THE
MINISTRY OF TRANSPORTATION AND COMMUNICATIONS
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SOCIALIST
REPUBLIC OF VIET NAM
Independence - Freedom - Happiness
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No:
2106/QD-GTVT
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Hanoi
, August 23, 1997
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DECISION
PROMULGATING THE REGULATION ON THE LOADING AND DISCHARGE,
DELIVERY AND RECEIPT AND PRESERVATION OF CARGOS AT VIETNAM’S SEA-PORTS
THE MINISTER OF COMMUNICATIONS AND TRANSPORT
Pursuant to Decree No.22-CP of March 22, 1993
of the Government on the tasks, powers, State management responsibility and
organizational structure of the Ministry of Communications and Transport;
To conform with the actual operation of Vietnam’s sea-ports under the market
mechanism;
At the proposals of the Head of the Legal Department of the Ministry of
Communications and Transport and the Head of the Maritime Department of
Vietnam,
DECIDES:
Article 1.- To
promulgate the "Regulation on Loading and Discharge, Delivery and Receipt
and Preservation of Cargos at Vietnam’s Sea-ports"
Article 2.- This
Decision shall replace Decision No.2073-QD/VT of October 6, 1991 of the
Minister of Communications and Transport and takes effect 15 days after its
signing.
Article 3.- The Head of
the Maritime Department of Vietnam shall have to guide and supervise the
implementation of this Decision.
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FOR THE MINISTER OF
COMMUNICATIONS AND TRANSPORT
VICE MINISTER
Bui Van Suong
REGULATION
ON THE LOADING AND DISCHARGE, DELIVERY AND RECEIPT AND
PRESERVATION OF CARGOS AT VIETNAM’S SEA-PORTS
(issued together with Decision No.2106/QD-GTVT of August 23, 1997 of the
Minister of Communications and Transport)
Chapter I
GENERAL PROVISIONS
Article 1.-
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2. Vietnam’s sea-ports are those announced by
the competent State agency for the entry or exit of vessels under the
provisions of law, which shall be called hereafter as ports for short.
Article 2.-
1. This Regulation shall
apply to all organizations and individuals involved in the loading and
discharge, delivery and receipt and preservation of all kinds of cargo at
ports.
2. The loading and discharge, delivery and
receipt and preservation of cargos at ports shall comply with the provisions of
this Regulation and the related provisions of law regarding customs, taxation,
quarantine, health care, etc.
Article 3.- In this
Regulation, the terms below shall be construed as follows:
a/ "Import cargo" is the cargo
transported by a sea-going vessel from overseas to a Vietnamese port and
discharged thereat.
b/ "Export cargo" is the cargo carried
to a port to be loaded on board a sea-going vessel then transported overseas.
c/ "Domestic cargo" is the cargo
transported by a sea-going vessel from and to a Vietnamese port to be loaded or
unloaded thereat.
d/ "Loading" is the act of carrying
cargos from ports or from transport means to ports for loading on board ships.
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f/ "Shipper", "Cargo
recipient", "Charterer" shall be construed as provided for in
Articles 61 and 93 of the Maritime Code of Vietnam, hereafter referred to as
cargo owner.
g/ "Carrier" shall be construed as
provided for in Article 61 of the Maritime Code of Vietnam.
h/ "Consignee" is an organization or
individual consigned by the cargo owner or the carrier to perform the service
of loading and discharge, delivery and receipt and preservation of cargos at a
port.
Chapter II
CONTRACT ON THE LOADING
AND DISCHARGE, DELIVERY AND RECEIPT AND PRESERVATION OF CARGO
Article 4.-
The loading and
discharge, delivery and receipt and preservation of cargos at a port shall be
performed on the basis of a contract between the port and the cargo owner, the
carrier or the consignee. Such contract must be made in accordance with the
provisions of law.
Article 5.- For
organizations or individuals that possess small amounts of cargos and do not
sign a contract on its own initiative, the loading and discharge, delivery and
receipt and preservation of cargos at the port shall comply with international
practice and Vietnamese law.
Chapter III
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Article 6.- The parties
to a contract shall be entitled to select the most advantageous mode of
delivery and receipt of cargos under their agreement stated clearly in the
contract. The general principle for cargo delivery and receipt is that the mode
of receipt shall be the mode of delivery.
Modes of delivery and receipt include:
1. Delivery and receipt in whole bag, package,
bundle, sheet, roll or piece
2. Delivery and receipt with lead seal intact
3. Delivery and receipt according to quantity,
weight or volume determined by weighing, measuring or counting
4. Delivery and receipt according to water lines
5. Delivery and receipt in containers with lead
seal intact
6. Combining the above-said modes of delivery
and receipt
7. Other modes of delivery and receipt.
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Article 8.- In case the
cargo recipient or the consignee fails to receive the cargo as agreed upon in
the transportation contract or fails to comply with the cargo loading and
discharge norms officially announced by the port, the carrier and the port
shall be entitled to make a record thereof, discharge the cargo from the vessel
and deposit it at the port’s warehouse or yard. The cargo recipient shall have
to pay all related costs.
Article 9.- In case the
cargo is kept at the port’s warehouse or yard, the cargo owner or his/her
consignee shall have to deliver to or receive directly to or from the carrier
and the port the amount of cargos kept at the port’s warehouse or yard.
If the cargo owner’s consignee is a port, such
port shall have to comply with the consignment contract it has signed with the
cargo owner.
Article 10.-
1. Cargos transported
through ports must carry the signs and marks as prescribed by current regulations,
except for bulk or unpacked cargos, that must be delivered and received
according to trade practice.
2. With regard to cargos in containers: the
containers numbers must be clearly written and their covers technical
conditions and lead seals must be intact.
3. With regard to cargos in holds with lead
seal: the lead seal must be intact.
4. If the requirements mentioned in Items 1, 2
and 3 of this Article are not met, thus causing mistake or delay in the
delivery and receipt of cargo, the port shall be exempt from any liability
therefor.
Article 11.- The port
shall deliver the cargo to the cargo recipient according to the following
principles:
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- The cargo recipient shall have to
uninterruptedly within a certain period of time receive the amount of cargos
stated in a bill of lading, a waybill, a document on the transportation of
cargo of equivalent value or a cagro delivery order.
- The port shall deliver the cargo to the cargo
recipient in accordance with the mode of delivery and receipt stipulated in
Article 6 of this Regulation.
- The port shall not take responsibility for the
cargos inside bags and packages if such bags and packages as well as the lead
seals thereon remain intact.
- In case the cargo is delivered and received in
whole bags, packages, sheets, rolls or pieces, if any is torn or broken, the
delivery and receipt shall be made according to the actual number of torn or
broken cargos. The state of torn or broken cargos must be recorded in a
document to be signed by the parties concerned.
Article 12.- Before
signing the receipt of cargo from the port, the recipient shall have to check
such cargo or its technical conditions and the containers lead seals right at
the port warehouse or yard. If the cargo is carried by the port to the cargo
recipient’s warehouse or yard under a consignment contract, the cargo owner
shall have to check the cargo before signing the receipt thereof at his/her
warehouse.
The port shall not take responsibility for any
damage or loss to the cargo that is detected by the cargo recipient after
he/she has signed the receipt thereof with the port.
Article 13.- Papers
related to the cargo that must be handed over by the carrier to the port:
1. For import cargo:
- A brief declaration of the cargo: 02 copies
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- Description of the cargo hold: 02 copies
- Oversize or overload cargo (if any): 02 copies
The above-mentioned papers shall be handed over
to the port 24 hours before the vessel arrives at the place where the pilot is
taken and return. If the port is also the consignee, it must also be given one
copy of the bill of lading.
In case the cargo in containers is deposited at
the port warehouse or yard, the cargo recipient shall have to produce to the
port:
- The cargo delivery order (with seal of
certification by the Customs): 01 copy
- A copy of the bill of lading or the equivalent
waybill: 01 copy
- The paper on borrowing the empty containers
(if he/she wants to carry the containers to the cargo owner’s warehouse for
cargo loading or discharge): 01 copy
2. For export cargo (including cargo in
containers):
- A brief declaration of the cargo: 05 copies
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(to be handed to the port 8 hours before loading
the cargo on board the vessel)
3. For domestic cargo:
a/ At the port of loading:
- The permit for the transportation of cargo: 05
copies
(to be handed to the port 24 hours before the
vessel arrives at the place of loading)
- The cargo scheme: 02 copies
(to be handed over to the port 8 hours before
the cargo is loaded on board the vessel)
b/ At the port of discharge:
- The permit for the transportation of cargo: 02
copies
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These papers shall be handed to the port at
least 8 hours before the vessel arrives at the place of discharge.
If the port is assigned with delivery and
receipt of cargos with a vessel, it must also be given a copy of the bill of
lading besides the above-said papers.
4. With regard to cargo in transit, cargo
transferred from one means of transport to another, cargo transferred across
the border or cargo temporarily imported for re-export: the type of the cargo
must be stated clearly in the bill of lading which shall be attached to a brief
description of the cargo or relevant vouchers as stipulated for such cargo by
law.
5. With regard to cargo under maritime bailment:
the carrier shall have to certify in writing that such cargos are under
maritime bailment.
All papers prescribed in this Article must be
handed in time to the port. If not, the port shall not take responsibility for
the time the vessel has to wait for the loading and discharge of cargos.
Chapter IV
LOADING AND DISCHARGE OF
CARGO
Article 14.- The
loading and discharge of cargo within a port shall be organized by such port.
In case the cargo owner, the carrier or the consignee
wants to send his/her personnel and means to the port for the loading and
discharge of cargo, there must be consent of the port and all related costs
must be paid to the port as agreed upon.
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The parties concerned may negotiate the loading
and discharge norms with the port, which, however, must not be lower than the
announced norms.
Article 16.- Regarding
the loading and discharge of cargos that need special protection or are
classified as dangerous cargos, the cargo owner or the consignee shall have to
inform the port of the cargo’s characteristics so that the latter may take
proper measures to load and discharge such cargos, and if necessary, the cargo
owner or the consignee shall have to directly provide guidance for the port in
loading and discharging such cargos.
Article 17.-
1. The vessel shall have
to provide enough lighting for the cargo hold and other places as well as the
other cargo-handling equipment and facilities so as to ensure safety for
loading and discharge of the cargo.
2. The port shall have the right to refuse or suspend
the loading and discharge of cargo if the vessel fails to meet the safety
conditions for the handling of such cargo. In this case, the port and the
parties concerned shall have to make a record certifying the violations of the
regulation on the safety of loading and discharge of cargos.
Article 18.- The port
shall have the right to refuse the loading and discharge of the cargos that
bear no signs and marks or bear unclear signs and marks or if the packages are
not safe for loading and discharge. If the cargo’s actual weight does not
conform with that stated in the brief declaration of the cargo, the cargo owner
shall have to pay the loading and unloading charge at a level higher than the
prescribed one, for the excess weight of the cargo (such level of charge shall
be determined by the port). If any damage is caused to the port’s loading and
unloading facilities due to incorrect weight, the cargo owner shall have to pay
compensation to the port.
Chapter V
PRESERVATION OF CARGOS
Article 19.-
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2. The port shall have the right to refuse
preserving and keeping at its warehouse or yard those cargos that bear no signs
and marks or unclear signs and marks or the packages do not meet the safety for
depositing cargos.
3. In case the cargos kept at its warehouse or
yard show signs of decay, the port shall have to immediately inform the cargo
owner thereof so that the latter may come over to settle the matter and at the
same time to take necessary measures for the prevention and limitation of
losses. The cargo owner shall pay all arising costs to the port if he/she
cannot prove that the measures taken by the port are not necessary.
Article 20.-
1. The time of keeping
the cargo at the port warehouse or yard shall be agreed upon between the cargo
owner, the carrier or the consignee and the port through a contract.
Seven days beyond the payment deadline
prescribed in the contract if the cargo owner still fails to pay all costs to
the port or sign another contract for the extension of the cargo deposit time,
the port shall send a written notice to the cargo owner. After 15 days (based
on the postal seal), if the cargo owner fails to reply or take any appropriate
measures, the port shall be entitled to dispose of the cargo as prescribed by
law.
4. The charge and fee for keeping cargos at the
port warehouse or yard shall be calculated according to temporally
progressional.
Chapter VI
PAYMENT, COMPENSATION,
REWARD AND FINE
Article 21.- The
payment of freight, fee, charge and other costs related to the loading and
discharge, delivery and receipt and preservation of cargos at a port shall be
based on the provisions of law and contract signed between the port and the
parties concerned.
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All losses must be proved by valid papers and
compensation shall be calculated in cash.
Article 23.- Before,
during and after discharging a cargo from a vessel, if there is any suspicion
of damage or loss caused to the cargos by the shipper, the charterer or the
carrier, the cargo recipient or the consignee shall, together with the carrier,
have to make a record thereon which shall serve as a basis for claim of
damages.
Article 24.-
1. In the course of
loading and discharge, if any damage or loss is caused to the cargo by the
port’s workers, the port shall have to pay damages to the cargo owner.
2. If the cargo kept at the port warehouse or
yard is damaged or lost, the concerned parties shall have to make a record
thereon with the port’s certification and the expert’s conclusion regarding
such cargo.
3. The port shall have to pay damages to the
party that suffers from damage or losses, if it fails to prove that it is not
at fault.
Article 25.- The
dossier claiming compensation for damage or losses shall include:
- A record certifying the cargo’s damage, made
by the parties concerned.
- A record on the expertise of the cargo losses
made by the expertizing agency.
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- The bill of lading, the purchase receipt or
the waybill, or the equivalent voucher for the transportation of the cargo.
- Other documents or materials related to the
settlement of compensation (if necessary).
Article 26.- The party
that suffers from damage or loss and claims compensation shall have to send the
dossier to the compensating party within 30 days after receiving the cargo or after
the cargo recipient has received a voucher that lacks legal grounds for
claiming compensation from the ship owner, if the port is assigned the delivery
and receipt of cargo to and from the vessel.
15 days (according to the postal seal) after
receiving the dossier claiming compensation, the compensating party shall have
to inform the claimant of its acceptance or non-acceptance of the claim.
Article 27.- Within 90
days after the claimant receives the dossier claiming compensation, the two
parties shall have to negotiate and settle the claim. If no result is yielded,
they shall be entitled to lodge their complaints to a judicial body agreed upon
by the parties in the contract or provided for by law (if no agreement is
reached).
Article 28.- The
compensation for damage or losses caused to cargos shall be made on the
following principles:
- If a whole bag or package is lost,
compensation shall be paid in a whole bag or package.
- If part of the cargo is damaged or lost,
compensation shall be paid for such part of cargo and the cargo owner shall
also receive the remaining parts of the cargo.
- The conpensation amount shall be based on the
cargo’s price at the place and time of compensation, if the parties do not
otherwise agree upon.
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FOR THE MINISTER OF
COMMUNICATIONS AND TRANSPORT
VICE MINISTER
Bui Van Suong