1. Right to Claim Arrest Order
The circumstances and criteria to arrest a ship are regulated in the fifth book, section eight of the Turkish Commercial Code (“TCC”). Thus, to arrest a ship, TCC provisions will be imposed in the first place and Turkish Bankruptcy and Enforcement Law will be imposed in the absence of a provision in TCC as it is explained in the Art.1351 of TCC.
A claimant may arrest a vessel if one or several of the circumstances exists which are listed as an exhaustive list in Art.1352 of TCC as 22 subclauses. These circumstances grant a maritime claim for the claimant. In other words, claimant’s claim for arresting a vessel may be brought before the court by the exhaustive list of the grounds in Art.1352 which are maritime claims.
Additionally, Art.1353 of TCC is very clear on the legal procedure of securing maritime claims and states that to secure the claim claimant may only arrest the vessel by provisional attachment. The article clearly regulates that (i)interim injunctions under Turkish Code of Civil Procedures cannot be imposed for the maritime claims, (ii) it is not possible for the vessel to be barred from her voyage by any other means.
Besides, the circumstances regulated with an exhaustive list in Art.1320 of TCC are also grounds for an arrest claim under maritime lien. According to Art.1320, if the debtor of the claims listed in the article is whether (i) the shipowner or (ii) the charterer or (iii) the manager or (iv) the operator of the vessel, it grants maritime lien for the claimant. And claimant may secure its claim under maritime lien by arresting the vessel with the same procedure explained here.
2. Counter Security and Evidence
First of all, claimant is required to provide 10.000 Special Drawing Rights (“SDR”) counter-security to the court as a pre-condition for the examination of the arrest claim. If a claimant does not provide 10.000SDR, the court is not going to review the claim for arrest of the vessel.
Secondly, claimant must present reasonable evidence to the court about his claim and its monetary value which might convince the court that it is a maritime claim as stated in Art.1352. In another words,the court should be convinced by the claimant with the documents for an arrest order about the existence of a maritime claim and its monetary value. Because, if the court decides that it requires inquiry of merits for the determination of the claim, it may overrule the claim for arrest order.
Meanwhile, the debtor may request the increase in counter-security at any stage of legal procedures. In such a case, the court will take into account the daily operating expenses of the vessel and its loss of profit in the time of the arrest. If the court decides for an additional counter-security, claimant must deposit the additional counter-security within the legal period determined by the court. Otherwise, the arrest order will become null and void automatically.
3. Execution of the Arrest Order and the Complementary Transactions
As it is regulated by Art.1364 of TCC, claimant shall enforce the arrest order through the enforcement office within three days following the arrest order of the court. The authorised enforcement office might be (i) the one in the judicial locality of the court that issued the arrest order or (ii) the one where the vessel is located. The enforcement office shall execute the arrest order immediately upon request. If claimant shall not claim enforcement office within three days, the arrest order will become null and void automatically.
Right after the execution of arrest order within three days, claimant shall also continue with the complementary transactions in Art.264 of Turkish Bankruptcy and Enforcement Law within one month by the reference of Art.1376 of TCC. Therefore, the claimant who gets the arrest order from the court and executed it through the enforcement office within three days shall also (i) commence execution proceeding or (ii) sue a lawsuit within one month.
4. Authorised Court for an Arrest Order
The authorised court for arrest of a vessel differs before and after suing a lawsuit.
Determination of the authorised court before suing a lawsuit also differs for Turkish Flagged Vessels and foreign-flagged vessels.
The authorised court for an arrest order on Turkish Flagged Vessels before opening a lawsuit is the court in the locality where the vessel anchored and/or been moored to buoy/vault, berthed, put on the stocks and/or
· For the vessels registered at Turkish Ship Registry, the court of the registry place,
· For the vessels non-registered at Turkish Ship Registry, the court of ship owner’s residential place
· For the vessels registered at the special registry according to TCC Art.941, the court of the charterer’s residential place.
For foreign-flagged vessels, the authorised court for an arrest order before suing a lawsuit is just the one where the vessel anchored, moored to buoy/vault, berthed, or put on the stocks.
The authorised court for an arrest order after suing a lawsuit both Turkish Flagged vessels and foreign-flagged vessels, is the one which authorised for the main case. In other words, after suing a lawsuit, the arrest order may only be claimed from the same court that is authorised for the lawsuit.
On the other hand, the parties may have an arbitration clause in their contract, or they may have a separate arbitration agreement for the dispute resolution, or they may choose a foreign law as applicable law or they may authorise a foreign court. In such cases, the Turkish Courts are still authorised for an arrest order to secure the maritime claim. But in this case, claimant shall continue with the complementary transactions before the authorized foreign court or the arbitral tribunal.