Circular No. 61/2015/TT-BGTVT dated November 02, 2015 of the Ministry of Transport on regulations on cargo transportation on inland waterways

THE MINISTRY OF TRANSPORT

Circular No.61/2015/TT-BGTVT dated November 02, 2015 of the Ministry of Transport on regulations on cargo transportation on inland waterways

Pursuant to the Law on Inland Waterway Navigation dated June 15, 2004; Law on amendments to the Law on Inland Waterway Navigation dated June 17, 2014;

Pursuant the Government’s Decree No. 24/2015/NĐ-CP dated February 27, 2015 detailing the implementation of a number of articles of the Law on Inland Waterway Navigation and Law on amendments to the Law on Inland Waterway Navigation;

Pursuant to the Government’s Decree No. 110/2014/NĐ-CP dated November 20, 2014 regulating conditions for inland waterway transport business;

Pursuant to the Government’s Decree No. 107/2012/NĐ-CP dated December 20, 2012 defining the functions, tasks, entitlements and organizational structure of the Ministry of Transport;

At the request of Director of Department of Transportation and General Director of Vietnam Inland Waterway Agency;

The Minister of Transport promulgates the Circular providingon cargo transportation on inland waterways.

Chapter I

GENERAL PROVISIONS

Article 1. Scope of adjustment

This Circular provides for activities of transport, loading, unloading, delivery, receipt and storage of cargo on inland waterways.

Article 2. Subject of application

1. This Circular applies to organizations and individuals involved in activities of transport, loading, unloading, delivery, receipt and storage of cargo on inland waterways.

2. This Circular does not apply to transport of dangerous cargo.

Article 3. Interpretation of terms

In this Circular, some terms are construed as follows:

1. Cargo mean any property including containers, flooring, pallets, dun age or other similar transport and packaging means that are not provided by organizations and individuals involved in transport of cargo.

2. Packages include bags, chests, packages, barrels, containers...

3. Dockers mean organizations and individuals trading in services of loading and unloading of cargo at ports and inland wharves.

4. Loading/unloading service buyers mean organizations and individuals concluding contracts with ducker for loading and unloading services.

5. Storage sellers mean organizations and individuals trading in services of storage of cargo at ports, inland wharves.

6. Storage buyers mean organizations or individuals concluding contracts with storage sellers for storage of cargo.

7. Cargo recipients means organizations or individuals having names included in the bill of lading as consignees.

8. Super-size cargo means the cargo with actual inseparable size over 10 m, 40 m or 4.5 m in width, length and height respectively.

9. Super-weight cargo means inseparable cargo of over 100 tons.

10. Ports, wharves include inland wharves and ports belonging to sea ports publicly announced and licensed by competent authorities.

Article 4. Packages

Packages should meet specifications and standards as prescribed; be highly durable; have clear symbols, codes, size; ensure safety during transportation, loading and unloading of cargo.

Chapter II

TRANSPORT OF CARGO ON INLAND WATERWAYS

Article 5. Obligations of cargo transport traders

1. Establish bill of lading according to forms in Appendix I enclosed herewith after cargo is loaded onto ships.

2. Transport cargo to intended destinations and ensure shipping time as specified in the contract signed with cargo transport service buyers (hereinafter referred to as ‘transport buyers’).

3. Other obligations as prescribed in Clause 2, Article 87 of the Law on Inland Waterway Navigation.

Article 6. Rights of cargo transport traders

1. Request transport buyers to open packages for examination in case of any doubt about declaration of cargo types;

2. Reject transport of packages failing to meet requirements as prescribed in Article 4 hereof and cargo banned from transportation;

3. Request payment of fees for storage of cargo on the ship as a result of the fault caused by transport buyers or cargo recipients;

4. Other obligations as prescribed in Clause 1, Article 87 of the Law on Inland Waterway Navigation.

Article 7. Obligations of transport buyers

1. Provide papers, documents and other necessary information about cargo and ensure legality of such cargo;

2. Appoint persons to take charge of delivery and receipt of cargo with cargo transport traders unless otherwise as agreed;

3. In case a cargo escort is needed, such escort should have good knowledge about characteristics of cargo and handling measures during the transport and comply with the ship’s rules.

4. Determine moisture of cargo at loading and unloading places to calculate weight of cargo, especially cargo with moisture affecting weight unless otherwise as agreed;

5. Other obligations as prescribed in Clause 2, Article 88 of the Law on Inland Waterway Navigation.

Article 8. Rights of transport buyers

1. Request cargo transport traders to provide further reinforcement to ensure stability and safety for cargo;

2. Request cargo transport traders to confirm quantity and seal off the cargo transported.

3. Other obligations as prescribed in Clause 1, Article 88 of the Law on Inland Waterway Navigation.

Article 9. Shipping time

Shipping time of a shipment is calculated from the loading of cargo onto the ship with all invoices and other cargo-related documents being transferred by the transport buyer to the transport trader who has completed the establishment of the bill of lading with the transport buyer’s confirmation to arrival of cargo at intended destination where the transport trader has completed all arrival procedures and delivered to written notice the transport buyer.

Article 10. Handling of issues arising during the transport

1. In case cargo shows signs of burning up, leakage or breaking to pieces, the transport trader must take appropriate measures to protect people, cargo and vehicles including removal of part or all of the cargo and at the same time establish a written record confirmed by the escort (if any), local authorities or waterway traffic police or inland waterway port authorities or marine port authorities (hereinafter referred to as the port authorities ) where the problem arises and make a written notification to the transport buyer. Any expenses arising shall be incurred by the party that has caused the problem. If neither party has caused the problem or as a result of force majeure events, each party shall be responsible for level of damage caused to its own part.

2. In case cargo is found inconsistent with the transport buyer’s declaration:

a) Before the shipping: If the cargo is among dangerous or banned-from-transport types, the transport trader must put it ashore and make a written notification to the port authorities or competent agencies for handling as prescribed. The transport buyer shall be responsible for all expenses arising;

b) During the shipping: If the cargo is among normal types, the transport trader shall make a written notification to the transport buyer and continue transportation to the destination and all expenses arising (if any) shall be incurred by the transport buyer; if the cargo is among dangerous or banned-from-transport types, the transport trader shall make a written notice to the transport buyer for handling; the transport buyer shall be responsible for all expenses and damage caused to the transport trader as well as other expenses for damage caused by transport of dangerous cargo, and the transport trade should make a written notice to the port authorities or competent agencies at arrival port for handling as prescribed.

3. If the transport vehicle is under a requisition order by competent agencies, the vehicle driver should make a written notice to the transport trader and transport buyer for coordination. Any problem arising as a result of the requisition of the vehicle shall be handled according to applicable regulations.

Article 11. Procedures on approval for super-size or super-weight cargo transport plan

1. Organizations or individuals should submit 01 (one) set of application for approval for super-size or super-weight cargo transport plan to Vietnam Inland Waterways Agency or Regional Inland Waterways Branch (in case of inland watercraft leaving inland ports and traveling on interprovincial waterway routes), to the Services of Transport (in case of inland watercraft leaving inland ports and traveling on intra-provincial waterway routes), to Vietnam Maritime Administration or Maritime Branch (in case of inland watercraft leaving sea ports) (hereinafter referred to as competent agencies). The application includes:

a) A written request (see forms in Appendix II enclosed herewith);

b) Super-size or super-weight cargo transport plan according to instructions as prescribed in Appendix III enclosed herewith;

2. Competent agencies shall inspect and handle the application as follows:

a) In case the application is submitted in person, issue a receipt and an appointment note (if the application is found adequate as prescribed) or return and provide instructions (if the application is inadequate as prescribed)

b) In case the application is submitted by post or other appropriate means and if the application is found inadequate as prescribed, within one working day since receipt of the application, competent agencies shall issue a written notice to organizations or individuals for supplements;

c) If the application is found adequate as prescribed, within two working days since receipt of the application, competent agencies shall carry out inspection and grant approval for the plan according to forms in Appendix IV enclosed herewith and deliver it to organizations or individuals for implementation. In case the plan is not approved, a written notice must be issued.Organizations or individuals are exempted from fees or charges for approval for the plan.

Chapter III

DELIVERY, RECEIPT, LOADING, UNLOADING AND STORAGE OF CARGO

Article 12. Obligations and rights of dockers

1. Comply strictly with procedures on loading and unloading for each type of cargo; ensure safety for people, vehicles, cargo and facilities during loading and unloading;

2. Carry out loading and unloading of cargo according to cargo map or as instructed by the captain;

3. Guarantee loading and unloading time as agreed unless otherwise as agreed;

4. Dockers have the right to reject loading and unloading of packages failing to meet requirements as prescribed in Article 4 hereof.

Article 13. Obligations and rights of loading/unloading service buyers

1. Prepare cargo according to the contract signed with dockers;

2. Provide information about cargo to dockers before loading/unloading according to the contract;

3. Request compensations when dockers fail to comply with the contract;

Article 14. Loading/unloading time

In case transport traders and transport buyers have no other agreements, loading/unloading time shall be calculated as follows:

1. The loading time is calculated from arrival of watercraft and that the transport buyer has received notice from the transport trader to completion of loading and that a bill of lading is countersigned by the transport buyer.

2. The unloading time is calculated from arrival of watercraft and that the transport buyer has received notice from the transport trader to completion of unloading and that a bill of lading is confirmed by the transport buyer.

Article 15. Manner of delivery and receipt of cargo

1.Based on the contract and the bill of lading, receipt and delivery of cargo shall be implemented on the principle that receipt and delivery are in the same manner

2. Manner of delivery and receipt of cargo include:

a) Delivery, receipt by number of packages;

b) Delivery, receipt by whole container;

c) Delivery, receipt by payload, volume (m³, liter)

d) Delivery, receipt by draught. Both parties agree on determination of water density at loading and unloading places.

Article 16. Responsibility for delivery and receipt of cargo

1. Delivery and receipt of cargo are carried out alongside watercraft. Watercraft side is the borderline for determination of responsibility for the cargo unless otherwise as agreed.

2. Responsibility for delivery and receipt of cargo

a) In case of loading, if cargo that lies within the range from watercraft side inwards (into the watercraft), responsibility shall be assumed by the transport trader; if cargo lies outside watercraft side, responsibility shall be assumed by the transport buyer;

b) In case of unloading, if cargo that lies within the range from watercraft side inwards, responsibility shall be taken by the transport trader; if cargo lies outside watercraft side, such cargo is considered as having been delivered to cargo recipient and responsibility shall be assumed by the transport buyer;

c) In case cargo is torn apart, broken or damaged during the loading and unloading, each party shall assume responsibility for what it has caused.

d) In case loading/unloading is suspended for settlement of disputes on delivery and receipt, any party that causes the fault shall be responsible for the expenses arising.

Article 17. Handling of issues arising during loading/unloading

1. In case of delivery by number of packages, if the packages are found intact or their lead seals untouched, the transport trader shall not bear any responsibility for payload and conditions of the contents.

2. In case of delivery by number of packages, if the packages are found intact or their lead seals intact, the transport trader shall not assume any responsibility for payload and conditions of the contents.

Article 18. Handling of damaged or overdue cargo

1. When cargo stored at ports shows signs of self-damage or any damage caused by force majeure events, the attendant (a person who takes care of protecting cargo) should take appropriate measures to handle it and make immediate notification to the owner (a person who hires storage service provided by the attendant). After six hours since receipt of notice, in case of no response from the owner, the attendant has the right to make request to competent agencies for establishing a written record and handling. The owner shall be responsible for the expenses arising.

2. During the loading/unloading, if the packages are torn apart, damaged or broken to the extent below the limit as prescribed or agreed, the owner shall be responsible for carrying out collection and packaging again and incurring the expenses arising.

3. In case the cargo stored at the port is in excess of the time limit as agreed in the contract, the attendant should make a notice to the owner before moving or collecting such cargo. Within 15 days since receipt of notice, in case of no response from the owner, the attendant has the right to move and collect the cargo and the owner shall be responsible for the expenses arising.

Chapter IV

SETTLEMENT OF DISPUTES, COMPENSATIONS

Article 19. In case of fault of transport trader

1. In case the watercraft leaves the port at the time other than as prescribed, the transport trader should be responsible for making notice to the transport buyer, escort (if any) and shall incur expenses arising during the period of staying at the port.

2. In case the watercraft is damaged on the way and unable to continue the journey, the captain should seek every measure to bring the watercraft and cargo to nearest port, wharf to ensure safety and at the same make notification to the transport trader about followings:

a) If the watercraft is able to make delivery as agreed after being repaired, the transport trader should make notice to the transport buyer and incur the expenses arising;

b) If the watercraft is unable to make delivery at the time as agreed after being repaired, the transport trader should make notice to the transport buyer and cargo recipient, and conduct negotiation again with the transport buyer and cargo recipient on delivery time, incur the expenses arising and make compensations for failure to meet the transport contract;

c) If cargo is transferred to another watercraft, the transport trader should make notice to the transport buyer and cargo recipient, and guarantee safety for quantity and quality of cargo during the transfer. The transport trade shall incur all expenses arising and legal consequences according to the contract and law provisions.

Article 20. In case of fault of transport buyer

Upon receipt of arrival notice from the transport trader, if the transport buyer fails to carry out loading/unloading according to the time as prescribed, the transport buyer shall pay a demurrage to the transport trader under the contract signed between the two parties.

Article 21. Force majeure

1. When the watercraft is yet to leave the port, wharf, the transport trader should make immediate notice to the transport buyer and cargo recipient about temporary suspension of transport of cargo; in case the transport is postponed, the transport trader should return all transport fees previously received.

2. During the journey

a) In case the watercraft has to take a longer route, the transport trader should not charge more than the fees as specified in the contract or bill of lading;

c) In case the cargo is transferred to another watercraft, the transport trader should make notice to the transport buyer and cargo recipient. The transport trader shall incur all expenses arising;

c) In case the watercraft is unable to continue the journey and is forced to return to nearest ports or its departure port, the transport buyer or cargo recipient shall not pay fees for the return and the transport trader should return the transport fees previously received; expenses arising shall be handled according to the contract or applicable regulations.

Article 22. Compensations for cargo lost or damaged

1. In case the cargo is damaged or lost by the fault of the transport trader, docker or attendant, compensations shall be made as follows:

a) For cargo with value declared in the bill of lading, compensation should be made for the value declared; If actual damage is lower than declared value as proved by the transport trader, compensation for value of actual damage.

b) For cargo without declaration of value in the bill of lading, compensation for average value of cargo of the same type in arrival area;

c) According to level as agreed by the two parties

2. In case the damage or loss of cargo is caused partly by the transport trader, docker, attendant, compensate for the damage or loss it has caused; In case the damage or loss results in overall damage, compensate for the whole.

3. Apart from compensation for damage as prescribed in Clause 1, this Article, the transport trader, docker, attendant shall return additional fees previously paid for the quantity of damaged cargo.

Article 23. Settlement of disputes

1. During the transport of cargo on inland waterways, any issue arising and affecting interests of the parties shall be settled via negotiation and reconciliation.

2. If the issue cannot be settled, the parties have the right to refer to the arbitrator for settlement or file court lawsuit. Sequence and procedures on settlement of disputes are implemented according to law provisions.

Chapter V

IMPLEMENTATION PROVISIONS

Article 24. Effect

1. This Circular takes effect on January 01, 2016.

2. The Minister of Transport’s Decision No. 33/2004/QĐ-BGTVT dated December 21, 2004 providing for transport of cargo on inland waterways is hereby annulled.

Article 25. Implementation

Chief of the Ministry Office, the Chief Inspector, general directors of Vietnam Inland Waterway Agency, general directors of the Vietnam Register, Vietnam Maritime Administration, director of the Services of Transport, heads of relevant organizations, agencies and individuals shall be responsible for executing this Circular./.

The Minister

Dinh La Thang