2020/4

Ulgener LC/LO was founded in 2000 with the aim to serve the maritime industry and still continuing on the same track, not only with the same excitement but also with daily enhanced knowledge and experience.
Our main fields  of expertise:
P&I matters, such as cargo claims / disputes arising from bills of lading, crew claims, pollution; as well as accidents, such as collisions, salvage, wreck removal and general average matters, etc.
FD&D matters, such as disputes arising from voyage and time charter-parties, including but not limited to forced freight & demurrage collection, liening on cargo, etc.
H&M matters, such as salvage, general average, etc., Assisting Turkish Chamber of Shipping and Turkish Ship Owners Association also representing Turkish shipping at the Bimco Documentary Committee.

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In this issue:
1. Turkish Arrest Regime of Ships
2. Arrest of Foreign Flagged Vessels Passing through the Turkish Straits

Prof. Dr. M. Fehmi Ülgener

Turkey is a party to the International Convention on Arrest of Ships, 1999 (“The 1999 Convention") Furthermore the articles of the Convention has been imported to Turkish Commercial Code, which would mean that its rules will also be applicable even there is no foreign flagged ship involved, ie even the subject matter is Turkish flagged.

It is necessary to bear in mind that a ship may be arrested not only because to secure a claim (“precautionery arrest”), which is regulated by Convention, but also to enforce a finalized court / arbitration awards. However as per the 2nd article of the Convention ("Arrest means any detention or restriction on removal of a ship by order of a Court to secure a maritime claim, but does not include the seizure of a ship in execution or satisfaction of a judgment or other enforceable instrument.”) such type arrest is not regulated by the convention.

According the Convention / Turkish Law an application for a precautionary arrest will be succesful:

-if the nature of the claim is within the scope of a “maritime claim”. (see below article of convention and Turkish Commercial Code art.1352) and
-if the ship asked to be arrested is “the ship” which caused the claim to exist (i.e. a sistership cannot be a arrested to secure a claim, however a sistership can indeed be arrested for an enforcement of a finalized award)
-if the applicant provide counter security in the amount of SDR 10.000. (roughly USD 14.390 as of December 2020)

Last but not least the right to ask to arrest a ship based on a maritime claim will cease to exist at the moment when ownership of her will be transferred to a third party. However the sub articles (o), (b), (c), (n)+(k), (a) (except for the cargo and passenger baggage abord of such ship), and (i) entitles its holders a special right called as “a maritime lien” (Turkish Commercial Code art.1320) which will follow the ship and not the title of her, i.e. it will continue to exist forever no matter of the change of ownership, as long as she preserves her kind as a ship. Needles to say that “maritime liens” have also priority of “maritime claim” during satisfaction of a finalized award.

Art.1 / TTK.art.1352
1. "Maritime Claim" means a claim arising out of one or more of the following:
(a) loss or damage caused by the operation of the ship;
(b) loss of life or personal injury occurring, whether on land or on water, in direct connection with the operation of the ship;
(c) salvage operations or any salvage agreement, including, if applicable, special compensation relating to salvage operations in respect of a ship which by itself or its cargo threatened damage to the environment;
(d) damage or threat of damage caused by the ship to the environment, coastline or related interests; measures taken to prevent, minimize, or remove such damage; compensation for such damage; costs of reasonable measures of reinstatement of the environment actually undertaken or to be undertaken; loss incurred or likely to be incurred by third parties in connection with such damage; and damage, costs, or loss of a similar nature to those identified in this subparagraph (d);
(e) costs or expenses relating to the raising, removal, recovery, destruction or the rendering harmless of a ship which is sunk, wrecked, stranded or abandoned, including anything that is or has been on board such ship, and costs or expenses relating to the preservation of an abandoned ship and maintenance of its crew;

Av. Gül Alpay

The Turkish Straits have been and continues to be one of the most important waterways in the world. The Straits allows maritime connections from the Black Sea all the way to the Aegean and Mediterranean Seas, the Atlantic Ocean via Gibraltar, and the Indian Ocean through the Suez Canal, making them crucial for the international shipping industry. With this article we aim to provide an overview of the arrest issue of the foreign flagged vessels passing through The Straits and Turkey’s jurisdiction.

a.Passage Regime through the Turkish Straits
The passage regime through The Turkish Straits has been specially regulated in The Montreux Straits Convention (“The Convention”) hence transit passage regime valid in other straits used for international navigation cannot be applied in Turkish Straits. The Montreux Straits Convention regulates the passage regime differently by distinguishing between merchant ships and warships according to the state of war and peace (see previous Bosphorus Online). The principle of freedom of transit and navigation has been accepted, provided that it complies with the provisions of The Convention. However there is no special provision for jurisdiction of Turkey therefore the arrest of foreign-flagged vessels passing through The Turkish Straits raises question marks. The issue must be analysed within the framework of national and international law.

b.Ship Arrest in the Turkish Straits
The absence of clear provisions on ship arrest in the Montreux Straits Convention caused different views to be put forward in the doctrine and controversial decisions in practice. In article 1367 (1) (b) of Turkish Commercial Code numbered 6102 (“TCC”), it is stated that the arrest decision on foreign flagged ships can only be implemented until the vessel leaves Turkish territorial waters. Two different passage regimes are applied in The Turkish Straits, namely, non-stopover and stopover. In the legal sense, the most important consequence of the stopover or non-stopover passage is the passage regime that the vessel will be subject to. The principle of freedom of transit and navigation through The Straits which is accepted in The Montreux Straits Convention is applied exclusively to vessels making "non-stopover passage". However a vessel passing with a stopover is subject to Turkey's national law.

b.1. Vessel Passing Without a Stopover
According to Article 2(g) of the Maritime Traffic Regulations for the Turkish Straits, “a vessel planned not to call at any port, berth or place within Turkish Straits, and whose master reported the same in her Sailing Plan to the Turkish authorities before entering to the Straits”, is a vessel passing without a stopover.
Turkey does not have the right to arrest a vessel passing without a stopover except for liabilities occurred during her passage such as collusions or due to violation of obligations (e.g. failure to pay pilotage costs). The arrest order can be implemented until the vessel leaves Turkish territorial waters.

However it’s important to note that contradictory decisions have been made by Turkish Courts regarding the arrest of anchored vessels. In 11th Civil Chamber of Supreme Court’s January 14, 2013 dated decision it was ruled that Turkish Court of First Instance is authorized to issue an arrest order regarding the vessel which was anchored in Istanbul according to Article 1355 of TCC. However in its 25 April 2013 dated decision Supreme Court made a contradictory decision and upheld the Court of First Instance decision stating that within the scope of the Montreux Straits Convention, Turkish Courts cannot arrest foreign vessels which are engaging in innocent passage and anchoring for refueling does not activate the international jurisdiction of Turkish Courts.

b.2. Vessel Passing With a Stopover
According to Article 2(f) of the Maritime Traffic Regulations for the Turkish Straits, vessel passing with a stopover is “a vessel which is planned to call at a port, berth or place within Turkish Straits, or a vessel whose direct passing has been cancelled and/or her direct passage has been interrupted.” In this sense, the stopover passage can occur in two different ways: from the open sea to the Turkish inland waters and from the Turkish inland waters to the open sea. Vessels whose port of arrival or departure is in the Sea of Marmara are considered as a vessel passing with a stopover according to Maritime Traffic Regulations for the Turkish Straits. Such a vessel is subject to the jurisdiction of Turkey. Accordingly Turkey can take all enforcement measures regardless of where or when the claim was born.

A vessel which declared a non-stopover passage in the sailing plan becomes a vessel passing with a stopover if her master cancels her passage without stopover. A vessel which calls at a port in the Sea of Marmara without making such a declaration also gains the title of a vessel passing with a stopover. If a vessel becomes subject to an investigation or legal proceeding by the Turkish administrative or judicial authorities due to collision, grounding or marine accident during her passage, by opting out of the transitional regime held in Montreux Convention she becomes fully subject to the national legislation of Turkey hence Turkey has the right to arrest such vessel.

Conclusion

The passage regime of The Straits has been specially regulated by the Montreux Straits Convention. Turkey's legal jurisdiction and more spesicifally power to arrest a foreign flagged vessel passing through The Straits, is evaluated separately wheather she is engaging in a stopover or non-stopover passage. Either way it is without a doubt that the gaps of the Montreux Straits Convention should be filled in pursuant to the principles of innocent passage and freedom of transit and navigation in accordance with The Convention.

¹ 11. HD, E. 2012/18434, K. 2013/644, T. 14.01.2013.
² 11. HD, E. 2013/4596, K. 2013/8303, T. 25.04.2013