Enforcement of Precautionary Attachment and Prohibition of Departure Measures When the Vessel is Underway

This report contains concrete analyses prepared in line with the provisions of the Turkish Commercial Code (TTK) and Supreme Court precedents, regarding how a precautionary attachment decision will be enforced when the vessel is underway.

1. General Legal Framework and Enforcement Authority

Pursuant to Article 1353 of the Turkish Commercial Code (TTK) No. 6102, only precautionary attachment of the vessel may be decided for maritime claims. Pursuant to TTK Art. 1366, all vessels for which a precautionary attachment has been decided, regardless of their flag or registry, are prohibited from departure by the enforcement officer and taken into custody. According to the established precedents of the 12th Civil Chamber of the Supreme Court (e.g., 2022/5590 E., 2022/13683  K.), even if there is no explicit “prohibition of departure” provision in the court decision, this action is a mandatory and natural duty that the enforcement office must perform within the scope of enforcing the precautionary attachment.

2. Enforcement Procedure When the Vessel is Underway (TTK Art. 1367)

The procedure to be followed when a precautionary attachment decision is to be enforced on a vessel that has actually departed or is underway is regulated in Article 1367 of the TTK based on flag distinction:

Turkish Flagged Vessels (Art. 1367/1-a): The precautionary attachment decision is served upon the owner, shipowner, or the person responsible for the debt. The debtor is warned to provide security for the maritime claim within ten days, otherwise the vessel must be delivered to the enforcement office on its next voyage. If the vessel is not delivered, criminal proceedings will be initiated pursuant to Article 289 of the Turkish Penal Code.

Foreign Flagged Vessels (Art. 1367/1-b): A provisional attachment order can be enforced, with the assistance of the Coast Guard Command, until the vessel leaves Turkish territorial waters. After the vessel leaves territorial waters, enforcement is no longer possible.

3. Enforcement Analysis with Concrete Examples

A. Stopping and Return of a Vessel Underway:

In a file of the Istanbul 17th Civil Court of Commerce (2017/138 E. K), after the vessel named “…” departed from the port, the provisional attachment order was notified to the agent and the vessel was instructed to stop. The vessel, under threat of arrest in Haydarpaşa, cancelled its voyage and returned, and the resulting freight loss during this process was made subject to compensation under “unjustified provisional attachment.”

B. Allowing Transit Passage and Continuation of Prohibition of Sailing:

In a case examined by the Istanbul 22nd Enforcement Court (2015/16 E. ), the M/V ACT vessel was prohibited from sailing while underway. The enforcement office allowed the vessel to transit through the Istanbul Strait without calling at any port in Turkey, so that it could discharge the cargo it had taken from Ukraine in Egypt, but decided to continue the prohibition of sailing after discharge. This practice serves the purpose of continuing the vessel’s operation and preventing economic hardship within the scope of Article 1367/a of the Turkish Commercial Code.

C. Impossibility of Enforcement on a Vessel That Has Left Territorial Waters:

In a decision by the 12th Civil Chamber of the Istanbul Regional Court of Justice (2019/1702 E. K), it was determined that a provisional attachment could not be practically enforced against a ship that departed Turkish territorial waters without complying with the Coast Guard’s “stop” warning. In this situation, although the enforcement office sent a memorandum to the agent requesting the ship be brought back to Turkey, the actual attachment could not be realized because the ship had left territorial waters.

D. Release Against Security: 

In the example of the İzmir 10th Enforcement Court (2016/245 E. K), a decision to prohibit the departure of the MV ASI M ship, which was in service, was made. However, upon the debtor’s representative depositing the debt amount as security, the provisional attachment was shifted onto the security, and the departure prohibition order was lifted.

4. Information Obtained from Secondary Sources

The following points were emphasized in the decisions referred to as secondary sources:

Requirement for Physical Attachment: For the attachment of ships, merely making an annotation in the registry or the Registration of Yachts and Boats is not sufficient; it is mandatory that the ship is actually prohibited from sailing and taken into custody. Merely placing an annotation without actual attachment does not constitute a valid attachment (Supreme Court 12th Civil Chamber, 2022/2986 E. ).

Approximate Proof: For a preliminary attachment order to be issued for maritime claims, full proof is not required; “approximate proof” is sufficient. In cases such as the non-payment of port service fees, the danger of the ship leaving the port is a sufficient reason for attachment (Court of Cassation, 11th Civil Chamber, 2014/9364 E. K).

Competent Court: In disputes regarding the provisional attachment of ships, Maritime Specialised Courts (in Istanbul, Commercial Courts of First Instance) are competent (Bakırköy 4th Commercial Court of First Instance, 2023/1216 E. K).

Conclusion

In the event that the ship is on a voyage, the execution of the preliminary attachment is carried out as follows: for Turkish-flagged vessels, through a 10-day security warning and an obligation to surrender on the next voyage, and for foreign-flagged vessels, by intervention through the Coast Guard until the territorial waters are exited. The enforcement office may permit the ship’s transit passage to unload its cargo, according to the requirements of the specific situation, but ensures preservation by maintaining the embargo on departure.

Frequently Asked Questions

Seferde olan bir gemi hakkında ihtiyati haciz kararı fiilen uygulanabilir mi?

Evet. TTK m. 1367 uyarınca geminin seferde olması, ihtiyati haczin uygulanmasına engel değildir. Türk bayraklı gemilerde teminat ihtarı ve teslim yükümlülüğü uygulanırken, yabancı bayraklı gemilerde Sahil Güvenlik aracılığıyla Türk karasularını terk edinceye kadar fiili müdahale mümkündür.

Mahkeme kararında “seferden men” yazmıyorsa icra müdürlüğü bu işlemi yapabilir mi?

Evet. Yargıtay 12. Hukuk Dairesi’nin yerleşik içtihatlarına göre, seferden men işlemi ihtiyati haczin doğal ve zorunlu sonucudur. Mahkeme kararında açıkça yazmasa bile icra müdürlüğü gemiyi seferden men ederek muhafaza altına almak zorundadır.

Yabancı bayraklı gemi Türk karasularını terk ederse ihtiyati haciz geçerli olur mu?

Hayır. Yabancı bayraklı gemi Türk karasularını terk ettiği anda fiili infaz imkânsız hale gelir.
Bu nedenle İstanbul, Tuzla ve Gebze gibi yoğun liman bölgelerinde zaman faktörü hayati önemdedir.

Why is Expert Maritime Commercial Law Attorney Support Necessary?

Preliminary attachment procedures for vessels on voyage involve;

the joint interpretation of Articles 1353 – 1366 – 1367 of the Turkish Commercial Code (TCC),

simultaneous coordination with the Coast Guard, Port Authority, and enforcement office,

urgent decisions that must be made within hours,

the risk of wrongful preliminary attachment compensation in case of incorrect procedure,

If the vessel leaves Turkish territorial waters, it entails irrevocable loss of rights. Especially in areas with high maritime traffic, such as the Istanbul Strait, the Tuzla shipyard region, and the Gebze – Kocaeli port line;

a delayed writ,

wrong choice of enforcement office,

Failure to contact the Coast Guard in a timely manner may cause the creditor to completely lose the vessel. For this reason, a precautionary attachment on vessels in operation is not a classic enforcement file, but rather a high-risk maritime trade operation. It is imperative that the process is handled by a specialist lawyer who is proficient in both maritime trade law and enforcement law.