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THE GOVERNMENT
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SOCIALIST REPUBLIC OF VIET NAM
Independence - Freedom - Happiness
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No. 46/2006/ND-CP
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Hanoi, May 16, 2006
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DECREE
ON THE DISPOSAL OF CARGO RETAINED BY CARRIERS AT VIETNAMESE SEAPORTS
THE GOVERNMENT
Pursuant to the December 25, 2001 Law on Organization
of the Government;
Pursuant to the June 14, 2005 Vietnam Maritime Code;
At the proposal of the Minister of Transport,
DECREES:
Article 1.-
Scope of regulation
This Decree provides for the order and procedures for
disposal of cargo retained by carriers at Vietnamese seaports according to the
provisions of Article 94 of the Vietnam Maritime Code (hereinafter collectively
referred to as the Code) for guaranteeing the payment of freights, damages for
vessel detention, and other expenses related to the carriage of cargo.
Article 2.-
Subjects of application
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Article 3.-
Interpretation of terms
In this Decree, the terms below shall be construed as
follows:
1. “Retainer” means a carrier who has the right to retain
cargo where there are grounds for such right to arise.
2. “Retained cargo” means cargo which is retained by sea
carriers at Vietnamese seaports for guaranteeing the payment of freights,
damages for vessel detention, and other expenses related to the carriage of
cargo by sea.
3. “Debts” mean freights, damages for vessel detention and
other reasonable expenses related to the carriage of cargo which charterers or
consignees have neither paid off nor given necessary guarantee for the payment.
4. “Auctioneers” mean property-auctioning enterprises, property-auctioning
service centers or property-auctioning councils defined in Articles 34, 35, 36
and 37 of the Government’s Decree No. 05/2005/ND-CP of January 18, 2005, on
property auction.
5. The terms of “carrier”, “charterer” and “consignee”
shall have the meaning given to them by definitions in Clauses 1, 2 and 5,
Article 72 of the Code.
Article 4.-
Retained cargo
1. Cargo shall be retained in the following cases where:
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b/ The consignee refuses to receive the cargo;
c/ The consignees delays the receipt of the cargo;
d/ Many persons present the original bill of lading or sea
waybill or another carriage document of equivalent validity in order to receive
the cargo;
e/ The charterer or the consignee fails to pay off debts
or give necessary guarantee for the full payment of debts. The carrier may
retain only a volume of cargo with a value sufficient to guarantee the full
payment of debts and expenses specified in Clause 1, Article 9 of this Decree.
The volume of cargo to be retained by the carrier shall be calculated based on
the price of such cargo in the market of the locality where the carrier retains
the cargo and at the time the cargo is retained.
2. Past 60 days from the date the vessel arrives at the
port of delivery, if the persons with related interests defined in Clause 1 of
this Article fail to pay off debts or give another necessary guarantee, the
retainer may auction the retained cargo and must abide by the provisions of
Clauses 1 and 2, Article 5 of this Decree. Where the retained cargo is
perishable, likely to pollute the environment or badly affect defense or
security, or its custody may cost much more than its actual value, the carrier
may, depending on the nature and characteristics of the cargo and his/her/its
financial capability, dispose of the retained cargo ahead of the set schedule,
but must still perform the jobs in the order prescribed in Article 5 of this
Decree.
3. The retainer that retains cargo and disposes of the
retained cargo under the provisions of this Decree shall be accountable before
law for the lawfulness of the retention and disposal of the retained cargo.
Article 5.-
Notice on retention of cargo
1. Right upon the retention of cargo, the retainer must
notify in writing the charterer or the consignee of such retention and the
intended sale of the retained cargo for clearing debts.
2. Past 30 days from the date of making the first notice,
if the retainer receives no reply from the charterer or the consignee, or
his/her/its debt is not paid off, he/she/it shall make notification for three
consecutive times on the central mass media or the mass media of the province
where the cargo is retained and, at the same time, notify the charterer or the
carrier thereof.
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Article 6.-
Procedures for auction of retained cargo
Procedures for the auction of retained cargo shall comply
with the provisions of law on property auction.
Article 7.-
Retained cargo which is banned from import or circulation
Retained cargo which is banned from import or circulation
within the Vietnamese territory shall be disposed of according to the
provisions of law.
Article 8.-
Assessment of retained cargo
Before signing a contract to mandate the auction of
retained cargo, the retainer must hire an assessor to assess the quantity,
quality and damage (if any) of the retained cargo. Expenses for assessment of
retained cargo shall be included in property auction expenses.
Article 9.-
Payment of proceeds from auction of retained cargo
1. All proceeds from the auction of retained cargo shall
be deposited into the retainer’s “custody account” at a licensed bank operating
in Vietnam. Such proceeds shall be paid in the following order of priority:
a/ Taxes, fees and expenses related to the custody and
auction of cargo;
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c/ Reasonable expenses arising from the retention of
cargo.
2. The payment of the sums stated in Clause 1 of this
Article must be evidenced with complete and valid documents according to the
provisions of law.
3. The remainder, if any, after the sums stated in Clause
1 of this Article have been paid off, shall be kept in the “custody accounts”
for refund to eligible persons.
4. Where the proceeds from the auction of retained cargo
are insufficient to pay the sums stated in Clause 1 of this Article, the
retainer may continue requesting involved persons to pay the deficit.
Article 10.-
Notice on payment of proceeds from auction of retained cargo
1. Within three days after having paid the proceeds from
the auction of retained cargo according to the provisions of Article 9 of this
Decree, the retainer shall notify the charterer or the consignee of such
payment. Right after the date of sending this notification, the retainer must
publish such notification for three consecutive times on the central mass media
or the mass media of the province where the cargo is retained.
2. If there is any remainder of the proceeds, the retainer
shall notify the charterer or the consignee of the remainder and the number of
the bank where it is temporarily deposited.
Article 11.-
Disposal of the remainder of the proceeds after payment
1. Where eligible recipients of the remainder claim such
money, the retainer must pay to the claimants the remainder stated in Clause 2,
Article 10 of this Decree; where many persons are eligible to receive such
remainder, they shall be divided a share of the remainder in proportion to each
person’s interests.
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3. Where a claimant of the remainder is rejected by the
retainer, the claimant may request a competent court to protect his/her
legitimate interest. When the court issues a decision recognizing that the
claimant is entitled to such money, the retainer shall request in writing the
finance agency and state treasury concerned to refund the remitted money to the
lawful claimant.
Article 12.-
Implementation effect
This Decree takes effect 15 days after its publication in
“CONG BAO” and annuls the Government’s Decree No. 55/1998/ND-CP of July 22,
1998, on handling cargo retained in Vietnam by sea carriers.
Article 13.-
Organization of implementation
1. The Minister of Transport shall have to organize the
implementation of this Decree.
2. Ministers, heads of ministerial-level agencies, heads
of Government-attached agencies, presidents of provincial/municipal People’s
Committees, and concerned agencies and individuals shall have to implement this
Decree.
ON BEHALF OF THE GOVERNMENT
PRIME MINISTER
Phan Van Khai
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