VIETNAM MARITIME CODE

  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;
f)            A description of the apparent conditions of the cargo or its packing;
g)          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;
h)          Freight and other charges due to the carrier; remarks as to method of the payment;
i)            Place of loading and port of loading;
j)            Port of destination or a statement as to when and where the port of destination will be indicated;
k)           The number of copies of the original bill of lading issued to the shipper;
l)            The date and the place of issue of the bill of lading;
m)         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.