This was an appeal from the judgment of the Izmir 6th Commercial Court of the first instance (22 July 2014, 2014/33-2014/33) concerning provisional attachment.

The plaintiff creditor applied for provisional attachment of a Turkish-registered ship named X1 (IMO no 9147875), claiming that the defendant owed it USD 1,009.892. The plaintiff argued that 60% of the cargo delivered at the Port of Aliağa was stone, concrete, and slag, and that it suffered a loss due to the delivery of cargo which differed from the scrap steel cargo which it had purchased. The plaintiff further claimed that three bills of lading were issued for the shipment of the scrap steel with 'clean onboard' inscriptions on each of them.

The plaintiff referred to art 1091 of the Turkish Commercial Code (the TCC) [which is based on art 3.2 of the Hague Rules/art 3.2 of the Hague-Visby Rules - although Türkiye is only a State Party to the Hague Rules, the TCC incorporates a set of rules which purport to include elements of the Hague-Visby Rules] which provides that '[t]he carrier shall properly and carefully load, handle, stow, carry, keep, care for, and discharge the goods carried'. With reference to this article, although cargo interests undertake loading, stowage, and discharge operations, it is the duty and responsibility of the master to ensure that such operations comply with what customary marine rules require under art 1091 of the TCC.

The plaintiff argued for the imposition of a maritime lien on the defendant's ship due to its maritime claim, according to arts 1351, 1352 and 1353 of the Turkish Commercial Code (the TCC) [which is based on the list of 'maritime claims' in arts 1 and 2 of the Arrest Convention 1999].

The Court of first instance found that the terms and conditions of the respective bills of lading included a '[w]eight, measure, quality, quantity, condition, contents and value unknown' inscription. The Court further observed that the evidentiary value of a 'clean on board' inscription in the bill of lading solely pertains to the 'apparent order and condition' of the goods, but, depending on the nature of the goods, the nature of the packaging, and the nature of the damage, the apparent condition (of the packaging) may form a clue as to the inner condition. Thus, the Court held that the carrier's liability should be determined during the judicial process, and the Court dismissed the lawsuit due to the lack of evidence regarding the carrier's liability.

The plaintiff creditor appealed to the Supreme Court of Appeal.

Held:The plaintiff's appeal is admissible. The judgment of the first instance Court is reversed in favour of the plaintiff creditor on the grounds below.

The Supreme Court of Appeal affirmed that the case's merits are based on the request for provisional attachment due to a maritime claim. The Court 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 for the creditor's request for precautionary attachment to be accepted. The Court observed that the plaintiff submitted the ship classification certificate, survey reports, the letter from the shipping agency dated 14 July 2014, the expert report in the court's file number 2014/32, and the invoices for the goods listed in the bill of lading.

The Supreme Court observed that, when reaching its decision, the Court of the first instance did not evaluate the above-mentioned evidence. Rendering a judgment in such a manner with a preliminary examination was inappropriate. Therefore, the Court's decision should be reversed in favour of the plaintiff.