Decision No. 2106/QD-GTVT of August 23, 1997 promulgating the regulation on the loading and discharge, delivery and receipt and preservation of cargos at Vietnam’s sea-ports

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.

Article 4.- The Head of the Ministry’s Office, the Head of the Legal Department- Transport, the Head of the Maritime Department of Vietnam and the heads of the related agencies and units shall have to implement this Decision.

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.-

1. This Regulation lays down the principles for loading and discharge, delivery and receipt and preservation of cargos at Vietnam’s sea-ports.

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.

e/ " Discharge" is the act of carrying cargos from ships to ports or onto other transport means.

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

DELIVERY AND RECEIPT OF CARGO

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.

Article 7.- The cargo delivery and receipt responsibility rests with the cargo owner or his/her consignee and the carrier. The cargo owner shall have to organize the delivery and receipt of cargo according to the port’s loading and unloading norms. If the delivery and receipt of cargos do not meet the port’s loading and discharge norms, the port shall be entitled to discharge the cargo at its warehouse or yard (for import cargos) or request the cargo owner to gather the cargo in front of its warehouse or yard (for export cargo) and the cargo owner shall have to pay all the cost arising therefrom to the port authority.

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:

- The cargo recipient shall have to produce valid documents certifying his/her right to receive the cargo together with vouchers of his/her payment of all charges and freights to the port.

- 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

- The cargo scheme: 02 copies

- 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

- The cargo scheme: 02 copies

(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

- The cargo scheme: 02 copies

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.

Article 15.- The port shall announce the loading and discharge norms for each kind of cargo and each kind of vessel, based on its actual loading and discharge capacity.

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.-

1. The port shall have to preserve the cargos kept at its warehouse or yard according to proper technical requirements and to each bill of lading and each lot of cargo.

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.

Article 22.- A party that violates law and the signed contract, thus causing losses to the other party, shall have to pay compensation for such losses.

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.

- The paper certifying the loss of cargo made by the port or the voucher certifying that the port has not delivered the cargo, provided that such cargo is kept at the port’s warehouse or yard.

- 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.