Nghị định 160/2016/NĐ-CP về điều kiện kinh doanh vận tải biển, kinh doanh dịch vụ đại lý tàu biển và dịch vụ lai dắt tàu biển

DECREE

ON CONDITIONS FOR SEA TRANSPORTATION BUSINESS, SHIPPING AGENCY SERVICES, AND TOWAGE SERVICES

Pursuant to the Law on Organization of the Government dated June 19, 2015;

Pursuant to the Maritime Code of Vietnam dated November 25, 2015;

Pursuant to the Law on Enterprises dated November 26, 2014;

Pursuant to the Law on Investment dated November 26, 2014;

Pursuant to the Law on Commerce dated November 20, 2012;

Pursuant to the Law on Commerce dated June 14, 2005;

At the proposal of the Minister of Transport;

The Government promulgates a Decree on conditions for sea transportation business, shipping agency services, and towage services.

Chapter I

GENERAL PROVISIONS

Article 1. Scope

This Decree deals with conditions for sea transportation business, shipping agency services, and towage services.

Article 2. Regulated entities

This Decree applies to Vietnamese organizations and individuals involved in sea transportation business and shipping agency services, and towage services in Vietnam.

Article 3. Interpretation of terms

For the purposes of this Decree, the terms below are construed as follows:

1. Sea transportation business is an activity of carrying goods, passengers, and baggage using seagoing vessels.

2. International shipping is an activity of carrying goods, passengers, luggage by seagoing vessels between seaports of Vietnam and seaports of foreign countries or between seaports of foreign countries.

Chapter II

CONDITIONS FOR SEA TRANSPORTATION BUSINESS

Article 4. Conditions for sea transportation business

1. Enterprises engaged in sea transportation business shall be established in accordance to legal provisions on enterprises and cooperatives engaged in sea transportation business shall be established in accordance with legal provisions on cooperatives (hereinafter referred to as enterprises).

2. An enterprise shall be issued with a certificate of eligibility for sea transportation business if it satisfies requirements prescribed in Article 5 or 6 of this Decree.

Article 5. Requirements pertaining to enterprises engaging in international sea transportation business

1. Regarding organizational structure

a) Having a department in charge of safety in accordance with the International Safety Management Code (ISM Code);

b) Having a department in charge of maritime security in accordance with the International Ship and Port Facility Security Code (ISPS Code);

c) Having a department in charge of sea transportation business and operation;

d) Having a department in charge of legal affairs.

2. Regarding finance: A guarantee granted by a credit institution or a branch of foreign bank is required to secure the obligations of the ship owner to seafarers with a minimum of VND 05 billion.

3. Regarding watercraft: At least 01 seagoing vessel is required; any seagoing vessel flying a Vietnamese national ensign shall comply with the National Technical Regulation issued by the Minister of Transport.

4. Regarding personnel

a) Any person in charge of the system of maritime safety and security must be trained and issued with a certificate prescribed by the Minister of Transport;

b) Any person in charge of management of sea transportation business and operation must obtain at least a college’s degree in one of maritime, foreign trade, commercial or economic specialties;

c) Any person in charge of legal affairs must obtain at least a college’s degree in law speciality;

d) Any seafarer working on a seagoing vessel must satisfies all requirement pertaining to specialities, health and be issued with a professional certificate as prescribed. Any of Vietnamese seafarer must satisfy all requirements pertaining to speciality, be issued with a professional certificate prescribed by the Minister of Transport; and satisfy all health requirements prescribed by the Minister of Health.

Article 6. Requirements pertaining to enterprises engaging in inland sea transportation business

1. Regarding organizational structure: Having a department in charge of shipping business and operation.

2. Regarding finance: A guarantee granted by a credit institution or a branch of foreign bank is required to secure the obligations of the ship owner to seafarers with a minimum of VND 500 million.

3. Regarding watercraft: At least 01 seagoing vessel flying a Vietnamese national ensign shall comply with the National Technical Regulation issued by the Minister of Transport is required.

4. Regarding personnel

a) Any person in charge of management of shipping business and operation must obtain at least a college’s degree in one of maritime, foreign trade, commercial or economic specialties;

b) Any seafarer working on a seagoing vessel must satisfies all requirement pertaining to specialities, health and be issued with a professional certificate as prescribed. Any of Vietnamese seafarer working on a seagoing vessel must satisfy all requirements pertaining to speciality, be issued with a professional certificate prescribed by the Minister of Transport; and satisfy all health requirements prescribed by the Minister of Health.

Article 7. Requirements pertaining to foreign organizations engaging in inland transportation using watercraft flying Vietnamese national ensigns

1. A foreign organization engaging in inland transportation using watercraft flying Vietnamese national ensigns must establish a joint venture as prescribed, in which foreign investors’ capital holding do not exceed 49% of the joint venture’s charter capital.

2. Foreign seafarers are permitted to work on seagoing vessels flying Vietnamese national ensigns or seagoing vessels registered in Vietnam under ownership of joint ventures in Vietnam provided that total foreign seafarers do not exceed one third of the manning levels for seagoing vessels; ship master or first mate of such seagoing vessel must be a Vietnamese citizen.

3. Having a certificate of eligibility for sea transportation business in accordance with this Decree.

Article 8. Procedures for granting certificate of eligibility for sea transportation business

1. An application for granting a certificate of eligibility for sea transportation business will comprise:

a) An application form for certificate of eligibility for sea transportation business using Form No. 01 in Appendix issued together with. 01 copy;

b) List of positions enclosed with extracted profiles in which present clearly relevant degrees or certificates of positions as prescribed at Clause 1 Article 5 and Clause 1 Article 6 of this Decree: 01 photocopy granted from master register or 01 photocopy authenticated from the original or 01 photocopy enclosed with the original for collation,

c) A guarantee granted by a credit institution or a branch of foreign bank prescribed in Clause 2 Article 5 or Clause 2 Article 6 of this Decree: 01 original;

d) A certificate of seagoing vessel registration: 01 photocopy enclosed with the original for collation.

2. Any applicant for granting a certificate of eligibility for sea transportation business shall send an application to Vietnam Maritime Administration directly, by post, or any of other appropriate methods.

3. Vietnam Maritime Administration shall receive the application. In case of ineligible application, within 02 working days from the date of receipt, Vietnam Maritime Administration shall instruct the applicant to complete the application in writing as prescribed in this Decree; in case of eligible application, a receipt record shall be issued to the applicant.

4. Within 05 working days from the date on which an eligible application is received, Vietnam Maritime Administration will verify the application, issue a certificate of eligibility for sea transportation business and send a notice of results directly or by post; if the application is rejected, Vietnam Maritime Administration shall provide explanation in writing.

5. A certificate of eligibility for sea transportation business shall be granted using Form No. 02 in Appendix issued together with.

Article 9. Re-granting certificate of eligibility for sea transportation business

1. A certificate of eligibility for sea shipping business will be re-granted in cases as follows:

a) The certificate of eligibility for sea transportation business is lost, torn or damaged;

b) Any of contents specified in the certificate of eligibility for sea transportation business changes.

2. Procedures for re-granting

a) In a case where a certificate of eligibility for sea transportation business is lost, torn or damaged:

The applicant shall send an application for re-granting certificate using Form No. 01 in Appendix issued herewith to Vietnam Maritime Administration. Vietnam Maritime Administration shall, according to its records, re-grant a certificate of eligibility for sea transportation business to the applicant.

b) In a case where any of contents in the certificate changes:

The applicant shall send an application for re-granting certificate using Form No. 01 in Appendix issued herewith and relevant documents to Vietnam Maritime Administration. Vietnam Maritime Administration shall follow procedure for re-granting similarly to that for granting of a new certificate of eligibility for sea transportation business in accordance with Clause 3, 4 Article 8 of this Decree.

3. The applicant shall be responsible for the accuracy and truthfulness of the information in relation with the application for re-granting the certificate of eligibility for sea transportation business.

4. The certificate of eligibility for sea transportation business that has been re-granted shall specify the reasons for cancellation of the old certificate.

Article 10. Revocation of certificate of eligibility for sea transportation business

1. A certificate of eligibility for sea transportation business will be revoked in cases as follows:

a) The enterprise has violated conditions for sea transportation business to the extent that its certificate must be revoked as prescribed in regulations of law on handling of administrative violations against regulations on maritime;

b) At the request of competent authorities.

2. Vietnam Maritime Administration shall issue a decision on such revocation and notify relevant state agencies and publicize information of the enterprise whose Certificate is revoked on the website of Vietnam Maritime Administration.

Chapter III

CONDITIONS FOR SHIPPING AGENCY SERVICES

Article 11. Conditions for shipping agency services

Any enterprise providing shipping agency services in Vietnam must be established in accordance with legal provisions. In a case where a foreign-invested enterprise provides shipping agency services, the foreign investors’ capital holding may not exceed 49% of the enterprise’s charter capital.

Article 12. Conditions for organizational structure and personnel

1. Any person in charge of business and operation of shipping agency services must obtain at least a college’s degree in one of maritime, foreign trade, commercial or economic specialties.

2. Any person in charge of legal affairs must obtain at least a college’s degree in law speciality.

3. Any staff member of a shipping agency must be a Vietnamese citizen, granted with a professional certificate of shipping agencies as prescribed by the Minister of Transport.

Chapter IV

CONDITIONS FOR TOWAGE SERVICES

Article 13. Conditions for towage services

1. Any enterprise providing towage services in Vietnam must be established in accordance with legal provisions. In a case where a foreign-invested enterprise provides towage services, the foreign investors’ capital holding may not exceed 49% of the enterprise’s charter capital.

2. At least 01 tugboat is required; such tugboat must be a Vietnamese watercraft and satisfy technical standards prescribed by the Minister of Transport.

Article 14. Conditions for organizational structure and personnel

1. Any person in charge of business and operation of towage services must obtain at least a college’s degree in one of maritime, foreign trade, commercial or economic specialties.

2. Any person in charge of legal affairs must obtain at least a college’s degree in law speciality.

3. d) Any seafarer working on a seagoing vessel must satisfies all requirements pertaining to specialities, health and be issued with a professional certificate as prescribed. Any of Vietnamese seafarer working on a tugboat must satisfy all requirements pertaining to speciality, be issued with a professional certificate prescribed by the Minister of Transport; and satisfy all health requirements prescribed by the Minister of Health.

Article 15. Conditions for foreign organizations using seagoing vessels flying foreign national ensigns for the purpose of providing towage services in Vietnam

1. A foreign organization is permitted to use seagoing vessels flying foreign national ensigns for the purpose of providing towage services in Vietnam solely for the ground that its tugboats flying Vietnamese national ensigns fail to satisfy the prescribed requirements. Annually, the Ministry of Transport shall provide a notice of capacity of fleet of tugboats flying Vietnamese national ensigns.

2. Any tugboat flying foreign national ensign must satisfy requirements prescribed in law on maritime safety, security, and environment protection.

3. Any seafarer working on a tugboat must obtain a professional certificate as prescribed.

4. The foreign organization must have a towage contract concluded with a charterer of Vietnam.

5. The foreign organization must have a branch or a representative office or a towing enterprise of Vietnam towing company authorized in Vietnam.

Chapter V

IMPLEMENTATION

Article 16. Responsibilities of the Ministry of Transport

1. Provide guidelines and implement this Decree.

2. Inspect the compliance with this Decree.

Article 17. Responsibilities of enterprises

1. Initiate operation in conformity with purposes and contents specified in the certificate granted by the competent authority.

2. Maintain conditions prescribed in this Decree.

3. Provide information about its own progress of sea transportation business, shipping agency services, and towage services upon request of competent authorities.

Article 18. Transitional provisions

1. Any enterprise that is granted with a license of sea transportation business before the effective date of this Decree shall keep operating for the remaining period of the license; upon expiry of the license, it must apply for a certificate of eligibility for sea transportation business in accordance with this Decree.

2. Any enterprise engaging in sea transportation business, before the effective date of this Decree that has been not granted with a sea transportation business license, all conditions for granting a certificate of eligibility for sea transportation business, no later than July 1, 2019 must be satisfied in accordance with this Decree.

3. Enterprises engaging in shipping agency services, towage services that are established before the effective date shall keep operating; from July 1, 2019, those enterprises must satisfy all conditions for shipping agency services, towage services in accordance with this Decree.

Article 19. Entry into force

1. This Decree comes into force from July 1, 2017.

2. Decree No. 30/2014/ND-CP dated April 14, 2014 of the Government on conditions for sea transportation business and sea support services.

3. Ministers, heads of ministerial-level agencies, heads of governmental agencies, chairpersons of People’s Committees of provinces and centrally-run cities and relevant organizations and individuals will be responsible for implementation of this Decree./.

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