Introduction

A preliminary attachment on a ship, while providing strong security to the creditor in maritime commercial law, is a serious legal measure that can bring the commercial activities of the debtor shipowner or charterer to a halt. Therefore, it is of critical importance for a debtor facing an unfair or unlawful preliminary attachment to know the legal remedies available to them. The various court decisions presented detail the different strategies a debtor can pursue to lift the preliminary attachment and the factors affecting the success rate of these remedies. This study, by synthesizing the relevant court decisions, comprehensively, consistently, and informatively analyzes what legal remedies a debtor can resort to in order to lift the preliminary attachment on their ship, addressing the question: What are the Legal Remedies for Lifting a Preliminary Attachment on a Ship in Light of Court Decisions?

1. Objection to Provisional Attachment for the Lifting of Provisional Attachment (EBL art. 265)

The debtor’s most fundamental right is to object to the provisional attachment decision in accordance with Article 265 of the Enforcement and Bankruptcy Law (EBL). This objection must be made within seven days from the notification of the decision and based on specific reasons.

In the decision of the Istanbul Regional Court of Justice 14th Civil Chamber (2024/1134 K.), this right is expressed as follows: “Article 265/1 of the EBL states: ‘The debtor may object to the reasons for the provisional attachment given without their hearing, to the jurisdiction of the court, and to the collateral; in attachments made in their presence, from the application of the attachment, otherwise, from the date of notification of the attachment record, within seven days, by applying to the court.’” However, the grounds for objection are limited. As stated in another decision of the Istanbul Regional Court of Justice 14th Civil Chamber (2022/1128 K.), “matters concerning fault and the amount of damage cannot be heard within the scope of the objection.” Such claims should be discussed in a lawsuit to be filed on the merits. If the objection is accepted, the court may lift the provisional attachment. If the objection is rejected, an appeal may be filed.

2. Lifting of Attachment by Providing Security (TCC art. 1371, EBL art. 266)

One of the most certain and quick solutions for the debtor is to provide security to cover the claim. This method is critically important for the vessel to continue its commercial activities.

The İzmir Regional Court of Justice 14th Civil Chamber (2023/1537 K.) explains this method as follows in the context of the Turkish Commercial Code (TCC): “the owner or debtor of the ship may request the court to lift the provisional attachment by providing sufficient collateral for the entire maritime claim, its interest, and expenses, provided that it does not exceed the value of the ship.”

In the decision of the 11th Civil Chamber of the Court of Cassation (2016/7959 K.), an important procedural detail is highlighted: “this authority will transfer to the enforcement court after enforcement proceedings have commenced” has been emphasized. Therefore, the debtor should direct their request either to the court that issued the provisional attachment order or to the enforcement court, depending on the stage of the enforcement proceedings.

3. Objection to Jurisdiction and Authority

The issuance of a provisional attachment order by a court without proper jurisdiction or authority is a sufficient reason for its removal without delving into the merits of the decision.

Objection to Jurisdiction: The Adana Regional Court of Justice (2024/588 K.) stated that the claim of a seafarer working on a foreign-flagged ship falls within the jurisdiction of the Labor Court, and therefore, the provisional attachment order issued by the Civil Court of Commerce should be procedurally dismissed due to a “lack of a condition for suit”. Similarly, the İzmir Regional Court of Justice (2022/1556 K.) ruled that the attachment order issued by the Civil Court of Commerce should be lifted because the competent court was the Civil Court of First Instance.

Objection to Authority: The 11th Civil Chamber of the Court of Cassation (2013/11007 K.) ruled that a provisional attachment order issued by an unauthorized court should be lifted upon an objection made in accordance with Article 265 of the Enforcement and Bankruptcy Law (EBL).

4. Claim That the Receivables Are Not “Maritime Claims”

Article 1353/3 of the TCC (Turkish Commercial Code) made the issuance of a precautionary attachment decision against a ship conditional on it being a “maritime claim”. If the claim is not of this nature, the attachment decision is unjustified. This situation is clearly stated in the decision of the Istanbul 19th Commercial Court of First Instance (2022/756 E.): “Since the claim subject to enforcement is not a maritime claim, precautionary attachment of ships is not possible under Article 1353/1 of the Turkish Commercial Code No. 6100.” For this reason, it is possible to apply to the Enforcement Court to lift the precautionary attachment and the prohibition of sailing decision.

5. Change of Ownership and Forced Execution

A change in the ownership of the ship can be a complex but effective argument for lifting a precautionary attachment.

Transfer of Ownership: The 11th Civil Chamber of the Supreme Court (2015/8273 E.), in accordance with TCC Article 1369/1-a, stated that the person who owned the ship when the maritime claim arose must also be the owner at the time the precautionary attachment is enforced, and ruled for the lifting of the precautionary attachment because ownership had been transferred.

Acquisition by Forced Execution: In the event a ship is sold by forced execution in a foreign country, it becomes important whether the ship is transferred to the buyer free from all encumbrances (obligations) according to the law of the country where the sale took place. The 14th Civil Chamber of the Istanbul Regional Court of Justice (2021/1266 K.) ruled that the precautionary attachment should be lifted because all lien rights on the ship had ceased under Gibraltar law.

6. Creditor’s Failure to Comply with Legal Deadlines

A precautionary attachment does not grant the creditor an indefinite right. Failure of the creditor to perform certain procedural actions within the prescribed periods leads to the automatic lifting of the precautionary attachment.

In the decision of the 12th Civil Chamber of the Supreme Court (2016/2438 K.), with reference to Article 264 of the EBL, it was stated that if the debtor objects to the payment order, the creditor must file a lawsuit for the cancellation or annulment of the objection within seven days from the notification of the objection. Failure to comply with these deadlines renders “the precautionary attachment null and void”. Similarly, the Istanbul Regional Court of Justice (2023/1756 K.) drew attention to the one-month forfeiture period in Article 1376 of the TCC.

7. Agreement of the Parties (Settlement)

Resolving disputes out of court is always an option. In the decision of the Istanbul 15th Civil Court of Commerce (2024/686 K.), it is seen that upon the parties notifying the court of their agreement by submitting a settlement protocol, the court returned the letter of guarantee taken as collateral for the precautionary attachment, and the case concluded due to settlement. This is the least contentious way to lift a precautionary attachment.

Conclusion

The reviewed court decisions indicate that there is no single standard way to lift a precautionary attachment on a debtor’s vessel; instead, there are multiple situation-specific strategies. The debtor, by utilizing the rights granted to them by the EBL (Enforcement and Bankruptcy Law) and TCC (Turkish Commercial Code);

Objection to Precautionary Attachment: It is the most common method for the debtor to object within the given period to the grounds for the attachment, the court’s jurisdiction, or the collateral provided by the creditor.

Lifting the Attachment by Providing Collateral: The debtor can release the vessel by providing sufficient collateral (cash, bank letter, etc.) to the court or enforcement office to cover the debt amount, interest, and expenses.

Objection to Competence and Jurisdiction: If the court that issued the precautionary attachment order is incompetent (e.g., a Labor Court is competent instead of a Civil Court of Commerce) or lacks jurisdiction, it is a strong reason for the attachment to be lifted.

Objections Regarding the Nature of the Claim: If the claim subject to attachment is not a “maritime claim” as defined in the Turkish Commercial Code (TCC), it can be argued that a precautionary attachment order cannot be issued against the vessel.

Change of Ownership and Forced Execution Argument: If the ownership of the vessel changes after the maritime claim arises but before the precautionary attachment is enforced, or if the vessel is acquired free of all encumbrances through forced execution, it may allow for the lifting of the attachment.

Creditor’s Failure to Comply with Legal Deadlines: The creditor’s failure to take the necessary actions within the legal deadlines following the precautionary attachment (e.g., the period for filing a lawsuit for annulment of objection) leads to the precautionary attachment becoming null and void.

Agreement of the Parties (Settlement): The parties reaching an agreement among themselves, signing a settlement protocol, and submitting it to the court is one of the most practical ways to lift a precautionary attachment.

Which legal path to follow will vary depending on the nature of the receivable underlying the precautionary attachment, whether the court making the decision is correctly determined, the ownership status of the vessel, and the creditor’s diligence in collection procedures. Therefore, it is essential for the debtor to conduct a legal assessment with all the details of the specific case to determine the most appropriate strategy in the face of a precautionary attachment. Book recommendations.

Why is Tuzla Lawyer Support Necessary?

Precautionary attachments against vessels are not merely a technical enforcement procedure; they also require comprehensive analysis in terms of maritime commerce, collateral regime, and enforcement law. In regions like Tuzla, where maritime activities are intense in Istanbul, managing this process correctly is only possible with a Tuzla lawyer who is familiar with local practices and specialized in maritime law and enforcement law.

An expert lawyer in Tuzla can determine the most effective solution by analyzing details such as the basis of the precautionary attachment, its method of application, and in which court the process will proceed. Furthermore, for maritime companies operating in regions such as Pendik, Kartal, Maltepe, Gebze, and Yalova, working with a lawyer who is familiar with local court practices can prevent the unnecessary detention of a vessel.

📌 To access comprehensive evaluations based on the details of this topic and sample court decisions, you can take a look at 2M Law Office’s relevant articles: