Ship Arrest in Turkey, by Russell Welsh
Inal Law office
Buyukdere Caddesi, Eren Talu Binasi
Kat: 7 Levent 34330 Istanbul – Turkey
Tel: +90 212 339 0797
Fax: +90 212 339 0790
http://www.inal-law.com/
Introduction
Set out below is an overview of ship arrest issues and procedures in Turkey grouped under the subject headings most frequently queried by our clients.
General
A ship may be arrested at a Turkish port by an ex parte application to the court pleading for the issuance of a precautionary judgement.
By depositing a determined amount of counter-security the precautionary judgement may then be enforced over the vessel to detain it from sailing. Since the purpose of the arrest is to obtain security, the vessels owners are free to substitute adequate security in place of the vessel to secure its release. The precautionary judgement then continues in force over the security.
Claims permitting arrest
There is no closed category of claims which may give rise a vessels arrest in Turkey. Any debt of the vessels owner, whether arising out of contract or tort, may support an arrest application.
Documentation
All documentation evidencing the claim (e.g. charterparties, invoices, contracts etc.) are required and these must be officially translated into Turkish prior to submission to the court. It is generally the case that sworn translations of documents are acceptable without the need for notarisation (although if objected to notarised translations are necessary).
A power of attorney is also required to make the court application. The power of attorney should be notarised in the country of the grantor (and apostilled where appropriate) and this too requires sworn translation and notarisation for submission to the court. In urgent cases a faxed power of attorney from overseas can be accepted provided the original is duly presented thereafter.
Counter-Security
When issuing a precautionary judgement, the court will require an amount of counter-security to be deposited to allow enforcement of the judgement. The amount of counter-security is at the discretion of the court and is usually a figure between 15% and 40% of the claim amount (although it may be higher depending on the circumstances).
The courts in Turkey require that the counter-security take the form of either cash or a bank guarantee issued by a first-class Turkish bank.
Action on the Merits
Upon obtaining a precautionary judgement, this judgement is only valid for an initial period of ten days and the judgement will fall unless the claimant commences an action on the merits before a competent tribunal within this period. To protect the precautionary judgement, the court requires that written evidence be submitted to the file demonstrating that an action on the merits has been commenced.
Sister Ships
Sister ship arrest in the international sense is not permitted in Turkey. Only vessels in he ownership of the debtor company may be arrested and Turkish law does not enquire into the shareholding interests of affiliated companies of the debtor (even where such companies are owned and controlled in exactly the same way as the principal debtor).
Release of Arrest
The owner may arrange release of the vessel by either settling the claim or depositing cash or a Turkish bank letter
of guarantee in acceptable wording to the court file. Club letters of undertaking are not accepted by the courts in Turkey.
Wrongful Arrest
The claimant may be held liable for the losses and damages incurred by the defendant as a result of a wrongful arrest.
The counter-security submitted by the claimant when implementing the arrest forms a security for any counter-claim by the defendant for wrongful arrest.
31st January 2002
The foregoing is not intended to be an exhaustive insight into the subject of ship arrest in Turkey and is not intended to be a substitute to obtaining professional legal advice on any particular case. or specific legal advice or further explanation of this subject please contact our offices at the contact details set out on this site.
