Legal Basis, Step-by-Step Procedure, and Critical Points in Practice for the Prohibition from Sailing
1. Legal Nature and Basis of the Prohibition from Sailing
Pursuant to Article 1366 of the Turkish Commercial Code (TCC) No. 6102, all vessels for which a provisional attachment has been ordered are prohibited from sailing and taken into custody by the enforcement officer, regardless of their flag or the registry they are recorded in. In Supreme Court decisions (Supreme Court 12th Civil Chamber, 2022/5590 E., 2022/13683 K K.; 2022/6527 E., 2023/79 K.), it has been emphasized that the act of prohibiting from sailing is one of the mandatory duties that the enforcement office must perform within the scope of executing the provisional attachment and that it is a “natural consequence” of the provisional attachment. In this context, there is no need for the creditor to separately request a prohibition from sailing when requesting a provisional attachment, or for the court to issue a separate decision to that effect.
2. Step-by-Step Procedure for Prohibition from Sailing
In light of the specific cases and legal references found in court decisions, the process of maritime arrest (seizure from voyage) is carried out in the following steps:
Obtaining a Provisional Attachment Order: A provisional attachment order for the vessel is obtained from the competent court (generally the Civil Court of Commerce).
Application to the Enforcement Directorate and Request for Execution: The creditor must apply to the enforcement directorate for the execution of the provisional attachment order within three business days (Turkish Commercial Code, Art. 1364). The enforcement directorate immediately initiates proceedings upon the request for execution.
Enforcement Directorate Decision: Even if not explicitly stated in the court decision, the enforcement officer decides on the arrest of the vessel from voyage and its placement under custody, in accordance with Turkish Commercial Code, Art. 1366.
Issuance of Warrants to Relevant Institutions: The enforcement directorate issues warrants to the relevant Port Authority, Directorate General of Coastal Safety, Coast Guard Command, and Customs Directorate to physically detain the vessel and prevent its movement.
Actual Attachment and Custody: In the attachment of vessels, merely entering an annotation in the registry is not sufficient; actual attachment is required (Court of Appeals 12th Civil Chamber, 2022/2986 E., 2022/6825 K.). The vessel is physically attached by the enforcement officer, arrested from voyage, and placed under custody.
Notification and Protocol Preparation: The fact that the vessel has been attached and arrested from voyage is notified to the captain, owner, bareboat charterer, or their representative. The vessel is identified by its name in the provisional attachment protocol.
Notification to the Registry: The precautionary attachment order is notified to the registry where the ship is registered on the first business day following its application.
3. Special Circumstances and Exceptions
Ship Being on a Voyage: If the ship is on a voyage, the provisions of Article 1367 of the TCC apply. In this case, notice is served on the owner or bareboat charterer, warning them to provide security for the maritime claim within ten days, otherwise the ship will be delivered to the enforcement office on its first voyage (Court of Cassation 12th Civil Chamber, 2015/3161 E., 2015/12109 K.).
Lifting Against Security: If the security determined by the court is deposited by the debtor or third parties, the arrest order can be lifted, and the precautionary attachment can be shifted onto this security.
4. Additional Information from Secondary Sources
The following matters have been supported with data from secondary sources due to limited information in the decision texts:
Custody Costs: The enforcement directorate may request that the expenses necessary for the safekeeping of the ship (e.g., 1-year expenses calculated based on daily costs) be deposited in advance by the creditor. Although the fate of the safekeeping measure is debatable if these expenses are not deposited, the priority of the special provisions of the TCC is emphasized (Antalya 4th Commercial Court of First Instance, 2024/350 E.).
Operational Intervention: In practical examples, it has been observed that in cases where a vessel attempts to escape, Coast Guard boats intervene, warnings are issued via radio and megaphone, and vessels can try to evade pursuit by turning off their AIS (Automatic Identification System) devices (Istanbul 17. ATM, 2018/156 E. K).
Foreign Flagged Vessels: In the case of foreign flagged vessels, Coast Guard assistance and territorial water limitations play a critical role in the enforcement process.
Conclusion: Prohibition from sailing (arrest of vessel) is a protective measure directly implemented by the enforcement officer as a legal duty during the enforcement phase of a provisional attachment order, ensuring the physical detention of the vessel. The process is completed with the steps of applying to the enforcement office, notifying the relevant port and security units, actual seizure, and annotation in the register.
Frequently Asked Questions
Seferden men için mahkemenin ayrıca karar vermesi gerekir mi?
Hayır. Seferden men, ihtiyati haczin doğal ve zorunlu bir sonucudur.
TTK m. 1366 açık hükmü gereği, ihtiyati haciz kararı icra müdürlüğüne intikal ettiğinde, icra müdürü ayrıca bir mahkeme kararı aramaksızın gemiyi seferden men ederek muhafaza altına almakla yükümlüdür. Yargıtay içtihatlarında da (Yargıtay 12. HD, 2022/5590 E.; 2023/79 K.) seferden menin, haczin icrası kapsamında re’sen uygulanması gereken bir işlem olduğu vurgulanmaktadır.
Seferden men yalnızca sicile şerh verilmesiyle tamamlanmış sayılır mı?
Hayır. Sicile şerh tek başına yeterli değildir. Yargıtay’a göre gemi haczinde esas olan fiili hacizdir. Bu nedenle icra memurunun gemiye fiilen el koyması, geminin hareketinin engellenmesi ve muhafaza altına alınması gerekir. Sadece sicile kayıt düşülmesiyle yetinilmesi, haczin hukuken geçerli şekilde uygulanması için yeterli kabul edilmemektedir (Yargıtay 12. HD, 2022/2986 E.).
Gemi seferdeyken ihtiyati haciz ve seferden men nasıl uygulanır?
Gemi seferdeyse TTK m. 1367 devreye girer. Bu durumda icra müdürlüğü tarafından malike veya donatana tebligat yapılarak, on gün içinde teminat verilmesi, aksi halde geminin ilk varacağı limanda icra dairesine teslim edilmesi ihtar olunur. Yani gemi açık denizde zorla durdurulmaz; ancak teminat verilmezse gemi ilk limanda fiilen haczedilerek seferden men edilir.
Why is Expert Legal Support Necessary?
Vessel provisional attachment and prohibition from sailing (arrest) procedures are highly technical processes undertaken within very short periods, involving high economic values and an international dimension. Incorrect court selection, missing the enforcement deadline, providing incomplete instructions to the enforcement office, or failing to notify the relevant authorities (Port Authority, Coastal Safety, Coast Guard) in a timely manner, can lead to the attachment not being effectively implemented and the vessel escaping.
Especially when it comes to Istanbul ports, Tuzla shipyards, and foreign-flagged vessels; Turkish Commercial Code (TTK) – Enforcement and Bankruptcy Law (İİK) – port practices – law enforcement coordination must be carried out together. The prohibition of departure should not remain merely “on paper”, but the stage of actual seizure and custody must be fully completed.
Therefore, in ship arrest (provisional attachment) processes, working with an expert lawyer who is well-versed in maritime commercial law practice and familiar with enforcement and port procedures, is critically important for securing the claim and preventing irreparable loss of rights.
