It is almost a year since the New Turkish Commercial Code
("TCC") came into force on 1st July, 2012 providing
fundamental changes and solutions to problems that caused
difficulties in the past.
One of the issues that divided the legal community under the
previous code related to the jurisdiction of the Turkish Courts
over foreign flag vessels using the Bosphorus and the Dardanelles
Straits (the "Turkish Straits") in transit without
calling at a Turkish port. Prior to the TCC the Turkish Courts
frequently held themselves out to have jurisdiction over foreign
flag vessels in transit and issued warrants of arrest regardless of
the clear provisions of the Montreux Convention Regarding the
Regime of the Straits dated 20/07/1936 ("Montreux
Convention") giving foreign flag vessels a right of innocent
and uninterrupted passage.
The TCC purported to overcome that problem by limiting the
jurisdiction of the Turkish Courts to order arrest of foreign flag
vessels in Turkish waters; in effect prohibiting arrest of such
vessels while in transit in the Turkish Straits. It is obvious the
legislator wanted to underline that the Montreux Convention should
This did not end the debate since some argued, that Article 1355
of the TCC which vests jurisdiction in the Turkish Courts to issue
arrest warrants against foreign flag vessels that drop anchor in
its area of jurisdiction could still be relied upon to continue
ordering arrest of such vessels regardless that they have no
intention of calling at a Turkish port and are in effect, in
transit. The question that arose is, will the transit of a foreign
flag vessel be broken bringing it within the jurisdiction of the
Turkish courts and will it lose the protection of the Montreux
Convention if it drops anchor in a Turkish anchorage area for the
sole purpose of replenishing bunkers and/or stores.
The background to this debate is that there is currently a
tunnel construction under the Bosphorus that will connect Asian and
European Istanbul by rail. While the Bosphorus has always been open
to two-way traffic, so that northbound and southbound vessels could
use the waterway at the same time, the construction works
necessitated a limitation to the use of the Strait. For several
years now and until the project is concluded the waterway is open
to one way traffic northbound or southbound alternating twice a day
and passage is in convoys. This inevitably results in build up of
shipping traffic on both ends of the Bosphorus and the anchorage
areas in the Black Sea and Marmara Sea entrances are continuously
crowded with vessels waiting to join the next convoy. Some of these
vessels intending to use the waterway in transit and having no
intention to call at a Turkish port for cargo operations or
repairs, take the opportunity to replenish bunkers and/or stores
while in the anchorage area. Are these vessels exposed to warrants
of arrest issued by the Turkish courts merely because they dropped
anchor and replenished bunkers and/or stores?
The Turkish Court of Appeal addressed that issue in a recent
decision in effect holding that (i) the foreign flag vessel in
question was enjoying the right of innocent passage under the
Montreux Convention; (ii) the Turkish courts do not have
jurisdiction over a foreign flag vessel using the Turkish Straits
in transit and (iii) the fact that the vessel dropped anchor at one
of the anchorage areas merely for the purpose of replenishing
bunkers did not mean that her transit was broken vesting
jurisdiction in the Turkish Courts to issue a warrant for her
This is a welcome ruling and brings clarity to the subject of
the jurisdiction of the Turkish courts over foreign flag vessels
intending to use the Turkish Straits in transit alone but which are
forced to anchor due to congestion and to await their turn to use
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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