66 NEWSLETTER 2021 charges, distance freight, dead freight, demurrage fees, receivables arising from the container’s waiting period, expenses incurred for the execution of the instruction and compensation receivables arising from the breach of the freight contract.1 As a rule, the right of retention only guarantees claims that arise on the goods from the journey on which the right of retention has been used. As per Article 1200 of the TCC, the shipper is the debtor of the receivables arising from the freight contract until the delivery of the goods is requested by the consignee. The consignee, who is in the position of a third party, is included in the relationship arising from the freight contract when he requests delivery of the goods. In this respect, in order to use the right of retention against the consignee who is in the position of a third party, the consignee must demand the delivery of the goods. The carrier’s receivable must be due in order for the right of retention to arise. In terms of non-due receivables, the carrier has no right of retention on the goods. Article 952 of the TCL sets forth an exception to this principle for cases where the debtor is in a state of insolvency. If the debtor is incapacitated, the carrier may use the right of lien on the cargo, even if the debtor’s receivable is not yet due. Exercise of the Retention Right It is accepted by the scholars that the right of retention should be exercised in a proportional manner. This general acceptance is also stipulated in the TCC in terms of the carrier’s right to retention. Pursuant to Article 1201(3) of the TCC, the right of retention can only be exercised on the goods in the amount that was secured. However, in order for this right to be exercised in a proportional manner, the goods must be divisible. In terms of exercising of the retention right, the carrier may refrain from delivering the goods to the consignee. When the delivery of the goods is requested, the carrier shall notify the carrier that he has exercised this right against the person who has requested the delivery. 1 Ülgener, Fehmi: Çarter Sözleşmeleri I, Genel Hükümler ve Sefer Çarteri Sözleşmesi, 2nd ed., İstanbul 2017, p. 405.
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