This was an appeal from the judgment of the Istanbul 52nd Commercial Court of first instance (14 June 2011, 2011/93-2011/93).

The plaintiff applied for provisional attachment of the Turkish-registered ship M/V MH-3, claiming that the defendant owed it TRY 614,021,18 due to the damage that the defendant's vessel KYI caused to the plaintiff's vessel. The plaintiff argued for the imposition of a maritime lien on the defendant's ship due to its maritime claim, according to art 1235 [sic: 1352] of the Turkish Commercial Code (the TCC), [which is based on the list of 'maritime claims' in art 1 of the Arrest Convention 1999]. While the judicial procedure was ongoing, the defendant's ship was sold to a third party and renamed. The plaintiff found out that it would soon be laid up. In that case case the plaintiff's maritime claims against the ship would become insecure, and the plaintiff's rights arising from the collision would be impeded. The plaintiff therefore requested a decision on the placement of provisional attachment on the ship so that the maritime claim could be secured in accordance with art 1352 of the TCC.

The defendant did not respond to the application.

The Court found that the collision had occurred, and the plaintiff's claim was included among the maritime claim listed in art 1352 of the TCC. According to art 1369.1.a of the TCC, [which is based on art 3.1.a of the Arrest Convention 1999], the person who was the owner of the ship at the time of the maritime claim must be the owner of the ship at the time of the request for provisional attachment. The defendant's ship was sold to a third party on 28 May 2011 and was renamed. It was thus not possible to make a decision on provisional attachment concerning the ship according to art 1369.1.a of the TCC since the defendant was no longer the owner/operator of the ship subject to the request, and the provisions of art 1369.1.a of the TCC were not met.

The plaintiff appealed to the Supreme Court of Appeal.

Held: The appeal is upheld. The judgment of the first instance Court is reversed on the grounds below.

The plaintiff applied for provisional attachment claiming that its right to a maritime claim arose from the collision. The plaintiff's application should have been examined and evaluated by the Court according to art 1369.1.e of the TCC No 6102, [which is based on art 3.1.e of the Arrest Convention 1999, and refers to maritime liens arising under art 1320 of the TCC, which is based on art 4 of the MLM Convention 1993]. However, it was inappropriate to give a ruling in accordance with art 1369.1.a of the TCC, which was inapplicable to this case, and thus the first instance decision must be reversed.

Due to the reasons explained above, it was unanimously decided on 4 June 2014 that all of the plaintiff's appeals requesting provisional attachment were approved and the judgment was reversed in favour of the person requesting provisional attachment.