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Turkish Parliament Ratifies the Arrest Convention 1999 and the Maritime Liens and Mortgages Convention 1993

Turkish Parliament Ratifies the Arrest Convention 1999 and the Maritime Liens and Mortgages Convention 1993

The Turkish Parliament has been on a ratifying spree in the past few weeks and has ratified a large number of international conventions that were on the shelf for a long time. Among the several international conventions related to shipping, two conventions stand out: the International Convention on the Arrest of Ships 1999 (hereinafter to be referred to as the “1999 Convention”) and the International Convention on Maritime Liens and Mortgages 1993 (hereinafter to be referred to as the ‘’1993 Convention’’) on 25 March 2017. The two conventions hold great value both individually and together as a system of enforcing claims against vessels.

1. Arrest Convention 1999

Turkey had refused to become a party to the principal convention of 1952 International Convention of Arrest of Ships to avoid limiting the right of precautionary attachment under Turkish law although this approach has been criticized.

The legislation brings little change to the rules that are already in place regarding the arrest of ships in Turkey due to the fact that the Turkish Commercial Code (hereinafter to be referred to as the “TCC”) that entered into force in July 2012 has already adopted the 1999 Convention system with regard to the arrest of ships. In fact, most articles of the TCC that are related to ship arrest are verbatim translations of the articles under the 1999 Convention.

As set forth both in the 1999 Convention and its reflection in the Turkish Commercial Code, in order for a claimant to successfully arrest a vessel the claim must be a ‘’maritime claim’’, which are claims that are closely related to the vessel concerned and thus grant the claimant the right to seek the arrest of the vessel. An exhaustive list of maritime claims exists both under the 1999 Convention and article 1352 of the TCC. The two lists are identical apart from one addition to the wording of article 1(1)(p) of the 1999 Convention in the TCC to cover banks’ claims under loan agreements.

2. Maritime Liens and Mortgages Convention 1993

Similar to the 1999 Convention, the drafting commission has adopted the rules under the 1993 Convention in drafting the relevant part of the TCC. There are minor differences such as Turkey - practicing its right under article 6 of the 1993 Convention - recognizing general average contribution claims as a claim secured by a maritime lien.

There are also some grey areas that will need to be addressed to iron out discrepancies between the 1993 Convention and the TCC. An example of such a topic concerns the right of retention set out under Art. 7 of the Convention. The issue with regard to the right of retention stems from the fact that even though the TCC grants the shipyard owner a right of retention on the vessel, registry of that right is not possible with the Turkish ship registries. This contradicts with the registration requirement under article 12 of the Convention and may cause the abrogation of the shipyard’s right of retention granted by the TCC.

Another issue that is due to stir up some difficulty in practice concerns the different requirements for press announcements under the 1993 Convention and the TCC. Simply put, the 1993 Convention stipulates for the announcement of sale to be made “in the State where the forced sale is conducted” whereas the TCC requires announcement in Turkey when a Turkish flagged vessel is sold abroad. It will be interesting but also open to problems to observe how these differences play out in practice.

As outlined above, ratification of the two conventions brings little change to the current set of rules applicable in Turkey. Nevertheless the ratification is important for the harmonization of Turkey with the international rules governing shipping. Please do not hesitate to contact us if you have any questions regarding the above or if you require any assistance with regard to ship arrest or the registration and enforcement of maritime liens and mortgages in Turkey.

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