Following the adoption of the new Commercial Code (6102), the rules regarding the arrest of ships for a maritime claim right were amended in line with the provisions of the International Convention on the Arrest of Ships 1999. As a result, if the ownership of a vessel changes before a request for arrest is made, an arrest order cannot be obtained against the new owner. This rule does not apply for maritime liens, as they provide the owner of a legal lien with rights over the vessel; maritime liens apply irrespective of change in the ownership of a vessel.(1)
The 11th Chamber of the Court of Appeal recently reversed an Istanbul 17th Commercial Court decision rejecting a precautionary request for arrest of a vessel following a collision.
The dispute arose following a collision between a Turkish-flagged vessel and Bolivian-flagged vessel. The claimant requested the precautionary arrest of the Turkish-flagged vessel for the damages incurred in the collision. It argued that the damages provided a maritime lien right over the vessel under Article 1320/1-e of the Commercial Code.(2)
The court rejected the claimant's request to arrest the vessel on the basis of the maritime lien right. It stated that under Article 1369/1-a,(3) the owner of the vessel at the point of the maritime lien right arising is the owner of the vessel when the arrest is requested. The court also clarified that the vessel in question was sold to T Maritime Ltd on March 2013 and that the former owner no longer owned the vessel when the arrest was requested.
The court of appeal found that the collision claim provided the claimant with a maritime lien right under Article 1320 of the Commercial Code and that Article 1369/1-a could not be applied to a maritime lien. According to the court:
"The party, requesting the arrest alleged that the maritime lien right arose due to the collision. Although the court should have examined the request in accordance with article 1369/1-e of the TCC number 6102; applying article 1369/1-a where it could not be applied in the dispute at hand required a reversal of the decision."(4)
The court reversed the first-instance court decision and concluded that the maritime lien right could be claimed against the vessel despite the fact that the owner had changed.
The court of appeal decision is noteworthy as it draws on the new Commercial Code provision regarding the invocation of the right of arrest of ships.
Article 1369 of the Commercial Code limits the arrest right arising from a maritime claim (Article 1352) under certain circumstances, but states that these limitations do not apply for the right holders of maritime liens (Article 1320).
As a result, the decision provides practitioners with an insight into the court of appeal's application of a maritime lien and maritime claim right.
For further information on this topic please contact Ceren Çakir Akgün or Burak Gökçe Çavus at Cavus & Coskunsu Law Firm by telephone (+90 212 245 56 02) or email (firstname.lastname@example.org or email@example.com). The Cavus & Coskunsu Law Firm website can be accessed at www.cavus-coskunsu.com.
(2) Article 1320/1-e covers claims based on tort that arise from the physical loss or damage caused by the operation of a vessel other than the loss of or damage to cargo, containers or passengers' effects carried on the vessel.
- the owner of the vessel is liable for the debt when the maritime claim is made and owns the vessel when the precautionary arrest is executed;
- the lessee of the vessel is liable for the debt when the maritime claim is made and owns the vessel when the precautionary arrest is executed;
- the maritime claim is guaranteed via a maritime lien, maritime mortgage or a liability in rem of the same kind on the vessel;
- the dispute relates to the ownership or possession of the vessel; or
- a maritime lien right on the vessel is granted pursuant to Article 1320.
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