This was an appeal from a judgment of the Istanbul 17th Commercial Court of first instance (11 February 2015, 2014/473-2015/8) concerning provisional attachment of a ship.

The plaintiff applied for the imposition of provisional attachment of the defendant's ship, the MV Pine 2, which was owned by PS Inc Co, operated by YZS Co, with M Gemi Acen Nak ve Tic Ltd Şti acting as the ship's agent. In particular, the plaintiff claimed that he purchased a land drilling machine to be used in geothermal electricity generation facilities which was shipped on the vessel, that he paid the freight in advance, and that he was the buyer and consignee of the machine covered by the bill of lading. The plaintiff further argued that: (a) the transportation of the machine was delayed for more than a reasonable time; (b) the machine was discharged in a port other than the port specified in the bill of lading; (c) he was exposed to manufacturing and operational losses arising out the delay in delivery of the machine; and (d) he was exposed to extra freight costs for the machine to be carried to the discharge port specified in the bill of lading. The plaintiff therefore applied for the imposition of a maritime lien on the defendant's ship due to its maritime claim, according to arts 1352 [which is based on art 1.1 of the Arrest Convention 1999] and 1353 [which is based on arts 1.2, 2.1, and 2.2 of the Arrest Convention 1999] of the Turkish Commercial Code (the TCC).

The plaintiff's total amount of alleged damage was USD 16,287. The Court referred to art 1191.4 of the TCC [which is based on art 10.4 of the Hamburg Rules - although Türkiye is a State Party to only the Hague Rules, the TCC incorporates a set of rules which purport to adopt elements of the Hamburg Rules], which provides that '[w]here and to the extent that both the carrier and the actual carrier are liable, their liability is joint and several'.

The Court observed that the plaintiff's claim met the requirements of art 1369 of the TCC [which is based on arts 3.1 and 3.2 of the Arrest Convention 1999]. The Court concluded that the owner of the MV Pine 2, PS Inc Co, was responsible for the defendant's claimed losses. After examination of the evidence, the Court of first instance held that the plaintiff's claim should only be partially accepted in the sum of TRY 13,629, since a freight contract regarding the transportation period of the goods had not been submitted to the case file by the plaintiff, and there were unrealised losses, considering there was no geothermal electricity facility when the delay in the delivery of the machine occurred. Consequently, the Court approved the imposition of a provisional attachment on the ship.

The plaintiff creditor appealed to the Supreme Court of Appeal against the partial acceptance of its claim.

Held: The appeal is dismissed.

The Supreme Court observed that, when reaching its decision, the Court of the first instance evaluated the evidence properly.