Ship Arrest in Turkey by Zeynep Ozkan
Ozkan Law Office
Husrev Gerede cad.
Omer Rustu Pasa sok
No.22 Tesvikiye
Istanbul Turkey
Phone: +90 212 327 69 40
Fax: +90 212 327 69 43
e-mail: zeynep@zeynepozkan.av.tr
Introduction
Turkey is not a party to any of the international conventions on the arrest of ships and the domestic law does not provide for specific rules on this matter. The arrest of ships under Turkish law is in general terms no different than conservatory measures leading to the seizure of other assets owned by a debtor or a wrongdoer. The Draft Turkish Commercial Code, which is currently being debated before submission to the parliament, however, regulates the arrest of vessels specifically and adopts some of the provisions of the international conventions on this matter.
Applicable laws
The provisions of Turkish Bankruptcy and Liquidation Code and Turkish Procedural Code dealing with conservatory measures apply to the arrest of ships in Turkey. According to the aforesaid provisions, the claimant has to prove, on a probability basis, that there is a claim and a possible danger of not being able to satisfy the claim after a judgement in merits is obtained in the absence of a conservatory measure.
Types of claims
In principle, arrest of a ship in Turkey can take place for all types of claims regardless of whether the claim has a maritime character or is connected with the ship to be arrested or not. The Draft Turkish Commercial Code, which has not come into effect yet, however, adopts the definition of maritime claim provided in the International Convention on Arrest of Ships, 1999 and restricts the arrest of ships for claims enumerated in the aforesaid convention.
Procedure for arrest
a) Application and documents
The conservatory measures leading to the arrest of a ship can be obtained with an ex parte application setting out the grounds of arrest. The following documents must be submitted with the application:
1) Power of attorney, notarised and duly legalized (in urgent cases , it is possible to submit the application with a fax copy of the power of attorney and sometimes without the legalization provided that the duly issued original be submitted at a later stage)
2) Documents evidencing a possible claim (documents in foreign language must be translated into Turkish and sworn translations along with notarisation may be required if objected by the other party)
b) Counter-security
The court may and in most of the cases shall require the submission of a counter-security in the form of bank letter of guarantee or cash money, the amount of which is at the discretion of the court, but usually varies between 15 to 40% of the claim amount.
c) Enforcement
The arrest order is enforced through the Bailiff Office.
d) Action in merits
The action in merits must be filed before the competent tribunal within either seven or ten days (depending on the type of conservatory measure order obtained) as from the date of the court order.
Release of arrest
The release of the vessel may be achieved by lodging a security in the form of bank letter of guarantee or depositing cash.
The other way of obtaining the release of the ship is to object to the arrest order either before the court, which gave the order or if the main action in merits be filed in Turkish courts, the court hearing the lawsuit in merits, but this method is time consuming and further damages may arise.