VIETNAM MARITIME CODE

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;
e)           Act of War;
f)            Hostilities, actions hostile to public welfare order;
g)          Acts or restraint of authorities or people, or court seizure for legal process;
h)          Quarantine restriction;
i)            Act or omission of the shipper or owner of the goods, his agent or representative;
j)            Strikes or lock-outs or other similar circumstances from whatever cause which hold up or restrain work in general or in part;
k)           Riots and civil commotions;
l)            Saving or attempting to save life or property at sea;
m)         Wastage in bulk or weight or any other loss or damage arising from quality, inherent defects, or vice of the goods;
n)          Insufficiency of packing;
o)          Insufficiency or inadequacy of marking of the cargo;
p)          Latent defects not discoverable in spite of exercising due diligence;
q)          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.