Passing traffic

Tülin Tomurcuk, of Istanbul-based Yamaner & Yamaner, looks at the ship arrest procedure in Turkey

LOCATED where the continents of Asia and Europe meet, Turkey has always been an important maritime jurisdiction. Each year, as many as 50,000 vessels pass through the straits of Bosphorus and Dardanell, a number of them calling at Turkish ports. According to the Turkish Coast Safety and Salvage Directorate, the daily sea traffic in the Bosphorus strait can reach 2,000 vessels, three and four times the daily traffic of the Panama and Suez canals respectively.

Turkey has ratified many international conventions, including:

  • Montreux Convention dated 20/07/1936 regarding the legal status of the Straits;
  • Barcelona Convention dated 16/02/1976 regarding the protection of the Mediterranean Sea from sea pollution;
  • Convention dated 06/03/1948 regarding the foundation of IMO, with the reservation of its rights of cabotage;
  • IMO conventions, namely Convention 1948, SOLAS Convention 1974, LOAD LINES Convention 1966, TONNAGE Convention 1969, COLREG Convention 1972, STCW Convention 1978, SAR Convention 1979, INMARSAT Convention 1976, INMARSAT OA 1976, MARPOL 73/78 (Annex I/II), MARPOL 73/78 (Annex V), CLC Protocol 1992, FUND Protocol 1992, LLMC Convention 1976
  • Brussel conventions, namely International Convention for the Unification of Certain Rules of Law Relating to Collision Between Vessels and Protocol of Signature 1910, International Convention for the Unification of Certain Rules of Law Relating to Assistance and Salvage at Sea and Protocol of Signature 1910, International Convention for the Unification of Certain Rules Relating to the Limitation of the Liability of Owners of Sea-going Vessels and Protocol of Signature 1924, International Convention for the Unification of Certain Rules of Law Relating to Bills of Lading and Protocol of Signature, Hague Rules 1924, International Convention for the Unification of Certain Rules Relating to Maritime Liens and Mortgages and Protocol of Signature 1926, International Convention for the Unification of Certain Rules Concerning the Immunity of state-owned ships

When it comes to local law, Turkey has a codified legal system. Its maritime law is enacted by book four of the Turkish Commercial Code (1956), which is mainly adapted from German law.

Although Turkey is not a party to the Brussels Convention regarding the arrest of vessels for security reasons, vessels can easily be arrested by a cautionary judgement from the competent court for ordinary or maritime lien claims. The petition regarding the application for arrest should be detailed and well- grounded, with the relevant evidence enclosed if possible. A power of attorney (POA), duly notarised and/or legalised, is also required before making the application before the relevant court. However, according to Turkish procedural law, it is also possible for a lawyer to make the application without a power of attorney, in case of emergency, and submit the same to the court after the application. Therefore, a fax copy of the POA is usually sufficient at the first stage.

If the application is accepted, counter-security of between 15 and 40 per cent of the claim amount is requested by the court for the enforcement of the arrest decision. The main proceedings regarding the merits of the case should follow within ten days of the cautionary judgement. If the merits of the case are subject to foreign jurisdiction, it is possible to start foreign litigation or arbitration, but the evidence regarding the commencement of same should be submitted to the court within the same period of time.

According to Article 1235 of the Turkish Commercial Law, the following claims constitute preferential maritime lien rights:

  • in case of auction through the Bailiff's Office, watchman's duty and disbursements of maintenance that can be defined as execution expenses, such as berthing at last port;
  • sailing, port dues, lighthouse dues, quarantine expenses, port fees;
  • seamen's claims arising from labour contracts;
  • pilotage, salvage, ransom and objection fees and expenses;
  • general average claims;
  • credits for which the vessel is pledged and credits arising from the master's transactions that are made out of the home port and in case of necessity. If the transactions are made out of the home port, in case of necessity and limited to the maintenance of the vessel or success of the completion of the voyage, services and goods given to the master provide maritime lien rights, even if no credit is opened;
  • even if the carrier is not the shipowner, claims arising from the non-delivery of the cargo or baggage, or damage to the same, and non-performance or breach of contract of transportation of passengers or goods;
  • claims arising from contracts made by the master based on his legal powers defined by law, but not a special power of attorney, and claims arising from non-performance or breach of contracts that are made by shipowners to be fulfilled by the master;
  • claims arising from the fault of the seamen;
  • claims of the Social Insurance Institute that can be addressed to the shipowners, excluding the personal liability of the shipowners for some claims.

It is also important to note that, according to Article 1257 of the Turkish Commercial Code, the above-mentioned maritime lien rights have priority over any other claims, irrespective of whether they are secured by pledges or mortgages.