Introduction

This study has been prepared to answer the question of which legal avenues a creditor, who provides ship repair and maintenance services but cannot collect the service fee, can pursue to collect this fee from the shipowner. The study was created by synthesizing various court decisions presented. The aim is to provide a comprehensive roadmap by outlining the steps the creditor should follow, the critical points to consider, and the potential difficulties they may encounter.

1. Legal Nature of the Claim: Maritime Claim

There is almost complete consensus in nearly all examined decisions regarding the legal nature of claims arising from ship repair and maintenance. These claims are defined as “maritime claims” under Article 1352 of the Turkish Commercial Code (TCC).

20th Civil Chamber of the Supreme Court (2015/13591 E.) clearly states this situation: “In Article 1352/1 of the Turkish Commercial Code no. 6102, ‘Maritime claim; means a claim arising from one or more of the following matters:’ and in subparagraph 1-m of the same article, ‘Construction, reconstruction, repair, equipping of a ship or alteration of the ship’s characteristics.’ provisions exist.” This classification provides significant advantages to the creditor, such as benefiting from special protection mechanisms like preliminary injunctions and having the dispute heard in a specially authorized court.

2. Competent Court: Maritime Specialized Court

The acceptance of the receivable as a “maritime claim” directly brings up the issue of the competent court. Numerous decisions persistently state that such cases should be heard not in general courts, but in specially authorized courts.

Istanbul Regional Court of Justice 37th Civil Chamber (2019/1221 E.), clearly stated this rule by saying that the case “must be heard and concluded in a maritime specialized court.” The decision of the Istanbul 10th Civil Court of Commerce (2017/746 E.) shows what happens if a case is filed in an unauthorized court: “The plaintiff’s petition for the lawsuit is rejected due to lack of jurisdiction, our court is not competent to hear the case, and it is understood that the competent courts are the Istanbul … Civil Courts of Commerce, which are responsible for maritime commercial cases...” However, some decisions also contain statements that the dispute is based on a “contract for work” and therefore general Civil Courts of Commerce may be competent (firstInstance-Istanbul 17th Civil Court of Commerce-2018/195 E., firstInstance-Istanbul 17th Civil Court of Commerce-2019/366 E.). Although this situation may seem like a contradiction, the general tendency of decisions and the special provisions of the Turkish Commercial Code (TTK) indicate that Maritime Specialized Courts are competent for claims arising from ship repair and maintenance.

3. What are the Legal Remedies for a Person Who Cannot Collect Their Receivable

a) Enforcement Proceedings and Action for Annulment of Objection: The most common method encountered in rulings is to primarily initiate summary enforcement proceedings for the receivable. If the debtor shipowner objects to these proceedings, the proceedings halt. In this case, the creditor must file an action for annulment of the objection to prove that the objection is unfounded. Istanbul Regional Court of Justice, 14th Civil Chamber (2020/457 E.) summarizes this process: “It is stated that summary enforcement proceedings without a judgment were initiated by the plaintiff (enforcement creditor) against the defendant (enforcement debtor) […] for the collection of the principal receivable,” and that upon objection, an “action for annulment of objection” was filed.

b) Provisional Attachment: The most effective way to secure a receivable before the lawsuit concludes is to request a provisional attachment on the vessel. In maritime claims, ease of proof has been provided for this request. Samsun Regional Court of Justice 3rd Civil Chamber (2024/1905 E.), “approximate proof that the receivable is a maritime claim and its amount has been deemed sufficient.” thus emphasizing this ease. Supreme Court 11th Civil Chamber (2016/10499 E.) and Istanbul Regional Court of Justice 14th Civil Chamber (2018/66 E.) decisions show that submitted offer forms, contracts, and invoices can be accepted as sufficient evidence for a provisional attachment order. However, the creditor requesting provisional attachment also has an obligation to deposit security: “it is mandatory for the creditor requesting a provisional attachment order to secure a maritime claim to provide security in the amount of 10,000 Special Drawing Rights.“ (Samsun Regional Court of Justice 3rd Civil Chamber-2024/1905 E.)

4. Burden of Proof, Evidence, and Potential Defenses

Winning the case depends on proving the existence and amount of the receivable beyond any doubt.

Evidence: In the decision of Istanbul 17th Civil Court of Commerce (2014/1017 E.), it is seen that documents such as “the document related to ‘Works performed and consumables provided’ signed by the ship’s chief engineer“ were accepted as evidence. Invoices, contracts, job completion forms, email correspondence, and expert reports are the most basic means of proof.

Defense of Incomplete/Defective Work: One of the most common defenses the shipowner will resort to is that the work performed was incomplete or defective (faulty). In this case, the court determines the situation through an expert examination. Istanbul 17th Civil Court of Commerce (2019/409 E.) decision stated that, “since it cannot be claimed that the plaintiff is entitled to a fee for unperformed works;…it has been accepted that the plaintiff cannot demand this amount,” thereby indicating that the cost of unproven or incomplete work cannot be claimed.

Insufficient Evidence: Weak evidence can lead to the dismissal of the case. In the decision of Court of Cassation 11th Civil Chamber (2012/4985 E.), the dismissal of the case due to reasons such as the inability to prove that invoices were delivered and the lack of documents related to the repair, however, the Court of Cassation’s reversal of this decision due to the failure to collect evidence demonstrates the importance of submitting and requesting the collection of evidence.

Conclusion

The legal roadmap that a service provider seeking to collect repair and maintenance fees from a non-paying shipowner should follow, in light of the reviewed decisions, includes the following steps:

Documentation of the Receivable: Gather all documentation completely, including contracts, invoices, service reports signed by the ship’s authority, and all other correspondence related to the services rendered.

Request for Provisional Attachment: To secure the receivable, apply to the competent Maritime Specialization Court with the available documents and request a provisional attachment be placed on the vessel. Be prepared to deposit the required collateral.

Initiating Enforcement Proceedings: Initiate summary enforcement proceedings against the debtor shipowner for the collection of the receivable.

Filing an Action for Annulment of Objection: If the debtor objects to the enforcement proceedings, file an “action for annulment of objection” within one year from the notification of the objection, in the competent Maritime Specialization Court.

Litigation Process: Present all your evidence during the lawsuit, cover the necessary expenses for expert examination if requested by the court, and be prepared for the shipowner’s defenses such as “defective work”.

Given that all these processes involve technical details and to avoid loss of rights, it is strongly recommended to obtain professional legal assistance from a lawyer specializing in maritime commercial law. An article suggestion.

Why Is Expert Lawyer Support Needed in Tuzla?

The process of collecting receivables arising from ship repair and maintenance services is subject to both the special provisions of the Turkish Commercial Code and the unique procedural and evidentiary rules of maritime trade law. In this process, there are many technical details, from the request for precautionary attachment to applying to the competent court, from the enforcement proceeding procedure to the submission of evidence in the lawsuit. Even a small mistake made at any stage can lead to the complete loss of the receivable.

Especially for ship maintenance companies operating in shipyard areas in and around Istanbul, such as Tuzla, Pendik, Kartal, Maltepe, Gebze, Çayırova, Tepeören, and Orhanlı, the timely and complete collection of receivables is of vital importance for the sustainability of the business. For this reason, obtaining legal support from an expert lawyer in maritime trade in Tuzla has become not just a recommendation, but a practical necessity.

An experienced Tuzla lawyer in the field can quickly initiate the precautionary attachment process and present strong legal arguments against technical defenses. Thus, both time loss is prevented and the likelihood of collecting the receivable increases. Therefore, working with a lawyer specialized in maritime trade law plays a critical role in the successful conclusion of the process.