1. What Is Prima Facie Proof and Why Is It Considered Sufficient?

A provisional attachment is not a judgment resolving the dispute on the merits, but a provisional legal protection measure. Its purpose is to secure collection of the claim until the proceedings are concluded. For this reason, the legislature has adopted a reduced standard of proof instead of full proof.

In the Istanbul Regional Court of Appeal 43rd Civil Chamber decision dated 21.04.2022, E. 2022/666 – K. 2022/487: “Under Article 1362/1 of the TCC, for provisional attachment of a vessel, it is sufficient for the creditor to submit evidence capable of persuading the court that the claim is one of the maritime claims listed in Article 1352 and as to its monetary value.”

The Istanbul Regional Court of Appeal 13th Civil Chamber likewise stated in its decision dated 28.01.2021, E. 2021/38 – K. 2021/97 that “for a provisional attachment order to be granted, full and conclusive proof of the existence and enforceability of the claim is not required; submission of evidence capable of persuading the court on this point is deemed sufficient” .

In legal scholarship and case law, this standard is formulated as follows: not complete conviction, but a strong probability and approximate conviction is sufficient. While the judge accepts that the allegation is more likely than not to be true, the judge does not disregard the possibility, however slight, that the opposite may be true.

2. Prima Facie Proof Does Not Mean That Proof Is Not Required

This is the most common misunderstanding in practice. A reduced standard of proof does not eliminate the obligation to present evidence. The creditor must create a positive conviction in the court regarding the existence and monetary value of the claim.

3. The Objection “The Claim Requires Adjudication” Is Not by Itself a Ground for Dismissal

The opposing party often argues: “The existence and amount of the claim can only be determined in the main proceedings; therefore, provisional attachment cannot be granted.” This defence is not sufficient by itself.

In the Ankara Regional Court of Appeal 35th Civil Chamber decision dated 21.09.2022, E. 2022/1714 – K. 2022/69: “The fact that the claim requires adjudication is not, by itself, a statutory ground for rejecting provisional attachment… Even if the claim requires adjudication, if the creditor can establish the existence of the claim on a prima facie basis with the evidence submitted, the creditor may request provisional attachment despite the need for adjudication.”

Similarly, in the Kayseri Regional Court of Appeal 6th Civil Chamber decision dated 01.11.2023, E. 2023/2087 – K. 2023/1795, the first-instance court’s dismissal on the ground that “the allegations require adjudication” was set aside as having been rendered on “mistaken grounds and reasoning”.

In the Bursa Regional Court of Appeal 5th Civil Chamber decision dated 08.03.2024, E. 2024/393 – K. 2024/434, it was held that allegations concerning loading responsibility and fault would be debated in the main proceedings; and that prima facie proof had been established through the expert report in the preservation-of-evidence file, the pro forma invoice, export customs declarations and damage photographs.

4. Fault Is Not Debated at the Provisional Attachment Stage

The Istanbul Regional Court of Appeal 43rd Civil Chamber expressly stated this point in its decision dated 26.09.2024, E. 2024/1308 – K. 2024/1339: “Although the defendant raised objections concerning fault, those objections may be examined in the action on the merits and cannot be examined at the stage of evaluating an objection to provisional attachment.”

The statutory basis is İİK Art. 265/3: the court examines the objection strictly within the grounds asserted . The grounds of objection are also limited — the grounds on which the attachment is based, the court’s jurisdiction and security. Defences going to the merits, such as forgery, the degree of fault and the exact amount of the claim, fall outside this framework.

5. Comparison of Cases Accepted and Rejected

The difference between the two columns can be summarised in one sentence: files that establish the existence and extent of the damage through concrete, visual and technical documentation are accepted; files based on abstract assertions and leaving the source of the damage unclear are rejected.

6. Evidentiary Value of the Letter of Protest

A Letter of Protest is a document issued by an independent survey company or cargo interest, notifying the vessel of the identified adverse condition and declaring that rights and liability claims are reserved.

In the Istanbul Regional Court of Appeal 13th Civil Chamber decision dated 16.07.2020, E. 2020/837 – K. 2020/812 and the Istanbul 11th Commercial Court of First Instance decision dated 01.11.2021, E. 2020/354 – K. 2021/798, the expected procedure was described as follows: “In such accident or damage situations, the condition should immediately be recorded by photograph, video, etc.; a protest should be served on the ship’s master and a joint survey should be carried out.”

In those cases, the absence of photographic/video records and a protest served on the master was regarded as a deficiency of proof ; the survey report, which contained no concrete findings as to how the damage occurred, was considered insufficient and the request was rejected.

7. What Does It Mean When the Master Stamps and Signs the Protest?

In practice, the master generally acknowledges receipt of the protest with wording such as: “receipt only, without prejudice to the owners / vessel right and without admission or acceptance for any liability.” In other words: “received only, without prejudice to the rights of the owner/vessel and without admitting or accepting any liability.”

This reservation does not reduce the evidentiary value of the protest. On the contrary, it produces favourable consequences in three separate respects:

1. It documents that notice was given. The stamp and signature establish that the damage notice required under TCC Art. 1185 reached the vessel.
2. It shows that the vessel side was aware of the findings. The master saw the facts stated in the protest and put them on record.
3. It may help establish the identity of the owner. The vessel’s stamp often bears the name of the owning or operating company; moreover, the word “owners” indicates on whose behalf the master is speaking.

It is also important if the master’s reservation does not deny the existence of the damage but objects only to its cause : this effectively removes the existence of the damage from dispute and shifts the debate to causation, which belongs to the proceedings on the merits.

If the protest is not signed, this does not weaken the request; in that case, separate proof of service is required, such as email or a delivery record. If the master refuses to sign a protest identifying a risk but accepts later protests, that circumstance may also be evaluated separately in the file.

8. Joint Survey and Participation of the P&I Surveyor

Unilaterally prepared reports have limited evidentiary weight. An inspection conducted with the participation of the opposing side is much stronger both technically and legally.

In the Istanbul Regional Court of Appeal 12th Civil Chamber decision dated 19.06.2025, E. 2022/1739 – K. 2025/1003, with reference to TCC Art. 1185/2, it was emphasised that “there was no determination concerning the allegedly damaged cargo carried out with the participation of both parties and through the court” .

If the P&I surveyor does not attend despite the invitation, this should be recorded in the minutes and the invitation should be documented; the fact that an invitation was made significantly weakens any objection based on unilateral inspection.

9. The Decisive Importance of Photographic and Video Evidence

In cargo-damage cases, photographs are the only form of evidence capable of showing the existence and extent of damage without requiring a technical assessment. Courts do not give weight to reports that contain no visual findings.

An effective photographic file should include:

• General stowage photographs taken immediately when the hatch covers are opened
• Photographs of other cargo placed on top of the cargo (heavy steel, equipment, machinery)
• Lashing/securing arrangements and use of dunnage inside the hold
• Hatch-cover gaskets, bilge openings and steel surfaces
• Close-up images of the damage: dents, deformation, loss of roundness, corrosion
• Condition of protective covers and packaging
• Yard/warehouse photographs after discharge
• Date and time stamp on all images and, where possible, location information

If the photographs are attached to the protest and the protest is received by the vessel, it becomes more difficult for the opposing party later to object to their content, location or timing.

10. Silver Nitrate (AgNO₃) Test: the Chemical Signature of Seawater

The most common defence in steel-cargo cases is: “The rust existed before loading and was also noted on the bill of lading.” The most effective way to counter this defence is to establish the chemical source of the corrosion.

The silver nitrate test indicates the presence of salt (chloride) on the surface. Chloride does not arise merely from atmospheric humidity or from steel waiting in an open yard; it appears through contact with seawater . A positive test indicates that the corrosion was caused not by pre-loading yard conditions, but by seawater entering the hold during carriage.

Additional findings strengthening the test include comparison of corrosion intensity in different holds of the same shipment, which may indicate localised water ingress; corrosion extending to the inner surfaces of pipes; and the physical condition of the hatch-cover gaskets.

11. Weakness of an Expert Report Prepared Without an On-Site Inspection

In the Istanbul Regional Court of Appeal 12th Civil Chamber decision E. 2022/1739 – K. 2025/1003, the fact that the expert report had been “prepared from photographs rather than through a personal on-site inspection” was regarded as a deficiency. By contrast, in the Izmir 5th Commercial Court of First Instance decision E. 2021/725 – K. 2024/387, it was accepted that findings made at the port and the inspection report of an independent survey company established the existence of the damage even though no formal damage report had been prepared.

The conclusion is clear: the surveyor should enter the hold, personally inspect the cargo and establish the causal link in the report. It is not enough to say “there is damage”; the report should explain the mechanism by which the damage occurred, such as stowage pressure, water ingress or handling.

12. Preservation of Evidence and Not Waiting for the Final Report

If the carrier refuses to participate in a joint survey or there is a risk that the vessel will sail, preservation of evidence should be requested from the court at the port of discharge under HMK Art. 400 et seq. However, the preservation-of-evidence report need not be completed first.

The Istanbul Regional Court of Appeal 43rd Civil Chamber (E. 2024/1308 – K. 2024/1339) rejected the opposing party’s defence that “the preservation-of-evidence application has not yet been completed, the report has not been prepared, and provisional attachment of the vessel should not be ordered before that report is issued”; the court held that the submitted cost tables, port-operator letters and formal notice satisfied the prima facie proof requirement.

The Istanbul Regional Court of Appeal 13th Civil Chamber (E. 2024/1666 – K. 2024/1777) likewise stated that, even before the preservation report had been prepared, the inspection record, photographs and survey report were sufficient to form the necessary conviction.

13. Prima Facie Proof of the Amount of Damage

TCC Art. 1362 requires not only the nature of the claim but also its monetary value to be established on a prima facie basis. Requests in which no amount is shown at all, or where the amount is based entirely on speculation, carry a high risk of rejection.

Documents supporting the amount:

In the Court of Cassation 11th Civil Chamber decision dated 29.11.2016, E. 2016/12641 – K. 2016/9218, prima facie proof was held to have been established on the basis of the survey organisation’s findings and the loss-in-value figure contained in the expert report from the preservation-of-evidence proceedings.

Where the amount must be calculated before discharge is completed, an estimated calculation may be made by extrapolating from the damage ratio in the part already discharged; in that case, the right to increase the claim should be reserved in the petition.

14. Evidence File Checklist

15. Why Is It Important to Conduct the Process Correctly?

Although the prima facie proof threshold may appear low, in practice most rejection decisions result from insufficient evidence. The problem is often not that the evidence does not exist, but that it is not created at the right time and in the right form: a photograph not taken while the vessel is still in port, a protest not served on the master, a P&I surveyor not invited.

For the creditor

• Engaging the survey company before discharge begins
• Preparing the protest on the same day, serving it on the vessel and documenting receipt
• Sending the joint-survey invitation in writing and recording non-attendance in the minutes
• Recording technical tests (chloride, moisture, hardness) by batch
• Supporting the amount with documents and reserving the right to increase the claim

For the opposing party

• Objections based on the unilateral nature of the findings and the absence of an on-site inspection
• Defences based on bill-of-lading remarks and the pre-loading condition
• Submitting counter-evidence through the ship’s log, watertightness records and sealing records
• Jurisdiction and security objections under İİK Art. 265

Regional concentration

Cargo-damage and vessel-attachment disputes on Istanbul’s Anatolian Side are concentrated in Tuzla, Pendik, Kartal, Maltepe, Ataşehir, Ümraniye, Üsküdar, Sancaktepe and Beykoz; and in Kocaeli along the Gebze, Çayırova, Darıca, Dilovası, İzmit, Körfez and Başiskele corridor. Because vessels remain only briefly at ports and shipyards in these areas, evidence gathering and the attachment application must be pursued simultaneously.

16. Frequently Asked Questions

Do I have to prove my claim conclusively in a provisional attachment of a vessel?

No. Under TCC Art. 1362, it is sufficient to present evidence capable of persuading the court that your claim is one of the maritime claims and as to its monetary value. This standard is called “prima facie proof”; complete conviction is not required, but rather a strong probability. However, the reduced standard of proof does not eliminate the obligation to present evidence.

The opposing party says “the claim requires adjudication”. Will my request be rejected?

This objection alone is not a ground for rejection. In the Ankara Regional Court of Appeal 35th Civil Chamber decision E. 2022/1714, it was stated that the fact that the claim requires adjudication is not by itself a statutory ground for rejecting provisional attachment and that the request should be granted if prima facie proof is established by the evidence submitted.

The master signed the protest with the reservation “without admission of liability”. Does this document help me?

Yes, in three respects. The reservation documents that notice reached the vessel; shows that the findings were known on the vessel side; and sheds light on the owner’s identity through the company name on the stamp and the word “owners”. If the master does not deny the existence of the damage and objects only to its cause, the dispute shifts to causation, which belongs to the main proceedings.

Why is the silver nitrate test important?

The test shows the presence of chloride on the surface. Chloride does not arise merely from steel waiting in an open yard; it appears through contact with seawater. A positive result therefore indicates that the corrosion resulted not from pre-loading yard conditions but from water entering the hold during carriage, and it counters the defence based on a “rust remark” in the bill of lading.

My survey report is based only on photographs. Is that a problem?

It may be. In the Istanbul Regional Court of Appeal 12th Civil Chamber decision E. 2022/1739, it was stated that an expert report prepared solely from photographs without a personal on-site inspection has weak evidentiary force. The surveyor should enter the hold, inspect the cargo personally and explain the mechanism by which the damage occurred.

I do not yet know the exact amount of the damage. Can I still request attachment?

Yes. It is sufficient for the amount also to be established on a prima facie basis. A calculation supported by the invoice, packing list, damage calculation schedule and repair quotations may be accepted. If discharge is continuing, an estimated calculation may be made by extrapolating from the damage ratio in the completed portion; in that case, the petition should state that the right to increase the claim is reserved.