Decree No. 160/2016/ND-CP dated November 29, 2016 of the Government on conditions for sea transportation business, shipping agency services, and towage services

DECREE

Prescribing conditions for sea shipping business, shipping agency service and towage service[1]

Pursuant to the June 19, 2015 Law on Organization of the Government;

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

Pursuant to the November 26, 2014 Enterprise Law;

Pursuant to the November 26, 2014 Investment Law;

Pursuant to the November 20, 2012 Law on Cooperatives;

Pursuant to the June 14, 2005 Commercial Law;

At the proposal of the Minister of Transport;

The Government promulgates the Decree prescribing conditions for sea shipping business, shipping agency service and towage service.

Chapter I

GENERAL PROVISIONS

Article 1. Scope of regulation

This Decree prescribes conditions for sea shipping business, shipping agency service and towage service.

Article 2. Subjects of application

This Decree applies to organizations and individuals engaged in sea shipping business, shipping agency service or towage service in Vietnam.

Article 3. Interpretation of terms

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

1. Sea shipping business means the business using seagoing ships to transport cargoes, passengers and luggage.

2. International sea shipping means the transport of cargoes, passengers and luggage by seagoing ships between Vietnamese and foreign seaports or between foreign seaports.

Chapter II

CONDITIONS FOR DEALING IN SEA SHIPPING BUSINESS

Article 4. Conditions for dealing in sea shipping business

1. Being sea shipping enterprises or cooperatives established and operating in accordance with the law on enterprises or law on cooperatives (below referred to as enterprises).

2. Possessing certificates of eligibility for sea shipping business when meeting the conditions prescribed in Articles 5 and 6 of this Decree.

Article 5. Conditions on international sea shipping enterprises

1. Regarding the organizational apparatus

a/ Having a safety management section in accordance with the International Safety Management Code (ISM Code);

b/ Having a maritime security management section in accordance with the International Ship and Port Facility Security Code (ISPS Code);

c/ Having a section in charge of sea shipping business;

d/ Having a legal affairs section.

2. Regarding finance: Obtaining a guarantee of at least VND 5 billion from a credit institution or foreign bank branch for the fulfillment of the shipowner’s obligations toward crewmembers.

3. Regarding ships: Having at least 1 seagoing ship; in case such ship flying the Vietnamese flag, it must comply with relevant national technical regulations issued by the Minister of Transport.

4. Regarding personnel

a/ The person in charge of the maritime safety and security management system must have been properly trained and granted a relevant certificate as prescribed by the Minister of Transport;

b/ The person in charge of the sea shipping business section must possess a collegial or higher degree in maritime, foreign trade, commerce or economics;

c/ The person in charge of legal affairs must possess a collegial or higher decree in law;

d/ Crewmembers working onboard seagoing ships must fully meet professional qualification and health requirements and possess professional certificates under regulations. Vietnamese crewmembers must fully meet professional qualification and possess professional certificates issued by the Minister of Transport; and meet health requirements prescribed by the Minister of Health.

Article 6. Conditions on domestic sea shipping enterprises

1. Regarding the organizational apparatus: Having a section in charge of sea shipping business.

2. Regarding finance: Obtaining a guarantee of at least VND 500 million from a credit institution or foreign bank branch for fulfillment of the shipowner’s obligations toward crewmembers.

3. Regarding ships: Having at least 1 seagoing ship flying the Vietnamese flag in conformity with national technical regulations issued by the Minister of Transport.

4. Regarding personnel

a/ The person in charge of the shipping business section must possess a collegial or higher degree in maritime, foreign trade, commerce or economics;

b/ Crewmembers working onboard seagoing ships must fully meet professional qualification and health requirements and possess professional certificates under regulations. Vietnamese crewmembers must fully meet professional qualification and possess professional certificates issued by the Minister of Transport; and meet health requirements prescribed by the Minister of Health.

Article 7. Conditions on foreign institutions engaged in domestic shipping using ships flying the Vietnamese flag

1. A foreign institution engaged in domestic sea shipping using seagoing ships flying the Vietnamese flag shall establish a join venture under regulations, of which the foreign investor’s capital contribution must not exceeds 49% of the charter capital.

2. Foreign crewmembers are permitted to work onboard seagoing ships flying the Vietnamese flag or seagoing ships registered in Vietnam under the ownership of  Vietnam-based joint-venture enterprises but the total number of foreign crewmembers of a seagoing ship must not exceed one-third of its complement and, at the same time, the master and first mate of the ship must be Vietnamese citizens.

3. The foreign institution must possess a certificate of eligibility for sea shipping business under this Decree.

Article 8. Procedures for grant of certificates of eligibility for sea shipping business

1. A dossier of application for a certificate of eligibility for sea shipping business must comprise:

a/ An application for a certificate of eligibility for sea shipping business, made according to Form No. 01 in the Appendix to this Decree;

b/ A list of persons to be appointed to the positions specified in Clause 1, Article 5 and Clause 1, Article 6 of this Decree, enclosed with their curricula vitae and related diplomas and certificates: 1 copy granted from the master register or certified copy or copy enclosed with the original for comparison, for each paper.

c/ The guarantee of a credit institution or foreign bank branch prescribed in Clause 2, Article 5, or Clause 2, Article 6 of this Decree: 1 original;

d/ The seagoing ship registration certificate: 1 copy enclosed with the original for comparison.

2. An enterprise that applies for a certificate of eligibility for sea shipping business shall submit a set of dossier directly, by post or another proper mode to the Vietnam Maritime Administration.

3. The Vietnam Maritime Administration shall receive the dossier. In case the dossier is invalid, within 2 working days after receiving it, the Vietnam Maritime Administration shall send a reply guiding the enterprise to complete the dossier as prescribed in Decree; if the dossier is complete, the dossier recipient shall issue a dossier receipt to the submitter.

4. Within 5 days after receiving a complete and valid dossier, the Vietnam Maritime Administration shall appraise the dossier and issue a certificate of eligibility for sea shipping business and hand it directly or sent it by post to the applicant. In case of refusal to grant a certificate of eligibility for sea shipping business, the Vietnam Maritime Administration shall issue a written reply clearly stating the reason.

5. A certificate of eligibility for sea shipping business shall be made according to Form No. 02 in the Appendix to this Decree.

Article 9. Re-grant of certificates of eligibility for sea shipping business

1. A certificate of eligibility for sea shipping business may be re-granted in the following cases:

a/ It is lost, torn or damaged;

b/ There is a change in the contents of the certificate.

2. The order and procedures for re-grant

a/ For a lost, torn or damaged certificate of eligibility for sea shipping business:

The enterprise shall submit to the Vietnam Maritime Administration an application for re-grant, made according to Form No. 01 in the Appendix to this Decree. The Vietnam Maritime Administration shall, based on the archived dossier, re-grant the certificate.

b/ In case of change of the contents of a certificate of eligibility for sea shipping business

The enterprise shall submit to the Vietnam Maritime Administration an application for re-grant, made according to Form No. 01 in the Appendix to this Decree and documents related to the change. The Vietnam Maritime Administration shall carry out the re-grant procedures as the first-time issuance of the certificate of eligibility for sea shipping business prescribed in Clauses 3 and 4, Article 8 of this Decree.

3. The enterprise shall assume the responsibility for the accuracy and truthfulness of information relating to its application for re-grant of the certificate.

4. The re-granted certificate of eligibility for sea shipping business must clearly state the reasons for cancellation of the previously granted certificate.

Article 10. Revocation of certificates of eligibility for sea shipping business

1. A certificate of eligibility for sea shipping business shall be revoked in the following cases:

a/ The concerned enterprise or cooperative no longer satisfies the conditions on sea shipping business to such an extent that its certificate of eligibility for sea shipping business is subject to revocation in accordance with law on handling of administrative violations in the maritime field;

b/ At the request of a competent state agency.

2. The Vietnam Maritime Administration shall issue a decision to revoke the certificate of eligibility for sea shipping business and inform related agencies of the revocation of the certificate and publish information on the revocation on its portal.

Chapter III

CONDITIONS FOR PROVISION OF SHIPPING AGENCY SERVICE

Article 11. Conditions for provision of shipping agency service

An enterprise that provides shipping agency service in Vietnam must be established in accordance with law. In case a foreign-invested enterprise wishes to provide shipping agency service, the foreign investors’ capital contribution must not exceed 49% of the enterprise’s charter capital.

Article 12. Conditions on the organizational apparatus and personnel

1. Having a full-time employee in charge of shipping agency service, who possesses a collegial or higher degree in maritime, foreign trade, commerce or economics.

2. Having a full-time employee in charge of legal affairs, who possesses a collegial or higher degree in law.

3. Shipping agency staff members must be Vietnamese citizens who possess a professional certificate of shipping agency issued by a competent agency under the Ministry of Transport’s regulations.

Chapter IV

CONDITIONS FOR PROVISION OF TOWAGE SERVICE

Article 13. Conditions for provision of towage service

1. An enterprise that provides towage service in Vietnam must be established in accordance with law. In case a foreign-invested enterprise wishes to provide towage service, the foreign investors’ capital contribution must not exceed 49% of the enterprise’s charter capital.

2. The enterprise must have at least 1 tugboat. Tugboats must be Vietnamese ships and meet technical regulations specified by the Minister of Transport.

Article 14. Conditions on the organizational apparatus and personnel

1. Having a full-time employee in charge of towage service who possesses a collegial or higher degree in maritime, foreign trade, commerce or economics.

2. Having a full-time employee in charge of legal affairs who possesses a collegial or higher degree in law.

3. Crewmembers working onboard tugboats must fully meet professional qualification and health requirements and possess a professional certificate under regulations. Vietnamese crewmembers working onboard tugboats must fully meet professional qualification and possess professional certificates issued by the Minister of Transport; and meet health requirements prescribed by the Minister of Health.

Article 15. Conditions for foreign institutions using seagoing ships flying foreign flags for provision of towage service in Vietnam

1. A foreign institution may use seagoing ships flying foreign flags for provision of towage service in Vietnam only when tugboats flying the Vietnamese flag cannot meet the prescribed conditions. Annually, the Ministry of Transport shall issue a notice of capacity of the fleet of tugboats flying the Vietnamese flag.

2. Tugboats flying foreign flags must fully meet regulations on maritime safety and security and environmental protection.

3. Crewmembers working onboard tugboats must possess professional certificates under regulations.

4. The foreign institution is required to have towage contracts with Vietnamese towage service users.

5. The foreign institution must have a Vietnam-based branch or a representative office or authorize a Vietnamese towage enterprise.

Chapter V

IMPLEMENTATION PROVISIONS

Article 16. Responsibilities of the Ministry of Transport

1. To guide and implement this Decree.

2. To organize the inspection and examination of the observance of this Decree.

Article 17. Responsibilities of enterprises

1. To operate in conformity with the purposes and contents stated in their certificate issued by a competent agency.

2. To maintain the conditions specified in this Decree.

3. To provide information relating to their sea shipping business, shipping agency service and towage service activities when being requested in writing by competent agencies.

Article 18. Transitional provisions

1. An enterprise that has been granted a sea shipping business license before the effective date of this Decree may continue to operate for the remaining term of its license. When its license expires, the enterprise shall carry out procedures to be granted a certificate of eligibility for sea shipping business under this Decree.

2. By July 1, 2019, enterprises which started doing sea shipping business before the effective date of this Decree but have not yet been granted a sea shipping business license must fully meet the conditions for grant of a certificate of eligibility of sea shipping business prescribed  this Decree.

3. Enterprises providing shipping agency services or towage services which are established before the effective date of this Decree may continue to operate; from July 1, 2019, these enterprises must fully meet the conditions for shipping agency services or towage prescribed in this Decree.

Article 19. Effect

1. This Decree takes effect on July 1, 2017.

2. To annul the Government’s Decree No. 30/2014/ND-CP of April 14, 2014, on conditions on sea shipping business and sea shipping support services.

3. Minister, heads of ministerial-level agencies, heads of government-attached agencies, chairpersons of provincial-level People’s Committees and related organizations and individuals shall implement this Decree.-

On behalf of the Government
Prime Minister
NGUYEN XUAN PHUC

* The Appendix to this Decree is not translated.