Introduction

Ship arrest is a critical legal institution resorted to for the purpose of securing maritime claims. This temporary legal protection measure, applied within the framework of relevant legislation, primarily the Turkish Commercial Code (TCC) and the Enforcement and Bankruptcy Law (EBL), provides significant assurance to the creditor, while potentially leading to serious economic consequences for the shipowner or master. For this reason, the ship arrest process often leads to legal disputes between parties. This analysis, conducted in light of the presented judicial decisions, aims to reveal the most fundamental areas of dispute regarding ship arrest.

1. Fundamental Dispute: The Nature of the Claim: Whether It Is a “Maritime Claim”

The most fundamental and frequently encountered reason for disputes is whether the claim subject to provisional arrest is a “maritime claim” as enumerated in a limited number of provisions under Article 1352 of the TCC. Courts primarily seek the existence of this condition before issuing a provisional arrest order for a ship.

In decisions, it is frequently debated whether items such as ship construction-repair, insurance premiums, ship sales, and crew claims should be considered maritime claims. As stated in a decision by the Istanbul Regional Court of Justice, “provisional attachment cannot be placed on the vessel subject to the lawsuit for a claim that is not a maritime claim” (bam-İstanbul Bölge Adliye Mahkemesi 13. Hukuk Dairesi-2020/947-2020/784) principle demonstrates how central this issue is. Similarly, another decision “any dispute arising between co-owners of the vessel concerning its operation or the proceeds generated from it” (bam-İstanbul Bölge Adliye Mahkemesi 12. Hukuk Dairesi-2018/1672-2018/1348) draws attention to disputes arising from the interpretation of such provisions.

2. Relationship between Ownership and Liability

The second major area of dispute is establishing the ownership and liability connection between the debtor and the vessel on which provisional attachment is to be enforced. Under this heading, several issues arise:

Timing Criterion: The most fundamental dispute is whether the condition stipulated in Article 1369/1-a of the Turkish Commercial Code “that the person who was the owner of the vessel when the maritime claim arose is also liable for this debt and is the owner of the vessel at the time the provisional attachment is enforced” is met. The transfer of ship ownership before the provisional attachment makes the enforceability of the attachment debatable (Yargıtay-11. Hukuk Dairesi-2015/5570-2015/8273; bam-İstanbul Bölge Adliye Mahkemesi 43. Hukuk Dairesi-2024/1478-2024/1452).

Chain of Liability and Organic Link: The complexity in transport or operational relationships makes it difficult to identify the actual debtor. Determining the liability of different actors such as the owner, charterer, operator, carrier, and sub-carrier is a critical point of dispute. As also pointed out by the Supreme Court of Appeals, “a decision cannot be rendered without evaluating whether those against whom a provisional attachment is sought are the main carrier and sub-carrier, and whether there is joint and several liability among them according to Article 1191 of the Turkish Commercial Code” (Supreme Court of Appeals – 11th Civil Chamber – 2014/12903-2014/14261). Similarly, the existence of an organic link between companies and the “piercing the corporate veil” theory is also an important source of dispute (First Instance – Istanbul 17th Commercial Court – 2018/62-2022/370).

Sister Ship Arrest: Article 1369/2 of the TCC (Turkish Commercial Code) permits the arrest of other ships owned by the debtor under certain conditions. The objections raised on the grounds that the arrested ship is owned and operated by the debtor company, and therefore “the conditions for a sister ship arrest exist” (Regional Court of Appeals – Istanbul Regional Court of Justice 14th Civil Chamber – 2021/2175-2021/1668), demonstrate the complexity of this issue.

3. Burden of Proof: The “Prima Facie Evidence” Requirement

Since a provisional attachment is an interim legal protective measure, full proof is not required for the existence of the claim. However, a conviction at the level of “prima facie evidence” must be established in court. The sufficiency of this level of proof is frequently a subject of dispute.

This principle has been clearly stated in a Supreme Court decision as: “It is sufficient for the creditor to provide enough evidence to convince the court that a receivable exists, and since full proof of the receivable is not required, approximate proof is sufficient“ (Supreme Court-9th Civil Chamber-2015/10599-2015/14997). Despite this, courts can reject claims on the grounds that submitted invoices, email correspondence, or unilateral documents “are not sufficient for approximate proof” (bam-Istanbul Regional Court of Justice 13th Civil Chamber-2019/699-2019/629), which indicates different approaches in the evaluation of evidence.

4. Procedural Issues and Procedural Errors

In addition to substantive law discussions, the interpretation and application of procedural rules also lead to serious disputes.

Competent and Authorized Court: One of the most common areas of dispute is the determination of the competent court. The issue of whether the Labor Court (bam-Istanbul Regional Court of Justice 43rd Civil Chamber-2024/481-2024/566) for seafarer receivables, the Maritime Specialized Court (bam-Istanbul Regional Court of Justice 13th Civil Chamber-2019/625-2019/647) depending on the nature of the receivable, or the general Civil Court of Commerce is competent often creates controversy.

Legal Nature of the “Prohibition of Departure” Decision: While Article 1353 of the TCC (Turkish Commercial Code) states that only a precautionary attachment can be requested for maritime claims, and a prohibition of departure cannot be requested; Article 1366 of the TCC stipulates that a vessel under precautionary attachment will be prohibited from departure by the enforcement office. This apparent contradiction is frequently a subject of dispute. According to the established jurisprudence of the Court of Cassation, “the prohibition of departure will be carried out by the enforcement office within the scope of the execution of the precautionary attachment” (Court of Cassation – 12th Civil Chamber – 2022/7245-2023/294). In other words, the prohibition of departure is not a separate claim but a consequence of the precautionary attachment.

Amount of Security: The amount of security that the creditor must deposit when a precautionary attachment decision is made, and whether this amount covers the value of the vessel and potential damages, is also a significant topic of discussion. The opposing party frequently argues that “this determined amount of security is insufficient to cover the potential damages of its client” (RACC – Antalya Regional Court of Appeal 11th Civil Chamber – 2023/1192-2023/1083).

Other Procedural Disputes: Beyond these, issues such as the failure to execute a precautionary attachment decision within 3 business days (RACC – Istanbul Regional Court of Appeal 4th Civil Chamber – 2020/11-2020/143), the inability to directly appeal a decision rendered in absence (RACC – Istanbul Regional Court of Appeal 14th Civil Chamber – 2024/1134-2024/1145), deadlines related to procedures completing the precautionary attachment (RACC – Izmir Regional Court of Appeal 14th Civil Chamber – 2023/1806-2023/1537), and negligent actions of the enforcement office also create disputes.

The examined decisions show that the ship arrest process has a multilayered and complex structure. Disputes rarely depend on a single reason; usually, multiple issues intertwine, such as whether the claim is a “maritime claim” , the complexity of the ownership link between the debtor and the ship, and whether the evidence presented is sufficient for “prima facie proof”.

Especially in international maritime trade relations, identifying the contractual and organic links between different companies (owner, charterer, operator, agent) constitutes the most challenging part of provisional arrest. Courts strive to strike a balance, on one hand aiming to protect the creditor, and on the other hand seeking to prevent significant damages that could arise from the unjust application of provisional arrest. This quest for balance can lead to differences in the interpretation of concepts such as “prima facie proof” and “security”.

Furthermore, the tension between the letter and spirit of legal regulations regarding “prohibition of voyage” has caused hesitations in practice, but has largely been clarified by Supreme Court precedents. Similarly, disputes in determining the competent court can lead to procedural dismissal or prolongation of the case without delving into its merits, thereby causing loss of rights.

Conclusion

In conclusion, based on the judicial decisions examined, the most common dispute issues in ship arrest can be summarized as follows: Substantive Law Disputes: Whether the claim is a “maritime claim” within the scope of TCC article 1352. Who was the owner/responsible party of the vessel subject to the arrest request at the time the claim arose and at the time of the arrest (determination of ownership, organic link, sister ship). Whether the existence and amount of the claim have been proven to the level of “prima facie evidence”. Procedural Law Disputes:Which court will hear the case (jurisdiction and competence). The nature and claimability of the “prohibition of sailing” decision. The sufficiency of the determined amount of security. The legal deadlines and procedures regarding the application and continuation of the provisional arrest.

These findings indicate that creditors applying for ship arrest must prepare the legal and factual grounds on which their claims are based with extreme care; debtors, on the other hand, have a wide range of objections, both substantive and procedural. An article suggestion.

Why is Tuzla Lawyer support needed?

Provisional arrest of ships is an effective legal measure applied to secure maritime claims. However, in this process, many debatable issues arise, such as whether the claim is truly a “maritime claim,” the ownership and liability relationship between the ship to be arrested and the debtor, the sufficiency of the approximate level of proof, the amount of security, and the competent court. Furthermore, technical details like the execution of the prohibition of departure, sister ship arrest, time limits, and the interpretation of procedural rules also complicate the process. This multi-layered structure harbors risks that could lead to significant loss of rights or liabilities for both creditors and debtors.

In such technical and open-to-interpretation areas, an erroneous application or an incomplete assessment can cause the entire process to become invalid from the outset. Therefore, it is of great importance for creditors and debtors operating in regions with high maritime trade to seek support from lawyers specialized in maritime and commercial law, such as Tuzla lawyers, Pendik lawyers, Kartal lawyers, Gebze lawyers, Çayırova lawyers, Maltepe lawyers, Orhanlı and Tepeören lawyers. This way, both the securing of the claim and the proper and effective application of the provisional arrest can be ensured.