Maritime liens in Türkiye: which claims follow the ship

A maritime lien is the part of Turkish maritime law that lets a claim travel with the vessel. An ordinary debt of a shipowner is a personal debt: the creditor has to find the owner and its assets. A short list of claims is different. Turkish law gives them a statutory pledge over the vessel herself, which can be asserted against whoever has her, ranks ahead of the ship mortgage for every claim on the list except general average, and passes to anyone who takes over the claim.

This guide sets out which claims are on that list, what the lien attaches to, how it ranks, when it ends, and the route by which it is enforced.

Which claims carry a maritime lien?

Article 1320 of the Turkish Commercial Code gives a maritime lien to the following claims, provided they arose against the owner, the bareboat charterer, the manager or the operator of the vessel (TCC art. 1320(1)):

1. Crew claims. Wages and other sums due to seafarers for their employment on board, including repatriation costs and the social insurance contributions payable on their behalf (TCC art. 1320(1)(a)).
2. Loss of life and personal injury. Claims for loss of life or other bodily injury occurring on land or at sea in direct connection with the operation of the vessel (TCC art. 1320(1)(b)).
3. Salvage. The salvage reward (TCC art. 1320(1)(c)).
4. Dues. Port, canal, other waterway, quarantine and pilotage dues (TCC art. 1320(1)(d)).
5. Tort claims for physical damage. Claims based on tort for physical loss or damage caused by the operation of the vessel, other than loss of or damage to cargo, containers and passengers' effects carried on board (TCC art. 1320(1)(e)).
6. General average. Claims for general average contributions (TCC art. 1320(1)(f)).

Two exclusions narrow the injury and tort heads. Claims under (b) and (e) carry no lien where they result from, or arise out of, damage connected with the carriage of oil or other dangerous or noxious substances by sea for which international conventions or national legislation provide strict liability and compulsory insurance or other security, or damage arising from radioactive material, or from its combination with toxic, explosive or other hazardous material consisting of nuclear fuel or radioactive products or waste (TCC art. 1320(2)).

gemi alacaklısı hakkımaritime lien — TCC art. 1320

The right the Code gives to the holders of the claims listed in art. 1320(1); it takes effect as a statutory pledge (kanuni rehin hakkı) over the vessel and her appurtenances (TCC art. 1321(1)).

Which law decides? Where a claim is pursued before a Turkish court, whether it carries a maritime lien is determined by Turkish law (TCC art. 1320(3)). A claimant relying on a lien recognised by the law of the flag or of the contract therefore has to fit the claim into the Turkish list. The part of the Code on maritime liens also applies to vessels used only for pleasure, sport, training, education or science, such as yachts (TCC art. 935(2)(a)).

Which claims do not carry a lien?

Several claims a foreign supplier or service provider may hold against a vessel are not on the list. Bunkers, stores, equipment and services supplied for the operation, management, protection or maintenance of the vessel (TCC art. 1352(1)(l)), construction and repair of the vessel (TCC art. 1352(1)(m)), and commissions, brokerage and agency fees payable by or on behalf of the owner (TCC art. 1352(1)(s)) are maritime claims. They are not among the claims in art. 1320(1), so they carry no maritime lien.

The difference shows up when the vessel is sold by forced sale. Maritime claims listed in art. 1352 that do not fall within ranks one to six are entered in the seventh rank of the distribution list (TCC art. 1396), after claims secured by a contractual or statutory pledge (TCC art. 1395).

A shipyard holds its own security: a right to have a legal mortgage registered on the vessel for claims arising from her construction or repair (TCC art. 1013(1)), and, where the vessel is in the yard's possession at the time of the forced sale, its claims secured by that legal mortgage or by a right of retention take the fourth rank (TCC art. 1393).

What does the lien attach to?

A maritime lien gives its holder a statutory pledge over the vessel and her appurtenances (TCC art. 1321(1)). The pledge does not extend to appurtenances that the owner does not own, and it does not cover insurance money payable to the owner under an insurance contract (TCC art. 1321(2)). It does extend to the owner's claims against third parties for loss of or damage to the vessel; and in general average, compensation paid for things sacrificed or damaged takes the place of those things for the lien holders (TCC art. 1321(3)).

• What is secured. The lien secures the principal, interest, and the costs of enforcement and proceedings in the same way (TCC art. 1322(1)).
• Co-owned vessels. Where the vessel is operated by a shipowning partnership, she answers for maritime claims as if she belonged to a single owner (TCC art. 1322(2)).
• Public vessels. No statutory pledge arises over vessels of the State, provincial administrations, municipalities, villages and other public legal entities that are not devoted to, or not actually used for, earning profit at sea. Those entities are instead liable to the lien holders, in priority, for the amount each would have received had the value of the vessel and her appurtenances at the end of the voyage in which the claims arose been distributed among them in their statutory ranks (TCC art. 1321(4)).

Why the lien follows the ship

The lien is a right in the vessel, not only a right against the debtor. Article 1321(5) says it in one line: the statutory pledge given by a maritime claim can be asserted against anyone in possession of the vessel. A buyer, a new manager or a bareboat charterer in possession of the vessel can therefore face the lien.

The statutory pledge given by a maritime claim can be asserted against anyone in possession of the vessel.TCC art. 1321(5)

Three further rules complete the picture. First, the lien moves with the claim: when a claim carrying a lien is assigned or passes to another person, the lien passes with it (TCC art. 1325). A P&I club, manning agent or financier that pays the crew and takes an assignment of their claims steps into their lien.

Second, art. 1326 names a sale to a good-faith buyer as a ground of lapse for the general average lien: sixty days after the buyer registers the vessel in its own name under the law of the place of registry (TCC art. 1326(2)(b)). It names no such ground for the liens in art. 1320(1)(a) to (e); their one-year period runs whoever owns the vessel (TCC art. 1326(1)).

Third, a forced sale clears the vessel. When the purchase price is paid to the enforcement office, all real and personal rights, charges and restrictions on the vessel come to an end, except those the buyer assumes with the mortgagee's consent (TCC art. 1388(2)), whatever the vessel's flag and whether or not she is registered (TCC art. 1388(3)). If the proceeds do not cover every creditor, they are paid in the order of a ranking list (TCC art. 1389).

How maritime liens rank

Rank is the reason a lien matters. The liens for crew, injury, salvage, dues and tort damage rank ahead of all statutory and contractual pledges and real encumbrances on the vessel, whether registered or not (TCC art. 1323(1)). Because a contractual pledge over a registered vessel can be created only as a ship mortgage (TCC art. 1014(1)), these liens come before the mortgage. The general average lien sits at the other end: it ranks after all statutory and contractual pledges and real encumbrances (TCC art. 1323(2)).

Among themselves, the liens rank in the order of the list in art. 1320 (TCC art. 1324(1)), with two refinements. The salvage lien ranks ahead of all other pledges that arose on the vessel before the salvage operation; and where there are several salvage liens, the later ranks ahead of the earlier, each dated from the end of its salvage operation (TCC art. 1324(2)). The liens for crew, injury, dues and tort damage have equal rights among themselves (TCC art. 1324(3)).

Where the proceeds go after a forced sale

If the proceeds of a forced sale do not cover every creditor, the enforcement office draws up a ranking list and enters the claims in the order set by arts 1390 to 1397 (TCC art. 1389(1)). Creditors in a lower rank receive nothing until those in the rank above have been paid in full (TCC art. 1389(3)). Where a shipowner's bankruptcy brings several of its vessels to sale, the ranking is made for each vessel separately (TCC art. 1389(2)).

1. First rank. From the date of arrest until payment: the costs of the arrest, of maintaining and guarding the vessel and victualling the crew during the arrest, and of the sale and distribution, together with crew claims under art. 1320(1)(a) for the period of the arrest; all equal among themselves (TCC art. 1390).
2. Second rank. The costs of removal by public authorities, where the vessel had stranded or sunk and was removed for the safety of navigation or the protection of the marine environment (TCC art. 1391; see also art. 1323(3)).
3. Third rank. The maritime liens in art. 1320(1)(a) to (e) not entered in the first rank, in the order of art. 1324 (TCC art. 1392).
4. Fourth rank. A shipyard in possession of the vessel at the sale, for its claims secured by the legal mortgage of art. 1013 or a right of retention (TCC art. 1393).
5. Fifth rank. Customs duty and other taxes relating to the vessel (TCC art. 1394).
6. Sixth rank. Claims secured by a contractual or statutory pledge that do not fall within ranks one to five, each in the order set by the law governing that pledge (TCC art. 1395).
7. Seventh rank. Other maritime claims listed in art. 1352, equal among themselves (TCC art. 1396).
8. Eighth rank. The claims listed in art. 206(4) of the Enforcement and Bankruptcy Law, equal among themselves (TCC art. 1397).

The priority stops at the vessel. Creditors admitted to ranks one to seven who are not paid in full have no priority when they turn to the debtor's other assets (TCC art. 1389(4)).

When does the lien end?

The verb the Code uses is düşer: the lien lapses. The liens in art. 1320(1)(a) to (e) lapse at the end of one year from the date the claim arose, unless before that year has passed the vessel has been arrested and, as a result, sold by forced sale (TCC art. 1326(1)). For crew claims the year begins on the date the claimant leaves the vessel; for the other four heads, on the date the secured claim arose (TCC art. 1326(1)(a)–(b)).

The general average lien has its own rule. It lapses six months from the day the vessel arrives at the place where the average is to be adjusted and apportioned, or, if she does not reach it, at the port where the voyage ends, unless she has been arrested in a way that results in a forced sale; or sixty days after a good-faith buyer registers her in its own name under the law of the place of registry. If both periods have started, the lien lapses when the first one expires (TCC art. 1326(2)).

The same period reaches beyond the vessel. Subject to special provisions in the Code and in other laws, the period in art. 1326 also applies to the creditor's personal claims against the debtor (TCC art. 1327). The table of Turkish time bars is in our guide Time bars in Turkish maritime law.

How is a lien enforced?

This guide does not repeat the arrest procedure, which is set out in How is a ship arrested in Türkiye, step by step? and, for crew, in Crew wages unpaid in a Turkish port. The statutory pointers for a lien holder are these:

• Arrest. A vessel can be arrested where the claim carries a maritime lien under art. 1320 (TCC art. 1369(1)(e)). A claimant applying for arrest must lodge security (TCC art. 1363(1)); seafarers holding the crew lien are exempt (TCC art. 1363(3)). Check the figure in force at the time.
• Enforcement route. Lien holders may enforce by realisation of a pledge over movables, to complete an arrest or to pursue the claim directly; this applies to all vessels, Turkish or foreign-flagged (TCC art. 1380).
• The route that waives the lien. A holder of a statutory pledge over a vessel who enforces by ordinary attachment, or under the special procedure for negotiable instruments, is deemed to have waived the statutory pledge (TCC art. 1379).

We advise and act for crew, salvors, port service providers and other claimants who need to know whether a claim carries a lien and how much of the year is left, and for owners, buyers and financiers who need to know which liens may sit on a vessel they are about to take over. The first questions are what the claim is, against whom it arose, when it arose, and where the vessel is now. The answers decide the procedure; see also our page on maritime claims and debt recovery.

Updates to this guide