Публикация посвящена вопросам, связанным с арестом морских судов в Турции, а также освобождением их от ареста. Автор обращает внимание на трудности, связанные с арестом судов в этой юрисдикции. В частности, турецкий суд, как правило, требует обеспечивать возможные убытки, которые может повлечь неосновательный арест судна. В заключение отмечается, что в Турции отсутствует устоявшаяся единообразная практика в отношениях по поводу ареста и освобождения судов.
As it is well known, please bear in mind that the arrest is a powerful weapon and the strict criteria for arrest/conservatory attachment in our jurisdiction must be satisfied. Accordingly, obtaining an arrest order from a Turkish court has been proved to be very difficult. Since, the Turkish courts carefully scrutinize all the documents/papers and any small vagueness cause the application to be rejected. Generally, arrest of a ship in Turkey used to take place for all types of claims regardless of whether the claim has a maritime character or it is connected with the ship to be arrested or not. However, in accordance with the New Turkish Commercial Code (hereinafter referred to as New TCC), which came into force on 01.07.2012., a vessel might be merely arrested in respect of exhaustively enumerated “maritime claims”. For your further information, the closed list (numerus clausus) incorporated into the New TCC is the same as maritime claims listed under the International Convention on the Arrest of Ships 1999. In addition to the above, our domestic law did not provide for specific rules on this matter and the provisions of Turkish Bankruptcy Liquidation Code, Turkish Procedural and Turkish Commercial Code used to apply. However, the relevant provisions of the International Convention on the Arrest of Ships 1999 (“Geneva Convention, 1999”)and of the International Convention on Maritime Liens and Mortgages 1993 (“Geneva Convention, 1993”) have been taken as a basis under the New TCC. Please note that in most of the cases, a Turkish court used to require counter-security from a claimant that is willing to arrest the vessel either in the form of a letter of guarantee to be issued by a first class bank (unconditional and unlimited by time) or cash money. Kindly be advised that an amount of counter-security to be deposited was at sole discretion of the court but in practice it usually varied from 15% to 40% of the amount of the claim, it could even sometimes be assessed upon a much higher percentage with a view to protect the third parties’ losses in case of wrongful arrest. However, the article 1363 of the New TCC is to require a fixed countersecurity of 10,000.-SDR to be put up by the claimant regardless of the claim amount, which is designed to establish balance between the creditors and the other involved debtors/vessel interests etc. in the conflicting interests. Please be advised that the amount of the countersecurity which the claimant has to lodge may be increased or decreased depending on the application of the parties at any stages. Furthermore, the release of the vessel could be achieved either of the following ways:
– by lodging a security in the form of bank letter of guarantee or depositing cash
– by objecting to the arrest order before the court, which is time consuming and further damages may arise.
However, the article 1367 of the New TCC has introduced an exception to the vessel sailing under the flag of Turkey that is already on her voyage, which stipulates that a security shall be lodged within ten days; otherwise the vessel shall be brought into the possession of the execution office at the end of the voyage. In case where there is no delivery to the execution office as stated above, the article 289 of the Turkish Criminal Code is triggered, which briefly deals with misconduct in custody of a property. Moreover, the debtor shall make an application to the competent court to lift the arrest order upon provision of a security that covers the maritime claim, accrued interest and cost, but not exceed the value of the ship, However, we would like to lay stress on the fact that a request to revoke the conservatory attachment shall be made to the competent enforcement court instead of the court rendered order after the commencement of the enforcement proceeding. We suspect that involvement of enforcement courts may cause undesirable delays in lifting the arrest order in practice due to their considerable numbers and unfamiliarity to the special character of maritime commerce. In this respect, we would like to draw your attention to the fact that pursuant to liberty set out under the article 1372 of the New TTC, the parties can reach an agreement as to sufficiency, form, nature and amount of the security. Although, it has not been particularly mentioned, what is understood from the law’s preamble is that club letters of undertaking will gain formal recognition/acceptance before the courts in Turkey. However, please note that club letters will be accepted by the judge subject to the clear consent of the opposing party to be delivered to the court.
To sum up, there was general dissatisfaction with the lack of national uniformity in commercial/legal practice and the main criticism was that much of the previous legislation failed to deal properly with these issues. We do really hope that the new legislation will come up to the demands of the fast-changing world of the international dimension of the shipping industry. However, we would like to lay stress on the fact that we have not experienced the implementation of the aforementioned provisions and not witnessed the practice yet.
Автор:
Ahmet Can Bozkurt & Cagdas Kircali
Omur Marine Ltd.