As a rule, the question of who owns a vessel is settled by reference to the registry records kept for it. Yet this link cannot be established for every vessel. In some files the person indicated in the owner column cannot be identified; in other cases the owner has knowingly and willingly relinquished his right over the vessel. Maritime commercial law gathers these two situations under the heading of the ownerless vessel.
The concept is dealt with by a single provision within the Turkish Commercial Code No. 6102. The real debate in practice, however, concerns not the definition but the consequence it produces: to whose estate does a vessel deemed ownerless accrue, and by what transaction? The answer changes fundamentally according to whether or not the vessel is entered in the registry; where the vessel is registered the power of appropriation belongs to one person alone, whereas for unregistered vessels this possibility is open to everyone.
In this briefing note we first address the elements of the statutory definition, and then assess separately the modes of acquisition of ownership in respect of registered and unregistered vessels. In the final section we examine a decision of the Court of Cassation on the subject, as it illustrates the evidentiary problem encountered in practice.
The basis of the rule is the following provision:
Turkish Commercial Code Art. 998
"The right to appropriate an ownerless vessel belongs to the State alone. An ownerless vessel is a vessel whose owner cannot be ascertained from the registry records or whose ownership has been duly abandoned. The State acquires ownership of the vessel by having itself registered as owner in the ship registry."
Although the provision is located in the Turkish Commercial Code, a full grasp of the subject also requires recourse to the rules on possession and ownership in the Turkish Civil Code No. 4721. The acquisition of ownership of vessels and the procedures for registration in and deletion from the registry form the subject of a separate study.
The Ownerless Vessel Entered in the Registry
The establishment of dominion over a thing that has no owner, with the intention of becoming its owner, is termed appropriation, or in the classical terminology occupation. The question that determines the fate of an ownerless vessel is precisely that of the person to whom this power is granted.
Entry of a vessel in the registry confers a legal identity upon it. That identity is of great importance for the determination of nationality and the safety of navigation. The registry records show which State’s flag the vessel flies and the rights established over it, and they also disclose who the owner is. Keeping the records open to the public in turn reinforces the principle of reliance on the registry. Accordingly, the owner of a vessel can as a rule be traced without difficulty by examining the registry file. The operation of the ship registry and the registration procedure are matters that call for separate treatment in their own right.
The assumption that a vessel not entered in the registry is without identity and without an owner may appear plausible at first sight, but the words "whose owner cannot be ascertained" in Turkish Commercial Code Art. 998(1) call for particular attention. For the provision does not make clear by which authority, on what criteria and following what kind of inquiry this impossibility of ascertainment is to be established; the uncertainty has been left to practice.
Abandonment of Ownership and the State’s Monopoly of Appropriation
An owner who has entered his vessel in the registry may relinquish his ownership of it by notifying the ship registry office that he waives his right of ownership and having that declaration registered. This procedure for abandonment is regulated in Article 1004 of the Turkish Commercial Code.
The power to occupy a vessel that has become ownerless in this way is granted to the State alone. The State acquires ownership at the moment it has the vessel in question registered in the ship registry in its own name. Since Turkish Commercial Code Art. 998 lays down both the monopoly of appropriation and the rule that acquisition takes place by registration, it is not possible for third parties to acquire rights by way of appropriation in respect of a registered vessel.
The Fate of Limited Rights in Rem over the Vessel
Not only ownership but also the other rights established over a vessel are entered in the ship registry; the mortgage and the usufruct are foremost among them. A mortgage is a right ancillary to the claim it secures. In the case of a usufruct, the first two of the owner’s powers over a thing — to use it, to enjoy its fruits and to consume it — are allocated to another person.
The creation of a usufruct is regulated in the Turkish Civil Code as follows:
Turkish Civil Code Art. 795
"A usufruct is created, in the case of movables, by the transfer of possession; in the case of claims, by the assignment of the claim; and in the case of immovables, by registration in the land register.
Unless otherwise provided, the provisions relating to ownership shall apply to the acquisition and registration of a usufruct over movables and immovables.
A statutory usufruct over an immovable may be asserted against those who are aware of the situation even if it has not been registered in the land register. If it has been registered, it may be asserted against everyone."
The definition of the mortgage is as follows:
Turkish Civil Code Art. 881
"Any claim that presently exists, or that has not yet arisen but whose coming into existence is certain or probable, may be secured by a mortgage.
The immovable that is to be the subject of the mortgage need not be owned by the debtor."
Both rights may be established over vessels and, once established, they must be entered in the registry. The important point is this: the owner’s abandonment of ownership does not bring to an end the mortgage or the usufruct over a registered vessel. Even if the State acquires the vessel by way of appropriation, those rights continue to subsist.
The Ownerless Vessel Not Entered in the Registry
Despite the functions of the registry and the benefits it affords, some vessel owners never resort to registration. Since no record exists, there is likewise no possibility of notifying the registry and having the abandonment registered in respect of such vessels. A vessel of this kind becomes ownerless only where it is relinquished by its owner with the intention of giving up ownership.
The intention to relinquish is decisive here. The fact that a vessel has been moored somewhere for a long period while not in use does not, of itself, amount to a waiver of ownership. For that reason, in the case of unregistered vessels the validity of the acquisition depends largely upon establishing the owner’s intention to abandon.
The fundamental difference from registered vessels lies in the scope of the power of appropriation. As explained above, only the State may occupy an ownerless vessel entered in the registry, whereas in the case of a vessel for which no record exists ownership may be acquired by anyone by way of appropriation. The basis for this is the general provision in the Turkish Civil Code:
Turkish Civil Code Art. 767
"A person who takes an ownerless movable into his possession with the intention of becoming its owner becomes the owner of it."
The provision applies to all abandoned movables, and vessels not entered in the registry are assessed within its scope. That said, for the occupation to produce legal effect it must have been established beyond any doubt that the vessel is not entered in a registry. An appropriation undertaken without that determination does not bring about the acquisition of ownership.
The Ownerless Vessel in the Light of a Court of Cassation Decision
The decision of the 11th Civil Chamber of the Court of Cassation dated 06.10.2015, docket No. 2015/3556 and decision No. 2015/9971, shows in concrete terms how the criteria set out above present themselves in practice.
The subject matter of the dispute is as follows: the claimant company was acting in its capacity as manager of a vessel bearing IMO number 7818389 and flying a foreign flag. While that vessel was navigating in international waters a speedboat approximately 6.5 metres in length was found, and the craft was made fast to the stern of the vessel and brought into Turkish territorial waters, through which the voyage passed in transit. As the inquiries carried out failed to trace the owner of the craft, counsel for the claimant requested a declaration that the speedboat was ownerless and its registration in the name of the vessel manager company or of a person or company to be designated by it.
Istanbul 17th Commercial Court of First Instance dismissed the request by its judgment dated 09.12.2014, docket No. 2014/1286 and decision No. 2014/404. The reasoning of the first-instance court rests upon reading Turkish Civil Code Art. 767 together with the grounds of Art. 769. On that basis, the speedboat at issue, which plainly has an economic value, cannot be said to be ownerless; the craft is not an ownerless thing but a found thing within the meaning of Turkish Civil Code Art. 769. The manner in which ownership of a found thing is acquired is regulated in Turkish Civil Code Art. 771: if the owner does not come forward within five years from the date of the public notice or of the notification to the police or to the neighbourhood headman, the finder acquires ownership of the thing, provided that he has fulfilled his obligations. As those conditions were not met in the case at hand, the action was dismissed.
Counsel for the claimant appealed on points of law, and the Court of Cassation found the dismissal to be correct in its result. According to the Chamber, although the question whether the craft is ownerless must be determined in order to identify the provisions to be applied, even if ownerlessness were accepted this action could not be heard without a respondent. The judgment of the first-instance court was accordingly upheld, and it was held unanimously on 06.10.2015 that no further fee was payable, the appeal fee having been collected in advance.
The conclusion to be drawn from the decision is clear: before a marine craft can be acquired by way of appropriation, it must first be shown that it is genuinely ownerless. Where certainty as to ownerlessness cannot be achieved the request is not granted, and the failure to bring the action against a named respondent moreover constitutes a procedural obstacle in its own right.
Relevant Legislation
Independent Legal Assessment
In disputes concerning ownerless vessels, the factor that determines the outcome is most often not a rule of substantive law but a question of proof. A party asserting that a marine craft has been abandoned is expected to establish both its position in the registry and the owner’s intention to relinquish by means of concrete evidence. Otherwise the craft will be subjected not to the regime governing ownerless things but to the provisions on found things, and that distinction changes the conditions of acquisition entirely.
The second critical point is the consequence attached to the existence of an entry in the registry. Since the power of appropriation over a registered vessel belongs exclusively to the State, any expectation on the part of third parties of acquiring rights in this way is bound to remain unfulfilled from the outset. For unregistered vessels, by contrast, acquisition is possible, but both the absence of an entry and the intention to abandon must be documented.
When a course of action is mapped out in a particular file, the following points come to the fore:
- Establishing by means of official records the registry in which the marine craft is entered, or that it is entered in no registry at all
- Proving the owner’s intention to relinquish ownership, distinguishing it from the mere fact of long-term mooring
- Clarifying at the outset whether the claim rests upon the provisions on ownerless things or upon Turkish Civil Code Art. 769 et seq. concerning found things
- Where the regime governing found things is in issue, fulfilling the obligations of public notice and notification so that the five-year period begins to run
- Where proceedings are to be brought, constituting the parties correctly and eliminating the risk of an action without a respondent
- Examining whether a mortgage or a usufruct exists over the vessel, bearing in mind that such rights subsist notwithstanding the abandonment
Independent Legal provides advisory services and litigation representation in matters concerning the acquisition of ownership of vessels, registry procedures and disputes over rights in rem in marine craft.