Circular 01/2020/TT-BGTVT report and investigation of marine accident

CIRCULAR

Providing regulation on report and investigation of marine accident

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Pursuant to the Vietnam Maritime Code No. 95/2015/QH13 dated November 25, 2015;

Pursuant to the Code on standards and international recommendation on investigation of marine accident or marine incident of the International Maritime Organization (IMO);

Pursuant to the Decree No. 12/2017/ND-CP dated February 02, 2017 of the Government on defining the function, tasks, power and organizational structure of the Ministry of Transport;

At the propose of the Director General of the Traffic Safety Department and the Director of the Vietnam Maritime Administration;

The Minister of Transport hereby promulgates the Circular providing regulation on report and investigation of marine accident.

Chapter I

GENERAL PROVISIONS

Article 1. Scope of regulation

This Circular provides regulation on report and investigation of marine accident.

Article 2. Subjects of application

1. This Circular applies to agencies, organizations, individuals involve in report and investigation of marine accident in the following cases:

a) Marine accidents involve Vietnamese ship;

b) Marine accidents involve foreign ship which operate in: the Port waters, the inland waters and the territorial waters of Vietnam; the exclusive economic zone of Vietnam in case such accident involves Vietnamese ship, Vietnamese offshore constructions and devices or causes environmental pollution.

2. Regulation of this Circular shall apply to investigate accidents involve duty ships and hydroplane within the port waters of Vietnam: Domestic marine vehicles with VR - SB level, floating storages, mobile rigs within the area of port waters of Vietnam and on the sea area of Vietnam.

Article 3. Interpretation of terms

1. Marine accident means the incidents directly related to activities of ships and cause one of the following consequences: human death, lost, severe injuries; collision of ships; heavy damages to the ship’s structure; ship’s lost, sink, stranded or unable to be active; damage to the marine infrastructure or cause severe environmental pollution.

Marine accident shall not involve intentionally activities causing damage to human, ships, marine infrastructure of the environment.

2. Marine incidents means events that happen and directly related to the operation of ships but other than marine accidents as prescribed in Clause 1 this Article, dangerous and if not carry out the remedy, it may pose risk of dangerous to the safety of ships, human or the environment.

Article 4. Classification of marine accidents

1. Extremely serious marine accident means the accident causes one of the following damages:

a) The death or missing of person;

b) The sink or missing of ship;

c) Spill out to the environment 100 tons of oil or more or 50 tons of toxic chemical or more.

d) Disrupt the transport on the marine channel from 48 hours or longer.

2. Serious marine accident means the marine accident other than cases prescribed in Clause 1 this Article and causes one of the following damages:

a) The ship be burned, exploded or stranded from 24 hours or longer, causes damage to the structure of the ships affecting to the capacity of sea travel of the ship.

b) Spill out to the environment from 20 to under 100 tons of oil or from 10 to under 50 tons of toxic chemical.

c) Disrupt the transport on the marine channel from 24 hours to under 48 hours.

3. Less serious marine accident means the marine accident other than cases prescribed in Clause 1 and 2 of this Article.

Article 5. Responsibility of the ship captain, owner, manager, exploiter and other related organizations, individuals on marine accident

1. The ship captain, owner, manager, exploiter and other related organizations, individuals on marine accident shall have the responsibility to report the marine accident to the Marine Administrative or Vietnam Marine Administration or the Ministry of Transport quickly and accurately as prescribed in this Circular.

2. The captain of the ship related to the marine accident shall take responsibility to operate the rescue quickly, promptly and effectively in accordance with the safety condition of the ship.

3. The captain and member of the ship related to marine accident shall take responsibility to operate the protection of the accident scene and voyage record device at the time of accident and provide evidences related to the marine accident to the investigation agency.

4. The captain, member of the ship and related organization, individual of a marine accident shall take responsibility to report sufficiently, honestly and timely to the investigation agency and shall bear legal responsible to the provided information.

5. For marine accident causes injury to the member of the crew, the ship captain, owner, employer, in addition to report as prescribed in accordance with provisions of this Circular shall report on occupational accident in accordance with law provisions.

Chapter II

MARINE ACCIDENT REPORT

Article 6. Marine accident report

1. Marine accident report include Emergency report, Details report and Periodic report as prescribed in the Appendices 1, 2, and 3 attached to this Circular.

2. Content of the marine accident report must be honest, accurate and timely.

Article 7. Emergency report

1. The emergency report shall be made as follow:

a) In case the marine accident happens in the port waters and the sea area of Vietnam, the captain or the person of highest charge on the ship shall immediately send the Emergency report to the nearest Marine Administration. In case those people cannot submit the Emergency report, the ship owner or the ship agency related to the accident shall take responsibility to make the report.

b) The nearest Marine Administration receive the emergency report or acknowledge on the happened marine accident shall take responsibility to immediately forward the report or information to one of the following organizations, agencies: The Marine Administration assigned to manage the area of accident; Vietnam Marine Administration; Vietnam Marine Safety, if the accident damage or disable function of marine assistance devices or affect to marine safety of the ship; to the organization or individual managing or exploiting construction or device if the accident causes damages or losses to such construction or device; to the People's Committee of provinces and central affiliated cities if the accident may cause environmental pollution or damage the fishery resource.

2. In the case of a marine accident involving a Vietnamese ship while operating in the waters of another country, the master or the person with the highest responsibility on the ship or the ship owner must carry out the report at the request of the coastal country where the ship was involved in the accident and immediately submitted an Emergency Report to the Vietnam Maritime Administration. If the accident is an extremely serious accident, the master or the person with the highest responsibility on the ship or the ship owner must report it to the Vietnamese diplomatic missions in the coastal country where the ship is located in order to know the accident and settlement of support.

3. In case of a marine accident involving a Vietnamese ship while operating in international waters, the master or the highest responsibility person on the ship or the ship owner must immediately send an Emergency report to the Vietnam Maritime Administration.

4. Emergency reports may be transmitted directly or sent by appropriate methods of communication.

5. For extremely serious marine accidents, after receiving the Emergency Report, the Vietnam Maritime Administration must immediately report it to the Ministry of Transport.

6. The Vietnam Maritime Administration shall notify the maritime administration of the flag country of the ship in respect of marine accidents occurring in the cases specified at point b, Clause 1, Article 2 of this Circular.

Article 8. Detail reports

Following the Emergency report, the master or the person with the highest responsibility on board of the ship must send a Detail report within the time limit specified as below:

1. In case a marine accident occurs within the port waters and inland waters of Vietnam, the Detail report must be sent to the Marine Administration assigned to manage it within that water area within 24 hours from the date. In case of failure to complete the Detail Report within 24 hours, an additional report must be made but not later than 48 hours after the accident occurred.

2. In cases where a marine accident occurs within the territorial waters and exclusive economic zone of Vietnam as prescribed at point b, Clause 1, Article 2 of this Circular, after the accident, the ship is anchored in the region. In the port waters of Vietnam, the Detail report must be sent to the Marine Administration assigned to manage that water area within 24 hours from the time the ship anchors at the designated location. In case, after an accident, the ship does not anchor at Vietnam’s port waters, the Detail report must be sent to the Vietnam Maritime Administration within 48 hours from the time the ship or crew member of the ship arrive at the first port.

3. In case of a marine accident involving a Vietnamese ship while operating in international waters and waters of another country, after the accident, the ship anchored in the waters of Vietnam’s seaport, the Detail report must be sent to the Marine Administration assigned to manage it within that water area within 24 hours after the ship is anchored at the designated location. In case, after an accident, the ship does not anchor at Vietnam’s port waters, the Detail report must be sent to the Vietnam Maritime Administration within 48 hours from the time the ship arrives at the first port.

Article 9. Periodical reports

1. Every six months and every year, the Marine Administration must make a written report and send to Vietnam Maritime Administration on marine accidents occurring according to the form specified in Appendix 3 to this Circular.

2. Every six months and every year, the Vietnam Maritime Administration shall have to make a written report and send to the Ministry of Transport on marine accidents in the form prescribed in Appendix 3 to this Circular.

3. Reporting deadline:

a) Deadline for submission of six-month reports: For the Marine Administration is no later than June 16 every year and for the Vietnam Maritime Administration is no later than June 20 every year, the last 6 months’ reports shall be replaced by the annual report.

b) Deadline for submitting annual report: For the Marine Administration is no later than December 16 every year and for the Vietnam Maritime Administration is no later than December 20 every year.

Chapter III

INVESTIGATION OF MARINE ACCIDENTS

Article 10. Purpose and request of marine accident investigation

1. Marine accident investigation means the determination of conditions, circumstances, causes or possibilities which may cause marine accidents in order to take effective measures to prevent and limit similar accidents.

2. A marine accident investigation does not determine the parties’ liability or responsibility.

3. Marine accidents must be investigated in strict compliance with regulations, in a timely, comprehensive and objective manner.

Article 11. Cases of investigation of a marine accident

1. Serious and extremely serious marine accidents must be investigated.

2. Less serious marine accidents may be investigated or not investigated up on the decision of the Director of the Marine Administration. In case of no investigation, the Marine Administration must report to Vietnam Maritime Administration.

Article 12. Organization of marine accident investigation

1. Competence to investigate marine accidents

a) Directors of regional Marine Administration shall be responsible for organizing the investigation of marine accidents occurring in the port waters within the scope of management and other marine accidents assigned by the Director of Vietnam Maritime Administration;

b) In the event that a marine accident occurs in the port waters, the ship related to the accident continues its journey to the designated anchoring position in another port waters area, the Director of Vietnam Maritime Administration shall decide to assign the organization of marine accident investigation to the Marine Administration where the accident occurred or where the ship is anchors. When the ship arrives at the designated anchoring position within the port waters area under the management, the Director of the Maritime Administration shall have to immediately send a qualified and professional person to board the ship to inspect the scene and collect evidences.

c) The Director of Vietnam Maritime Administration shall decide to assign the organization of investigation of marine accidents occurring outside the waters of Vietnam’s seaport to an appropriate Marine Administration.

2. Upon receipt of information on a marine accident within the port waters area within the area under its management, to the extent permitted, the Director of the Maritime Marine Administration shall send a professionally competent person to the scene of the accident and board on the ships to inspect the scene, review work sites and collect necessary evidence for investigation. When carrying out these activities, it is absolutely necessary to make a record and be witnessed by the competent person on board the ship and avoid affecting the safe operation of the ship. The person sent to the scene will be a member of the Marine Accident Investigation Team as specified in Clause 3 of this Article.

3. Directors of Maritime Marine Administration conducting marine accident investigation shall take responsibility to issue decisions to set up marine accident investigation teams.

4. In the course of investigation of a marine accident, if detecting signs of a crime, the director of the Marine Administration shall notify the competent investigating agency and transfer the dossiers, documents and evidence relating to marine accidents at the request of competent investigating bodies; before transfer, records and documents must be copied or photocopied to save for marine accident investigation; the transfer of records, documents and evidence must be recorded in writing.

5. For marine accidents which other agencies have conducted investigations within their competence, the marine accident investigation shall still be conducted in accordance with the provisions of this Circular.

6. The Vietnam Maritime Administration shall notify the maritime authorities of the flag country of the marine accident investigation of foreign ships as specified in Clause 1, Article 2 of this Circular.

7. Directors of Marine Administration may temporarily detain seagoing ships for no more than 05 days to collect evidence in service of investigation. The temporary detain beyond the above time limit in case an accident occurs in the port waters area shall be decided by the Director of Vietnam Maritime Administration at the proposal of the Director of the Maritime Administration, the time limit for extension of temporary detain is not more than 05 days; in case an accident occurs outside the port waters area, the time limit for extending the temporary detention of a ship shall be considered and decided by the Minister of Transport on the proposal of the Vietnam Maritime Administration.

Article 13. Agreement on marine accident investigation

In case of necessity, the Vietnam Maritime Administration shall conduct the agreements to investigate the marine accident as follows:

1. For marine accidents involving foreign ships, the Vietnam Maritime Administration shall reach agreement with the maritime administration of the flag country on the investigation of marine accidents in accordance with actual conditions, circumstances and locations of the accident.

2. For marine accidents involved to Vietnamese ships occurring abroad, the Vietnam Maritime Administration shall reach agreement with the maritime authorities of the coastal country on the proper investigation of marine accidents with actual conditions and circumstances, locations of marine accidents.

3. In case of failure to reach an agreement with the maritime Administration of the flag country or the coastal country, the marine accident shall be independently investigated in accordance with the provisions of this Circular.

Article 14. Marine accident investigation team and members of the marine accident investigation team

1. Marine accident investigation team

a) The marine accident investigation team must have a leader who directly manages and must have at least 01 deputy team leader to assist the team leader and 01 team member assigned by the Director of the Marine Administration according to the competence;

b) In case of necessity, the Director of Vietnam Maritime Administration shall add a person with appropriate qualifications to join the Marine Accident Investigation Team. The Director of the Maritime Administration shall base on the direction of the Director of the Vietnam Maritime Administration to decide to set up a Marine Accident Investigation Team.

2. Members of a marine accident investigation team must meet the following conditions: be a captain, chief engineer or engineer specializing in ship navigation, ship engine operation, ship engine operation, shipbuilding, ship’s electric and auto power, maritime laws or the like; have practical experience with at least 5 years of training and have passed professional training courses on marine accident investigations.

Article 15. Tasks and powers of the Marine Accident Investigation Team

1. The formulation of an investigation plan and establish of an investigation funding plan for marine accident investigation shall be conducted in accordance with regulation of this Circular and other relevant provisions of law. The investigation plan must be approved by the Marine Administration Director. To report in writing on the investigation process and results of the marine accident investigation to the Director of the Maritime Administration who establishes the Marine Accident Investigation Team.

2. To notify in writing to the ship master or the person with the highest responsibility on the ship, the ship owner and the ship agent on the conduct of an investigation of a marine accident. The notice shall include the following main information:

a) To be investigated marine accident;

b) Time and location of the investigation beginning;

c) Name and contact address of the Marine Accident Investigation Team;

d) Rights and obligations of the parties to the marine accident investigations.

3. Using equipment and equipment necessary for marine accident investigation.

4. To request the parties involved in marine accidents to take measures to preserve the scene and protect relevant evidence at the request of marine accident investigations.

5. To request persons related to marine accidents to report in writing matters they know about the conditions, circumstances and developments of the marine accident and the subjects related to the marine accident. In case of necessity to interrogate these persons they must be notified in advance of the time and place of interrogation.

6. To request captains and responsible persons to supply copies of ship diaries, nautical chart of the areas in distress of ships and other necessary papers and documents on ships and equipment and facilities on board.

7. To request the organization of decentralization and technical supervision of ships, ship owners, shipping agents, maritime information organizations, maritime search and rescue coordination centers and centers for operating the surveillance system vessel traffic, maritime safety assurance, maritime pilots and other relevant agencies, organizations and individuals to provide necessary information to serve the marine accident investigation.

8. Examining and collecting copies of ship registration and insurance papers, other necessary papers and professional certificates of crew members to serve the marine accident investigation.

9. Carry out voice recording, photographing, image recording, surveying, soliciting expertise and performing other jobs if deeming it necessary for the investigation of marine accidents.

10. Summarizing, verifying, analyzing, evaluating and proposing conclusions on the causes of marine accidents. In case of necessity, the Director of the Maritime Administration shall propose a decision to solicit opinions of the ship decentralization and technical supervision organization or relevant specialized agencies.

11. Making a report on marine accident investigation.

12. Storing and preserving records, documents and exhibits related to marine accidents in accordance with regulations.

13. Organizing the translation into English the Draft of accident investigation reports, accident investigation reports for extremely serious marine accidents and marine accidents related to ships carry foreign nationality flag.

14. Reorganize a marine accident investigation in accordance with Article 20 of this Circular.

Article 16. Time limits for investigation of marine accidents

1. For marine accidents occurring in Vietnam’s port waters, the time limit for investigation shall not exceed 60 days from the date the marine accident occurs; for marine accidents occurring outside the port waters, the investigation time limit shall not exceed 60 days from the date of assignment to investigate marine accidents.

2. In complicated cases, if the marine accident investigation cannot be completed within the time limit specified in Clause 1 of this Article, based on the proposal of the Head of the Marine Accident Investigation Team, the Director of the Marine Administration must promptly report in writing to the Director of Vietnam Maritime Administration for consideration and decision to extend the time of investigation of marine accidents.

Article 17. Order of conducting marine accident investigation

1. Establishing a marine accident investigation team.

2. Formulating of marine accident investigations plan.

3. Estimating the fund for marine accident investigations.

4. Inform the parties concerned about conducting the investigation.

5. Interviews with crew members and witnesses; aggregating information collected. In case of necessary, additional examinations and interviews may be conducted to clarify any remain questionable issues.

6. Based on the provisions of the legislation on marine navigation, to analyze the information collected, including the conclusions of expertise of specimens and traces related to marine accidents.

7. To draft a marine accident investigation report and send it to concerned parties for comments according to Article 18 of this Circular.

8. Publication of the report on marine accident investigation.

Article 18. Draft report of marine accident investigation

1. After making the Draft of Report on marine accident investigation, the Investigation Team shall send a draft copy to the ship owner, ship manager, ship operator, Vietnam Inland Waterway Administration (if accident related to inland waterway vehicle) and Vietnam Maritime Administration to comment on the Draft Report. After receiving the Draft of Report on marine accident investigation from the Investigation Team, the Vietnam Maritime Administration shall send the Draft of Report to the Maritime Administration of the flag country for comment (in respect of the maritime accident related to foreign ship).

2. The maritime administration of the flag country, ship owner, ship manager, operator of the ship concerned shall not allowed to disseminate, publish or allow to access to the Draft of Report or any part of the Draft of Report without the consent of the Marine Accident Investigation Team, Director of Marine Administration or Vietnam Marine Administration.

3. No longer than 30 days or within the period agreed upon by the Investigation Team and concerned parties but no longer than 30 days after the submission of the Draft of Report, the maritime administration of the flag country, ship owner, ship managers, ship operators concerned shall have comments on the Draft of Report. Past that time limit, if no feedback has been received, the Investigation Team shall submit a report on marine accident investigation to the Director of the Maritime Administration for signing and announcing the Marine Accident Investigation Report.

Article 19. Reporting of marine accident investigation

1. A marine accident investigation report contains the following major information:

a) Summary of the basic elements of the marine accident and the number of deaths, missing, injured or the situation of environmental pollution;

b) Information about nationality, ship owner, ship management company, ship operation stated in the certificate of safety management and decentralized organization;

c) Main parameters of the ship and its engine; information on crew working and rest time and jobs performed before the marine accident;

d) Describe in detail the circumstances of the occurrence of the marine accident;

d) Analyze, argue and prove the factors leading to the causes of marine accidents;

e) Proposing the application of measures to prevent similar marine accidents.

2. The marine accident investigation team must send a report of a marine accident investigation to the maritime administration of the flag country, the ship owner, ship manager, ship operator and relevant Maritime Administration of Vietnam at the latest by the end of the time limit for investigation of marine accidents. A copy of the Marine Accident Investigation Report may be issued to another individual or legal person directly related to the accident, if required in writing.

3. The marine accident investigation team must send one set of copies of the dossier (if required) and two copies of the accident investigation report related to the extremely serious accident investigation to the Vietnam Maritime Administration.

4. For serious and extremely serious marine accidents, the Vietnam Maritime Administration shall have to send to the Ministry of Transport and the International Maritime Organization immediately after the conclusion of the marine accident investigation.

5. The report on marine accident investigation shall be publicly posted by the Vietnam Maritime Administration on the website of Vietnam Maritime Administration.

Article 20. Re-investigation of a marine accident

In the event that new evidence is provided or obtained that substantially alters the cause of the marine accident, the Director of the Maritime Administration may decide to conduct a re- investigation of the accident.

Article 21. Complaints, denunciations and settlement of complaints and denunciations

Complaints and denunciations (if any) related to marine accident investigations shall be settled according to the provisions of law on settlement of complaints and denunciations.

Article 22. Funds for investigating marine accidents

Funds for investigating marine accidents shall comply with the provisions of law.

Article 23. Effect

 To annul the Minister of Transport’s Circular No. 34/2015/TT-BGTVT dated July 24, 2015 on marine accident reporting and investigation and the Circular No. 39/2017/TT-BGTVT dated November 7, 2017 on amending and supplementing a number of articles of Circular No. 34/2015/TT-BGTVT dated July 24, 2015 of the Minister of Transport on marine accident reporting and investigation.

Article 24. Organization of implementation

1. Vietnam Maritime Administration shall organize the implementation of this Circular.

2. The Chief of the Ministry Office, the Chief Inspector of the Ministry, the Directors, the Directors of the Vietnam Maritime Administration, the Directors of the Vietnam Inland Waterways Administration, heads of concerned agencies, organizations and individuals are responsible.

For The Minister

The Deputy Minister

Nguyen Van Cong