Circular No. 07/2018/TT-BGTVT dated February 07, 2018 of the Ministry of Transport on prescribing the inspection of seagoing ships

CIRCULAR

Prescribing the inspection of seagoing ships^[1]

Pursuant to the November 25, 2015 Maritime Code of Vietnam;

Pursuant to the Government’s Decree No. 12/2017/ND-CP of February 10, 2017, defining the functions, tasks, powers and organizational structure of the Ministry of Transport;

At the proposal of the Director of the Legal Department and the Director of the Vietnam Maritime Administration;

The Minister of Transport promulgates the Circular prescribing the inspection of seagoing ships (below referred to as ships).

Chapter I

GENERAL PROVISIONS

Article 1.Scope of regulation

This Circular prescribes the inspection of the conditions on maritime safety, maritime security, maritime labor and environmental pollution prevention for foreign ships operating in the seaport waters of Vietnam.

Article 2.Subjects of application

1. This Circular applies to organizations and individuals involved in the inspection of foreign ships operating in the seaport waters of Vietnam.

2. This Circular does not apply to the inspection of Vietnamese ships.

Article 3.Interpretation of terms

In this Circular, the terms below are construed as follows:

1. Ship means a foreign ship.

2. Deficiency means that the non-conformity of technical conditions, the operation, a certificate, a dossier, the size of the manning and seafarers with the treaties on maritime safety, maritime security, maritime labor and environmental pollution prevention to which Vietnam is a contracting party, which is detected through the inspection of the ship.

3. Clear ground means any of the following specific grounds:

a/ A ship having no equipment or having equipment that operates not in accordance with relevant treaties to which Vietnam is a contracting party;

b/ A ship or its seafarers  possessing no certificate or possessing a certificate which has expired under relevant treaties to which Vietnam is a contracting party;

c/ A ship having no document required by relevant treaties to which Vietnam is a contracting party;

d/ A ship having a serious damaged structure or hull or a deficiency causing danger to its watertight integrity or stability;

dd/ A ship having a deficiency of equipment, thus affecting maritime safety, maritime security, maritime labor or environmental pollution prevention;

e/ Seafarers neither knowing nor carrying out necessary activities related to maritime safety, maritime security, maritime labor and environmental pollution prevention;

g/ Seafarers on board a ship unable to communicate with one another under the provisions of relevant treaties to which Vietnam is a contracting party;

h/ Seafarers or the ship master giving wrong alerts which are not cancelled properly;

i/ A competent agency being notified of a ship’s failure to comply with the regulations on maritime safety, maritime security, maritime labor and environmental pollution prevention;

k/ A ship taking no actions to ensure maritime security.

4. Port state control officer means a civil servant or public employee of the Vietnam Maritime Administration who is granted a port state control officer’s card to inspect the conditions on maritime safety, maritime security, environmental pollution prevention and maritime labor on board foreign ships anchored in the seaport waters of Vietnam.

5. Detention of a ship means a port state control officer disallowing a ship to leave a port when he/she detects serious deficiencies of the ship as specified in Appendix 02 to this Circular and requests the ship master to rectify the deficiencies before the ship is allowed to leave the port.

6. Initial inspection means a port state control officer boarding a ship to inspect the overall condition, equipment, seafarers, certificates and relevant documents of the ship.

7. Detailed inspection means a port state control officer inspecting a ship upon obtaining clear grounds prescribed in Clause 3 of this Article.

8. Re-inspection means an inspection conducted after seafarers of a ship rectify the deficiencies detected by a port state control officer during the previous inspection to affirm that such deficiencies have been rectified.

9. Subsequent inspection means a port state control officer conducting an inspection to affirm the rectification of a ship’s deficiencies detected by a foreign port state control officer during the previous inspection.

10. Stoppage of inspection of a ship means a port state control officer stops inspecting a ship for the reason that during the detailed inspection he/she detects too many serious deficiencies of the ship’s overall condition, equipment and seafarers as specified in Appendix 02 to this Circular.

11. Non-convention ship means a ship having a tonnage or technical specifications below the ship standards prescribed in a relevant convention.

12. Substandard ship means a ship having its hull, machinery, equipment, operational process or seafarers below the standards prescribed in a relevant convention, which may be one or more of the following:

a/ Equipment being lacked as prescribed by the convention;

b/ Equipment being installed not in compliance with the convention;

c/ The ship or its equipment seeing serious breakdowns due to improper maintenance;

d/ Seafarers operating equipment not in compliance with the basic operational process;

dd/ The manning being unreasonable or seafarers possessing inappropriate certificates.

13. Recognized organization means an organization satisfying the conditions prescribed in Resolution A.739(18), amended by Resolution MSC.208(81), and authorized by the government of the state whose flag the ship flies to provide evaluation services and grant necessary certificates to ships flying the flag of that state.

14. Valid certificate means a certificate directly granted by a member state of a relevant convention or by a recognized organization, which satisfies the requirements of the relevant convention and complies with specific characteristics of the ship and its seafarers and equipment.

15. Tokyo MOU means the port state control organization in the Asia-Pacific region.

16. Asia-Pacific computerized information system (APCIS) means the Tokyo MOU’s system established to store, process and exchange ship inspection data.

Article 4.Principles of ship inspection

1. Ship inspection shall be conducted by at least two (2) port state control officers as assigned by the director of a maritime administration. The director may assign a person with appropriate professional qualifications to assist port state control officers.

2. When boarding a ship to conduct inspection, a port state control officer shall produce his/her port state control officer’s card to the ship master or watchkeeping seafarer.

3. During the ship inspection, a port state control officer shall avoid illegitimate delay or detention for the ship. The main purpose of the inspection is to prevent a ship from sailing if it fails to ensure maritime safety, maritime security or maritime labor or threatens to cause environmental pollution. The officer shall consider and decide to detain the ship until its deficiencies are rectified or may allow the ship to sail with certain deficiencies, depending on specific circumstances of each voyage.

4. While inspecting a ship, a port state control officer shall comply with the requirements prescribed in Appendix 01 to this Circular.

Chapter II

INSPECTION CONTENTS AND PROCESS

Article 5.Applicable international conventions

1. Ship inspection must comply with the international conventions to which Vietnam is a contracting party, including:

a/ The International Convention for the Safety of Life at Sea (SOLAS), 1974, and its amendments; and the Protocol of 1988 relating to the International Convention for the Safety of Life at Sea, 1974, and its amendments (the 1988 SOLAS Protocol);

b/ The International Convention on Load Lines, 1966; and the Protocol of 1988 relating to the International Convention on Load Lines, 1966 (the 1988 Load Lines Protocol);

c/ The International Convention for the Prevention of Pollution from Ships (MARPOL), 1973, and its amendments; and the Protocols of 1978 and 1997 relating to the International Convention for the Prevention of Pollution from Ships (MARPOL), 1973;

d/ The International Convention on Standards of Training, Certification and Watchkeeping for Seafarers (STCW), 1978, and its amendments;

dd/ The International Convention on Tonnage Measurement of Ships, 1969 (TONNAGE 69);

e/ The International Convention on the Control of Harmful Anti-Fouling Systems on Ships (AFS), 2001;

g/ The Maritime Labor Convention (MLC), 2006;

h/ The International Regulations for Preventing Collisions at Sea (COLREGs), 1972.

2. In case the conventions referred to in Clause 1 of this Article are amended or Vietnam accedes to more relevant conventions concerning maritime safety, maritime security, maritime labor and environmental pollution prevention, port state control officers shall apply such amendments or relevant conventions during the ship inspection.

Article 6.Criteria for selection of ships for inspection

1. If having clear grounds specified in Clause 3, Article 3 of this Circular, a ship shall be inspected upon its entry into a port.

2. If having no clear grounds, the selection of a ship for inspection according to the time window shall be based on the ship risk profile as prescribed by the APCIS of the Tokyo MOU.

Article 7.Initial inspection

1. A port state control officer shall, before boarding a ship to conduct inspection, evaluate the overall condition of the ship, including paint or rust or unrepaired breakdowns around the ship.

2. A port state control officer shall determine the type of the ship, year of build and technical specifications in order to apply the relevant convention.

3. When boarding a ship, a port state control officer shall inspect certificates and relevant documents of the ship. If the certificates and documents are valid and the officer finds that the maintenance of the ship complies with relevant regulations, he/she shall finish the inspection and make a ship inspection record according to Form A in the Port State Control (PSC) Manual.

Article 8.Detailed inspection

After the initial inspection, a port state control officer shall conduct a detailed inspection of the overall condition, equipment, steering gear room, boards, cargo holds, engine room, pilot boarding positions, and basic processes of the ship. Depending on specific conditions, the officer shall decide to inspect some or all of the above contents.

Article 9.Mandatory status of port state control officers

After finishing an inspection, if a ship has any deficiency, a port state control officer may:

1. Request the ship to rectify deficiency before departure.

2. Allow the ship to rectify deficiency at next port.

3. Allow the ship to rectify deficiency within 14 days.

4. Allow the ship to rectify deficiency within 3 months.

5. Allow the ship to rectify deficiency as in the agreed rectification action plan.

6. Detain the ship.

7. Take another act, specifying the allowable act.

8. Affirm that the deficiency has been rectified.

Article 10.Ship inspection records

1. After finishing the inspection, a port state control officer shall make a ship inspection record according to Form A or Form B in the PSC Manual of the Tokyo MOU (Form B shall be used only when detecting deficiencies of the ship through inspection). In case of stopping the ship inspection, deficiencies detected through the initial inspection and deficiencies detected through the re-inspection (if any) should be stated in Form B.

2. The port state control officer shall issue a ship inspection record to the ship master.

3. For serious deficiencies making the ship to be detained as prescribed in Appendix 02 to this Circular, the port state control officer shall state in the ship inspection record the specific provision of the relevant convention.

4. The port state control officer shall apply forms of notices, codes of deficiencies, codes of technical supervision and certification organizations, codes of ports of control, codes of state flags, type codes of ships, and codes of mandatory status prescribed in the PSC Manual of the Tokyo MOU in order to make a ship inspection record.

Article 11.Notices of detention of ships, stoppage of inspection of ships, and release of ships

1. In case of detention or stoppage of inspection of a ship, a port state control officer shall immediately notify in writing such to the government of the state whose flag the ship flies and related parties. After the ship has its serious deficiencies rectified as required by the relevant convention, the officer shall conduct a re-inspection and notify the release of the ship to the government of the state whose flag the ship flies and related parties.

2. Serious deficiencies making a ship to be detained are specified in Appendix 02 to this Circular.

3. A notice of inspection stoppage shall be made according to the form in the PSC Manual of the Tokyo MOU.

Article 12.Rectification of deficiencies and permission for ships to leave ports

1. In case the serious deficiencies specified in Appendix 02 to this Circular threaten maritime safety, maritime security or maritime labor conditions or cause environmental pollution, a port state control officer shall ensure these deficiencies are rectified before the ship leaves the port.

2. In case the ship detention deficiencies cannot be rectified at the port of control, the director of the maritime administration concerned may allow the ship to sail to the nearest port of repair as selected by the ship master and approved by the administration of this port. At the same time, the government of the state whose flag the ship flies shall reach agreement with the maritime administration on safety conditions for the ship to sail to the nearest port of repair. In this case, the maritime administration shall notify such to the administration of the port of arrival and related parties.

Article 13.Re-inspection

1. After a ship has its deficiencies rectified, the ship master shall notify such to a port state control officer for the latter to board the ship for re-inspection. If the deficiencies have been rectified as required in the relevant convention, the officer shall write the rectification result in the ship inspection record.

2. If the rectification of deficiencies is unsatisfactory, the port state control officer shall request the ship to further rectify them.

3. A port state control officer may use photos as proof of the rectification of deficiencies of a ship in substitution for re-inspection on board the ship.

Article 14.Subsequent inspection

1. In case the APCIS shows that a ship entering a Vietnamese seaport sees some deficiencies not yet rectified, a port state control officer shall board the ship to inspect these deficiencies.

2. A port state control officer may conduct inspection within the limits of the deficiencies not yet rectified during the previous inspection, or expand the scope of inspection to other contents related to maritime safety, maritime security, maritime labor and environmental pollution.

Article 15.Settlement of complaints

1. The ship master, ship owner, technical supervision and certification organization or another related organization or individual has the right to lodge a complaint about the detention of a ship by the maritime administration concerned. A port state control officer shall notify the ship master of this right at the time of making a ship inspection record. The complaint will not affect the ship detention decision.

2. After finishing the inspection, if the ship master, ship owner, technical supervision and certification organization or another related organization or individual disagrees with the inspection result of the port state control officer, the parties may lodge complaints about such inspection result according to the following process:

a/ The ship master, ship owner, technical supervision and certification organization or another related organization or individual shall send a complaint directly to the port state control officer about contents he/she/it disagrees with, and cite the provisions of the relevant convention to prove that his/her/its complaint is legitimate. The officer shall receive the complaints and report them to the director of the maritime administration concerned before giving a reply to the complainant. The time limit for giving a reply is 15 days from the date of receipt of a complaint;

b/ After receiving a written reply from the port state control officer, if the complainant still disagrees with this reply, he/she/it may further lodge a complaint to the Vietnam Maritime Administration, which shall consider the complaint and give a reply within 60 days after receiving the complaint;

c/ If disagreeing with the settlement result of the Vietnam Maritime Administration, the complainant may further lodge a complaint to the Tokyo MOU Secretariat. The Secretariat’s settlement of the complaint is final.

Article 16.Update of reports onto the APCIS

1. Within 2 days after finishing an inspection, a port state control officer shall update the ship inspection record into the APCIS software; within 5 days, the Vietnam Maritime Administration or a maritime administration authorized by the Vietnam Maritime Administration shall approve the ship inspection record in the APCIS.

2. If it is necessary to modify information in the APCIS, the Vietnam Maritime Administration or maritime administration approving the ship inspection records shall check information and re-update accurate information.

Article 17.Ships of non-member states of conventions

1. No priority will be given to ships of non-member states of the conventions.

2. For ships of non-member states of the conventions which possess no certificates as required by the conventions, port state control officers shall base themselves on the provisions of the conventions to evaluate whether seafarers and ships satisfy the safety conditions for voyage.

3. In case seafarers and ships possess certificates other than those required by the conventions, port state control officers shall inspect the contents of these certificates when evaluating the conditions of ships.

Article 18.Non-convention ships

1. A port state control officer shall evaluate the conformity of certificates and documents granted by the government of the state whose flag the ship flies or by the recognized organization. In this case, the officer shall restrict the scope of control in order to confirm the ship complies with such certificates and documents.

2. In case the relevant regulations do not apply to non-convention ships, a port state control officer shall evaluate the satisfaction of the requirements on maritime safety, maritime security, maritime labor and environmental pollution prevention, taking into account the expected length of the voyage, purpose of the voyage, size and type of the ship, equipment, and characteristics of cargo.

Article 19.Substandard ships

1. Seafarers and organizations and individuals related to the safety of ships, life of seafarers and passengers, and environmental protection activities shall provide information on substandard ships to maritime administrations in written form, directly, or by another appropriate method. In case of direct provision of information, the maritime administrations shall write the names of the information providers.

2. Maritime administrations shall receive and process information on substandard ships and may refuse to allow the ships to enter the ports or may conduct inspection right after the ships enter the ports.

Chapter III

IMPLEMENTATION PROVISIONS

Article 20.Effect

1. This Circular takes effect on April 1, 2018.

2. To replace the phrase “representative of the maritime administration” with the phrase “or representative of the maritime administration as authorized by the director of the maritime administration under law” in Clause 3, Article 6 of the Minister of Transport’s Circular No. 30/2016/TT-BGTVT of October 28, 2016, on procedures for submission and certification of sea protests.

Article 21.Organization of implementation

The Chief of the Office, the Chief of the Inspectorate, directors of departments, the Director of the Vietnam Maritime Administration, and the Director of the Vietnam Register under the Ministry of Transport, heads of related agencies and organizations, and related individuals shall implement this Circular.-

For the Minister of Transport
Deputy Minister
NGUYEN VAN CONG

* The appendices to this Circular are not translated.