Decree No. 46/2006/ND-CP dated May 16, 2006 of the Government on the disposal of cargo retained by carriers at Vietnamese seaports

DECREE

ON THE DISPOSAL OF CARGO RETAINED BY CARRIERS AT VIETNAMESE SEAPORTS

THE GOVERNMENT

Pursuant to the December 25, 2001 Law on Organization of the Government;

Pursuant to the June 14, 2005 Vietnam Maritime Code;

At the proposal of the Minister of Transport,

DECREES:

Article 1.- Scope of regulation

This Decree provides for the order and procedures for disposal of cargo retained by carriers at Vietnamese seaports according to the provisions of Article 94 of the Vietnam Maritime Code (hereinafter collectively referred to as the Code) for guaranteeing the payment of freights, damages for vessel detention, and other expenses related to the carriage of cargo.

Article 2.- Subjects of application

This Decree applies to Vietnamese and foreign organizations and individuals involved in disposal of cargo which is carried by sea and retained at Vietnamese seaports.

Article 3.- Interpretation of terms

In this Decree, the terms below shall be construed as follows:

1. “Retainer” means a carrier who has the right to retain cargo where there are grounds for such right to arise.

2. “Retained cargo” means cargo which is retained by sea carriers at Vietnamese seaports for guaranteeing the payment of freights, damages for vessel detention, and other expenses related to the carriage of cargo by sea.

3. “Debts” mean freights, damages for vessel detention and other reasonable expenses related to the carriage of cargo which charterers or consignees have neither paid off nor given necessary guarantee for the payment.

4. “Auctioneers” mean property-auctioning enterprises, property-auctioning service centers or property-auctioning councils defined in Articles 34, 35, 36 and 37 of the Government’s Decree No. 05/2005/ND-CP of January 18, 2005, on property auction.

5. The terms of “carrier”, “charterer” and “consignee” shall have the meaning given to them by definitions in Clauses 1, 2 and 5, Article 72 of the Code.

Article 4.- Retained cargo

1. Cargo shall be retained in the following cases where:

a/ There is no consignee;

b/ The consignee refuses to receive the cargo;

c/ The consignees delays the receipt of the cargo;

d/ Many persons present the original bill of lading or sea waybill or another carriage document of equivalent validity in order to receive the cargo;

e/ The charterer or the consignee fails to pay off debts or give necessary guarantee for the full payment of debts. The carrier may retain only a volume of cargo with a value sufficient to guarantee the full payment of debts and expenses specified in Clause 1, Article 9 of this Decree. The volume of cargo to be retained by the carrier shall be calculated based on the price of such cargo in the market of the locality where the carrier retains the cargo and at the time the cargo is retained.

2. Past 60 days from the date the vessel arrives at the port of delivery, if the persons with related interests defined in Clause 1 of this Article fail to pay off debts or give another necessary guarantee, the retainer may auction the retained cargo and must abide by the provisions of Clauses 1 and 2, Article 5 of this Decree. Where the retained cargo is perishable, likely to pollute the environment or badly affect defense or security, or its custody may cost much more than its actual value, the carrier may, depending on the nature and characteristics of the cargo and his/her/its financial capability, dispose of the retained cargo ahead of the set schedule, but must still perform the jobs in the order prescribed in Article 5 of this Decree.

3. The retainer that retains cargo and disposes of the retained cargo under the provisions of this Decree shall be accountable before law for the lawfulness of the retention and disposal of the retained cargo.

Article 5.- Notice on retention of cargo

1. Right upon the retention of cargo, the retainer must notify in writing the charterer or the consignee of such retention and the intended sale of the retained cargo for clearing debts.

2. Past 30 days from the date of making the first notice, if the retainer receives no reply from the charterer or the consignee, or his/her/its debt is not paid off, he/she/it shall make notification for three consecutive times on the central mass media or the mass media of the province where the cargo is retained and, at the same time, notify the charterer or the carrier thereof.

3. Past 60 days from the date the vessel arrives at the port of delivery, if the retainer, though having observed the provisions of Clauses 1 and 2 of this Article, still has his/her/its debts not paid off, he/she/it may sign a contract mandating the auctioneer to auction the retained cargo and, at the same time, notify the charterer or consignee thereof.

Article 6.- Procedures for auction of retained cargo

Procedures for the auction of retained cargo shall comply with the provisions of law on property auction.

Article 7.- Retained cargo which is banned from import or circulation

Retained cargo which is banned from import or circulation within the Vietnamese territory shall be disposed of according to the provisions of law.

Article 8.- Assessment of retained cargo

Before signing a contract to mandate the auction of retained cargo, the retainer must hire an assessor to assess the quantity, quality and damage (if any) of the retained cargo. Expenses for assessment of retained cargo shall be included in property auction expenses.

Article 9.- Payment of proceeds from auction of retained cargo

1. All proceeds from the auction of retained cargo shall be deposited into the retainer’s “custody account” at a licensed bank operating in Vietnam. Such proceeds shall be paid in the following order of priority:

a/ Taxes, fees and expenses related to the custody and auction of cargo;

b/ Debts owed to the retainer;

c/ Reasonable expenses arising from the retention of cargo.

2. The payment of the sums stated in Clause 1 of this Article must be evidenced with complete and valid documents according to the provisions of law.

3. The remainder, if any, after the sums stated in Clause 1 of this Article have been paid off, shall be kept in the “custody accounts” for refund to eligible persons.

4. Where the proceeds from the auction of retained cargo are insufficient to pay the sums stated in Clause 1 of this Article, the retainer may continue requesting involved persons to pay the deficit.

Article 10.- Notice on payment of proceeds from auction of retained cargo

1. Within three days after having paid the proceeds from the auction of retained cargo according to the provisions of Article 9 of this Decree, the retainer shall notify the charterer or the consignee of such payment. Right after the date of sending this notification, the retainer must publish such notification for three consecutive times on the central mass media or the mass media of the province where the cargo is retained.

2. If there is any remainder of the proceeds, the retainer shall notify the charterer or the consignee of the remainder and the number of the bank where it is temporarily deposited.

Article 11.- Disposal of the remainder of the proceeds after payment

1. Where eligible recipients of the remainder claim such money, the retainer must pay to the claimants the remainder stated in Clause 2, Article 10 of this Decree; where many persons are eligible to receive such remainder, they shall be divided a share of the remainder in proportion to each person’s interests.

2. Past one hundred and eighty days from the date of the auction of the cargo, if the retainer has made notification according to the provisions of Clause 2, Article 10 of this Decree, but nobody claims the remainder or no claimant is eligible to receive it, the retainer shall remit such money into the state budget at the provincial/municipal state treasury of the locality where the cargo is retained.

3. Where a claimant of the remainder is rejected by the retainer, the claimant may request a competent court to protect his/her legitimate interest. When the court issues a decision recognizing that the claimant is entitled to such money, the retainer shall request in writing the finance agency and state treasury concerned to refund the remitted money to the lawful claimant.

Article 12.- Implementation effect

This Decree takes effect 15 days after its publication in “CONG BAO” and annuls the Government’s Decree No. 55/1998/ND-CP of July 22, 1998, on handling cargo retained in Vietnam by sea carriers.

Article 13.- Organization of implementation

1. The Minister of Transport shall have to organize the implementation of this Decree.

2. Ministers, heads of ministerial-level agencies, heads of Government-attached agencies, presidents of provincial/municipal People’s Committees, and concerned agencies and individuals shall have to implement this Decree.