This was an appeal from the judgment of the Izmir 6th Commercial Court of first instance (26 January 2013, 2013/16-2013/16).

The plaintiff applied for the imposition of provisional attachment of the defendant’s ship, claiming that the plaintiff was engaged in the coal trade, and that the defendant carrier performed a short delivery. The plaintiff further argued that although the defendant's name was not stated on the relevant bill of lading, the defendant was the registered shipowner.

The Court of first instance held that the plaintiff had provided a bill of lading which did not evidence the actual carrier. The plaintiff should thus submit the charterparty dated 4 January 2013, to which the bill of lading refers, for the Court to determine the actual carrier. The Court cannot take internet data showing the owner and management status of the ship as a reference to decide to impose provisional attachment as requested by the plaintiff.

The Court of first instance found that the plaintiff had the burden to prove that the defendant is the actual carrier, but no evidence showing the defendant acted as the carrier had been submitted to the case file. On the contrary, from the internet data submitted by the plaintiff, it was seen that the owner of the ship was another company. As such, the Court was not convinced that the defendant was the shipowner and carrier.

The Court referred to maritime liens arising under art 1320 of the Turkish Commercial Code (the TCC) [which is based on art 3.1.e of the Arrest Convention 1999 and art 4 of the MLM Convention 1993]. The Court observed that the relevant provision does not include maritime receivables arising from contracts of carriage. Hence such claims do not give a right to impose a maritime lien on the vessel. Moreover, the Court found that a clean onboard notation in the bill of lading was an essential element for a letter of credit, enabling the bill of lading to be acceptable. It did not function as proof showing the amount of the bulk cargo, as it serves only as prima facie evidence that the carrier received the cargo from the shipper in good condition. Hence the Court dismissed the plaintiff's request for provisional attachment of the ship.

The plaintiff appealed to the Supreme Court of Appeal.

Held: The appeal is dismissed.