Introduction
Ship trade is inherently a field fraught with high risks and international legal disputes. In these disputes, one of the most effective ways creditors resort to secure their rights is the precautionary attachment of a ship. However, this measure can lead to significant economic losses for the shipowner and operator by halting the ship’s commercial activity. Therefore, how to lift an unfair or unlawful precautionary attachment decision is one of the most critical issues in maritime commercial law. This study comprehensively examines the legal avenues, grounds, and processes for lifting a precautionary attachment decision on a ship by analyzing various Supreme Court (Yargıtay) and Regional Courts of Justice decisions presented.
1. Objection to Precautionary Attachment Decision and Grounds for Lifting
The most frequently resorted method for lifting a precautionary attachment decision is to object to the decision in accordance with Article 265 of the Enforcement and Bankruptcy Law (EBL). The objection may relate to both the substantive grounds on which the attachment is based and the procedural conditions.
Non-ownership by the Debtor: One of the most fundamental grounds for objection is that the vessel was not owned by the person designated as the debtor at the date of attachment. Courts accept this situation as a valid reason for the lifting of the provisional attachment. Indeed, in a decision, it was emphasized that, “according to Article 1369/1-a of the Turkish Commercial Code (TCC), if the person who was the owner of the vessel when the maritime claim arose is also the owner of the vessel at the time the provisional attachment is enforced, the vessel may be provisionally attached”, and it was stated that the decision was lifted due to the vessel not belonging to the debtor at the date of the provisional attachment (Supreme Court-11th Civil Chamber-2015/5570).
The Claim Not Being a “Maritime Claim”: Article 1353 of the Turkish Commercial Code (TCC) stipulates that provisional attachment can only be sought for “maritime claims”. If the claim is not of this nature, the provisional attachment decision is deemed unfair and is lifted. In a court decision, this situation was stated as, “…if the claim subject to enforcement is not a maritime claim, it can be lifted” (First Instance-Istanbul 19th Commercial Court of First Instance-2022/581). Similarly, a Regional Court of Appeals decision emphasized that a claim based on a company partner’s partnership rights would not be considered a maritime claim, and therefore, the attachment imposed should be lifted (Regional Court of Appeals-Istanbul Regional Court of Appeals 14th Civil Chamber-2020/1336).
Failure to Meet the Condition of Prima Facie Evidence: For a precautionary attachment order to be issued, the creditor must provide prima facie evidence of the existence of the receivable. If the court finds the evidence presented by the creditor insufficient, it may lift the precautionary attachment order upon objection. A Supreme Court decision upheld the decision to lift the precautionary attachment on the grounds that “insufficient evidence and documents suitable for prima facie proof regarding the existence of the receivable were not submitted” (Supreme Court-11th Civil Chamber-2016/9416).
Acquisition of Unencumbered Ownership as a Result of Forced Execution: A new owner who purchases a ship through a forced execution sale conducted in a foreign country may acquire the ship free from all encumbrances. In this case, the new owner’s ship cannot be seized for the debts of the former owner. In a decision, as a result of a forced sale conducted under Gibraltar law, it was stated that “the forced auction buyer … acquired ownership of the ship free from all real and personal rights and encumbrances”, and consequently, the precautionary attachment was decided to be lifted on these grounds (Regional Court of Justice-Istanbul Regional Court of Justice 14th Civil Chamber-2021/1565).
2. Lifting the Attachment by Providing Collateral
To enable the shipowner to continue their commercial activities, one of the most practical solutions is to provide security. Article 1371 of the Turkish Commercial Code (TCC) recognizes this possibility. A Regional Court of Justice decision explained this situation with the provision: “the owner or debtor of the ship may request the court to lift the provisional attachment by providing sufficient security for the full maritime claim, interest, and expenses, provided that it does not exceed the value of the ship” (Regional Court of Justice – Istanbul Regional Court of Justice 13th Civil Chamber – 2022/1202). This security can be cash or an unconditional and indefinite letter of guarantee from a reputable bank. In this case, the attachment is lifted from the ship and transferred to the security, and the ship is released (First Instance – Bursa 1st Commercial Court of First Instance – 2019/896).
3. Lifting of Attachment Due to Procedural Reasons and Non-Compliance with Deadlines
After obtaining the provisional attachment order, the creditor is obligated to comply with specific legal deadlines. Non-compliance with these deadlines results in the provisional attachment becoming automatically invalid.
Enforcement Request Period: The creditor, starting from the date the provisional attachment order was issued, “within three business days“ must request the enforcement of the decision from the execution office within the jurisdiction of the court that issued the decision. Otherwise, in accordance with Article 1364 of the TCC, “the provisional attachment order is automatically lifted” (Court of Cassation – 12th Civil Chamber – 2016/6938, Regional Court of Justice – Istanbul Regional Court of Justice 4th Civil Chamber – 2020/11).
Period for Filing a Lawsuit: If the debtor objects to the payment order in enforcement proceedings, the creditor must, from the date of notification of the objection to them, “one month” file a lawsuit for the removal or annulment of the objection. If a lawsuit is not filed within this period, in accordance with Article 264 of the EIL, “the provisional attachment becomes invalid” (bam-Istanbul Regional Court of Justice 13th Civil Chamber-2023/1947).
4. Objections to Jurisdiction and Authority
The court that issued the provisional attachment decision not being competent or authorized is also an important reason for the annulment of the decision. Especially in disputes falling under the Labor Law, such as claims of seafarers, it is often observed that the competent court is the Labor Court, not the Commercial Court. In such cases, the court, “by deciding on the PROCEDURAL REJECTION due to a deficiency in the lawsuit condition related to competence”, lifts the provisional attachment (bam-Adana Regional Court of Justice 9th Civil Chamber-2024/278, bam-Izmir Regional Court of Justice 17th Civil Chamber-2022/1575).
Conclusion
When the reviewed judicial decisions are evaluated comprehensively, the annulment of a provisional attachment order on a ship requires a multifaceted and detailed legal process. The ways in which the debtor or the shipowner can apply for the annulment of the decision are: objecting to the decision on substantive grounds (ownership, nature of the claim, etc.) or procedural grounds (jurisdiction, authority, time limits), providing sufficient collateral to cover the claim, or waiting for the attachment to be automatically lifted as a result of the creditor failing to fulfill their legal obligations.
The success of each method depends on the specific characteristics of the concrete case, the strength of the evidence presented, and strict adherence to legal deadlines. Particularly, issues such as the ownership status of the vessel, whether the claim is a “maritime claim”, and whether the court making the decision has jurisdiction play a key role in the lifting of the provisional attachment. Therefore, for parties facing provisional attachment, carefully analyzing their situation, determining the most appropriate legal strategy, and seeking support from a legal expert in this process great importance holds.
Why is Tuzla Lawyer Support Necessary?
Tuzla, Pendik, Yalova, Ambarlı, Gebze, and similar port areas are among Turkey’s busiest and most strategic centers for shipbuilding, maintenance-repair, and maritime transportation. Domestic and foreign companies operating in these regions frequently encounter legal processes specific to maritime trade. Particularly, operations such as imposing a provisional attachment on a vessel or lifting this attachment involve high commercial risks and necessitate quick action.
Issues such as the objection to ownership, the nature of the claim, the distinction of the competent court, approximate proof, and non-compliance with deadlines, as explained in detail above, require technical knowledge, mastery of judicial precedents, and the ability to correctly guide the process. An incorrect or delayed application can lead to significant financial losses and the detention of the vessel from service.
Therefore, it is of vital importance for maritime companies in Tuzla and its vicinity to work with a lawyer specialized in Turkish Commercial Law, Enforcement and Bankruptcy Law, and maritime jurisprudence, who knows the sectoral structure of the region, in order to prevent loss of rights and achieve effective results.
