Introduction

This study examines the enforcement process of ship arrest orders issued by courts, based on the presented Supreme Court and Regional Court of Appeals decisions. Ship arrest, a significant legal institution resorted to for securing maritime claims, is a multi-stage process completed when the creditor’s court order is put into practice through the enforcement office. The study analyzes the question of “How is a Ship Arrest Order Enforced?”, the basic steps of the enforcement process, the role of the enforcement directorate, the legal nature of the “prohibition of sailing” measure, and critical details to be considered in the process, in line with the perspectives revealed by different court decisions.

1. Ship Arrest: Request for Enforcement and Time Requirement 

The first and most critical step in the enforcement process is for the creditor to submit the interim attachment order received from the court to the enforcement office within the legal period. Numerous Regional Courts of Justice and Supreme Court decisions emphasize that this period is prescriptive (i.e., a forfeiture period for rights).

TCC Article 1364: The creditor must request the enforcement of the decision from the enforcement office within the jurisdiction of the court that issued the decision or where the vessel is located, within “three business days from the date the decision was rendered.” (BAM-İstanbul 13th Civil Chamber-2021/2073-2021/1650). Failure to comply with this period results in the interim attachment decision being automatically lifted (BAM-İstanbul 4th Civil Chamber-2020/11-2020/143).

2. Role of the Enforcement Directorate

Prohibition of Sailing and Preservation Upon the creditor’s timely application, the enforcement directorate is obliged to implement the decision immediately. The fundamental element of enforcement is the restriction of the vessel’s freedom of navigation.

TCC Article 1366/1: This provision constitutes the essence of the enforcement: “All vessels for which an interim attachment has been decided, regardless of their flag and registration, shall be prohibited from sailing and taken into custody by the enforcement director.” (Supreme Court-12th Civil Chamber-2016/6938-2016/25597). For this purpose, the enforcement directorate issues official letters to relevant institutions (Port Authority, Coastal Safety, Coast Guard) (Supreme Court-12th Civil Chamber-2015/29947-2016/10721).

3. Necessity of Actual Attachment 

Court decisions clearly demonstrate that for an attachment to be valid, merely registering an annotation in the ship registry is not sufficient; the ship must also be actually attached.

In the decision no. 2022/6825 of the 12th Civil Chamber of the Court of Cassation, this principle is expressed as follows: “It is not sufficient to merely register an annotation of attachment in the ship registry or the mooring register; the ship must also be actually attached.” The actual non-attachment of the ship implies the absence of a valid attachment, and this situation constitutes a lack of a prerequisite for the lawsuit, which is observed ex officio by the court, particularly in third-party claims.

Different Perspectives and Important Details

Court decisions highlight not only the fundamental steps of the enforcement process but also significant distinctions and problems that arise in practice.

a) Prohibition from Sailing: Automatic Consequence or Requirement for an Explicit Judgment? The most prominent divergence of opinion among the decisions concerns the nature of the “prohibition from sailing” measure.

Dominant View: In many decisions of the Court of Cassation, the prohibition from sailing is accepted as a natural and necessary consequence of a precautionary attachment. Even if the court’s precautionary attachment decision does not explicitly contain the phrase “prohibition from sailing,” the enforcement directorate is obliged to perform this action ex officio in accordance with TCC 1366. According to this view,  “the prohibition from sailing is one of the mandatory duties that the enforcement directorate must perform for the execution of a precautionary attachment” (Court of Cassation-12th Civil Chamber-2022/5590-2022/13683).

Different View: On the other hand, some decisions, such as the Supreme Court 12th Civil Chamber’s decision numbered 2019/15947, offer a different perspective. According to this decision, if there is no explicit provision in the precautionary attachment order regarding the vessel’s prohibition from sailing, the enforcement office cannot unilaterally take such action. The decision states, “…It is understood that there is no provision regarding the prohibition from sailing of the vessel named 1… in the precautionary attachment order of the 5th Civil Court of First Instance…” implying that the prohibition from sailing should be annulled. This situation highlights the importance for the creditor requesting precautionary attachment to ensure that this matter is explicitly included in their request and the court’s decision.

b) Conditions and Limitations of Enforcement

Maritime Claim Requirement: Ship precautionary attachment is an institution specific to maritime commerce. The examined decisions state that this measure can only be applied to “maritime claims” as defined in the TCC, otherwise the given decision would be unjust. In the decision numbered 2023/756 of the Istanbul 19th Civil Court of First Instance, this condition was emphasized by stating, “Since the claim subject to enforcement is not of the nature of a maritime claim… precautionary attachment of ships is not possible.”

Difference in Finalization of Enforcement: Provisional attachment is a temporary measure that secures the receivable before the enforcement becomes final. If the enforcement has become final, the procedure to be applied changes. According to the decision no. 2015/21366 of the 12th Civil Chamber of the Court of Cassation, “If the enforcement has become final, an attachment can be placed on the ship and a prohibition from sailing can be applied as a measure, in accordance with Article 1382 of the same Law.” In this case, the prohibition from sailing ceases to be a provisional measure and becomes part of the final attachment.

c) Practical Difficulties and Alternatives of Enforcement

Evasion of the Ship: The implementation of a provisional attachment may not always be smooth. In the example from the decision no. 2020/164 of the Istanbul 17th Commercial Court of First Instance, it is stated that during the enforcement of the provisional attachment order, the ship was diverted from Turkish territorial waters by shutting down its tracking systems. This situation demonstrates how challenging the actual enforcement can be.

Removal of Attachment in Exchange for Security: The debtor may request the attachment to be shifted onto a security determined by the court and deposited with the enforcement office, and for the ship to be released, in order to prevent commercial damages caused by the ship’s prohibition from sailing (Turkish Commercial Code art. 1371). This situation represents an important flexibility, demonstrating that the purpose of provisional attachment is to secure the receivable rather than to seize the ship.

Conclusion

The enforcement of a provisional attachment order on a ship is a legal process that begins with the creditor submitting the court order to the competent enforcement office within 3 business days, and continues with the enforcement directorate physically attaching the ship by prohibiting it from sailing and taking it into custody. During this process;

It is of vital importance for the creditor to comply with the 3-business-day forfeiture period.

According to the established jurisprudence of the Court of Cassation, the enforcement office prohibiting the ship from sailing is a natural consequence and a mandatory duty of a precautionary attachment. However, considering decisions to the contrary, it is advisable that this point be explicitly stated in the precautionary attachment order.

For the attachment to be valid, a notation in the registry is not sufficient; the ship must be physically seized and taken into custody.

This special procedure is only applicable to “maritime claims” whose nature is defined by law.

In conclusion, the execution of a ship precautionary attachment order, specifically regulated in the Turkish Commercial Code, is a balanced legal mechanism requiring diligence and speed, aiming to both protect the creditor’s rights and not disproportionately impede the ship’s commercial activity. A suggested article.

Why is Tuzla Expert Lawyer Support Necessary?

According to Articles 1364 et seq. of the Turkish Commercial Code, a ship precautionary attachment, used to secure maritime claims, is a strict procedure subject to specific time limits and formalities. The creditor is obliged to submit the precautionary attachment order received from the court to the enforcement office within three business days; otherwise, the order automatically becomes invalid. Furthermore, merely registering a notation is not sufficient; the ship must be physically attached and taken into custody by prohibiting it from sailing.

Mistakes made in this technical and time-sensitive process can lead to the creditor losing their rights. Receiving support from lawyers experienced in maritime trade law, such as Tuzla lawyer, Pendik lawyer, Kartal lawyer, Gebze lawyer, Çayırova lawyer, Maltepe lawyer, Orhanlı and Tepeören lawyer, ensures that the process is carried out lawfully and quickly. In this way, both the receivable is secured and potential procedural deficiencies that may arise in the future are prevented in advance.