement may become impossible if the vessel leaves Turkish territorial waters by turning off its AIS (Automatic Identification System) device and cutting communication (Istanbul 17. Civil Commercial Court-2020/164

Time Pressure: In cases where the vessel is about to leave the port, it is vital for the creditor to obtain a very quick decision from the court with approximate proof documents (invoice, captain-signed minutes, etc.) and for the enforcement office to immediately coordinate with port authorities, acting in its capacity as “the location of the vessel.” (Regional Court of Justice-Istanbul 13. Civil Chamber-2022/909

Inadequacy of Registry Annotation: Merely entering an annotation of attachment in the vessel’s Port Registry or its general register does not constitute “actual attachment”; the vessel must be prohibited from sailing and taken into custody (Supreme Court of Appeals 12. Civil Chamber-2022/6825

Conclusion: The creditor must apply to the enforcement office within 3 business days; and the enforcement office must prevent the vessel’s movement by sending simultaneous instructions to the Port Authority, Coastal Safety, and Coast Guard units. If the vessel is about to leave territorial waters, the notification of memorandums containing a penalty warning in accordance with Turkish Commercial Code (TTK) Article 1367 and the physical intervention of security units should be requested.

Frequently Asked Questions

Gemi ihtiyati haczi kararından sonra seferden men otomatik mi uygulanır?

Evet. TTK m. 1366/1 uyarınca, ihtiyati haczine karar verilen gemi ayrıca talep aranmaksızın icra müdürü tarafından seferden men edilir. Yargıtay 12. Hukuk Dairesi kararlarına göre seferden men, ihtiyati haczin doğal ve zorunlu sonucu olup icra müdürlüğü tarafından resen yapılmalıdır.

Türk Bayraklı Gemi limandan ayrılmak üzereyse veya seferdeyse ihtiyati haciz uygulanabilir mi?

Evet. TTK m. 1367 özel bir prosedür öngörmektedir. Bu durumda gemi malikine veya donatana teminat ihtarı yapılır; teminat verilmezse geminin ilk sefer sonunda icra dairesine teslim edilmesi istenir.
Aksi davranış halinde Türk Ceza Kanunu m. 289 kapsamında cezai sorumluluk doğar.

Gemi siciline haciz şerhi işlenmesi tek başına yeterli midir?

Hayır. Yargıtay uygulamasına göre yalnızca Bağlama Kütüğü veya gemi siciline şerh verilmesi, fiili haciz yerine geçmez. Geminin fiziken durdurulması, seferden men edilmesi ve muhafaza altına alınması zorunludur. Aksi halde gemi Türk karasularını terk edebilir ve alacak fiilen tahsil edilemez hale gelir.

Why is Expert Maritime Commercial Law Attorney Support Necessary?

Ship arrest and detention from sailing procedures based on maritime claims, unlike classical enforcement law, require very short deadlines, high technical knowledge, and simultaneous coordination between institutions.

Specifically;

The risk of missing peremptory periods as short as 3 business days

The obligation to correspond with the Port Authority, Coastal Safety, and Coast Guard within the same day

The high risk of the ship escaping in busy port areas such as Istanbul, Tuzla, and Gebze

The necessity of flawless application of the TCC 1367 procedure for ships underway

The possibility of the provisional attachment automatically lapsing due to an incorrect enforcement procedure

due to these, working with an expert maritime law attorney in this field is of critical importance.

Even the smallest procedural error made in practice;

can lead to the ship departing abroad,

the receivable not being actually collected,

and irreparable loss of rights for the creditor. For this reason, especially in ship arrest cases handled around the ports of Istanbul, Tuzla, Gebze, and Kocaeli, it is a necessity to manage the process with an attorney who has experience in both maritime commercial law and enforcement law.