Introduction

Is Provisional Attachment of a Ship Possible for a Claim Arising from Repair and Maintenance Services Provided to a Foreign-Flagged Ship? This study examines the legal nature of a claim stemming from repair and maintenance services provided to a foreign-flagged ship, whether a provisional attachment can be placed on the ship for the collection of this claim, and the conditions of this process, in light of presented court decisions. Maritime trade is subject to special legal regulations due to its international nature and unique dynamics. In Turkey, this field is primarily regulated by the Turkish Commercial Code (Law No. 6102 – TTK), and the institution of provisional attachment, which is foreseen for securing maritime claims, offers a critical legal protection mechanism for creditors.

The study will first determine whether a repair-maintenance claim is a “maritime claim” , then present its main findings on whether provisional attachment of a ship is possible for such a claim. The examination section will detail the conditions of the provisional attachment institution, differences in practice, procedural requirements, and critical points emphasized by courts, with excerpts from relevant decisions. The conclusion section will summarize all findings and arrive at a clear outcome.

1. Classification of the Claim as a “Maritime Claim”

Article 1352 of the TCC specifies, based on the principle of a limited number (numerus clausus), which claims are considered a “maritime claim”. The examined decisions confirm that services such as repair, maintenance, overhaul, material supply, and similar services provided to a vessel are included in this list. For example, the 11th Civil Chamber of the Supreme Court of Appeals, in one of its decisions, highlighted “that claims related to the construction and repair of a vessel are considered maritime claims pursuant to Article 1352/1-m of the Turkish Commercial Code numbered 6102” (2017/1600 E.).

However, it should be emphasized that not every claim related to a vessel will be considered a maritime claim. Courts carefully examine the source of the claim. For example, the Istanbul Regional Court of Justice ruled that a claim based on the violation of a company partner’s partnership rights is not a maritime claim under Article 1352 of the TCC, and therefore, a preliminary attachment cannot be placed on the vessel (Istanbul Regional Court of Justice 14th Civil Chamber, 2020/1336 E.). This indicates that before filing a request for a preliminary attachment, it must be clarified that the claim conforms to one of the definitions in Article 1352 of the TCC.

2. Conditions for Preliminary Attachment of a Vessel

For a preliminary attachment decision to be granted, the creditor must simultaneously fulfill multiple conditions.

a) Rule of Prima Facie Evidence: The creditor is not expected to conclusively prove the existence and amount of their claim. For courts, “prima facie evidence” is sufficient. This means presenting evidence that will create a strong conviction in the judge regarding the existence of the claim.

The 11th Civil Chamber of the Supreme Court, while overturning the lower court’s “failure to substantiate the claim amount to a convincing degree” rejection decision,  “in requests for precautionary attachment, approximate proof is sufficient, not full proof, and that a decision to accept the request for a precautionary attachment should have been made, considering that port services cannot be provided free of charge…” thus emphasized the importance of the rule of approximate proof (2014/9364 E.).

Conversely, if the evidence is found to be insufficient or suspicious, the request may be denied. The Istanbul Regional Court of Justice, due to the organic link between the parties and the suspicion that the claim might be collusive,  “the documents within the file were not sufficient for approximate proof” reason, lifted the precautionary attachment decision that had been issued (Istanbul R.C.J. 13th Civil Chamber, 2019/699 E.).

b) Obligation to Provide Security: The TCC (Turkish Commercial Code) has imposed an obligation on the creditor to provide security in order to protect the debtor against unjust precautionary attachments. Pursuant to TCC Art. 1363, “A creditor requesting a precautionary attachment decision to secure a maritime claim is obliged to provide security in the amount of 10,000 Special Drawing Rights (SDR).” This matter has also been clearly stated in the decisions of the Antalya Regional Court of Justice 11th Civil Chamber (2017/561 E.) and the Sakarya Regional Court of Justice 7th Civil Chamber (2023/846 E.).

c) The Role of the Debtor and Ship Ownership (TCC Art. 1369): This is one of the most frequently encountered restrictive conditions in requests for provisional attachment. As a rule, the person responsible for the debt as the owner or charterer of the ship when the claim arose must also be the owner of the ship at the time of provisional attachment.

Adana Regional Court of Justice has clearly applied this rule: “Since it is understood that the ship subject to the case was transferred to a third party after the claim against the ship arose, and that the ship subject to the case belongs to a third party as of the date of the request for provisional attachment, it is not possible to issue a provisional attachment order against this person.” (Adana RCJ 9th Civil Chamber, 2022/1530 E.). Similarly, Supreme Court’s 11th Civil Chamber, has ruled that a provisional attachment order cannot be issued against a ship owner who is not a party to the charter party agreement for a claim arising from the charter party (2013/12716 E.). Therefore, it is of vital importance to determine the current ownership status of the ship and its relationship with the debtor before requesting provisional attachment.

d) Procedural Requirements and Competent Court: Since cases related to maritime trade require special expertise, the courts competent to hear these cases are “Maritime Specialized Courts”. Requests for provisional attachment should also be directed to these courts (Istanbul 19th Commercial Court, 2019/211 E.). Furthermore, for the enforcement of a provisional attachment order, an application must be made to the execution office within three business days from the date the decision was rendered, otherwise, the decision automatically lapses (Istanbul RCJ 4th Civil Chamber, 2020/11 E.).

3. Consequence of the Provisional Arrest of the Ship: Prohibition from Sailing

Another important distinction among the decisions that stands out is the relationship between provisional arrest and prohibition from sailing. The creditor cannot directly request “prohibition from sailing” from the court; the request must be limited to “provisional arrest”. However, when the court issues a decision for provisional arrest, as a natural and mandatory consequence of this decision, the enforcement office prohibits the ship from sailing and takes it into custody. The 12th Civil Chamber of the Court of Cassation explained this situation as follows: “all ships for which a provisional arrest decision has been made, regardless of their flag and the registry they are recorded in, are prohibited from sailing and taken into custody by the enforcement officer.” and “Prohibition from sailing is a custody measure and a natural consequence of the arrest.” (2016/10721 K.). Therefore, the creditor does not need to separately request prohibition from sailing.

Conclusion

When the judicial decisions examined are evaluated in their entirety, the following conclusions have been reached:

A receivable arising from services such as repair, maintenance, and overhaul provided to a foreign-flagged vessel, is a “maritime claim” according to Article 1352 of the Turkish Commercial Code. The main legal recourse a creditor can resort to in order to secure such a maritime claim is, the “provisional attachment” of the vessel, in accordance with Article 1353 of the TCC. However, the provisional attachment of a vessel is not an absolute right, and its success depends on the fulfillment of the following critical conditions: The creditor must present evidence to the court (invoice, contract, signed work orders, etc.) proving the existence and amount of their claim in accordance with the rule of prima facie evidence. The creditor must deposit security equivalent to 10,000 SDR with the court treasury, in accordance with Article 1363 of the TCC. As the most critical condition; the person responsible for the debt (owner, charterer, etc.) at the time the claim arose must also be the owner of the vessel at the time the provisional attachment is executed (TCC Art. 1369). A change in the ownership of the vessel may prevent provisional attachment. The application must be made to the Maritime Specialized Court and procedural deadlines (such as the execution of the decision within 3 business days) must be adhered to.

Repair and Maintenance Claims are “Maritime Claims”: Claims arising from repair, maintenance, overhaul, or outfitting services provided to a foreign-flagged vessel are considered “maritime claims” under Article 1352 of the TCC. Courts frequently evaluate these types of claims under subsections (l), (m), or (e) of the article.

Provisional Attachment of a Ship is Possible for a Maritime Claim: The Turkish Commercial Code (TCC) provides a special temporary legal protection method for securing maritime claims: the provisional attachment of a ship. The mere fact that a claim is a maritime claim is considered a ground for provisional attachment. As emphasized by the Antalya Regional Court of Justice: “For the purpose of securing maritime claims, only the provisional attachment of the ship can be ordered. … The fact that the claim is a maritime claim listed in Article 1352 is a ground for provisional attachment.” (Antalya Regional Court of Justice 11th Civil Chamber, 2017/561 E.)

Provisional Attachment is Not an Absolute Right but Subject to Specific Conditions: Although a claim being a maritime claim is sufficient for provisional attachment, all substantive and procedural conditions specified in the law must be met for the decision to be issued and enforced. These conditions include critical elements such as prima facie evidence, deposit of security, determination of the debtor-owner relationship, and application to the competent court. The Izmir Regional Court of Justice has clearly stated this situation: “In paragraph 1, subparagraph (l) of Article 1352 of the Turkish Commercial Code (Law No. 6102), ‘goods, materials… supplied for the operation, management, preservation, or maintenance of a ship, and services rendered for these purposes,’ and in subparagraph (m), ‘the construction, reconstruction, repair, equipping of a ship, or the alteration of its characteristics’ are stipulated as maritime claims.” (Izmir Regional Court of Justice 14th Civil Chamber, 2023/1806 E.)

In conclusion, the repair and maintenance creditor has the possibility to provisionally seize a foreign-flagged vessel in Turkey; however, this process necessitates detailed legal preparation and follow-up, requiring strict adherence to the substantive and procedural conditions stipulated by law.

Why is Legal Support from a Tuzla Lawyer Necessary?

The collection of receivables arising from repair and maintenance services provided to foreign-flagged vessels is subject to a complex and technical process regulated by Articles 1352 et seq. of the Turkish Commercial Code. Specifically, for a provisional seizure to be applied to the vessel, many substantive and procedural conditions must be fully met. An error made during this process can render the collection of the receivable entirely impossible.

Therefore, it is of great importance for individuals or companies seeking a Tuzla lawyer to work with legal professionals experienced in maritime trade and ship receivables. Ship repair companies operating in a location close to a shipyard region like Tuzla are advised to manage the process with a specialist Tuzla maritime law lawyer to protect their legal rights.

Additionally, in similar provisional attachment proceedings: with the support of an Istanbul lawyer, Gebze lawyer, Yalova lawyer, Pendik lawyer
it may be possible to obtain quick and effective results in local courts. In lawsuits and provisional attachment proceedings related to ship claims; the debtor’s ownership over the ship, the correct calculation of the security, the submission of documents in accordance with the principle of approximate proof, and timely application to the competent and authorized court
all such details must be handled with expertise.

Therefore, working with a lawyer specialized in maritime trade and ship provisional attachment in Tuzla and its vicinity is critically important for both securing the claim and ensuring the smooth progress of the process. Remember, a timely provisional attachment decision with the help of a Tuzla ship claim lawyer can secure your entire claim.