Articles 1352 and 1355 of the Turkish Commercial Code
CLAIM: Request was made by the attorney who had applied for arrest for review by the Court of Cassation of decision number 2012/88 D.Ýþ - 2012/87 D.Ýþ dated 10/09/2012 rendered by Istanbul Commercial Court of First Instance No 52 in the case heard between the parties, and, it having been established that the cassation submission was filed on time, after the report compiled by investigating judge A. G. had been heard and also the submissions, opinions, hearing transcripts and all documents in the file had been read and examined, it was held following deliberation into the matter:
The attorney who had applied for arrest, alleging that, although fuel in the amount of USD 48,083.18 had been supplied by his client to the vessel named “V...”, it had been impossible to obtain payment for it, in article 1352/1 of Law number 6102 receivables for fuel are classified as being a maritime claim and, since this was a foreign flagged vessel, if it left Turkish territorial waters it would prove impossible to recover the receivable, had applied for a decision to arrest the vessel named “V...” and prevent it from sailing.
The decision was made by the court, in accordance with the claim and the entire contents of the file, to deny the application for reason of lack of territorial jurisdiction on the grounds that, however much receivables for fuel are enumerated among maritime claims in article 1352 of the Turkish Commercial Code number 6102, in article 1355 of the same law it has been laid down that foreign flagged ships may only be arrested “by the court at the place at which the vessel has been anchored, moored to a buoy or piling, brought alongside or laid on the stocks,” and the ship whose arrest was applied for was in terms of the Montreux Convention a transit vessel in harmless passage, and that it had been impossible to prove in the file that the ship was in a legal relationship with Turkish ports and, as such, no court had jurisdiction over vessels making harmless passage in the sense envisaged by the Montreux Convention.
The attorney who had applied for arrest brought the case to cassation.
DECISION: The relief sought was arrest and, however much the vessel to be arrested was foreign flagged, it was, as is apparent from the contents of the submission in application and the filed correspondence of 07.09.2012 of the Ministry of Transport, Shipping and Communications Istanbul Port Directorate, anchored at Istanbul. Under such circumstances, while the decision should have been rendered in the cognisance that the court had jurisdiction to make arrest pursuant to article 1355 of the Turkish Commercial Code number 6102, the rendering of a lack of jurisdiction decision on the unfounded grounds as set out was incorrect and the decision must be overturned in favour of the appellant.
CONCLUSION: For the reasons set out above, it was decided unanimously on 14.01.2013, granting the appellant’s attorney’s objection in cassation, to OVERTURN the decision in favour of the appellant and for the advance cassation fee that it has paid to be refunded to the appellant on request.