Turkey: A Shipping Overview

The Statutory Right of Lien Over Cargo Under Turkish Maritime Law

Introduction

The resolution of disputes before the competent courts may, in some cases, take a considerable amount of time. To protect the rights and legitimate interests of the parties during this period, Turkish law provides several provisional legal remedies. These measures are designed to preserve the parties’ legal positions until the dispute is finally resolved and to prevent any prejudice that may result from the duration of judicial proceedings.

One of these remedies is the statutory right of lien. A statutory right of lien is a right in rem that allows a creditor to retain possession of the debtor’s movable property until the secured debt has been paid and, where appropriate, to recover its claim through enforcement proceedings. Since this right arises directly by operation of law, it does not require any contractual agreement between the parties. Under the principle of lex fori, the statutory right of lien is governed by Turkish law.

Legal basis of the carrier’s statutory right of lien

The general principles governing the statutory right of lien are set out in Articles 950 and 953 of the Turkish Civil Code. Under these provisions, a creditor may exercise a statutory right of lien only if the receivable is due and payable, the debtor’s movable property is lawfully in the creditor’s possession, and there is a sufficient connection between the receivable and the property over which the lien is exercised.

In the context of maritime law, Article 1201 of the Turkish Commercial Code (TCC) contains specific provisions governing the carrier’s statutory right of lien over cargo. While reflecting the general principles of the Turkish Civil Code, the TCC establishes a separate legal framework that takes into account the particular characteristics of shipping and the commercial consequences of detention of cargo.

Under Article 1201 of the TCC, a carrier may exercise a statutory right of lien over the cargo as security for claims arising out of the contract of carriage. However, this security is limited to claims connected with the voyage during which the cargo subject to the lien was carried. Accordingly, the carrier may not exercise a lien over the cargo for claims arising from previous voyages or from any other separate commercial relationship between the parties.

As a general rule, the statutory right of lien may be exercised only over the portion of the cargo the value of which is sufficient to secure the claim. This limitation does not apply to claims relating to general average or salvage, where the carrier is entitled to exercise the lien over the entire cargo.

Exercise of the statutory right of lien

The way in which a statutory right of lien is exercised depends on who has possession of the cargo at the relevant time. Where the cargo remains in the carrier’s possession, the lien is exercised by withholding delivery until the secured claim has been satisfied.

Recognising the practical needs of commercial transactions, the TCC also allows the lien to be exercised after delivery, provided that the carrier applies to the competent court within 30 days of the delivery date and the cargo remains in the consignee’s possession.

A court order recognising the statutory right of lien does not determine the merits of the underlying dispute. Instead, the court considers only whether the statutory requirements for granting this provisional legal protection have been satisfied. Therefore, the claim does not need to be proven conclusively, and prima facie evidence is sufficient.

To obtain such an order, it is sufficient to demonstrate that the parties are bound by a contract of carriage, that a due and payable claim has arisen under that contract, and that the statutory conditions for exercising the lien have been fulfilled. Documents such as the charterparty, recap, bill of lading, invoices and other commercial records are generally accepted as sufficient evidence.

To balance the interests of both the carrier and the cargo owner, the TCC also allows the lien to be shifted on to security. This enables the cargo owner to procure the release of the cargo and thus continue its commercial activities while ensuring that the carrier’s claim remains protected. Under Article 1202 of the TCC, once security sufficient to cover the disputed claim has been provided, the lien is transferred from the cargo to the security. The amount of such security would be decided by the court whereas, in terms of form, cash deposit or an unconditional bank letter of guarantee by a Turkish bank are accepted.

Enforcement of the statutory right of lien

Once the statutory right of lien has been recognised, enforcement of the secured claim is governed by the Enforcement and Bankruptcy Code (EBC).

To enforce the lien, the creditor must apply to the competent enforcement office. The enforcement office then serves an enforcement order on the debtor, stating that unless an objection is filed within seven days, the lien will be deemed accepted.

If the debtor neither objects within the prescribed period nor pays the debt within 15 days of the service of the enforcement order, the proceedings shall become final and the creditor may request the sale of the cargo.

Should the debtor raise objections, the creditor will need to issue substantive proceedings seeking the cancellation of the objections.

Although the statutory right of lien is an important mechanism for securing the carrier’s claims, it may be exercised only in accordance with the requirements set out in the Turkish Commercial Code. In practice, however, the right is sometimes invoked beyond its statutory limits. For example, carriers may attempt to retain cargo to recover debts arising from previous voyages, even though no outstanding claim exists in relation to the relevant voyage, or they may refuse delivery despite the freight having already been paid.

Such practices are not permitted under Turkish law. Where a carrier withholds delivery of cargo without a valid legal basis, it may be held liable for any loss or damage resulting from its conduct.