The International Convention on Arrest of Ships, 1999 (1999 Convention) was ratified by the Turkish Parliament on March 2017. Now, on May 3, 2019, the 1999 Convention officially became binding by law upon the Turkish authorities.
The 1999 Convention brings little change to the rules that are already in place in Turkey, as the country has replicated the wording of the 1999 Convention into the Turkish Commercial Code (TCC) to a great extent which rendered the 1999 Convention applicable in Turkey in a de facto manner.
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However, article 3(1)(b) of the 1999 Convention allows the arrest of an offending ship if ‘the demise charterer of the ship, at the time when the maritime claim arose, is liable for the claim and is the owner or the demise charterer of the ship when the arrest is effected.’ The wording ‘or the demise charterer’ were not included into the TCC. The position with the arrest of sister ships on the other hand is identical in both regimes.
The basis for not including claims against the demise charterer was the fact that the Turkish law concept of ‘precautionary attachment’ is possible only when the assets sought to be attached/arrested are owned by the person liable for the claim.
As a result, when a demise charterer is liable for a claim, it was not possible in Turkey to arrest the offending ship because the claim is not against the registered owner of the ship.
Nonetheless, the 1999 Convention applied with the original text. Thus, the official Turkish translation clarifies that an offending ship may be subject to arrest if the demise charterer of that ship who is liable for the claim remains the demise charterer at the time the arrest is effected.
According to the British Chamber of Commerce in Turkey, this recent development paves the way for arrest of ships under demise charter for debts of the charterer given that international conventions take priority over national law.
It is nevertheless difficult to predict where the loyalty of Turkish Courts will lie, in other words whether they will remain loyal to the settled practice under the TCC or apply the Convention
