This was an appeal from an additional judgment of the Istanbul 17th Commercial Court of first instance (9 October 2020-7 December 2020, E:2020/95-K:2020/95) concerning provisional attachment. 

The plaintiff creditor applied for provisional attachment of a Turkish-registered ship, claiming that the defendant owed it USD 6 million for salvage services, calculated on the basis of the USD 40 million actual appraised value of the ship determined by an expert. In particular, the plaintiff claimed that the defendant's ship issued a distress signal as a result of its ropes parting at the ro-ro terminal in Yalova Port. Upon receiving the request for assistance signal, tugboats Yalova-1, Yalova-2 and Yalova-3 owned by the plaintiff provided a successful salvage operation in respect of the defendant's ship, which was exposed to danger.

The defendant objected to the provisional attachment of its ship, stating that the service should be evaluated as an escort service or a departure manoeuvre provided by the port's tugboats when bad weather conditions worsened. The defendant also argued that the service depended on the tariff, and the service status was described as a departure manoeuvre service by the master in his statements and VDR communications which required a pilotage and tugboat invoice related to such service to be issued. As a result, the defendant requested that the plaintiff's application for provisional attachment be dismissed because there was no claimable salvage service. 

The Court of first instance affirmed that the ship's ropes were broken, and that it was exposed to sea danger, and therefore rescue assistance service was provided by the plaintiff's three tugboats. The Court referred to the maritime liens arising under art 1320 of the Turkish Commercial Code (the TCC) [which is based on art 4 of the MLM Convention 1993] and held that the plaintiff's maritime claim constituted a maritime lien over the defendant's ship. 

The Court of first instance found that the plaintiff's claim fell within the maritime claim listed in art 1352.c of the TCC [which is based on art 1.c of the Arrest Convention 1999] and defined as 'a claim arising out of salvage operations or any salvage agreement, including, if applicable, special compensation relating to salvage operations in respect of a ship which by itself or its cargo threatened damage to the environment'. Hence the Court held that the plaintiff's application should be examined and evaluated 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 in turn is based on art 4 of the MLM Convention 1993], and approved the provisional attachment on the ship subject to a security value of USD 6 million.

The defendant then requested that this security amount be reduced. The Court of first instance held that all of the ship's ropes broke with the effect of the increasing wind, and the ship approached and moved away from the dock from time to time, but the main engines were always in working condition. The Court further found that the radio conversations showed that the ship drifted uncontrollably, and the captain had to call for an emergency tugboat by radio. 

The Court found that whether the service provided by the tugboats was a salvage operation, according to art 1298 of the TCC [based on art 1 of the Salvage Convention 1989], or was a tariff-dependent towage service performed during the departure manoeuvre, as claimed by the defendant, would be determined at the end of the judicial procedure. Consequently, the Court held that the claim should be partially upheld in favour of the defendant, and ordered that the precautionary attachment should be continued with a security amount set at USD 3 million.

Both parties appealed to the Court of Appeal.

Held: The appeals are dismissed.

The Court of Appeal referred to art 1352 of the TCC [which is based on the list of 'maritime claims' in art 1 of the Arrest Convention 1999]. The Court of Appeal further referred to art 1362 of the TCC and found that the plaintiff must prove that its claim is listed as a maritime claim in art 1352 of the TCC, and submit documentation evidencing the claim's value in order for the creditor's request for precautionary attachment to be accepted. The Court of Appeal held that it could not be determined whether the service provided to the ship was a salvage operation or a standard tugboat service, the Court of first instance's additional judgment on the security reduction to USD 3 million as an average value should be approved.