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.
In this issue:
1. COLLECTION OF UNPAID PREMIUMS AS PER TURKISH LAW
2. NEWS: CREW EXCHANGES IN TURKEY
COLLECTION OF UNPAID PREMIUMS
AS PER TURKISH LAW
Lawyer Gül Alpay Ulgener LC/LO
Although clubs do not tend to commence legal proceedings to collect outstanding premiums and consider it as a last resort, sometimes it remains the only viable option on the table. It is also occasionaly useful to show that the club can cut all the ropes and go legal, if it is left without any commercial alternative.
The general principles on enforcement of maritime claims are set out in Turkish Commercial Code (“TCC”) which came into force on 1 July 2012. Arrest of the vessel is the only conservatory measure for securing a maritime claim according to TCC. Maritime claims are listed as numerus clausus under the Section 1352. Provisions set forth under such article are adopted from the Inter- national Convention on the Arrest of Ships, 1999. Section 1352/r of TCC adds “unpaid insurance premiums (including mutual insurance calls) in respect of the ship, payable by or on behalf of the ship-owner or demise charterer” to the list of maritime claims.
As per our experience, arrest of the ship usually gives way to amicable settlement, without the need to launch proceedings in respect of merits of the club's claim.
We can summorize the important aspects as follows:
1. Jurisdiction for Ship Arrest in Turkey
Turkish Commercial Code adopts the principle of lex fori. Accordingly, Turkish Law will be applied to the arrest app- lications if the vessel is located within Turkish waters, regardless of her flag. The application of the Turkish Law, however, is limited to the procedural matters as the procedure of arrest, enforcement, judicial sale of ships etc.
2. Competent Court
The court to which the application should be made is to be determined as follows:
-foreign-flagged ship, the competent court is determined according to the place where the foreign ship is anchored, moored or under- going repair. (The foreign merchant vessels passing through Turkish straits can be arrested only if the voyage of the ship is interrupted).
-Turkish-flagged ships, in addition to the above rule, the court at the place of her registry also has jurisdiction.
It is important to mention is that courts are eager to make sure that the particular ship is actually in their own jurisdiction area, since there are courts, more than one, with the same topic (commercial law) but geograph- ically next to each other. Normally before commencing to evaluate the arrest appli- cation, judges ask the port authority whether or not the ship is in their area.
3. Application and Required Evidence
The claimant should file a written application to the competent court and submit persuasive evidences (prima facie proof) regarding the existence of the claim and its monetary value. Once the application is filed, security submitted (see below) and the supporting documents are properly translated, arrest order will be obtained usually the next working day, since courts attend arrest applications as a matter of priority.
The Claimant is also obliged to deposit a counter security to cover the damages which may be suffered by the counter party and third person in case of wrongful arrest. The amount is deter-mined as a standard sum of 10,000 Special Drawing Rights (SDR) as per Article 1363 of TCC.
Counter security provision is a pre-condition for the arrest application and the courts will not review the application if the counter security is not deposited. Decrease or increase for the amount of the counter security may be requested from the court.
5. Enforcement of the Arrest Order
After the arrest order is granted, the execution of the order must be demanded from the enforcement office which is located in the same jurisdiction area of the court or in the area where the ship is located, within three business days as of the date of the arrest order. Otherwise, the arrest order will be null and void (TCC art. 1364). The arrest can also be enforced during holidays or non-working hours.
6. Time Limit for Action
As to the merits of the matter, i.e. to obtain an award in favour of the club, appropriate proceedings needs to be commenced at the venue and under the referred law as per the club rules / insurance contract within one month starting from the date of Turkish Court’s decision to arrest the vessel and also this needs to be properly documented to the Turkish judge. This issue is crucial since if it is not complied with, the arrest will be lifted automatically.
News: Crew Exchanges in Turkey
A new circular regarding the entry and exit of Turkish and foreign citizens through land, air and sea border gates has been published on June 11, 2020. With this Circular, the previous circulars issued within the scope of Covid-19 measures regulating the same subject have been repealed.
This means that the foreign seafarers who were not allowed to enter Turkey due to the Covid-19 outbreak will be henceforth able to enter Turkey. In addition, it has become possible for foreign seafarers to come to Turkey by air and join the ships. Accordingly, Turkish and foreign personnel can be exchanged on board in Turkey.
Eurasian is our platform for the P&I community worldwide which will be published quarterly. In parallel the Bosphorus Online, our newsletter of 15 years, still will be published twice per annum.
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