Frequently asked questions on shipping law

No.

Questions

Answers

Relevant Legislation

1

Can you arrest the colliding vessel to obtain security for collision damage? Yes Article 37.5, 41.1 Maritime Code 2005; Article 11.5 Ordinance 05/2008

2

Does the Court apply the principle of sister ship arrest for the purpose of obtaining security for collision damage? Yes Article 42.2 Maritime Code 2005;  Article13.2 Ordinance 05/2008

3

Would the Court seize jurisdiction of the substantive action on the basis of sister ship arrest? No 33,34,35,36,410 Civil Proceeding Code 2005

4

Has the International Convention on Collision Liability 1910 been Ratified? Are there any other applicable laws or conventions which may affect how limitation applies? No, it has not. Other applicable law which may affect how limitation applies is Vietnamese Maritime Code 2005 (effective from 1 Jan. 2006)

5

Can the Court enforce jurisdiction on parties if they fail to reach an agreement when negotiating an exchange of security? Yes Article 44.2 Maritime Code 2005

6

Does the Court recognise the privileged nature of “without prejudice” communications? No

7

Is it usual or possible for criminal charges to follow a collision? If so, in what circumstances would charges be made and against whom? Yes, it is possible. Criminal charges would be brought against the Master and crew on duty in circumstances of death, serious personal injuries and oil pollution cases. Article 223 Penal Code 1999

8

Are there any bye-laws governing the use of port facilities which may impose strict liability for damage to port equipment, however caused? No

9

Are such defences as “force majeure” or “sole negligence of a third party” recognised by the Court? Yes, they are possible. Article 209 Maritime Code 2005

10

Are claims for consequential losses too remote under local law to be recoverable from the Owners (e.g. claims from owners of other vessels waiting to use a berth or down time from the berth owners)? (e.g. claims from owners of other vessels waiting to use a berth or down time from the berth owners)? Yes, they are possible. Article 307 Civil Code 2005

11

If an Owner arranges repairs himself, is this deemed to be an admission of liability? No, it is not.

12

Can an Owner be held responsible for negligent workmanship of the contractor who carries out the repairs? Yes

13

Does the 1952 Arrest Convention apply? No

14

Is the concept of “sister ship arrest” recognised? Yes Article 42 Maritime Code 2005

15

Is the concept of “associated ship arrest” recognised? No

16

Is pre-judgment arrest possible i.e.. is it possible to arrest to obtain security for a claim? Yes, it is possible, under the Ordinance on procedures for arrest of sea-going vessels, to arrest a vessel if the Court does not seize jurisdiction of the substantive action. Article 42 Maritime Code 205; 27,56 Ordinance 05/2008

17

Is counter security required from the arresting party? Yes Article 43 Maritime Code 2005

18

Before an arrest application can be made, does a Power of Attorney have to be provided? Yes

19

If bunkers have not been paid for by a time-charterer, can the unpaid physical or contractual supplier arrest the vessel that was supplied with the unpaid bunkers? No, it is impossible. Article 42 Maritime Code 2005

20

Can a vessel be arrested for other unpaid debts of a Charterer (eg. Towage costs, pilotage costs etc.)? Yes, it’s possible. Under articles 37 & 41 of the Maritime Code of Vietnam in 2005. Article 37, 41 Maritime Code 2005

21

Will the Court accept a Club LOU to release a vessel under arrest? No, unless the Club has been recognized by the Finance Ministry of Vietnam as a reputable Clubs/insurers. The 2011 list ofreputable Clubs/insurers has included 29 local insurers only. Article 22 Ordinance 05/2008

22

Are damages available for wrongful arrest? Yes Article 43.2 Maritime Code 2005

23

To succeed in a claim for wrongful arrest, is it sufficient to show that the claim did not succeed in part? No

24

Can Charterers’ bunkers on board a third party’s vessel be arrested or attached to secure or enforce a claim against Charterers? No

25

Does the arresting party have to provide counter security? Yes Article 43 Maritime Code 2005

26

Will the arresting party be liable to compensate a third party owner of the vessel for any delay to the vessel as a consequence of Charterers’ bunkers being arrested? N/A

27

If Charterers fail to provide security, will the arresting party be required to remove those bunkers from the vessel? N/A

28

If bunkers must be removed from the vessel, does the arresting party have to put in place a bond against any potential pollution liability. N/A

29

Which convention (or local law equivalent) applies – Hague, Hague/Visby or Hamburg? None of them. However, Vietnamese Maritime Code is much affected by these conventions on this section.

30

What is the US Dollar equivalent of the applicable package limitation amount? Special Drawing Right (SDR) determined by IMF Article 222 Maritime Code 2005

31

Can both Owners and Charterers be sued under a bill of lading (whether it is an Owners’ bill or a Charterers’ bill)? No, they cannot.

32

What is the time limit for commencing proceedings? -As to claims for damages to and losses of cargo carried under transport documents: One year (01) from the date on which the cargo has been or should have been delivered to the consignee. – As to claims relating to the performance of voyage charter party: Two years (02) from the date the claimants know or must have known that their interests have been offended. Article 97, 118Maritime Code 2005

33

Is there a percentage allowance for “shortage” on bulk cargoes? Yes, it depends on different types of cargoes. Article 85.2 Maritime Code 2005

34

Does the Court consider shipment of containers on deck to be an unlawful carriage or deviation:-(a) If there is a specific typed reference to such shipment on the front of the bill?(b) If there is a liberty clause on the reverse of the bill? (a) No, it does not (According to Articles nos.74.4 and 106.1 of Vietnamese Maritime Code, stowage of cargo on deck requires the shipper’s agreement. Such agreement must be recorded in the contract of carriage. However, such reference to the said shipment on the front of the bill may be accepted by the court as per the trade usage). (b) No, it does not (As above. However, Members should, whenever cargo is or may be carried on deck, record on the reverse of the bill of lading the fact that the cargo is or may be carried on deck. Use of a liberty clause may not be sufficient) Article 76 Maritime Code 2005

35

Does a reference to FIOS carriage on the face of a bill of lading mean that the receivers are responsible for any negligence of the stevedores? Yes, it does.  

36

Where the front of a bill of lading contains words which try to incorporate charterparty arbitration/choice of jurisdiction/law provisions contained in charterparties:-(a) Does the Court recognise and enforce the arbitration / choice of jurisdiction / law provisions even if the receiver/claimant is not a party to or has not seen the charterparty in question?(b) Does the bill of lading have to show the date of the charterparty for a valid incorporation or will a reference to incorporation of charterparty terms on the reverse of the bill of lading through standard printed wording be sufficient?(c) Will a general reference to incorporation of “charterparty” provisions be sufficient to incorporate arbitration / jurisdiction / law provisions? (a) Yes (b) Yes, the reference to incorporation of charterparty terms on the reverse of the bill of lading through standard printed wording will be sufficient. (c) Yes, it’s possible Article 4.2 Maritime Code 2005

37

Does the Court give effect to provisions in bills of lading such as “said to weigh”, “shippers description of goods”, “weight, quality, quantity, contents, etc, unknown” so as to put the burden of proving the actual quantity shipped on to the claimants? Yes Article 79 Maritime Code 2005

38

Are claims for consequential losses too remote under local law to be recoverable from Owners (eg. Claims from owners of shore facilities faced with down time due to receipt of damaged cargo)? It depends on particular circumstances of the case. In principle, losses such as loss of property, reasonable expenses to prevent, mitigate or restore damage and the actual loss or reduction of income may be determined as recoverable losses Article 307 Civil Code 2005

39

Will indemnity claims against stevedores for damage to cargo succeed? Yes Article 77 Maritime Code 2005

40

Does an ITF inspector have any right to board the vessel and if so, in what circumstances? No

41

Can the vessel be subject to secondary action such as boycott? No Article 176 Labour Code (amend and supplement 2007)

42

Is boycott action legal? No Article 176 Labour Code (amend and supplement 2007)

43

Can an injunction be obtained to stop illegal boycott action? Yes Article 175, 176 Labour Code (amend and supplement 2007)

44

Is there any penalty for a vessel leaving if there is a boycott action? No

45

Can Owners claim compensation against ITF for unlawful action? No

46

What is the limitation period for bringing a claim in contract? It depends on different types of contract (most of them are 2 years)

47

What is the limitation period for bringing a claim in negligence? 1 years according to Article 97 of the Maritime Code of Vietnam in 2005 Article 97 Maritime Code 2005

48

What is the limitation period for bringing proceedings to enforce a foreign arbitration award?  –       Request for recognition a foreign arbitration award: The limitation period is no later than one (01) year from the date of issuance of the foreign arbitral award, according to Article 159.4 of Civil Proceeding Code 2004 (amend and supplement 2011).–       Request for enforcement a recognized foreign arbitration award: The limitation period is no later than five (05) years from the date the foreign arbitration award took into legal effect, according to Article 30.1 of the Law on enforcement of civil judgments in 2008.    Article 159.4 Civil Proceeding Code 2004 (amend and supplement 2011).Article 30.1 of the Law on enforcement of civil judgments in 2008

49

Does the 1958 New York Convention on the Recognition and Enforcement of Arbitration Awards apply? Yes, it does with three reservationsForeign arbitral awards are enforceable in Vietnam only when they are:- Awards made in the territory of another contracting State.- Differences arising out of legal relationships, whether contractual or not, that are considered as “commercial” under the Vietnamese law.- With regard to awards made in the territory of non-contracting States, this State will apply the Convention only to the extent to which those States grant reciprocal treatment.

50

Do the Courts recognise the privileged nature of “without prejudice” communications? No

51

Is it possible to exercise a lien on cargo? Yes Articles 84.2, 94 Maritime Code 2005

52

Is an application to the Court necessary to lien cargo? No Articles 84, 94 Maritime Code 2005.Decree 46/2006

53

Do Owners have to put up counter security for their claim? No

54

Does the right to exercise a lien depend on the type of cargo? No Articles  84, 94 Maritime Code 2005, Decree 46/2006

55

Can the lien be exercised on cargo while still on board the vessel? Yes

56

Can a lien be exercised on a complete cargo even though the value of the cargo is such that the claim would be satisfied by a lien over only part of the cargo? No

57

Can a lien be exercised while the vessel is alongside without shifting from the berth ? Yes

58

If a lien is exercised and the cargo is taken ashore for storage, is the liening party liable for storage costs or will these be paid from the proceeds of the sale of the liened cargo? Yes, these will be paid from the proceeds of the sale of the liened cargo. Article 94 Maritime Code 2005;Decree 46/2006

59

Is the right to exercise a lien lost once cargo is discharged (for instance if the cargo is discharged into the custody of customs)? No

60

Is it possible for a time-charterer who is not the carrier under the B/L to lien cargo for the debt of a sub-charterer (assuming the charterparty between the charterer and his sub-charterer gives them such a right)? Yes

61

What is the limitation period for personal injury claims? From 2 to 3 years. Article 211 Maritime Code 2005

62

Does the Athens Convention on the Carriage of Passengers and their Luggage apply? No

63

Does the Court recognise any contractual limitation on damages? Yes, but should be according to the maximum level and minimum level provided at Article 132.5 of Vietnam Maritime code Article 132.5 Maritime Code 2005

64

Is there any restriction on the type of damages recoverable (for instance, are loss of enjoyment or consequential damages recoverable)? Yes Articles 609; 610 Civil Code 2005

65

Does the Court recognise as binding the following:-(a) Receipt, release and quitclaims;(b) Indemnities and hold-harmless letters;(c) Forum selection clauses in employment contracts? (a) Yes (b) Yes (c) No

66

Is it possible to disembark and repatriate stowaways? Yes Article 129.3 Maritime Code 2005

67

Will the Court assume jurisdiction even if the claim is brought by a foreign crewmember against a vessel which has no connection with the country in question? Yes, it is possible. Articles 37, 42 Maritime 2005

68

Do the Authorities impose fines for the escape of stowaways or the desertion of crew? If so, at what level? Yes, the Authorities impose fines for the escape of stowaways. Article 129.3 Maritime Code 2005;Labour Code