VietnameseLaw on Vietnamese Maritime, No. 42-LCT/HDNN8
ATTRIBUTE Law on Vietnamese Maritime
Law No. 42-LCT/HDNN8 dated July 12, 1990 of the National Assembly on Vietnamese Maritime
| Issuing body: | National Assembly of the Socialist Republic of Vietnam | Effective date: | Known Please log in to a subscriber account to use this function. Don’t have an account? Register here |
| Official number: | 42-LCT/HDNN8 | Signer: | Vo Chi Cong |
| Type: | Law | Expiry date: | Known Please log in to a subscriber account to use this function. Don’t have an account? Register here |
| Issuing date: | 30/06/1990 | Effect status: | Known Please log in to a subscriber account to use this function. Don’t have an account? Register here |
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THE NATIONAL ASSEMBLY ******** | SOCIALIST REPUBLIC OF VIET NAM Independence - Freedom - Happiness ******** |
No. 42-LCT/HDNN8 | Ha Noi, June 30th, 1990 |
THE VIETNAMESE MARITIME CODE
Chapter I
GENERAL PROVISIONS
Article 1
1. The Vietnamese Maritime Code governs legal relations incident to the use of sea-going vessels for economic, scientific-technological, cultural, sport, social and state service purposes, which hereinafter are referred to as maritime shipping activities.
A sea-going vessel under the terms of the present Code is any floating structure self-propelled or non self-propelled employed in navigation on the sea and in waters connected with the sea.
2. Depending on each specific case, the relevant laws of Vietnam are applicable to legal relations incident to maritime shipping activities which are not provided for in the present Code.
Article 2
Maritime shipping activities conducted by organizations and individuals of Vietnam and foreign countries, joint-venture and foreign cooperative enterprises based in Vietnam are encouraged and protected on the basis of respect for the independence, sovereignty and the law of Vietnam as well as international treaties which are signed or recognized by Vietnam.
Article 3. The application scope of the present Code is provided as follows:
1. All the provisions of the present Code are applicable to sea-going vessels employed exclusive for the carriage of cargo or of passengers and luggage; for exploration, exploitation and processing of the wealth of sea; for towage or salvage on the sea; for recovering property sunk in the sea; or for other activities of an economic nature, which hereinafter are referred to as merchant sea-going vessels.
2. The provisions on the carriage of cargo and of passengers and luggage, on the maritime arrest and lien, on the limitation of civil liability of shipowners are not applicable to sea-going vessels hereinafter referred to as state-service vessels employed exclusively for maritime navigation safety; meteorology-hydrography; telecommunication; inspection; customs; epidemic prevention; fire-fighting; piloting; training; environmental protection; or for search and rescue at sea.
3. The provisions on the carriage of cargo and of passengers and luggage, and on general average are not applicable to sea-going vessels employed exclusively for scientific technological research and sports.
4. Except in specific cases, the provisions of the present Code are not applicable to foreign sea-going vessels and to sea-going vessels sailing under control of the Vietnam Armed Forces employed exclusively for military purpose and public order security guard.
The provisions on the carriage of cargo, of passengers and luggage are not applicable to the carriage of military transports by merchant sea-going vessels.
Article 4
1. Parties to maritime shipping contracts have the right to frame their separate agreements according to their own judgement subjects to the exceptions provided by the present Code.
2. Parties to maritime shipping contracts, provided whereof at least one party is a foreign organization or individual, may determine by mutual consent the law or international shipping custom to govern their legal contractual relations and to submit their disputes to an arbitration or court in either of their countries or in a third country.
Article 5. In case of conflict of laws the following principles will be opted for to decide which law to apply:
1. Legal relations incident to ownership of property on board the vessel, charter parties, contracts of carriage of passengers and luggage, crew recruitment agreement, the division of salvage remuneration between the owner and crew of the salving ship, the recovery of the property sunk on the high seas, occurrences and acts taken place on board the vessel on the high seas are governed by the law of the flag.
2. Legal relations incident to general average are governed by the law in force in the country of the place where the vessel calls at after general average has occurred.
3. Legal relations incident to collision; salvage remuneration; the recovery of property sunk on the sea occurred in inland and territorial waters of the littoral country are governed by the laws of said country.
4. Legal relations incident to collision or salvage occurred on the high seas governed by the law of the country whose arbitration or court deals with the dispute.
5. Legal relations incident to the contracts of carriage of cargo are governed by the law of the country where the carrier has his principal place of business.
Article 6
The provisions in the international treaties signed, or recognized by Vietnam shall prevail those contained in the present Code if they are in discrepancy with the above said provisions in the international treaties.
Article 7
Where, by provisions in the present Code or by virtue of contract, the legal contractual relations incident to maritime shipping are subject to foreign law, that law shall be applied in Vietnam provided that it is not contrary to the laws and regulations prevailing in Vietnam.
Chapter II
SEA-GOING VESSEL
Section A: VIETNAMESE SEA-GOING VESSEL
Article 8
1. Only Vietnamese sea-going vessels are permitted to sail under the Vietnamese flag.
2. A Vietnamese sea-going is a vessel owned by the Vietnamese State, by a Vietnamese organization having its principal place of business in Vietnam and by a Vietnamese citizen resident in Vietnam or owned by a foreign citizen, which is permitted to register in Vietnam.
3. A Vietnamese sea-going vessel is entitled and bound to fly the Vietnamese flag after having been registered in the Vietnam National Registry Book of Ships or after having obtained the Provisional Certificate of Nationality issued by the authorized diplomatic representative or consulate of Vietnam abroad.
Article 9
1. Priority is granted to Vietnamese sea-going vessels in the carriage of cargo and of passengers and luggage between Vietnamese sea ports. Foreign sea-going vessel may be permitted to perform this carriage only when it is approved by the Minister of Transport and Communications.
2. The Council of Ministers shall define scope of activities of the Vietnamese sea-going vessels owned by Vietnamese individuals.
Article 10
A Vietnamese sea-going vessel is named by her owner. The name is subject to the approval of the Registrar of Vietnamese individuals.
Article 11. A ship owner is the person who owns ship. Ship owners are entitled to fly their house flag.
Article 12
1. Vietnamese sea-going vessels are subject to the obligations of being entered in the Vietnam National Registry Book of ships.
The registration of ships in Vietnam is public and against the payment of a certain fee and made by the Registrar of Vietnamese ships. Persons interested may demand certified abstracts from, and copies of entries in the Vietnam National Registry Book of ships.
2. The Council of Ministers shall define cases when Vietnamese owned sea-going vessels are permitted to enter in foreign country and foreign owned sea-going vessels-in Vietnam.
3. The Council of Ministers shall designate the authorities competent to the registration of ships in Vietnam; the principles and procedures in registration of ships and administrative penalties on violations in registration of ships in Vietnam.
Article 13
Sea-going vessels may be entered in the Vietnam National Registry Book of ships only after having been removed from the foreign countrys registrar of ships and having been examined in technical characteristics, classified, measured tonnage and granted the necessary certificates issued by the Vietnam Register of Shipping or by its authorized foreign countrys register of shipping.
Article 14
1. The following date are entered in the Vietnam National Registry Book of ships:
a) The name of the vessel and the full style and principal place of business of the ship owner, international signal letters as well as the kind and appropriation of the vessel;
b) The serial registration number of the vessel and the date of entry;
c) The year and place of construction and the shipyard;
d) The technical characteristics of the vessel;
e) The vessels minimum complement;
g) The title to the ownership of the vessel and its relevant changes;
h) The ground for, and the date of, the vessels deletion from the registration.
2. Every change in the date entered in the registration of ships stipulated in item 1 of this Article is also subject to the entry in the National Registry Book of ships.
3. The data entered in the National Registry Book of ships shall constitute legal evidences for the interested parties.
4. After the completion of the procedures for registration the ship shall receive constitute evidence of Vietnamese nationality of the ship.
Article 15
1. A Vietnamese sea-going vessel is naturally removed from the Vietnam National Registry Book of ships if she has:
a) Been destroyed or sunk;
b) Been missing;
c) Been found unfit for repairs or not worth repairing economically;
d) Lost her grounds to sail under the Vietnamese national flag;
e) Lost her characteristics of a sea-going vessel.
2. In cases covered by points c. and e. of item 1 of this Article when a sea-going vessel has been mortgaged, hypothecated or liened the official removal from the register of ships may be effected only with the consent of the creditor.
3. The removal of a Vietnamese sea-going vessel from the register of ships shall be effected on the basis of application made by her owner.
Article 16
1. The application procedures for registration must be made by shipowners latest within sixty days from the date when the vessel arrived at the first Vietnamese port.
2. The prompt and exact information on any occurrence and act incident to a sea-going vessel must be circulated by her owner to the Registrar of Vietnamese ships.
Section B: MARINE NAVIGATION SAFETY AND PREVENTION OF ENVIRONMENTAL POLLUTION
Article 17
A sea going vessel should be employed in accordance with the appropriation declared on registration provided that her construction, standing appliances and equipment, documents, complement and competence of crew comply, in every respect, with the requirements defined by the Minister of Transport and Communications concerning safety of ship navigation, and safety of life at sea as well as prevention of environmental pollution.
Article 18
1. A Vietnamese sea-going vessel may receive a certificate of technical condition safety after having been inspected and ascertained by the Vietnam Register of Shipping or by its foreign authorized classification societies that she complies with technical conditions of safety as per state norms in Vietnam or in relevant international treaties signed, or recognized by Vietnam.
2. Certificate of technical condition safety should specify the period of its validity. This period may be automatically extended by a period of time not exceeding ninety days if the vessel is actually unable to call for the periodical inspection at the port indicated and if her technical conditions prove to be safe. Such automatically extended period expires immediately on the vessels arrival at the port indicated for inspection.
3. Certificate of technical condition safety automatically becomes invalid if alterations in vessel have taken place which imperil her technical condition safety.
4. Where it has well-founded grounds to suspect the technical conditions of the vessels safety, the Vietnam Marine Safety Inspectorate has the right to interim cease her operation. This Inspectorate itself or the Vietnam Register of Shipping, upon demand, shall inspect the vessels technical conditions despite that she has authentic safety certificates.
Article 19
1. Shipowner and shipmaster are bound to create every favorable condition for inspection of marine navigation safety and of technical conditions of the vessel.
2. Before a vessel being put into operation, shipowner and shipmaster upon demand by the Vietnam Marine Safety Inspectorate or the Vietnam Register of Shipping are bound to repair or to make additional conditions of marine navigation safety.
Article 20
1. When on the sea or in waters connected therewith opened navigable for sea-going vessels, sea-going vessels including military ships of the Vietnam Armed Forces as well as vessels of inland navigation and sea-planes are bound to comply with the regulations for preventing collisions at sea issued by the Minister of Transport and Communications.
2. The structures, facilities built or installed on the sea and in waters connected with the sea, which are opened for sea-going vessels navigation and operation, should be equipped with sufficient safety warning devices in proper conformity with the regulations on marine warning signals stipulated by the Minister of Transport and Communications.
Article 21
1. In Vietnams inland and territorial waters regulations concerning marine navigation safety as in force are also applicable to foreign sea-going vessels unless otherwise provided by the agreement between Vietnam and the country of the flag.
2. The Vietnam Marine Safety Inspectorate has the right to inspect and punish administrative penalties in respect of violation made by foreign sea-going vessels when operating within Vietnams inland and territorial waters if this Inspectorate has sufficient grounds to suspect their seaworthiness or if they commit a breach of the provisions as to marine navigation safety in Vietnam.
Article 22
Inspection of marine navigation safety and of technical conditions of sea-going vessels as provided in the present code as well as search on board the vessels shall be carried out in conformity with relevant laws and regulations and without detriment to seaworthiness of the vessel.
Article 23
1. When operating in sovereign waters of Vietnam, Vietnamese and foreign sea-going vessels are bound to properly implement provisions as to environmental protection in Vietnam and in international treaties signed, or recognized by Vietnam.
2. When operating in waters of sea ports and other navigable waters of Vietnam, Vietnamese and foreign sea-going vessels employed exclusively for transportation of oil products or other dangerous goods are bound to be covered by insurance policy as to the civil liability of shipowner for environmental pollution.
3. Foreign sea-going vessels run by nuclear power shall not be permitted to operate in inland and territorial waters of Vietnam unless approval is granted by the Chairman of the Council of Ministers.
Article 24
The Council of Minister shall determine the organization, and scope of activities of the Vietnam Marine Safety Inspectorate and of the Vietnam Register of Shipping.
Section C: INSPECTION OF TONNAGE OF VESSEL
Article 25
1. Vietnamese or foreign sea-going vessels when operating in waters belonging to Vietnamese sea-port areas and in Vietnam transit lane waters are bound to show authentic tonnage certificates issued by the Vietnam Register of Shipping or foreign register of shipping or foreign authentic tonnage measurement authority. The tonnage measurement certificates must be in conformity with the Vietnam State Norms or with norms in the international treaties signed, or recognized by Vietnam.
2. In case the vessels tonnage measurement certificates in every respect do not comply with prescribed requirements in item 1 of this Article, shipowner or master shall make application with the Vietnam Register of Shipping for inspection of her tonnage and pay relevant tonnage measurement fees.
Section D: DOCUMENTS OF VESSEL
Article 26
A Vietnamese sea-going vessel is bound to keep on board all sufficient log-books, certificates and other documents as well as certificates of crew as prescribed by the Minister of Transport and Communications.
Section E: OWNERSHIP OF VESSEL
Article 27
1. A contract for transfer of ownership of a vessel in Vietnam should be made in writing and certified by the public notary. If it is made abroad all procedures are subject to the law of the place where the contract is signed.
2. The transfer of ownership of a Vietnamese sea-going vessel may be effected only after it has been recorded in the Vietnam National Registry Book of ships at the place where the vessel was registered.
3. After the procedures of transfer are completed, together with the ownership of the vessel, her appurtenances also pass to the transferee unless otherwise agreed by and between the parties concerned.
Appurtenances of the vessel are all accessories which, while are not being component pars of the vessel, constitute her equipments.
Article 28
The provisions concerning the transfer of ownership of a vessel are also applicable to the transfer if a share in the ownership of a vessel.
Article 29
1. Shipowner is entitled to hypothecate or mortgage his sea-going vessel to another person subject to provisions of law.
2. The mortgage and hypothecation of a Vietnamese sea-going vessel in Vietnam are subject to provisions of Vietnamese relevant laws. A contract for instituting a sea-going vessel mortgage and hypothecation should be made in writing and certified by the public notary.
3. The mortgage and hypothecation of a Vietnamese sea-going vessel abroad are subject to provisions of relevant law at the place where the contract for this purpose is signed.
4. The mortgage and hypothecation of a Vietnamese sea-going vessel may be effected only after it has been recorded in the Vietnam National Registry Book of ships.
Article 30
1. For securing privilege debts, creditors have statutory lien on the sea-going vessel with priority over other debts even she has been secured by a lien, mortgage, hypothecation arising from a contract or judicial decision.
2. Maritime lien is not effected by a change of the owner or operator of the vessel whether or not vessels purchaser knows she has been attached to a lien.
3. Statement of creditor concerning maritime lien on sea-going vessel may be effected only after it has been recorded in the National Registry Book of ships where the vessel was registered.
Article 31
The privilege debts are the debts to be settled in the following order with priority over other debts:
1. Indemnity for death of, or personal injuries to; indemnity for interests arising out from contract of labour.
2. Law costs and costs of judicial execution; expenses incurred in the common interest of the creditors in order to preserve the vessel or to procure her sale and the distribution of the proceeds of sale; harbour dues; costs of watching and preservation of the vessel arising from the time of her entry into the last port;
3. Salvage remuneration and the contribution of the vessel in general average;
4. Compensation for damage caused by collision of the vessel or by other marine accidents; and also for damage caused to harbour facilities, piers and berths, navigable ways, anchorage areas, docks, and for loss of or damage to cargo and baggage;
5. Claims arising out of contracts entered into or other acts done by the shipmaster acting within the scope of his statutory authority when the vessel is away from her home port and such contracts or acts are actually necessary for repair of the vessel or for the continuation of the voyage whether or not the shipmaster is at the same time operator or owner of the vessel, and whether the claim is his own or that of ship chandlers, persons repairing the vessel, lenders or other contracting parties with him.
Article 32
1. The satisfaction of the creditor from the object encumbered with a maritime lien is effected by judicial decision.
2. Privilege debts are settled in turn in the order of groups from item 1 to item 5, Article 31 of the present Code.
3. Privilege debts arising from the same voyage and belonging to the same group stated in Article 31 of present Code are settled in proportion to their amount if the amount available for division is insufficient to satisfy the debts in full; however the debts belonging to groups mentioned in item 3 and item 5, Article 31 of the present Code are in each of the groups, settled in the inverse order of the dates on which they came into existence despite such debts arisen earlier.
4. Debts arising from one and the same occurrence are deemed to have come into existence at the same time.
5. Maritime lien on sea-going vessel arising from the last voyage has priority over that from previous voyages.
6. Debts arising from one and the same contract of labour relating to several voyages are settled paralelly with the debts arising from the last voyage.
Article 33
1. A creditor is entitled to have a maritime lien on the following amount of money:
a) The freight payable for carriage of cargo, baggage or the money due for the carriage of passengers belonging to the voyage during which there occurred the debts or belonging to all the other voyages performed during the currency of the same contract of labour if it is secured for settlement of debts arising from contract of labour;
b) Compensation due to the vessel for damages sustained by her, if not repaired, and for losses on freight;
c) Contribution due to the vessel by way of general average wherein it includes the amount of money mentioned in point b of this Article;
d) Remuneration due to the vessel for salvage after deduction of awards exclusively falling to the master and crew and other persons engaged in the service of he vessel.
2. Maritime lien defined in item 1 of this Article does not extend to insurance indemnities due to the vessel.
Article 34
1. Maritime liens for securing settlement of the privilege debts defined in item 5 of Article 31 of the present Code extinguish at the expiration of one hundred and eighty days; of the other debts, this period extinguishes at the expiration of one year.
2. The time-limit for a maritime lien is indicated as follows:
a) Salvage remuneration-from the day of termination of the salvage;
b) Compensation for damage caused by collision of vessel or by other marine accident-from the day when such damage was caused;
c) Compensation for loss of or damage to cargo or baggage-from the day of delivery of cargo or baggage, or from the day when such should have been delivered;
d) Amount due to the debts defined in item 5 of Article 31 of the present Code-from the day when the debt occurred;
e) Amount due to other debt-from the day when they fell due.
3. Maritime lien on amounts due to the debts as defined in Article 33 of the present Code extinguishes when they are fully paid by shipowner. But such lien remains in force as long as the sum of money paid is still in the hand of the master or other person who is authorized on behalf of the owner or operator of the vessel to withhold the sum.
4. When courts fail to effect a maritime lien attachment on the vessel in Vietnamese internal waters or on Vietnamese territorial sea to protect the interests of a creditor having its residence or principal place in Vietnam, the time-limits defined in items 1, 2, 3 and 4 of this Article cannot terminate earlier than thirty days from the day the vessel entered the first Vietnamese port, and maximum not later than two years from the day when the debt occurred.
Article 35
1. Upon application made by the creditor, the Director of Port Authority may temporarily, for a period not exceeding seventy two hours, detain the following properties:
a) A sea-going vessel-for the purpose of securing the claim against her in respect of port charges or damages caused to the port facilities, piers and berths, navigable ways, areas for anchorage, and dock;
b) Wreck or other objects which have been hindering navigation-for the purpose of securing the claim in respect of its removal and demolition.
2. The creditor is fully liable for all consequences arising as a result of his temporary detention defined in item 1 of this Article. Claim against this detention are barred at the expiration of two years from the day when they came into existence.
3. After seventy two hours the property detained temporarily by the provisions in item 1 of this Article is released unless otherwise decided by the Court.
Article 36
1. If necessary, for the purpose of security of the settlement of the dispute under trial, the Peoples Courts of Provinces and municipal-level cities of central authority or similar administrative units are entitled to issue the warrant of arrest of sea-going vessels.
2. At the request of a foreign court, a foreign vessel can be arrested in Vietnamese internal waters or on the Vietnamese territorial sea to secure the settlement of the cause tried by such foreign court.
3. Not later than at expiration of thirty days from the day when the master receives the warrant of arrest if the shipowner fails to provide adequate security the court which has issued the warrant of arrest shall be entitled to public auction of the vessel.
Article 37
1. When the owner or operator of the vessel has provided adequate security or paid full amount of debt the vessel under arrest, temporary detention or maritime lien shall be immediately released. The claimants shall not be entitled to have any action to the prejudice of property or other interests of the owner or operator of the vessel.
2. A sea-going vessel may be released at the application made by those who themselves had made application for her seizure, temporary detention or maritime lien. The relevant charges are covered by such persons.
Chapter III
SHIPCREW
Article 38
Shipcrew shall consist of shipmaster, officers and other persons working on board within the ships complement, hereinafter referred to as crew.
Article 39
Crew working on board Vietnamese sea-going vessels should be Vietnam citizens. Vietnamese crew may be permitted to work on board foreign sea-going vessels and foreign crew-on board Vietnamese sea-going vessel subject to provisions of the Minister of Transport and Communications.
Article 40
Crew working on board Vietnamese sea-going vessel should have sufficient certificates of health and certificates of competency as provided for by the Minister of Transport and Communications.
Article 41
1. Crew working on board Vietnamese sea-going vessels are bound to carry out their duties in conformity with their ranks.
2. Minister of Transport and Communications shall define ranks, ranking duties and disciplines applied to crew working on board Vietnamese sea-going vessel. Such ranks, ranking duties and disciplines applied to crew working on board sea-going vessels exclusively employed for exploitation and processing of sea products shall be defined by the Minister of Fishery.
3. The owner of vessel shall define those ranks, ranking duties and disciplines applied to crew which are not yet provided for by the Minister of Transport and Communications and Minister of Fishery.
Article 42
1. Labour regulations, duties and rights of Vietnamese crew working on board Vietnamese sea-going vessels are subject to the laws in force in Vietnam.
2. In case Vietnamese crew must leave the vessel as ordered by the shipowner or the shipmaster, the shipowner is bound to cover living and traveling costs necessary for sending back crew to the place laid down in the contract of labour or to the port where crew joined the vessel unless otherwise stipulated in the contract of labour.
3. When the loss of or damage to the legitimate own properly of crew is caused by accident occurred to the vessel, shipowner is bound to compensate such property as per market price ruling at the place and time where the accident is settled. If the accidents has occurred by approximate cause on the part of crew, they loose the right to claim for loss of or damage.
4. Labour regulation on obligations and interests of the Vietnamese crew working onboard the foreign sea-going vessels, and of foreign crew-on board Vietnamese sea-going vessels, is defined on the basis of recruitment agreements.
Article 43
The master exercises the highest command of the vessel. All persons on board the vessel are bound to conform to the orders given by the master.
Article 44
1. The master must not leave the vessel which is on her course or in danger unless that is required by an absolute necessity.
2. The master is bound to be in personal command of the vessel when leaving, entering ports, canals and river navigable ways as well as when the vessel under his command is operating within port waters areas and in any case involving special difficulty or danger.
3. The master is bound to employ the services of a pilot or of a tug boat where such services are required by regulations of for the safety of the vessel.
The employment of the services of pilots does not relieve the master of the obligation laid down in item 2 of this Article.
Article 45
1. The master is bound to exercise due diligence of a conscientious shipmaster when carrying out his obligations pertaining to service activities.
2. Before the commencement of and during a voyage the master is bound to take due care that the vessel in every necessary respect be seaworthy, and comply with the professional principles of goods seamanship and with the regulations as regards the adequate equipments, ships hull, proper manning and other respects relating to marine navigation safety for the vessel and people on board.
3. The master is entitled not to let the vessel commence the voyage if he has grounds to ascertain that the vessel under his command has insufficient necessary conditions of seaworthiness.
4. The master is empowered to keep the crew under his command to follow the disciplines or to give the reward to them; to refuse to recruit or to force to leave his ship those crew who are unqualified in ranks assigned to them or who have broke the disciplines.
Article 46
1. The master is bound o take due care that the cargo be properly loaded, stowed and preserved, discharged even though such operations have been entrusted to persons who are bound to be engaged in such activities.
2. The master is bound to take due care that the cargo be not damaged or lost; to take such action as may be necessary to protect the interests of persons interested in the cargo; to use all possible means to inform them of particular occurrences concerning the cargo.
Article 47
1. The master is bound to take all necessary measures to protect the vessel, persons and other properties on board.
2. In the event of a danger of war or blockade at the port of destination the master is bound to call at the nearest safe port and to take all necessary measure to protect the vessel, persons, properties and documents of the vessel.
3. In case the vessel is threatened with sinking or with destruction the master is bound to take all available measure to save first the passenger and them the crew.
The master is the last to leave the vessel after he has made use of all means possible to save the log-books, charts, other documents of the vessel, high valuable objects and money belonging to the vessel.
Article 48
1. The master is bound to search and rescue persons in the distress if the carrying out of this obligation does not create any serious danger to his vessel and persons on board. The owner of the vessel is exempted from liability in case the master fails to do such obligation.
2. The master of a vessel being in sea distress has the right to demand his vessel be saved, and after consultation with vessels which answered his call for assistance, to indicate which vessel is to render his salvage.
Article 49
1. When handling ordinary matters incident to the performance of navigation and of the ordinary management of the vessel and cargo, the master is the representative of the shipowner and of the parties having interests in the cargo.
2. Within the limits laid down in item 1 of this Article, the master may, in the name of the shipowner and the parties having interests in the cargo, while away from the home port, perform legal acts, and he may sue and take part in legal proceedings before courts, unless the shipowner and the parties having interests in the cargo declare limitation of the whole of part of the authority. As regards third parties, this limitation of the masters statutory authority has legal effect only in so far as they have been aware of it.
Article 50
1. If necessary, the master of a vessel, while away from the home port, is empowered to loan in credit terms, or in the name of the shipowner to borrow cash but only within the limits of sufficiency to reapair the vessel, to complement crew, to supply the vessel or to satisfy other requirements so that the voyage can be continued.
2. Within the limits laid down in item 1 of this Article the master is also even entitled to sell superfluous appurtenances of the vessel or surplus reserves where it is inexpedient or impossible to wait for instructions or funds from the shipowner.
3. During a voyage, if means necessary for its completion cannot be obtained in any other way, the master-after having, by all means, sought instructions from the charterers and the shipowner but failed-is entitled to pledge or even sell a part of the cargo.
4. When deciding on means for raising funds necessary for the completion of a voyage, the master is bound to narrow, at the lowest level, the prejudice to the shipowner and the parties having interests in the cargo.
Article 51
1. Where on a vessel ,while on voyage, the reserved provisions and foods have run out, the master has the right to requisite a part of cargo being provisions and foods carried on board, and in the case of utmost necessity, to requisite provisions and food from persons on board. This requisition should be inserted in a writing protocol.
2. The shipowner is bound to compensate for the food and provisions requisitioned.
Article 52
1. In respect of each case of birth or death or other occurrences on board during the voyage, the master is bound to make an entry in the ships log-book and drew up a protocol in presence of ships medical person and two witnesses. The master is bound to make an inventory list of property left by the person died on board and put his property under his custody.
2. The master is bound to report births or deaths occurring on board and deliver testaments, inventory list of property of the deceased to the Competent Registrar Office in the first Vietnamese port at which the vessel called, or the authorized diplomatic representative or consulate of Vietnam abroad if this port is a foreign port.
3. After having tried to seek all means possible to ask for instructions from the shipowner and for opinion of the relatives of the deceased the master, in the name of the shipowner, pursue funeral procedures and bury the dead.
All the relevant fees are paid in conformity with the provisions of regulations and law.
Article 53
1. In the event of offence committed on board, the master is bound to:
a) Take all the necessary means for preventing, draw up files as provided for by virtue of status;
b) Secure evidence and, according to the specific circumstance, to hand over the offender together with the relevant documents to the competent authority of Vietnam at the first Vietnamese port the ship has called at, or while on a voyage, to a warship of the Vietnamese Armed forces encountered on sea, or to inform the authorized diplomatic representative or consulate of Vietnam abroad and to act according to the instruction given by them.
2. If necessary, the master is empowered to confine to a separate compartment any person whose conduct on board endangers the safety and public order of the vessel and persons on board and cargo carried on board.
Article 54
1. On arriving of the vessel at a foreign port the master is bound to advise the authorized diplomatic representative or consular mission of Vietnam of the vessels arrival unless it is impossible to render such advice.
2. The master is bound to produce, on demand by the authorized diplomatic representative or consulate of Vietnam the vessels documents.
Article 55
1. Immediately after occurring or detection of marine accidents or special occurrences relating to marine navigation safety in the sea where the ship is operating, the master is bound to report same to the competent authorities of the nearest place.
2. When on a voyage the marine accident or total loss occurred after calling at the Vietnamese first port, the master is bound to fully report to the Vietnamese competent authorities in charge of management of marine navigation safety of such events. The master and he persons involved may be interviewed by such authorities if necessary.
3. Marine accidents as referred to in the present Code are accidents caused by collisions and by other troubles relating to the vessel given rise to death or body injury, to damage to the vessel, to sinking, destruction, getting fire, running aground or environmental pollution.
Article 56
1. When the vessel, persons or cargo carried on board are damaged or lost on account of accident or when having grounds for suspecting the occurrence of such damage or loss, the master is bound to file a sea protest, and latest within twenty four hours of an accident which has occurred in port, or within twenty four hours of the vessels arrival at the first port the master is bound to submit the sea-protest to the competent authority for certifying this submission.
2. The Minister of Transport and Communications shall determine the competent authority having the power to certify the submission of the sea-protest in Vietnam, the order and procedures for certifying in the sea-protest.
3. When a vessel is operating abroad the master submits the sea protest to the authorized diplomatic representative or consulate of Vietnam abroad or the local competent authority for certifying this submission.
Chapter IV
SEA-PORT AND PORT AUTHORITY
Article 57
1. The sea-port as referred to in the present Code are ports opened for sea-going vessels navigation and operation. A sea-port shall consist of the following areas:
a) Warehouses, yards, berths, wharves and docks, depots and workshops, administrative and maritime services zones, hereinafter referred to as the port premises.
b) Waters in front of berths, wharves and docks, areas for anchorage and lighterage, entrances and exists fairways to and out of port, storm shelter areas, hereinafter referred to as the port waters.
2. The navigable zones as referred to in the present Code consist of waters of a number of ports situated near to each other and near to transit lanes.
3. The Council of Ministers shall determine the opening of sea-ports. The Minister of Transport and Communications shall declare the opening, the interim closing of sea-ports and issue regulations on maritime shipping activities in each of sea-port waters or in marine navigable zones.
Article 58
1. The special body having the state management on maritime shipping in the marine navigable zones and waters of sea-ports is referred to as Port Authority.
2. The Minister of Transport and Communications, after having consultations with the Peoples Committees of provinces and municipal-level cities of the central authority or similar administrative units, shall declare the areas under the control of the Port Authority and decide the organization and instruct leading guides on the activities of the Port Authority.
Article 59
The person exercising the highest command of the Port Authority is the Director. The Director of Port Authority has the following power and duties:
1. To organize the implementation of regulations on the activities of the port authority, supervise the fulfillment of rules and regulations on marine navigation safety, environmental pollution prevention, marine sanitation and order.
2. Not to permit vessels to enter or to leave the port if they are unseaworthy or fail to clear
outstanding debts, fines for violation of rules and regulations of the port.
3. To exercise temporary detention, maritime lien on sea-going vessels or to carry out the warrant of arrest of sea-going vessels issued by the statutory state competent authorities.
4. To grant permits for vessels, boats operating or persons working within the areas under the control of the Port Authority; to revoke such permits if having grounds to realize such vessels, boats or persons having insufficient condition for marine navigation safety.
5. To organize search and rescue of vessels or people in distress in the areas under the control of the Port Authority.
6. To impose administrative fines for acts violating rules and regulations on marine navigation safety, environmental pollution prevention, maritime sanitation and order.
Article 60
1. Within their power and responsibilities, the State Management Authorities on maritime shipping, immigration, quarantine, customs, duties, culture, fire-extinguishment, explosion prevention, environmental protection, and the other state management bodies stationed in the sea port areas shall operate in conformity with provisions of laws.
2. The State Management Authorities which permanently function in the port areas are entitled to established their working offices there. The Director of Port Enterprise is obliged to facilitate the functions of these Authorities.
3. The Council of Ministers shall promulgate the rules and regulations on work coordination between the State Management Authorities operating in the ports areas.
Chapter V
CONTRACT OF CARRIAGE OF CARGO
Section A: GENERAL PROVISIONS
Article 61
1. A contract of carriage of cargo is a contract signed between a carrier and a charterer whereby a carrier agrees to carry a definite cargo by sea-going vessel from port of loading to port of discharge, in return for a definite freight paid by a charterer.
The contract of carriage of cargo is signed in the form mutually agreed by and between the parties concerned and it determines the legal relationship between the carrier and the charterer.
2. A carrier may be any person who possesses or charter a sea-going vessel to perform the service of cargo transportation.
A charter may be any person who on his own behalf or on behalf of another person concludes with carrier the contract of carriage of cargo.
3. The charterer is entitled to appoint another person, hereinafter referred to as shipper, acting on his behalf to fulfil the obligation to supply the cargo to the carrier.
The provisions in this Chapter pertaining to the shipper are also applicable to the charterer who actually himself supplies the cargo to the carrier.
Article 62
1. The contract of carriage of cargo may provide that the carrier will allow for the cargo the whole cargo space of the vessel, or a definite part thereof, for a voyage or for a definite part thereof, for a voyage or for a definite period of time. Such a contract, hereinafter is referred to as voyage charter party.
2. The contract of carriage of cargo may also provide that instead of allowing for the cargo the whole cargo space of the vessel, or a definite part thereof, the carrier will perform the carriage on the basis of cargos kind, quantity, measure or weight. Such a contract, hereinafter is referred to as booking contract.
Article 63
The charterer may, without the carriers consent, transfer to a third party his rights under the contract of carriage, however, the charterer remains responsible for the performance of the contract jointly and severally with the party to whom he has transferred his rights.
Article 64
The carrier is bound to use the vessel identified in the contract to carry the cargo, except the following cases:
1. As regards a voyage charter party, with the consent of the charterer, the carrier may substitute the contract-identified vessel by another.
2. As regards a booking contract, in the absence of provision concerning the substitution of the vessel, the carrier is entitled to substitute the contract-identified vessel by another with same type, and in necessary conditions fit for the voyage provided that he is bound to notify the charter thereof.
Article 65
1. Any claim as to the fulfillment of the contract of carriage of cargo is barred at the expiration of one year from the day when freight is falling due.
2. Any claim in respect of damage to, or loss of the cargo carried under a bill of lading or similar way bill is barred at the expiration of one year from the day on which the cargo has been or should have been delivered to the consignee.
Article 66
The provisions of this Chapter are not applicable to the carriage of mails and parcels. The Council of Ministers shall define the carriage of mails and parcels by sea-going vessels.
Section B: LOADING UPON VESSEL
Article 67
1. The carrier is bound to direct the vessel, being ready to load, to the determined place and time; to place her at the loading place as per conditions agreed in the contract of carriage of cargo.
2. The carrier is bound to exercise due diligence that before and at the commencement of the voyage the vessel be seaworthy; properly manned; equipped and supplied; and moreover that her holds, cool and refrigerating chambers and all other compartments in which goods are loaded, be prepared and brought to a proper condition for the reception, carriage and preservation of the cargo in accordance with its nature.
Article 68
1. Where no loading place at loading port has been ascertained in the contract of carriage, the carrier will direct the vessel to a local customary loading place.
2. Where the carriage is based on a voyage charter party, the carrier will direct the vessel to the charterers indicated place which is safe accessible without difficulty for the vessel to reach, to lie there and to leave unhindered with the cargo. Where there several charterers who have not agreed among them on the loading place, or where the loading place indicated by charterer is not determined, the carrier will direct the vessel to a local customary loading place.
3. Irrespective of whether the loading place has been determined in the voyage charter party, the charterer may, except in the case when the carriage is performed by liner vessels, demand from the carrier that-against reimbursement of all expenses connected therewith-the vessel be shifted from once place to another.
4. Where the carriage is based on a booking contract, the charter is entitled to change the loading place only where such a provision has been stipulated in the booking contract or such is consequent on a custom applied at the relevant port.
Article 69
1. Where the carriage is based on a voyage charter party, the carrier is bound to notify the charterer or the shipper in writing of having the vessel available at the loading place in readiness to commence the loading, such a notification hereinafter is referred to as the Notice of readiness.
The days and hours in which the Notice of readiness is deemed to have been effected are agreed by and between the parties concerned in the voyage charter party; in the absence of such provision, by local customs in respect of such acts are applicable.
The Notice of readiness which at the time of its receipt by the charterer or shipper is not true to the facts, is deemed as not having been effected and the carrier is liable for the loss resulting therefrom.
2. Where the carriage is based on a booking contract, the carrier is bound to notify, within the reasonable time in advance, the charterer or shipper of the loading place and the time when the vessel is in readiness to load within the period fixed for supplying the cargo.
This obligation from the carrier is not applied to the carriage performed by liner vessels unless the schedule is altered.
Article 70
1. The loading time is agreed by and between the parties concerned in the voyage charter party, and where it does not contain any provisions on this subject-by the accepted customs at the relevant port.
2. Interruptions arising by way of causes on the part of the charterer or shipper, as also the time used for shifting the vessel from one place to another requested by him are to count as loading time.
3. Interruptions arising by way of causes on the part of the carrier, as also interruptions caused by force majeure, or by weather conditions which affect the correctness of loading or imperil the safety of loading, are not to count as loading time.
4. The charterer or shipper may agree with the carrier on the dispatch for loading to be completed ahead of the determined period or the demurrage resulting from delaying the loading beyond the determined period.
Article 71
1. The parties may provide in the voyage charter party for an additional period of loading beyond the loading time mentioned in Article 70 of the present Code, which hereinafter is referred to as demurrage time. When the parties have not explicitly stipulated on the hours, days of the demurrage time, it is determined by local customs.
2. The demurrage money is determined by the parties concerned in the voyage charter party. Where the voyage charter party does not contain any provision on this subject, it is determined by local customs.
In the absence of local custom the amount of demurrage money is determined by the actual total sum of the carriers expenditure for the maintenance of the vessel and of the crew throughout the demurrage time.
3. After expiration of the loading and demurrage times, the period of time during which the vessel is detained at the port by way of causes on the part of the charterer or shipper is referred to as the detention time. The carrier is entitled to compensation for losses caused by the detention of the vessel.
Article 72
The charterer has the right to supply, instead of the cargo specified in the contract-another cargo with same characteristics, the carriage of which will not affect the interests of the carrier and of other charterers.
The freight due to the carrier for the carriage of such cargo must not be lower than the agreed freight.
Article 73
1. The cargo should be stowed on board the vessel in accordance with the Cargo plan approved up by the master. Stowage of cargo on deck requires the shippers consent in writing.
2. The carrier is bound to exercise due diligence in loading, stowage, lashing and separation of cargo on board. The relevant costs are to be agreed upon by the parties concerned in the contract.
Article 74
After the expiration of the loading and demurrage times as provided for in the voyage charter party, or after the expiration of the date for supplying the cargo, as fixed in the booking contract, the carrier is entitled to let his vessel leave the loading place even though the whole agreed cargo or part thereof has not been loaded onto the vessel by way of causes on the part of the charterer. In this case the carrier maintain his right to the full freight including the freight falling also on the cargo not loaded, which hereinafter is referred to as dead freight.
Article 75
1. Where according to the contract the charterer has at his disposal the whole space of the vessel, the carrier while maintaining his right to full freight-is, on the charterers demand, bound to comply with the following requirements:
a) To commence the voyage even before the agreed date;
b) To load onto the vessel the cargo already supplied at the loading place, even though the demurrage time has been expired, if the loading of such a cargo might cause detention of the vessel, but no longer than fourteen days and this still validates the carriers right provided for in item 3 of Article 71 of the present Code.
2. Where according to the contract the charterer has at his disposal a part of the space of the vessel, the carrier is entitled to the full freight and to refuse the loading of the cargo which is supplied after the expiration the agreed loading and demurrage times due to delay on the part of the charterer or shipper.
Article 76
1. The charterer, even though according to the contract he should have at his disposal the whole space of the vessel, may occupy for his cargo such spaces and areas on board only as are appropriated for the carriage of cargo.
2. The charterer is entitled to demand an appropriate reduction in the freight and compensation for his losses where the carrier fails to place at the charterers disposal the space of the vessel as determined in the contract.
Article 77
1. The cargo should be packed and have a suitable marking on it in conformity with rules and regulations in force.
2. The carrier is entitled to refuse the loading of the cargo which have insufficiency or inadequacy of packing.
3. As regards easily inflammable, explosive or otherwise dangerous goods or goods which should be handled in a particular manner during loading, carriage, preservation and discharge, besides the responsibility as stipulated in item 1 of this Article, the charterer is bound to furnish in due time to the carrier the documents and necessary guidelines pertaining to the cargo.
The charterer is liable for damages resulting from the delay in delivery of such necessary documents and guidelines and from irregularities or inaccuracies thereof.
Article 78
1. Where it is deliberately or unintentionally, the charterer is liable to the carrier as well as to passengers, crew and owners of other cargoes for damages caused by an inaccurate or untrue declaration regarding the cargo.
2. The liability determined in item 1 of this Article is borne also by the shipper where the damages have occurred through his fault.
3. The charterer or the shipper is only liable for losses stipulated in item 1 of this Article if the carrier proves such losses are caused through their fault.
Article 79
1. The carrier-while retaining his right to the full freight-is entitled, at his discretion, to discharge the cargo from the vessel, destroy or render it innocuous without any obligation to make compensation where the cargo being easily inflammable, explosive or otherwise dangerous has been falsely declared or where during the loading the carrier has not been warned about and could not ascertain the cargos dangerous nature on the basis of a common operational knowledge.
The charterer is liable for losses resulting from such cargo.
2. Although the dangerous nature of cargo has been warned or known to the carrier on the basis of a common operational knowledge and the proper conserved measures applied as provided by rules and regulations and the cargo has been loaded onto the vessel, but subsequently such a cargo has imperiled the safety of the vessel, of persons and cargoes on board, the carrier may, at his discretion, have the right to handle it as provided for in item 1 of this Article. For the losses resulting there from the carrier is liable only in that arising from the rules of general average and retains his right to distance freight.
Section C: BILL OF LADING
Article 80
1. The carrier is bound to issue to the shipper, on his demand, a set of bills of lading.
2. The carrier and shipper may agree to substitute the bill of lading by the sea-way bill or other similar way bill and agree on the content, validity of these documents in conformity with international maritime shipping customs.
Article 81
1. The bill of lading constitutes evidence that the carrier has received on board, the cargo with quantity, kinds, and in conditions as specified therein for carriage to the place of discharge.
2. The original bill of lading is a document of title for disposing of the cargo and for taking delivery thereof.
3. The bill of lading determines the legal relationship between the carrier and the consignee. Provisions of the contract of carriage are binding upon the consignee only when the bill of lading refers thereto.
Article 82
1. A bill of lading should consist of the following basic contents:
a) The designation of the carrier and his principal place of business;
b) The designation of the shipper;
c) The designation of the consignee, or a statement to the effect that the bill of lading has been made out to order or to bearer;
d) The name of the vessel;
e) A description of the cargo, specifying its kind, measure, volume, quantity, number of pieces, weight or value where necessary;
g) A description of the apparent conditions of the cargo or its packing;
h) Marks, signs and particulars to identify the cargo, as furnished in writing by the shipper before commencement of loading and having been marked on individual pieces of the cargo or of its packing;
i) Freight and other charges due to the carrier; remarks as to method of the payment;
k) Place of loading and port of loading;
l) Port of destination or a statement as to when and where the port of destination will be indicated;
m) The number of copies of the original bill of lading issued to the shipper;
n) The date and the place of issue of the bill of lading;
o) The signature of the carrier or of the shipmaster or of the other authorized representative of the carrier;
2. Where the carrier has not been named in the bill of lading, it is assumed that the shipwoner is the carrier. Where in the bill of lading made out in accordance with item 1 of this Article, the carrier has been named inaccurately or falsely, the shipowner is liable to compensate for the losses resulting there from and then has a recourse claim against the carrier.
Article 83
1. A bill of lading may be issued in the following forms:
a) To a named consignee, referred to as a straight bill of lading;
b) To the order of the shipper or of the person indicating by him referred to as an order bill of lading;
c) To an unnamed consignee or unnamed person indicating the order, referred to as a bearer bill of lading.
2. Where in an order bill of lading the person, to whose order the bill of lading is made out, has not been indicated, such bill of lading is automatically deemed to be made out to the order of the shipper.
Article 84
A bill of lading may be transferred as follows:
a) A straight bill of lading: by cession of the ownership in conformity with the relevant regulations and laws. The person whose name has been indicated in the bill of lading is the legitimate consignee;
b) An order bill of lading: by endorsement. Where the bill of lading has not been endorsed, the legitimate consignee is the last person who is entitled to issue delivery order;
c) A bearer bill of lading: by delivery of the bill of lading. The person who produces the bill of lading is the legitimate consignee.
Article 85
1. The cargo particulars will be inserted in bill of lading on the basis of the Cargo list made out by the shipper.
2. The shipper is liable to the carrier for losses caused by an inaccurate or an untrue statement as to the cargos kind, measure, volume, quantity, unit, weight, marks and signs.
However the carrier is still bound to perform his obligations under the contract of carriage in relation to the other parties, except the charterer and shipper.
Article 86
1. The carrier is entitled to insert in the bill of lading his remarks as to the apparent conditions or the packing of the cargo where he has grounds to give suspection.
2. The carrier may refuse to enter in the bill of lading the cargo description as where he has sufficient grounds to suspect the accuracies of the declaration made out by the shipper at the loading moment or he has no possibility of verifying it.
3. The carrier may refuse to insert in the bill of lading the cargo signs, marks where such have not been marked on individual pieces of cargo or of its packing in such a manner that they should remain legible until the end of the voyage.
4. Where the packing of cargo has been made before supplying to the carrier, he may insert in the bill of lading a remark to the effect that the contents are unknown to him.
Article 87
1. The carriage of cargoes over which a part of the route is to be performed by land, river and air carriers hereinafter is referred to as combined transport.
The bill of lading issued to cover the whole route in combined transport is referred to as through bill of lading.
2. Subject to the exceptions provided by other regulations and laws, the provisions on the bill of lading contained in the present Code are also applicable to the through bill of lading issued by the sea carrier.
Article 88
1. A carrier who has issued a through bill of lading is responsible for the proper performance of his obligations over the whole route as covered by such a bill of lading until the delivery of cargo to the legitimate consignee.
2. In the carriage under a through bill of lading, the carriers involved may agree that each of them is responsible for the performance of his obligation on that part of route served by him, jointly and severally with the carrier who has issued the through bill of lading.
3. A carrier who by virtue of his joint and several liability under a through bill of lading has paid an indemnity for losses, has the right to claim from each of the involved carriers a refund in proportion to the amount of freight covered that the losses occurred not through his fault is exempted from the obligation to make a refund.
4. A carrier who has involved in the carriage under a through bill of lading is responsible for the proper performance of his obligations and to exercise due diligence that the further carriage could be successfully performed. The last carrier should protect the rights of the other carriers, in particular their liens.
Section D: PERFORMANCE OF CARRIAGE OF CARGO
Article 89
1. The carrier is bound to perform the carriage within a reasonable time by the contractually determined route or by the usual route, unless otherwise provided for in the contract.
2. A deviation from the route for the purpose of saving life or property at sea or for other justified reasons which do not affect the contract of carriage does not constitute an infringement of the contract of carriage. The carrier is not liable for any damage resulting there from.
Article 90
1. Where the vessel cannot enter the port of destination on account of insurmountable hindrance, the cessation of which cannot be anticipated within a reasonable time, the carrier may direct the vessel to the nearest safe port and should notify the charterer thereof for further instructions.
2. Where by virtue of contract the carrier allows for the cargo the whole cargo space of the vessel the master should, depending on the specific circumstances, ask for and follow the instructions of the charterer. Where it is impossible to follow the charterers instructions or where the charterers instructions have not been received in due time, the master may discharge the cargo or return it to the port of loading, which may, in his judgement, properly protect the interests of the charterer. The charterer is bound to pay the carrier the distance freight and costs connected therewith.
3. Where by virtue of contract the carrier allows for the cargo a definite part of the vessels space, the master is also entitled to act as stipulated in item 1 of this Article if the charterers instructions have not been received within five days from the time when the notification for instructions has been sent or if it is impossible to follow the charterers instructions. The charterer is liable to pay the carrier the full freight and costs connected therewith.
Section E: DISCHARGE AND DELIVERY OF CARGO
Article 91
The provisions in this Chapter incident to loading of cargo are also applicable in the same manner to discharge and delivery of cargo.
Article 92
1. The charterer has the right to dispose of the cargo until its delivery to the entitled consignee if this right has not been vested to any other person; and before the commencement of the voyage he may demand redelivery of the cargo at the loading port, and after the commencement of the voyage alter his original indications as to the consignee and the port of destination-against compensation for all losses and expenses connected therewith.
2. Where the cargo is carried under a bill of lading, the rights determined in item 1 of this Article are vested to the legitimate consignee holding the original bill of lading. The carrier is bound to follow his instructions only after surrender of all copies of the original bill of lading issued.
3. The rights determined in item 1 of this Article do not lie if the execution thereof would cause a considerable delay in commencing the voyage, unless the carrier has given his consent thereto.
Article 93
The carrier is bound to deliver the cargo at the port of destination to the legitimate consignee holding even a single original of the bill of lading or the way bill or other similar way bill as determined in item 2 of Article 80 of the present Code.
After the delivery of the cargo by the carrier against one original copy, all the other copies of the bill of lading stand void.
Article 94
1. Upon taking delivery of the cargo, the consignee is bound to pay to the carrier the freight, compensation money for detention of the vessel and all other charges due to him by way of the carriage of the cargo unless these amounts of money have been paid to the carrier.
Where the cargo is carried under a bill of lading, the consignee is bound to pay only such amounts as are consequent on the bill of lading as provided for therein.
2. The carrier may refuse to deliver the cargo and retain it until the charterer and the consignee have fully paid or properly secured the amounts being owing to the carrier.
The interest, base on the ruling rates announced by the relevant transaction bank, is charged in addition to the debts not payable within falling due.
The debts as above mentioned will include the contribution of the cargo in general average and salvage remuneration falling on the cargo.
3. A carrier who has delivered the cargo to the consignee, loses his right to pursue any claim against the charterer.
Article 95
1. The consignee, as well as the carrier, may before taking delivery of the cargo demand that a survey thereof be carried out. Costs connected with the survey are borne by the party who has ordered the survey.
Where the carrier fails to prove that the loss of or damage to the cargo have occurred beyond his scope of liability, he is bound to absorb the survey costs even in case it has been demanded by the consignee.
2. It is presumed that the consignee has fully and completely taken delivery of the cargo in conformity with the contents of the bill of lading unless he has given in writing notice to the carrier of losses or damages at latest at time of taking delivery, and in the case of damages externally imperceptible-at latest within three days of taking delivery of the relevant cargo. The notice in writing is superfluous if the cargo has been survey as stipulated in item 1 of this Article.
Any agreement contrary to this provision is valid.
Article 96
1. Where the consignee does not claim delivery, or refuses to take delivery of the cargo, or delays the discharge, the carrier is entitled to discharge the cargo and place it in custody at a safe and suitable place and notify the consignee thereof. All costs and charges connected therewith and losses resulting there from are borne by the consignee.
2. Where at the same time several holders of the original bill of lading or way bill or other similar way bill claim delivery of the cargo, the carrier is entitled to act in the same manner determined in item 1 of this Article.
3. For detention of the vessel caused by discharging the cargo and placing it in custody, as laid down in item 1 of this Article, and indemnity is due to the carrier on the same basis as for the detention of the vessel during loading.
4. Where, within sixty days from the day of the vessels arrival at the port of destination, the cargo placed in custody has not been collected or the consignee has failed to pay in full the outstanding debts or to make an adequate security thereof, the carrier has the right to sell the cargo by public auction. Such cargo may be sold even before the expiration of the sixty day period where the cargo incurs a risk of deterioration or its putting in custody involves costs in excess of the actual value of the cargo.
The carrier is bound to notify the charterer of the cases referred to in items 1,2 and 4 of this Article and also his intention to sell the cargo for clearing debts as determined in item 4 of this Article.
5. The Council of Ministers shall determine the detailed procedures for sale on public auction of the cargoes mentioned in this Article.
Article 97
1. Out of the proceeds obtained from the public auction of the cargo, the carrier covers the amounts due to him from the consignee in connection with the costs of placing cargo in custody and effecting public auction as determined in Article 96 of the present Code, which the balance is placed by him in a bank deposit with a view to such sum being paid to the party entitled thereto.
2. Where the proceeds obtained from the public auction of the cargo are not sufficient to cover in full the amounts due to the carrier as mentioned in item 1 of this Article, the carrier has the right to full claim thereof from the parties involved.
3. Where within a period of one hundred and eighty days from the date of public auction of the cargo, nobody claims for the outstanding balance, the carrier will transfer it to the State Treasure in conformity with statutory procedures.
Section G: FREIGHT AND ADDITIONAL CHARGE
Article 98
1. Freight and additional charge for the carriage of the cargo are determined on the basis of the tariff approved by the Council of Ministers.
In the absence of such tariff, they are agreed upon by the contractual parties.
2. The period and method of payment for freight and additional charge are agreed upon by the contractual parties.
Article 99
1. No freight is due on cargo lost during the carriage through any accident whatsoever, and the freight paid in advance is subject to refund. Where the cargo lost has subsequently been saved or recovered, the carrier has the right only to the distance freight if the party interested in the cargo has gained no benefit from the cargo having been carried over a part of the voyage.
2. A distance freight is the amount due for the carriage computed in the proportion of the whole agreed voyage distance to the part of the voyage actually covered by the cargo, as well as in the proportion of the costs and time, perils or troubles on the average connected with the part of the voyage covered to what falls to the remaining part of the voyage to be completed.
3. Where, during the course of carriage the cargo has been damaged or wasted on account of its special nature or the animals have died, the carrier has the right to full freight.
Article 100
1. Where a larger quantity of cargo has been loaded upon the vessel than provided for in the contract, the carrier is entitled to the freight also on the surplus according to rates agreed in the contract.
2. On cargo placed on board without permission of the carrier, the latter is entitled to the double amount of freight due for the carriage from the loading port to the port of destination, as well as to compensation for losses which the carrier has sustained by reason of such cargo having been placed on board without his permission. The carrier may discharge such cargo at any port whatever, if necessary.
Section H: TERMINATION OF CONTRACT
Article 101
1. The charterer has the right to rescind the contract in the following cases:
a) The carrier has failed to place the vessel at the place of loading at the agreed date, or has delayed in loading the cargo upto the vessel or in commencement of the voyage; the charterer is entitled to the compensation for the damages resulting therefrom;
b) After the completion of the loading but still before the commencement of the voyage or during the voyage, the charterer may demand that the cargo be discharged but he is bound to pay the full freight and costs connected therewith to the carrier.
2. The carrier is entitled to refuse the charterers demand to discharge the cargo as mentioned in point b, item 1 of this Article where such would cause a delay of the voyage or affect the interest of the parties concerned on account of the alteration of the fixed schedule.
Article 102
1. Where by virtue of contract the charterer has at his disposal the whole space of the vessel, he ahs the right to rescind the contract of carriage before the commencement of the voyage, however he is bound to compensate the costs arising there from and, depending on the moment of the rescission of the contract moreover to pay the freight on the following principles:
a) One half of the freight, where he rescinds the contract still before the agreed loading time to count.
b) The full freight, where he rescinds the contract after the agreed loading time to count or after the agreed time for demurrage to count if the contract has been concluded for a single voyage.
c) The full freight for the voyage, before the commencement of which he rescinds the contract, and plus one half of the freight for subsequent voyages if the contract has been concluded for a number of voyages.
2. Where the charterer has rescinded the contract in conformity with the provision laid down in item 1 of this Article, the carrier is bound to detain the vessel at the place of loading until the cargo discharge has been completed even though this may detain the vessel beyond the agreed loading and demurrage times.
Article 103
Where by virtue of contract the charterer has at his disposal only a definite part of the vessels cargo space, he is entitled to rescind the contract and liable to compensate the costs connected therewith, and depends on the moment of the rescission of the contract, he is bound to pay the freight on the following principles:
a) A half of the freight where he rescinds the contract after the agreed time for supplying cargo;
b) Full freight where he rescinds the contract during the voyage.
Article 104
Where the cargo has been loaded on board insufficiently as compared with the contracted quantity and the total value of the quantity of such loaded cargo does not secure the freight and other amounts expended by the carrier on the cargo, the carrier may rescind the contract before the commencement of the voyage, unless the charterer has paid the full freight or provided and adequate security, the charterer is bound to refund to the carrier the amounts expended by the latter on the cargo discharge and a half of the agreed freight.
Article 105
1. Either party to the contract may rescind the contract without obligation to compensate for damages sustained by the other party, where, before the departure of the vessel from the place of loading, the following events have occurred:
a) War has broken out threatening the safety of the vessel and cargo; the loading port or port of destination has been declared blockaded;
b) The vessel has been detained by order of the local authorities for reasons beyond the control of the contractual parties;
c) The vessel has been requisitioned for State purpose;
d) An embargo has been declared on carriage of the cargo from the loading port or to the port of destination.
2. Where the contract has been rescinded by reasons as set out in item 1 of this Article, the costs of discharge are borne by the party who has so rescinded the contract.
3. By reasons as set out in item 1 of this Article either party may rescind the contract also during the voyage, the charterer is bound to pay the distance freight and costs of discharge.
Article 106
1. Reciprocal obligations of the parties automatically extinguish where, after the conclusion of the contract and before the departure of the vessel from the place of loading, by the following reasons for which neither party is responsible:
a) The vessel designated in the contract has been sunk, missing, captured or considered unfit for repairs or not worth repairing economically;
b) The cargo specifically designated in the contract has been lost.
2. Where the circumstances as set out in item 1 of this Article have occurred during the voyage, the carrier retains his right to the distance freight. Where only the vessel has been damaged while the cargo has been saved or returned, the carrier retains his right to the distance freight as to so saved or returned cargo.
Article 107
Where the contract has been terminated in conformity with the provisions laid down in this Section, the carrier is still liable to take the care of the cargo until it has been returned.
Section I: IABILITY OF CARRIER FOR LOSS OF OR DAMAGE TO CARGO
Article 108
1. The carrier is bound to take due care of the cargo and is liable for loss of or damage to the cargo in the period from its receipt for shipment until its delivery to the consignee. The carrier is obliged to pay for compensation for loss of or damage to the cargo if he fails to prove that the loss or damage has occurred not through his fault.
2. The carrier is completely exempt from liability for loss of or damage to the cargo resulting from:
a) Act, neglect, or default of the master, other members of the crew, pilot, or servants of the carrier in the navigation or in the management of the ship;
b) Fire, unless caused by the actual fault or privity of the carrier;
c) Perils or accidents on the sea, or in navigable waters;
d) Force majeure;
r) Act of War;
g) Hostilities, actions hostile to public welfare order;
h) Acts or restraint of authorities or people, or court seizure for legal process;
i) Quarantine restriction;
k) Act or omission of the shipper or owner of the goods, his agent or representative;
l) Strikes or lock-outs or other similar circumstances from whatever cause which hold up or restrain work in general or in part;
m) Riots and civil commotions;
n) Saving or attempting to save life or property at sea;
o) Wastage in bulk or weight or any other loss or damage arising from quality, inherent defects, or vice of the goods;
p) Insufficiency of packing;
q) Insufficiency or inadequacy of marking of the cargo;
r) Latent defects not discoverable in spite of exercising due diligence;
s) Any other cause arising without the actual fault or privity of the carrier nor the fault or neglect of the agents or servants of the carrier.
If by virtue of statute or contract anybody is entitled to the benefit of the aforesaid complete exemption of the carrier, the burden of proof shall be on him to show that neither the actual fault or privity of the carrier nor the fault or neglect of the agents or servants of the carrier contributed to the loss or damage.
Article 109
The charterer is not obliged to compensate the loss of or damage to the vessel or the carrier if he proves that neither his privity nor his agents or servants have caused the action, neglect or fault contributed to the loss or damage.
Article 110
1. Unless the nature and value of such cargo have been declared by the shipper before its loading and inserted in the bill of lading, the way bill or similar way bill, neither the carrier nor the ship should in any event be or become liable for any loss or damage to or in connection with the goods in an amount exceeding the equivalent of Poincare Francs (*) 10,000 per package or unit or Poincare Francs 30 per kilo of gross weight of goods lost or damaged, whichever is the higher.
The total amount recoverable shall be converted into Vietnamese currency according to the official rate of exchange announced by the State Bank of Vietnam at the time of compensation.
The total amount recoverable shall be calculated by reference to the value of such cargo at the place and time at which the cargo is discharged from the vessel in accordance with the contract provision or should have been discharged.
The value of the cargo shall be ascertained according to the commodity exchange price, or if unable so fixed, according to the current market price, or if there be no such prices, by reference to the normal price of cargo of the same kind and quality at the place of compensation.
2. Where the kind and the value of the cargo have been declared by the shipper before its loading and have been accepted and inserted by the carrier in the bill of lading, way bill or other similar way bill, the carrier is obliged to compensate for loss of or damage to the cargo on the basis of so declared value and on the following principles:
a) As to cargo lost-by the value declared;
b) As to cargo damaged-by the difference between the value declared and the value remained of the cargo.
The remaining value of the cargo shall be fixed according to the market price at the place and time at which the cargo is discharged or should have been discharged, where such value of the cargo is unable to be ascertained it is based on the market price at the place and time at which the cargo has been loaded plus the costs and charges connected with the delivery of cargo upto the port of destination.
Article 111
In any case, the carrier or the vessel is free from liability for any loss of or damage to the cargo or losses relating to the cargo where the kind and value of the cargo have been knowingly misstated by the shipper during loading and so knowingly misstated declaration has been inserted in the bill of lading, way bill or other similar way bill.
Article 112
1. In carriage of the cargo under a bill of lading, any agreement lessening or relieving the carrier from the obligations and liabilities provided in Articles 67, 108 and 110 of the present Code shall be invalidated.
2. Where a bill of lading is issued for cargo carried under a voyage charter party, the provision of item 1 of this Article is applicable from the time when the bill of lading has been transferred to a third party.
3. The contractual parties may only agree to lessen the carriers liability in a manner different from that provided in item 1 of this Article in the cases connected with:
a) The period of time from the receipt of cargo for carriage to the commencement of its loading on the vessel and from the completion of discharge to the delivery of the cargo;
b) The carriage of live animals;
c) The cargo which, according to the contract, is carried on deck.
Section K: MARITIME LIEN ON CARGO
Article 113
1. For securing privileged debts, a creditor is entitled to a statutory lien on the cargo, even such cargo has been liened, mortgaged, or hypothecated for security of other debts arising from a contract or judicial decision.
2. The privileged debts are settled in the following order:
a) Law costs and costs of judicial execution; expenses incurred in order to preserve, to sell the cargo and to distribute the proceeds of its sale; duties and other public charges.
b) Salvage remuneration falling on the cargo as well general average contribution due from the cargo;
c) Compensation for damages caused by the cargo;
d) Interests of the carrier.
Article 114
1. A creditor may even exercise a maritime lien on the amount of indemnity due to the cargo for damages to the cargo incurred but not repaired, as well as to the general average contribution due to the cargo.
2. A creditor may not exercise a lien on insurance indemnity due to the cargo.
Article 115
1. Maritime liens on cargo extinguish on the delivery of cargo to the legitimate consignee.
2. Maritime liens on the amounts due to the cargo extinguish on payment of such amounts to the parties entitled thereto.
Chapter VI
CONTRACT OF CARRIAGE OF PASSENGERS AND LUGGAGE
Article 116
1. A contract of carriage of passengers and luggage is a contract signed between a carrier and a passenger whereby a carrier agrees to carry a passenger by sea-going vessel, in return for passage money to be paid to him by the passenger, from the port of embarkation to the port of destination.
Legal relationship between the carrier and the passenger is governed by such a contract, while the ticket issued to the passenger constitutes evidence of the conclusion of the contract for passage.
2. The passenger is bound to pay the passage money, the freight for his luggage and other service charge to the carrier.
3. Any agreement limiting the rights of the passenger or lessening or relieving the liabilities of the carrier as provided for in the present Code shall be null and void.
4. Where the passage is performed by a sea-going vessel other than a passenger vessel, the carrier has the right to substitute the ticket by another similar voucher.
Article 117
1. The passenger is obliged to observe the command of the master and follow all rules and guidelines on board.
2. The passenger is entitled to the interests in compliance with the classified ticket and not to pay the money for the carriage of his hand baggage within the limit of weight and kind designated by the carrier.
Article 118
1. The carrier is bound to exercise due diligence that the vessel is seaworthy and in every respect fit for the carriage correspondently as provisions laid down in Article 67 of the present Code.
2. The carrier is bound to take due care and to properly protect the passenger together his luggage from the time he has embarked on board upto the time he has safely together with his luggage left the gangway at the port of destination; where during the voyage an extraordinary and unexpected event has occurred, the carrier is liable to absorb the fare necessary to cover the transportation of the passenger from and to the vessel as well as costs of meal, and services for staying on board together with entertainment fees.
Article 119
The carrier is exempted from the occurrence during the voyage that the passenger has been arrested by the competent authorities by way of causes on the latters individual part at the port at which the vessel has called.
Article 120
1. Any person who is on board the vessel without the passenger ticket is bound to pay full passage money for the covered distance and a fine of a correspondent amount.
2. The master may disembark such person or transfer him onto a vessel going to the port at which such person boarded the vessel, the master is bound to give the competent authorities information concerning the name, age, citizenship of that person, the port at which he boarded and concealed himself on the vessel. The person who is on board without the passage ticket is still obliged to comply with the provision set out in item 1 of this Article.
Article 121
1. The carrier is entitled not to refund the collected passage money if the passenger has not been present on board at the fixed time including the period the vessel calls at en-route port during the voyage.
2. Where the passenger has fallen seriously ill that he cannot embark the vessel or die within twenty four hours before the commencement of or during the voyage and where the passenger refuses to continue the voyage on account of causes on part of the carrier, the passenger is entitled to take back the whole or part of passage money corresponding to the remaining distance.
3. In case the vessel is unable to reach the port of destination or fails to reach there within the fixed time by way of causes beyond the carriers responsibilities, the carrier is bound to refund to the passenger the passage money corresponding to the remaining distance of the voyage or to absorb the costs connecting with carrying the passenger back to the embarkment port or port of destination, whichever the latter wishes, by the sea-going vessel or other means of transport if impossible to carry him by the passenger vessel.
Article 122
1. The passenger may rescind the contract and demand the refund of passage money if his cancellation of the trip has been notified to the carrier latest seven days-in international passenger transport; and one day-in domestic passenger transport before the commencement of the voyage.
The carrier is entitled to retain twenty five per cent of passage money if he fails to sell such a ticket to another person.
2. The passenger may rescind the contract and demand the refund of passage money in full where a passenger vessel has not set out the voyage at latest within three days, and any other vessel within seen days, of the schedule date of the commencement of the voyage.
Article 123
1. Where the carriage is to be performed by a vessel other than a passenger vessel, the carrier has the right, before the commencement of the voyage, to rescind the contract of passage and refund passage money to the passenger if the voyage has not materialized without the carriers fault.
2. For the reason as set out in item 1 of this Article the carrier may also during the voyage rescind the contract of passage but he is obliged to comply with the provisions set out in item 3 of Article 121 of the present Code.
Article 124
Where before the commencement of the voyage or during the voyage the cases as set out in item 1 of Article 105 of the present Code occur, either party may rescind the contract without obligation to compensate for damage sustained by other party; the carrier is liable to refund a portion of passage money calculated in proportion to the part of the voyage not made by the passenger.
Article 125
1. The contract of passage is automatically dissolved in the event of the vessel being lost, sunk, destroyed or unfit for repairs or not worth repairing economically.
2. Passage money will be refunded to the passenger as provided for in Article 124 of the present Code.
Article 126
1. The carrier is liable for loss of life or personal injury and damage to health of the passenger which have occurred in the course of carriage if he fails to prove that he himself or his representatives, servants have not had fault in occurrence of the accidents causing the damage by reason of or in connection with collision, shipwreck, destruction, running aground, explosion or fire. Any agreement lessening or relieving this liability of the carrier is invalid.
2. If the carrier proves that the accident has occurred due to the intentional fault or gross negligence on the part of the passenger he is partly lessened in the liability set out in item 1 of this Article.
3. The course of carriage is deemed to be included the period during which the passenger remains on board, including embarking and disembarking as well as the transportation of the passenger by water from land to vessel or vice versa, if the fare for such transportation is included in the price of the total ticket, or if the means of transferring the passenger supplied by the carrier.
Article 127
1. For loss of life or personal injury and damage to health of the passenger, the carrier is liable within the limitation of liability determined by the Council of Ministers or by the international treaties signed, or recognized by Vietnam.
2. The carrier is not entitled to the benefit of this limitation of his liability where the damage has resulted from the personal fault of the carrier or from the fault of his representatives, servants on board when they perform the obligations designated by the carrier.
Article 128
1. The carrier is liable for loss of or damage to the passengers luggage according to the provisions concerning the liability of the carrier for loss of or damage to the cargo determined in Chapter V of the present Code.
2. The carrier is only liable for loss of or damage to the passengers hand baggage which her or his servants on board has knowingly or unintentionally caused or which has occurred by undue care of the carrier when he has received the baggage for custody.
3. In respect of valuables, money, valuable documents, works of arts or other particularly valuable objects, the carrier is liable only where on delivering such for carriage as baggage they have been specifically declared with indication of their characteristics and value to the master or the officer appointed by him for this purpose.
Article 129
1. The carrier, for securing his interests, has a statutory lien on the passengers luggage until when his interests have been settled or otherwise properly secured.
2. The passengers luggage which has not been collected will be solved according to Article 96 of the present Code.
Article 130
1. Any loss of life or personal injury and damage to health of the passenger should be immediately notified to the carrier after it has occurred and the claimant is bound to lodge with the carrier the claim in writing at latest fifteen days of disembarkation.
2. The claim for loss of or damage to the passengers luggage should be lodged with the carrier within seven days from the day on which the luggage has been delivered or should have been delivered.
3. Any claim for compensation for loss of life or personal injury or damage to the health of the passenger is barred after two years from the date when the passenger has disembarked; in the event of a passengers death on board, this period runs from the day on which the passenger should have disembarked.
In the event of a passengers death occurring after completion of the voyage, the claim is barred after three years from the day when the passenger has disembarked.
4. Any claim for compensation of loss of or damage to the passengers luggage is barred after six months from the day when the luggage has been delivered or should have been delivered to the consignee.
Chapter VII
CHARTER PARTIES
Article 131
1. When a shipowner agrees for remuneration to place at the disposal of a charterer an entire vessel for a specified period of time or for the duration of several consecutive voyages for the purpose as provided by the contract, such an agreement is called the charter party. The charter party determines the legal relationship between the shipowner and the charterer.
2. The charter party is concluded in the form agreed by and between the parties concerned.
Article 132
When by a charter party the shipowner undertakes to place at the disposal of the charterer a crewed vessel, such a charter party is called the time-charter party.
Where the charter party provides that the shipowner places at the disposal of the charterer a vessel without crew, such a charter party is called bare-boat charter party.
Article 133
1. By the agreement provided in the contract, the charterer may sublet the vessel to the third party, this, however, does not relieve the charterer of the obligation to execute the contract concluded by him with the shipowner.
2. When subletting the vessel to the third party, the charterer is entitled to the benefit of the rights, and is bound to fulfill the obligations of the shipowners provided for in this Chapter.
Article 134
1. The shipowner is bound to deliver to the charterer at the right agreed place and on the right agreed date the vessel in a seaworthy condition, properly supplied and adapted for the purposes of employment determined in the contract.
2. In case of time-charter, the shipowner is also bound to supply a complement of crew qualified for the purposes of employment determined in the contract and to pay the wages and secure the other legitimate interests of crew throughout the currency of the charter.
Article 135
1. The charterer is entitled to dispose of the entire space in the vessel appropriated for the carriage of cargo and for the accommodation of passengers.
2. Without the shipowners consent, the charterer is not entitled to dispose of the other space on board the vessel for the purposes set out in item 1 of this Article.
Article 136
1. Under the time-charter party, the charterer is relieved of the obligation to pay to the shipowner the charter hire for any period during which the vessel is unfit for operation on account of technical breakdown and or lacking supplies, or on account of the crew being incompetent. In this case the charterer is also relieved of the obligation to pay the costs of the vessels operation.
2. Where the vessels unfitness for operation has resulted from he reason on the part of the charterer, the shipowner is entitled to the agreed charter hire and to the compensation for damage connected therewith.
Article 137
1. During the currency of the time-charter party, the master and other members of the crew remain employees of the shipowner and are under his labour control. The shipowner is completely liable for all matters pertaining to crew.
2. During the employment of the vessel, the master is the representative of the charterer and should comply with the instructions given by charterer.
3. For the acts of the master determined in item 2 of this Article, the shipowner is liable jointly and severally with the charterer, unless the master has clearly stated, when contracting, that he acts in the name of the charterer.
Article 138
If during the currency of the time-charter party the vessel involves in salvage services, the remuneration due to her is divided equally between the shipowner and the charterer after deducting, first, the sum covering losses caused through salvage and, then, the share of remuneration due to the crew.
Article 139
1. The charterer is obliged to employ the vessel for the purposes as determined in the contract and to take due care of the shipowners interests.
2. When the period for time-charter has terminated, the charterer is obliged to redeliver the vessel to the shiponwer at the agreed place and time and in technical conditions as concluded in contract.
The charterer is obliged to pay charter-hire until the redelivery of the vessel to the shipowner.
3. The charterer is obliged to carry out the maintenance of the vessel as well as of the other equipments on board, unless otherwise provided for in the contract.
4. The charterer during the currency of the bare-boat charter party is also obliged to repair the damages of the vessel and to keep the shipowner advised thereof. The shipowner is liable refund the repair costs occurred beyond the scope of the charterers liability.
Article 140
1. Where the failure to comply with the obligations set out in item 1 of Article 134 of the present Code has resulted from the fault on the part of the shipowner, the charterer is entitled to rescind the contract and to the compensation for the damages connected therewith.
2. Either party may rescind the time-charter party without compensation to other if owing to an outbreak of war, civil commotions or the actions condemned by the authority hindering the performance of the contract of which the circumstances are unable to come to and end within a reasonable time.
Article 141
1. The charter party is automatically terminated when the vessel has been lost, sunken, destroyed or has been considered unfit for repair or not worth repairing economically.
2. In case the vessel under the charter party has been lost, the charter hire is calculated until the date when the last report of the vessel is received.
Article 142
Any claim arising from a charter is barred at the expiration of two years from the day on which the contract expired.
Chapter VIII
SHIPS AGENT AND SHIPBROKER
Section A: SHIPS AGENT
Article 143
1. By a contract of agency, the ships agent undertakes for remuneration to act as a permanent representative of the shipowner at a given port or in a certain area.
2. The shipowner concludes with his ships agent a contract of agency for a certain call or for a specific period of time as mutually agreed. The scope of authority given by the shipowner to the ships agent must be clearly described in the contract of agency.
3. The contract of agency shall constitute ground to determine the legal relationship between the two parties and also an evidence of the shipowners authority to his agent in relation to a third party.
Article 144
1. By a contract of agency, the ships agent is authorized to undertake, in the name of the shipowner, to perform routine services connected with shipping trade including arrangement of all necessary formalities in connection with ships operation at the port, to conclude on behalf of the shipowner contracts of carriage, marine insurance contracts, contracts for cargo handling, charter parties, and recruitment agreements, to issue and sign bills of lading or similar documents, to receive and pay all amounts incident to the ships operation, and to pursue, in the name of the shipowner, claims arising from contracts of carriage and or marine accidents.
2. When concluding a contract in the name of the shipowner the ships agent may also act on behalf of the charterer or other contracting party, provided that the shipowner has given his consent thereto.
3. Where the ships agent, while performing a legal act in the name of the shipowner, has gone beyond the limits of his authority, the said the said act is nevertheless binding upon the shipowner unless the latter has, immediately upon receipt of information concerning the act, notified the other party that he does not ratify the act of the ships agent.
Article 145
1. The ships agent should care for the interests of the shipowner; comply with his orders and instructions; render him immediately the necessary information about relevant developments; render accounts for the amount received and spent pertaining to the authorized services.
2. The ships agent is obliged to indemnify the shipowner for losses and or damages resulting from his fault.
Article 146
The shipowner is obliged to instruct his agent to carry out the authorized service when necessary and to give the agent, on demand, adequate advances for meeting the expenses connected with the authorized agency services.
Article 147
The parties to the contract of agency shall mutually agree on the amount of the ships agents remuneration and in the absence of such agreement, it shall be determined by custom.
Article 148
Either contracting parties may rescind the contract in accordance with the provisions thereof.
Article 149
Claims arising from the contract of agency are barred at the expiration of two years from the day of their falling due.
Section B: SHIPBROKER
Article 150
1. The shipbroker undertakes for remuneration to act, on the individual authority of his principal, as an intermediary in concluding contracts of carriage, of marine insurance, of charter, of sale and purchase of vessel, towage contracts, recruitment agreements and contracts of other activities pertaining to maritime shipping activities.
2. The shipbroker is entitled to remuneration for his mediation only when the contract has been concluded as a result of his efforts. The shipbrokers commission is mutually agreed by and between the shipbroker and his principal, in the absence of agreement the shipbroker and his principal, in the absence of agreement the shipbrokers commission is determined by customs.
3. On the authority of his principal, the shipbroker concludes contracts, and or receives payments in the name of the principal, unless the authority contains an express limitation known to other party.
Article 151
The shipbroker may undertake to act on behalf of both contracting parties where such have commissioned him, he is, however, obliged to advise each party of the fact that he is acting also on behalf of the other contracting party, and in acting as an intermediary he should consider the interests of both parties.
Article 152
Claims arising from the relationship between the shipbroker and his principal are barred at the expiration of two years from the day of their falling due.
Chapter IX
PILOTAGE
Article 153
1. Pilot is a adviser who renders to the master assistance and advice in navigating the vessel in respect of navigational conditions on waters on which the pilot performs his service. The employment of pilots does not relieve the master of responsibility for the navigation of the vessel, even when pilotage is compulsory according to existing regulations.
2. The shipmaster has the right to choose a pilot or to refuse the pilots services and request his substitute.
Article 154
1. The pilot, while piloting the vessel, remains under the command of the master of the piloted vessel.
2. The pilot is bound to furnish the master with all information concerning the navigational conditions in the area of piloting and to recommend him on activities not in conformity with regulations on marine navigation safety and other relevant regulations.
3. When a master does not follow his instructions or reasonable recommendation intentionally, the pilot has the right to declare in the presence of a third party that he ceases to bear responsibility for the further steering of the vessel.
4. The pilot must notify the Director of port authority of the steering of the vessel and dangerous navigational changes which he has seen while piloting the vessel.
5. The pilot must exercise diligently his obligations.
Article 155
The shipmaster is obliged to furnish the pilot with all information relevant to the navigational characteristics and specificities of the piloted vessel; to ensure the pilots safety when boarding and leaving the vessel; to provide the pilot with working facilities, accommodation and maintenance, if required, during his stay on board the vessel.
Article 156
The pilots duties are deemed to be fulfilled when securing the vessel at anchor, mooring it or safely taking it to the agreed place, and or being relieved by another pilot. The pilot has not right to leave the vessel without the consent of the master.
For the safety reason, the pilot cannot depart from the vessel after he has fulfilled his duties, then the master must arrange the vessel to call at the nearest port for the pilots departure. The shipowner is bound to arrange for the pilots return to his place and bear all the expenses incurred.
Article 157
1. The shipowner is liable for damages done by the pilot while carrying out his services as for those done by a member of the vessels crew.
2. The pilot only bears an administrative or criminal responsibility where they have occurred as set out in item 1 of this Article.
Article 158
1. The Council of Ministers shall determine the Pilotage Tariff in Vietnam.
2. The Minister of Transport and Communications shall determine in detail the organization of pilotage, professional qualifications of pilots as well as the navigable areas of compulsory and non-compulsory pilotage in Vietnam.
Chapter X
TOWAGE SERVICES ON SEA
Article 159
1. By towage services are meant in particular: towing, pulling away, pushing or assisting vessels and other floating objects on the sea and in the navigable waters connected therewith where vessels are allowed to trade, as well as the standing-by of a tug in the vicinity of a vessel for the purpose of assisting her by towing when needed.
2. The amount of remuneration due for towage services is determined by agreement between the ships operator and the hirer, and in the absence thereof the amount of remuneration is determined by custom.
3. The towage contract must be done in writing, unless the towage service is done as the manoeuvres in the habours.
Article 160
1. A towage team is set up as soon as vessels forming it have been got ready to carry out, on the order of the commander of the towage team, the manoeuvres, and it breaks up as soon as the last manoeuvre has been completed and vessels have sailed away one from another to a safe distance.
2. The commander of the towage team is determined by agreement between the parties to the towage contract, in the absence thereof he is determined by custom.
Article 161
The ships operator who has undertaken to perform the towage service is bound to provide, at the agreed time and place, a towing vessel fit to perform the contracted services.
Article 162
1. The ships operator of a vessel whose master is in navigational command of the towage team is liable for damages done to another vessel in the team as well as to persons and properties on board the latter, unless he proves damages have occurred beyond the scope of his responsibility.
2. A vessel which is under the navigational command of the master of another vessel is not relieved of the obligation to exercise care for the safety of the towage team and marine navigation; the ships operator is liable for damages done by his vessels fault to the other vessel in the team as well as to persons and properties on board that vessel.
Article 163
Any claim arising from a contract of towage is barred at the expiration of two years from the date of termination of the contract of towage.
Chapter XI
MARITIME SALVAGE
Article 164
1. A maritime salvage is an action for saving a vessel or properties on board thereof from danger as well as for rendering assistance to a vessel in peril, which is undertaken in accordance with a salvage agreement.
2. The salvage agreement is signed in the form as mutually agreed and between the contracting parties.
Article 165
1. Any maritime salvage action which have brought about useful result is entitled to the reasonable remuneration.
2. A remuneration is also due for the following services: a salvor who has taken direct or indirect salvage operations to assist the owner of the salvaged property in saving freight and money due for the carriage of passengers; the salvage has taken place as between vessels belonging to the same shipowner; salvage rendered on the sea or in inland waters to a vessel of inland navigation or to a seaplane.
3. No right to any remuneration falls to a salvor who has undertaken salvage operations contrary to an express and reasonable decision of the master of the salved vessel.
Article 166
1. Persons whose lives have been saved are not bound to pay any money for their rescue.
2. A salvor of human life is entitled to a fair share in the remuneration due for the salvage of property, is his salvage operations have been connected with the accident giving rise to the salvage of such property.
Article 167
Whoever has by a contract undertaken to render pilot or towage services on the sea is entitled to a remuneration for salvage, provided that he has rendered to her exceptional services beyond the scope of the contract for salvage of this very vessel.
Article 168
The parties to a salvage agreement have the right to demand the setting aside or modification of the inequitable conditions in the agreement if they were agreed upon under the influence of danger or where the consent of the parties has been vitiated by fraud or concealment and where the remuneration agreed upon is disproportionately small or large.
Article 169
1. The salvage remuneration comprises the remuneration, salvage expenses and expenses incurred in respect of transportation and care for the vessel or the property salved.
2. The amount of remuneration is agreed upon in the salvage agreement but it must be equitable and may not exceed the value of the vessel or the property salved.
3. In the absence of an agreement or being not equitable, and when there are many salvors, the amount of remuneration is determined according to the circumstances, having, in particular, regard to:
a) The result of the salvage obtained;
b) The efforts and merits of salvors;
c) The degree of danger to which the salved property, the salved vessel or the persons on board thereof have been exposed;
d) The degree of danger to which the salvors as also the vessel and equipment employed by them have been exposed;
e) The time used by the salvors, expenses incurred and the loss suffered by them;
g) The risk of liability and other risks as run by the salvors;
h) The value of equipment employed for the salvage operation;
i) The special appropriation of the salving vessel for salvage operations;
k) The value of the property salved.
4. The amount of the remuneration may be reduced or disallowed where the salvor has by his fault caused the necessity of salvage or where he has committed theft, cheating or fraudulent act when performing the salvage agreement.
Article 170
The value of the vessel or the property salved is the actual value at the place in which they were after the salvage is conclusive or the proceeds obtained from the sale, the assessment of the property in either case after deduction of public charges, costs of preservation and public auction, and other similar expenses.
Article 171
There may be a maritime lien on or retention of the vessel or the property salved for recovery of the salvage remuneration and other costs incurred for the valuation and public auction.
Article 172
1. The salvage remuneration are divided equally between the shipowner and the crew of the salving vessel after deduction of expenses incurred and damages suffered by the vessel as well as expenses and losses of the shipowner or of the crew as caused by the salvage.
The provision of this item is not applicable to a remuneration due to a vessel exclusively employed for professional salvage.
2. The Minister of Transport and Communications shall determine in detail the principles of division of the salvage remuneration among the crew.
Article 173
1. The provisions of this chapter are also applicable to various types of ships belonging to the Vietnam Armed Forces.
2. The Minister of Defense and the Minister of Interior shall determine the principles of division of the salvage remuneration among the crew of the ships belonging to the Vietnam Armed Forces.s
Article 174
Any claim in respect of the performance of the salvage agreement if barred at the expiration of two years from the date of termination of the salvage operation.
Chapter XII
RECOVERY OF PROPERTY FROM THE SEA
Article 175
1. Properties sunken, which are mentioned in this Chapter, are vessel, cargo or other objects sunken in Vietnamese inland waters or in the Vietnamese territorial waters or floating on the sea, and or washed ashore the Vietnamese coast.
2. The owner of such property sunken should, within latest one hundred and eighty days of the date on which the property sank, give notice to the Minister of Transport and Communications of his intention to recover that property and to indicate the date by which he intends to complete the recovery.
The Minister of Transport and Communications, within sixty days of the date in which the notice was received, determines the acceptance of the intended period for the completion of recovery or fix for the owner a time to complete the recovery. The period for the recovery should not be more than a year counting from the date in which the decision was delivered to the owner of property.
3. Where the owner of property has not commenced the recovery operations within the period determined in item 2 of this Article or where he has prolonged the recovery operations over a year counting from the date of completion of the period for the recovery, the ownership in such property passes to the State of Vietnam.
Article 176
The recovery of property sunken in military zones as well as the recovery of military property adapted for military purposes requires a permission from the Minister of Defence or the head of the military unit who is authorized by the Minsiter.
Article 177
1. Where a property sunken endangers or hinders navigation and exploitation of the habour and marine natural welfares or where it endangers peoples lives and health and causes pollution of the sea, the owner of property is bound to recover it right after it has sunk. Where the owner fails to do the recovery it right after it ahs sunk. Where the owner fails to do the recovery, the Minister of Transport and Communications may order the recovery, fixing for him a period for reimbursement of the costs incurred.
The owner of property is also liable for relevant losses and subject to penalty according to laws, even when he lost the ownership of the property as provided in item 3 of Article 175 of the present Code.
2. Instead of the provisions laid down in item 1 of this Article, the Minister of Transport and Communications is entitled to determine the recoverer if it appears that the recoverer nominated by the owner of property is unable to ensure the recovery at a fixed time.
3. Where the owner fails to claim delivery of he property after one hundred and eighty days of his having been advised of the recovery or to pay the costs involved in the period fixed, the Minister of Transport and Communications or the agency duly authorized by him has the right to sell the recovered property by public auction. Out of the proceeds obtained from the sale, the balance must be placed in bank deposit for delivery to the entitled party after deducting the costs of the recovery, expenses for the preservation of the property and for the carrying out of the sale as well as other expenses.
4. The owner is only liable for the costs and expenses incurred in connection with the cases set out in this Article within the limits of the value of the recovered property.
Article 178
Vietnamese organizations and individuals are given priority in conclusion of contracts for recovering property sunken in Vietnamese inland waters and in the Vietnamese inland waters and in the Vietnamese territorial waters.
Article 179
1. The incidental recovery of property belonging to another, sunken in Vietnamese inland waters and in the Vietnamese territorial waters, or the transportation thereof to Vietnamese inland waters or to the Vietnamese territorial waters should be immediately reported by the recoverer to Peoples Committee of the province or the municipal-level cities of the central authority or similar administrative units and the Customs at the nearest place as well as the Minister of Transport and Communications as to the time, place and circumstances of the recovery of property; and the owner should also, as far as possible, be notified thereof, while the property should be properly preserved until the delivery thereof to the owner.
2. A recovery of property belonging to another as mentioned in item 1 of this Article is entitled to the reimbursement of costs and expenses as well as to a remuneration, the amount of which is determined by applying the provisions concerning salvage.
3. Where the recovered property belonging to another as mentioned in item 1 of this Article undergoes a rapid decay or destruction, or where its preservation requires excessive costs, the recoverer has the right to handle the property according to the provision of item 3 of Article 177 of the present Code.
4. Where within fourteen days of his having been advised of the recovery, the owner fails to claim delivery of the property or to pay the amount due to the recoverer and where the owner is unknown, the recoverer is bound to deliver the recovered property to Peoples Committee of the province or the municipal level city of the central authority and, or similar administrative unit for its custody.
Where the owner of the property, within a period of one hundred and eighty days of the date of his being notified, fails to have any actions to protect his interests, the Peoples Committee of the province or the municipal-level cities of the central authority and or the similar administrative unit is entitled to handle the recovered property according to the provisions of item 3 of Article 177 of the present Code.
Article 180
1. Whoever has found and salved property belonging to another, floating on the sea or has contributed to the salvage of such property, is entitled to a remuneration in accordance with the provisions concerning salvage, provided that he has advised the owner of property of his claim not later than the time of delivery of the property found.
2. Whoever has found and salved property belonging to another, floating on the sea or has contributed to the salvage of such property, is entitled to a remuneration in accordance with the provisions concerning salvage, provided that he has advised the owner of property of his claim not later than the time of delivery of the property found.
3. The provisions of items 1, 3 and 4 of Article 179 of the present Code are also applicable to the cases set out in items 1, 2 of this Article.
Article 181
The Council of Ministers shall determine in detail the manner of dealing with property sunken at the sea.
Chapter XIII
COLLISION
Article 182
1. Collision mentioned in the present Code is a collision, which has occurred in waters where sea-going vessels are permitted to operate, between sea-going vessels or between a sea-going vessel and a vessel of inland navigation, a seaplane or other floating structures.
2. The blame vessel is liable for damage done through collision to a vessel or to persons and property in connection thereof. Where the fault is not clearly determined, nobody is to blame for the collision.
3. A blame vessel is a vessel causing a collision or such collision is as a result of negligence in equipping, navigation and management of the vessel, in observing regulations for preventing collisions at sea and regulations for the marine navigation safety as well as non-exercising of necessary professional practices.
Article 183
1. Where both to blame or many to blame collision has occurred, each of them is liable in proportion to the degree of her fault. Where the degree of the fault is equal or it is impossible to establish the relative degrees of fault, they are held equally to blame.
2. For damage resulting from loss of life, personal injuries or health damage the vessels at fault in the collision are liable jointly and severally. A vessel which, by virtue of the joint and several liability, has paid more than required proportion, is entitled to recover from the other vessels the sum paid in excess.
Any claim in respect of recovery of the amount paid in excess is barred at the expiration of one year from the date of the payment.
Article 184
Where the collision has occurred by force majeure or by an accidental event, or where the blame vessel cannot be identified, the damages are borne by those who have suffered them. This provision is also applicable where the vessel is at anchor, moored to or alongside another vessel at the time of the collision.
Article 185
1. After the collision, the master of each of the vessels in collision is bound, so far as he can do so without serious danger to his vessel as well as the persons and property on board his vessel, to render assistance to the other vessel, her persons and her property.
2. The master of each of the vessels, immediately after collision, is also bound to make known to the master of the other vessel the name of his own vessel, her call-sign, the port to which she belongs and the names of the ports from which she has come and to which she is bound.
3. The shipowner is not responsible for a breach of the duties set forth in items 1 and 2 of this Article by his master.
Article 186
1. The provisions of this Chapter are also applicable where a vessel by her fault has caused damage to another vessel or to persons or property on board thereof, even through no direct collision has taken place.
2. The provisions of this Chapter are also applicable to military ships belonging to the Vietnam Armed Forces. These ships do not incur liability for damage done to other vessels by way of collision while executing service duties on military exercise areas and on areas declared as prohibition to navigation, but commanders of such ships are not relieved thereby of the duties provided for in Article 185 of the present Code.
Chapter XIV
GENERAL AVERAGE
Article 187
1. General average comprises extraordinary sacrifices or expenditure intentionally and reasonably made or incurred for the common safety for the purpose of preserving from a common peril the vessel, the cargo, the freight or the passage money for the carriage of passengers.
2. Only such losses which are the direct consequence of the general average act are allowed as general average. Indirect losses whatsoever, such as losses resulting from the vessels detention or difference in prices are not be admitted as general average.
3. Any extra expense in excess of necessary expenses which would have been allowable as general average is allowed as general average, but only upto the amount of reasonable expenditure depending on each specific case.
Article 188
1. General average losses are apportioned over the vessel, the cargo, the freight and the passage money for the carriage of passengers upon the basis of their actual values at the place and time where and when the vessel shall have entered for refuge after the general average occurrence.
2. General average losses are apportioned according to item 1 of this Article even though the common peril which has given rise to the extraordinary sacrifice or expenditure has been due to the fault of any party to the general average or a third party.
3. Apportionment of general average losses is also carried out even where the sacrifice has involved the vessel or the whole cargo but not brought about the intended result.
4. The apportionment of general average losses does not deprive any party in the general average from the right to recourse against the party through whose fault the loss has arisen.
Article 189
Any loss of or damage to the cargo loaded on board without the permission of the shiponwer or wrongly declared as to its kind and value are not allowed as general average; however, such cargo, if saved from the peril, contributes to general average in accordance with general principles.
Article 190
Any damages to or losses of the vessel, the cargo or the freight which are not allowed as general average are particular averages. They are borne by the suffering party unless he proves that the other party is responsible for their occurrence.
Article 191
1. Establishing whether there is a general average, the assessment of the amount of general average losses and also their apportioned is carried out by the average adjusters on the order of the shipowner.
2. The order should be given by the shipowner to the average adjuster immediately, but not later than within thirty days after the date when the vessel have entered the place for refuge after the general average occurrence. In the event of delay on the part of the shipowner, any party involved in the general average has the right to appoint the average adjuster.
3. Principles applying for a detailed adjustment of the loss value and contribution value are agreed by parties. In the absence of the agreement of parties, the average adjuster shall carry out according to international customs.
Article 192
Any claim arising from the general average is barred at the expiration of two years from the date of the general average occurrence. The operation of time limit is interrupted by the commencement of adjustment proceedings. The time limit continues to operate anew from the date of the termination of such proceedings.
Article 193
The Council of Ministers shall promulgate a Statute on average adjusters.
Chapter XV
CIVIL LIABILITY OF SHIPOWNER
Article 194
1. The shipowner is liable for damages resulting from the employment of sea-going vessel where he fails to prove that damages have occurred not throughout his fault, such liability is hereinafter referred to as civil liability of the shipowner.
2. Civil liability of the shipowner does not relive him of administrative and criminal responsibilities.
Article 195
1. The shipowner is entitled to limit his liability according to the limitation of liability set out in Article 196 of the present Code where he makes good to any loss or damage incident to:
a) Loss of life or personal injury or health damage caused to any person on board the vessel, or loss of or damage to any property on board the vessel;
b) Loss of life or personal injury or health damage caused to any person outside the vessel, or loss of or damage to any property or other interests outside the vessel, or any rights infringed through the act or omission of any person, whether on board or not, whom the shipowner is responsible for.
Where loss or damage caused by any person outside the vessel whose act or omission the shipowner is responsible for, the shipowner is entitled to limit his liability to loss or damage only arising form the navigation or management of the vessel or in the loading, carriage or discharge of cargo; or in the embarkation, carriage or disembarkation of passengers;
c) Statutory obligations, liabilities for disposal of shipwreck together with her material bodies when being raised, and for removal, destruction of a vessel which is sunk, stranded or abandoned; obligations or liabilities for compensation for damages to the facilities of port, berth and wharf, channel, waterway anchorage area, dock; obligations or liabilities for compensation for environmental pollution damages caused by the vessel other than environmental pollution damages caused by atomic radio-activity.
2. The shipowner may limit his liability for compensation for the cases set out in point b, item 1 of this Article without proving fault on his privity or on part of the other persons for which he should be responsible where such liability resulting from the possession, proprietorship, management, control of the vessel.
3. The shipowner is not entitled to limit his liability where the damage is incident to:
a) Act of salvage or costs for general average contribution;
b) Environmental pollution caused by atomic radio-activity;
c) Claims of the shipmaster or other crew, shipowners servant working on board or outside the vessel whose duties have direct connection with the operation of the vessel including claims of the successor, his representative and other people who he should bring up if the statutory labour contract between the shipowner and the above people do not entitle the shipowner to the limitation of his liability for their claims or do entitle him only to limitation of the liability if this limitation is on a higher scale in comparison with that determined in Article 196 of the present Code.
4. Where the provisions in the Vietnamese regulations and laws on environmental protection or in the international treaties signed, or recognized by Vietnam are different from those laid down in the present Code, the shipowners limitation of liability is determined and calculated on the basis of such acts.
Article 196
1. The shipowner shall be, within the following limitations, entitled to limit his civil liability to:
a) An aggregate value of the vessel concerned calculating on the basis of Poincare Francs three thousand one hundred for each ton of the vessels gross registered tonnage (GRT) in respect of compensation for loss of life, personal injury or health damage;
b) An aggregate value of the vessel concerned calculating on the basis of Poincare Francs one thousand for each ton of the vessels gross registered tonnage (GRT) in respect of compensation for loss of or damage to the property;
c) An aggregate value of the vessel concerned calculating on the basis of Poincare Francs three thousand one hundred for each tone of the vessels gross registered tonnage (GRT) in respect of compensation for loss of life, personal injury or health damage, and loss of or damage to the property where these losses or damages have been resulting from the same occurrence. However, out of the above set out aggregate value, the total amount of Poincare Francs two thousand one hundred for each ton of the vessels gross registered tonnage (GRT) is designated for compensation for loss of life, personal injury and health damage, the balance - for loss of or damage to the property. In case the total amount to cover the compensation for loss of life, personal injury or health damage is insufficient, the imbalance shall be nibbled in a corresponding proportion from the money covering the compensation for loss of or damage to the property.
2. Any agreement to lessen the shipowners liability for compensation otherwise than the limitation determined in item 1 of this Article shall be null and void.
3. Gross Registered Tonnage (GRT) referred to in item 1 of this Article is determined as follows:
a) Net Registered Tonnage plus the tonnage of engine room space, if the vessel is self-propelled.
b) Net Registered Tonnage, if the vessel is non-self propelled.
4. In respect of limitation of the civil liability of shipowner, the ship having gross registered tonnage below three hundred tons shall be considered three hundred tons.
Article 197
1. The limitation determined in Article 196 of the present Code is only exclusively applicable to compensation for loss and damage resulting from the same occurrence not connected with the other occurrence.
2. Where in the same occurrence, the shipowner is entitled to lodge a counter claim against his claimant, the provisions of this Chapter is only applicable to ascertain the imbalance in comparison with liability of each party concerned.
3. The limitation determined in Article 196 of the present Code shall be converted into the Vietnamese currency according to the official exchange rate announced by the State Bank of Vietnam at the time of payment.
Article 198
1. Where the amount of compensation exceeds the limitation provided in Article 198 of the present Code, the shipowner may constitute a Compensation Fund to satisfy the claims.
2. The Compensation Fund shall be available exclusively for satisfaction of the claims for compensation, the limitation of civil liability of which the shipowner is entitled to.
3. The Compensation Fund shall be constituted either by depositing the sum or by producing other guarantee at the court where the claim is lodged or at a competent State authority and must be considered adequate and protected by such court or authority.
4. Where the Compensation Fund has been constituted by the shipowner nobody is entitled to infringe upon the interests and property of the shipowner. The court or the competent State authority referred to in item 3 of this Article is entitled to order the release of the property liened or arrested or to similarly order the release of the security furnished to avoid such lien or arrest.
5. The Compensation Fund shall be distributed among the claimants in proper proportion to the amounts of their established claims.
6. The constituting of the Compensation Fund shall not be considered as the admission of civil liabilities by the shipowner.
Article 199
The limitation of civil liability of a shipowner shall also be applied equally to that of a ship-operator, ship-manager, professional salvor and those persons for whose acts, negligence and fault the shipowner himself or they themselves should be liable.
Chapter XVI
CONTRACT OF MARINE INSURANCE
Section A: GENERAL PROVISIONS
Article 200
1. A contract of marine insurance is a contract signed between the insurer and the assured whereby the insurer undertakes against an insurance premium paid by the assured to indemnify the latter, in manner and to the extent thereby agreed, for losses incurred by perils to which the subject of insurance is exposed.
2. A contract of marine insurance may be extended so as to cover perils to which, in connection with the carriage by sea, the subject of insurance is exposed in the carriage by air, in inland waters or on land in combined transport.
3. The contract of marine insurance should be done in writing.
Article 201
1. A subject of marine insurance may be every property interest incident to the maritime shipping activities and appraisable in terms of money, such as any vessel, cargo, freight, passage money for the carriage of passengers, charter-hire, hire and purchase money, expected profit on cargo, commission, general average costs, obligations arising under civil liability and the security for the vessel, cargo or freight.
2. The subject of marine insurance may be a vessel in course of building.
Article 202
1. The insurer may reinsure in respect of insurance concluded by him.
2. The contract of reinsurance is independent with the original contract of insurance.
Article 203
1. On demand of the assured, the insurer is bound to issue to him a marine policy. The policy shall constitute an evidence as to the contract of insurance.
2. Before issuing the policy, the insurer is bound to issue to the assured, on his demand, an insurance certificate stating the conclusion of the contract.
3. The marine policy may be made out to a straight policy, to order or to bearer.
4. The marine policy should contain:
a) The name of the assured, or of some person whose interest being insured;
b) The subject of insurance;
c) The perils insured against;
d) The voyage, or period of time, as the case may be, covered by the insurance;
e) The sum or sums insured;
f) The place, the date and the hour of issue of the policy;
g) The signature and the confirmation of the insurer.
Article 204
1. The assured is obliged to inform the insurer about all circumstances within are known to him or should have been known to him in connection with the conclusion of the contract of insurance, and are of essential significance to the assessment by the insurer relative to the risk, to the decision as to whether the proposal should be accepted or not, and to the terms of the contract, except circumstances which are common knowledge or have been known or should be known to the insurer.
2. The obligation of the assured set out in item 1 of this Article is also applied to his representatives duly authorized by the assured.
3. The obligations set out in this Article is also applicable to a third party where the contract of marine insurance is concluded for the benefit of the third party, unless it is not known to him.
Article 205
1. A contract of marine insurance may be concluded for the benefit of a third party, hereinafter referred to as an insurable interest.
2. The insurable interest is entitled to demand from the insurer delivery of the marine policy. As long as the marine policy remains in possession of the insurable interest, he may dispose of rights originating from the contract.
Obligations of the assured connected with the performance of the contract of marine insurance, except the obligation to pay the insurance premium, pass to the insurable interest at the delivery of the marine policy to him.
Article 206
1. A contract of marine insurance shall invalidate where at the time of its conclusion the peril covered by insurance has already occurred, or where the possibility of its occurring has not existed. The insurer retains, however, the right to a cancellation fee, unless when concluding the contract, he knew of the circumstances causing its invalidity.
2. The amount of the cancellation fee is determined by the contract between the two contracting parties.
Article 207
If the assured commits a breach of his obligation set out in Article 204 of the present Code, the insurer has the right to rescind the contract concluded, retaining the right to the entire insurance premium. When the assured fails to provide information or provides inaccurate information according to the provisions of Article 204 of the present Code, through no fault of his, the insurer has not right to rescind the contract, but to request a reasonable increase of the insurance premium.
Article 208
The assured has the right to rescind the contract of insurance at any time before that the state of peril as covered by the contract has not commenced and he is bound, however, to pay the cancellation fee.
The amount of the cancellation fee and terms of the return of insurance premium are determined by the contract between the contracting parties.
Article 209
Any claim in respect of a contract of marine insurance is barred at the expiration of two years from the date on which the casualty occurs.
Section B: INSURABLE VALUE AND AMOUNT INSURED
Article 210
Insurable value is the real value of the subject of insurance and it is ascertained as follows:
a) The insurable value of the vessel is her value at the commencement of the insurance, including the value of her machinery, equipment, spare parts and stores plus the charges of insurance upon the whole. The insurable value of the vessel includes also, unless otherwise provided by the contract, money advanced for seamens wages and other disbursement incurred to make the ship fit for the voyage.
b) The insurable value of the cargo is its value invoiced at the place of loading or is market value at the place and time of loading plus the charges of insurance and may include the expected profit;
c) The insurable value of the freight is the gross amount of freight plus the charges of insurance. Where the charterers have the freight insured, this amount of freight is included in the insurable value of the cargo for insurance;
d) The insurable value of any other subject of insurance, except obligations arising under civil liability, is the amount of the subject of insurance at the place and time when the insurance attaches, plus the charges of insurance.
Article 211
1. Upon concluding a marine insurance contract, the assured must declare the amount for which the subject of insurance is insured, hereinafter referred to as the insured amount.
2. Where the insured amount as specified in the contract is lower than the insurable value, the insurer is liable for losses in such proportions as the insured amount bears to the insurable valued, including other expenses under the insurance.
3. Where the insured amount as specified in the contract exceeds the insurable value, the marine insurance contract is not valid for the difference.
Article 212
Where the subject of insurance has been insured against the same peril with two or more insurers for the amounts which in aggregate exceed the insurable value, all such insurers are liable only upto the amount of the insurable value, and within limit of that value each of them is liable in proportion to the amount insured as accepted by him. This insurance is called double insurance.
Section C: TRANSFER OF RIGHTS UNDER CONTRACT OF MARINE INSURANCE
Article 213
Rights under a contract of marine insurance may be transferred only to the transferee of the subject of insurance; where these rights have not been transferred to the transferee of the subject of insurance, the contract of insurance is dissolved, which does not relieve the insurer of liability for losses which arose prior to the alienation of the subject of insurance.
Concurrently with the transfer of rights under a contract of insurance to the transferee, the latter assumes the obligations which were incumbent upon the transferor of the subject of insurance, including the obligations related to the defences as the insurer would have been entitled to raise, under the contract of marine insurance, against the transferer.
Article 214
1. The transfer of rights under a contract of marine insurance which was evidenced in a policy is effected parallely with the transfer of the marine policy.
2. The transfer of a marine policy is governed by the provisions on the transfer of a bill of lading.
Article 215
1. Where the subject of insurance is a vessel, the transfer of rights under the contract of marine insurance to the vessels transferee requires the insurers consent.
2. Where at the time of transfer the vessel is on a voyage, the rights under the contract of marine insurance have not been passed to the transferee of the vessel, and the contract of marine insurance remains in force until the vessel has made fast at the first port at which she has called after the transfer.
Section D: FLOATING INSURANCE
Article 216
1. Floating insurance is a package insurance covering the subject of insurance of a kind or some kinds of cargoes which the assured will be dispatched or receiving in a specified period of time.
2. In a floating insurance the insurer is bound to issue, on demand of the assured, a policy is bound to issue, on demand of the assured, a policy or a certificate of insurance for each declared shipment or each declared cargo.
Article 217
1. The assured, who has concluded a contract of floating insurance, is bound to notify to the insurer immediately upon receipt of information concerning the dispatch or receipt of the cargo and to specify each case the name of the vessel, the route, the cargo and the amount insured, even when the notice reached the insurer, the cargo may have been dispatched or have arrived at the destination.
2. Where the assured has willfully or through his gross negligence failed to fulfill the obligation defined in item 1 of this Article, the insurer may rescind the contract, retaining the right to insurance premium to which he would have been entitled had the contract been properly performed by the assured.
Article 218
A contract of floating insurance may be terminated by either party subject to a three-month notice.
Section E: PERFORMANCE OF CONTRACT OF MARINE INSURANCE
Article 219
Unless otherwise agreed, the assured is bound to pay the premium to the insurer immediately after the conclusion of the contract or the issue of the marine policy.
Article 220
1. The assured is bound to notify to the insurer every information on very material change of perils to which the subject of insurance is exposed or on accidents concerning the subject of insurance, immediately upon receipt of such information, and to follow the insurers instructions thereof.
2. The insurer has the right to rescind the contract of marine insurance where the assured commits a breach of the provisions set out in item 1 of this Article.
Article 221
1. Where an accident causing loss incidental to the perils insured has occurred, the assured is bound to take all necessary measures available to him for the purpose of averting the loss or lessening its extent as well as to secure indemnity claims against the parties responsible for the loss, when carrying out this obligation, the assured should follow the instruction of the insurer.
2. When the assured wilfully or through gross negligence has not carried out the obligation set forth in this Article, the insurer is free from liability for losses caused thereby.
Article 222
The insurer is bound to refund to the assured all dispensable and reasonable expenses incurred for the purpose of averting the loss or lessening its extent as well as other expenses incurred in accordance with the instruction by the insurer as defined in Article 221 of the present Code, or expenses incurred for ascertaining the character and extent of the loss under the liability of the insurer; and expenses contributed to the general average. These expenses are refunded in such proportion as the amount insured bears to the insurable value.
Article 223
Within limit of the amount insured, the insurer is liable for losses resulting directly from the peril insured and is also bound to refund the expenses as defined in Article 222 of the present Code even though the aggregate amount to be paid to the assured may exceed the insured amount.
Article 224
The insurer is not liable for losses arising from an intentional fault or a gross negligence of the assured, but the insurer is liable for losses caused by negligence or fault of the master who is also insured in navigation and management of the vessel as well as losses caused by fault of another member of the crew, and or the pilot.
Article 225
In the insurance of a vessel and freight, the insurer is not liable for losses arising from:
a) The vessel being not seaworthy at the beginning of the voyage, unless this is due to latent defects of the vessel or caused by circumstances which could not have been prevented in spite of due diligence being exercised by the assured;
b) The vessels age or wear and tear in her use;
c) Loading on board the vessel of explosive or easily inflammable materials or other dangerous cargoes without compliance with provisions obligatorily applicable to the carriage of cargoes of that kind, with the privity of the assured but without the privity of the insurer.
Article 226
In the insurance of cargo, the insurer is not liable for losses arising from:
a) Nature of the cargo;
b) Ordinary leakage, ordinary wear and tear;
c) Improper packing of the cargo;
d) Delay in its supply;
Article 227
Unless otherwise agreed in the contract, the insurer is not liable for losses sustained by the subject of insurance arising from war or military activities of any nature and their consequences; from being condemned to appropriate as prize; from civil commotions, strikes or from confiscation, requisition, seizure or destruction of the vessel or cargo according to military orders, and or orders of civil authorities.
Article 228
The insurer, where his liability has involved in compensation for losses and damages occurred in the event of a collision, a part from his liability to compensate the assured for loses or damages of the subject of insurance, is bound to be responsible for loss of or damage to the third party for which the assured is liable even though the aggregate amount of indemnity exceeds the amount insured.
Article 229
Where the risks insured occur, the insurer may indemnify the assured the total amount insured against the exemption of all responsibilities as agreed in the contract. The insurer, however, must advise the assured of his intention to do so within a period of seven days from the date on which he has received the information from the assured about occurrence of the risks and their consequences. In the case, the insurer is not entitled to the ownership of the subject of insurance where the amount insured is less than the insured value.
In addition to the indemnity of the total amount insured, the insurer is also liable for refunding expenses incurred for the purpose of averting the loss or lessening its extent, as well as repairing and recovering the subject of insurance which the assured had paid before he received the advice from the insurer.
Article 230
1. Unless the contract otherwise provides, the insurer is liable for losses resulting from several successive accidents covered by the insurance, even though the aggregate amount of losses may exceed the amount insured.
2. Where, a total loss of the subject of insurance occurs after a partial damage has already taken place but not yet been made good or compensated the indemnity to the assured shall be limited to his total loss only.
3. The provisions defined in items 1 and 2 of this Article do not relieve the insurer of liability for refunding the expenses in connection with obligations set out in Article 2221 of the present Code.
Section G: PERFORMANCE OF OBLIGATION FOR INDEMNITY WHEN A THIRD PARTY IS LIABLE FOR LOSSES
Article 231
Where he has indemnified the assured, the insurer is entitled to recourse against the third party the liability for loss within the amount paid. The insurer exercises his right in accordance with the provisions defined for the assured.
Article 232
1. The assured is bound to provide the insurer with all information, documents as well as proofs and to take necessary measures to enable the insurer to exercise the right to recourse against the third party.
2. Where the assured does not exercise the obligations defined in item 1 of this Article or he is at fault that makes the insurers right to recourse impractical, the insurer is totally exempted from the payment of indemnity or reduced in proportion.
3. If the assured has received the indemnity for losses from the third party, the insurer is bound to pay only the difference between the indemnity amount according to the contract of insurance and the amount of money the assured received from the third party.
Article 233
1. The insurer, on demand of the assured, undertakes to pay the expenses contributed to general average within the amount insured.
2. On establishing the General Average Statement, the assured is bound to pay due attention to the insurers interests.
Section H: ABANDONMENT OF SUBJECT OF INSURANCE
Article 234
1. The assured has the right to declare abandonment of the subject of insurance and surrender to the insurer of his rights and obligations to the subject of insurance against payment of indemnity for total loss where the total loss of the subject of insurance is inevitable, or that averting it would entail expenditure so high in relation to the value of the subject of insurance.
2. The right to abandonment of the subject of insurance may be applicable where the vessel has been missing, condemned to appropriate, or has met with an accident in consequence of which she has become unfit for repairs, or not worth repairing economically or costs of recovery uneconomical.
3. The provision of item 2 of this Article is also applied to cargo, even where the costs of its repair and delivery to the place of destination would exceed its market value at the place of destination.
Article 235
1. The assured should declare the abandonment in writing, stating the circumstances which justify the abandonment.
2. The declaration of abandonment must be given to the insurer in due time, but not later than one hundred and eighty days of the date on which the assured has learned of the circumstances justifying the abandonment, or within sixty days of the date on which the insurance has expired where the vessel or cargo has been taken as prize or where possession of the vessel or cargo has been lost to the assured by other causes. After these periods of time, the assured loses the right to the abandonment but still has the right to demand from the insurer the indemnity for loss.
3. The abandonment of the subject of insurance is not attached any conditions. Where the abandonment has been accepted, neither the insurer nor the assured can change his decision.
Article 236
When declaring the abandonment, the assured is bound to inform the insurer of any real rights encumbering the subject of insurance and of other insurances pertaining to it, as well as of any limitation known to the assured.
Article 237
1. Within the period of thirty days, counting from the date on which he received the declaration of abandonment, the insurer is bound to notify the assured of his acceptance or refusal of the abandonment, the insurer is bound to notify the assured of his acceptance or refusal of the abandonment. The insurer losses the right to refuse to accept the abandonment after the expiration of that period.
2. The rights and obligations to the subject of insurance pass to the insurer on his making the declaration that he accepts the abandonment. The insurer may not demand these rights and obligations.
3. Where the notification of abandonment is done as defined but the insurer refuses the acceptance of abandonment, the assured also retains the right to an insurance indemnity.
Article 238
1. In the case of an actual total loss resulting from the missing of the vessel and cargoes carried on board thereof, the assured may demand from the insurer the indemnity for the total amount insured without declaring the abandonment of the subject of insurance as defined in Article 235 of the present Code.
2. Where the vessel found missing is insured for a definite period of time, the insurer is only liable for the indemnity in case he has last received the information of the vessel before the expiration of the insurance period. The insurer is free from liability where he proves that the vessel has been found missing after the expiry of the insurance period.
Article 239
Where the insurer has paid the indemnity, the vessel then escapes from the peril, he is entitled to demand that the assured continue his ownership of the vessel and refund the indemnity paid after deducting the indemnity paid after deducting the indemnified amount for partial loss of the vessel provided that the partial loss arising directly from the peril insured.
Section I: PAYMENT OF INSURANCE INDEMNITY
Article 240
On payment of insurance indemnity, the insurer may demand that the assured provide him with all relevant information, as also submit to him documents and other proofs indispensable for ascertaining the circumstances of the accident as well as the loss and the extent thereof.
Chapter XVII
SETTLEMENT OF MARINE DISPUTES
Article 241
1. The parties to maritime contracts may settle their maritime disputes through negotiation, where such a solution proves impossible they may refer the dispute to arbitration or bring it before court.
2. Maritime disputes will be solved by arbitration or court in accordance with the jurisdiction and rules of procedure determined by laws.
Article 242
Where a maritime contract has at least one party being a foreign organization or individual, the contracting parties may agree to refer their disputes to a foreign arbitration or court.
Chapter XVIII
FINAL PROVISIONS
Article 243
The present Code enters into force on the first day of January, 1991.
Article 244
All the previous provisions on maritime shipping activities contrary to the present Code are hereby repealed.
The present Code was approved by the 8th Legislature of the National Assembly of the Socialist Republic of Vietnam at its 7th session on June 30, 1990.
CHAIMAN OF THE NATIONAL ASSEMBLY Le Quang Dao |
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