Decree No. 29/2009/ND-CP on seagoing ship registration, purchase and sale

Issue nos 06-071Apri12D09 (COng Bao nos 181·1821ApriI6, 2009) OFF1ClAl GAZETTE 7 Part I. LEGAL DOCUMENTS TIlE GOVERNMENT Decree No. 29nOO9lND~CP ofMarch 26, 2009, on seagoing ship registration, purchase and sale TIlE GOVERNMENT Pursuant to the December 25, 2001 Law on Orgrmization of the GOIJl>rnment; Pursuant to Metnamj- Maritime Code ofJune 14,2005; Pursuant to the November 2Y, 2OU) Enterprise Law; Pursuant to theNovember 29, 2005Investment LaW', Pursuant to the November 29, 2005 Bidding Law; At the proposal of the Minister c[Transport, DECREES: Chapter] GENERAL PROVISIONS Article 1. Scopeof regulation I, This Decree provides for the registration, purchase andsaleofseagoing ships(below referred to as ships). 2, ThisDecreedoesnot apply toship purchase and sate in the following cases: aJShipsbuilt by Vietnamese enterprises under shipbuilding contracts signed with foreign organizations or individuals. bl Foreign ships coercively auctioned in Vietnam under decisions of competent state azescies, cI Ships usedfordefenseand securitypurposes and l1uclear powered ships. 3. This Decree also applies to the registration, purchase, sale and building of public-duty ships, ArtkJe 2. Subjects of application This Decree <\pplie:s to Vietnamese arnJ fen e!J5l1 organizations and individuals involved in ship registration, purchase and sale. Artlcle 3. Iuteipreuuion of terms In this Decree, the tenus below are construed as follows: 1. Ship purchase and sale means a process of market research, preparation of a project dossier, decision on purchase and sale, and signing and performance of a contracton purchase and sale of a ship. 2. Ship purchase and sale project means a projectto purchase andsaleone or more thanone ship, including a shipbuilding project 3. Ship purchaser and seller means organizations and individuals purchasing and sellmga ship. 4. Statecapitalmeansdevelopment investment capital from the state budget, credit capital guaranteed by the State, uevelopmeru frtvt;SUnt~lll capital credit of the State and other ievestment capital of the State. 5. Ship purchase and sale contract means a contracton purchase and sale of one or more than one ship, including a shipbuilding contract. 6. Ship purchase loon contract means a ~pecifjc contractwhereby theshippurchaserandselleragree to use a credit loan possibly provided by the ship © VIETNAM LAW & LEGAL FORUM 8 OFFICIAL GAZETTE Issue nos Q6.07fADriI2009 (Gongeeo nos 1IJ1-1 tiL/Apnl 0, lUU!:l) seller to the purchaser for purchasing a ship accompanied with conditions to :;CC\lTC thc purchaser's payment liability specified in the contract. 7 Small ship means a motor ship with main engine power of under 75 kW, a non-motor ship with a gross tonnage of under 50 GT or a dead weight of under 100 tons or a design waterline of under 2Um. ChapterII SHIP REGISTRATION Section J. VIE'lNAM SHIP REGISTRARS Article 4. Vietnam ship registrars Vietnam ship registrars include: 1. The national shipregistrar, which is Vietnam MaritimeAdministration. 2. Regional shipregistrars, whicharemaritime sub-departments or portauthorities decided by the director of Vietnam Maritime Administration. Article 5. Tasks of the national shipregistrar 1 To guide and examine Vietnam ship registration activities at regional ship registrars. 2. To sum up, makestatistics on, maintain and update a database on ship registration and ship mortgage registration; to supply relevant information to interested organizations or individuals. 3. To perform the unifiedmanagement of the printing andissuance ofshipregistration certificates and ship mortgage registration certificates. 4. To entermtointernational cooperation onShip registration. Article 6. Tasks of regional ship registrars 1.Toeffectshipregistration and shipmortgage registration according to theirassignedcompetence. 2.Tocompile andmanage theVietnam National Ships Registration Book in assigned regions; to supply relevant information to interested organizations or individuals 3. To collect, remit and use fees for ship registration and ship mortgage registration according to law. 4.Tobuilddatabases, makestatistics andreports onship registration andshipmortgage registration. Section2. VIETNAM SHIP KtXiISlRAnUN Article 7. Forms of Vietnam ship registration 1. Indefinite registration means rcgi:;tration of ships which are eligible forbeinggrantedVietnam ship registration certificates. 2. Time registration means registration of ships for a given period of time; time registration is applicable toforeign shipschartered byVietnamese organizations or individuals underbareboatcharter or hire-purchase contracts or to foreign ships registered for a givenperiodof time in Vietnam. 3. Re-registration means registration of ships which were previously registered in the Vietnam National Ships Registration Book, but later the registration of which is suspended. 4. Change registration means registration of ships which have been registered in the Vietnam National Ships Registration Book, but have seen changes in theirnameor shipowner, structure and technical particulars, regional snipregistrar or ship register. 5. Provisional registration of shipsmeans ship registration in the following cases: aJ Charges andfeeshavenotyetbeen paidunder regulations; hi There is no ship deregistrarion certificate yet butthereisa commitment in the ship purchase and © VIETNAM LAW & LEGAL FORUM Iuuo nos ()6.(}7}ApriJ 2009 (Cong Beo nos 181·1821/lpri1 6, 2(09) OFFICIAL GAZETTE 9 salecontract that the sellershallhandover the ship deregistration certificate to the purchaser within 30 days after the minutes on ship handover is signed. In this case, the certificate of provisional registr,.ltion of Vietnam ship is valid only from the date the purchaser and seller sign the handover minutes; cl A newly built ship is tested or received for deliveryto the registration placeon thebasisof the shipbuildingcontract; dI It is so decided by the Ministerof Transport in special cases. el A certificate of provisional registration of Vietnam ship mentioned in thisClause is validfor 180 days from the date of its issuance. Incasethe certificate of provisional registration of Vietnam ship expires when the ship cannot yet arrive in Vietnam for carrying out official registration procedures, the regional ship registrar that has issued the certificate may extend it only once for not more than 180days from the date of its issuance, After the expiration of the extended validity durationof thecertificate ofprovisional registration of Vietnam ship. if the ship cannot yet arrive in Vietnam for carrying out official registration proceduresforforce majeure reasons, extensionof the duration of provisional registration shall be l.kduoo by the Minister uf Trauspou. Article S. Permitsforprovisional sailingunder Vietnamese flag IncaseVietnamese organizations Of individuals buy ships of fore1gn organizations or individuals but have not yet madeprovisional registration for the ships under Clause 5, Article 7 of this Decree, the diplomatic missions or consulates of Vietnam in the foreigncountrieswherethe shipsare handed overshallissuepermits forprovisional sailing under Vietnamese nag in accordance with Appendtx XU tothisDecree (notprintedherein) inorderto deli ver theships home, A permit for provisional sailing under Vietnamese flag is only valid during the time of taking the ship from the place of handover to a Vietnamese pon for completing registration procedures as stipulatedin this Decree. Article 9. Limitsof the agesof shipsregistered III VIetnam tor the tirst orne 1. In case of first-timeregistration in Vietnam, usedshipsmust be of the following ages counting from the year of their building: aJNotmore than 10years,for passengerships; bl Not more than 15 years, for ships of other types In special cases, the ship age shall be decided by theMinisterofTransportbutmustnotbe 5 years higherthan the maximum age prescribed for each type of ship at Points a and b of this Clause. 2. For foreign ships coercively auctioned in Vietnam under decisions of competent agencies, the ship ages specified ill Clause 1 of this Article do not apply. 3. For foreign shipspurchasedby loan or hire l'U1\:!J= ructhod by Vietnamese organizadons ill individuals, after the expiration of the period of registration of flying foreign flag, theymay change to registration of flying Vietnamflag providedthat at the time of signingof the loan or hire-purchase contract, their age is compliant with Clause 1 of this Article. Artkle 10. Naming of ships and 1:egistration ports 1. Ship names may be given by shipowners, which, however, mustnot identicalwith thenames of shipsalreadyregisteredin the Vietnam National Ships Registration Book. 2.Incasesnips arenamed afterhistorical ligures or events, such must be approvedby regional ship tl VIETNAM LAW & LEGAL FORUM 10 OFFICIAL GAZETTE Issue nos 06-07/ApriI2009 (Gong Bao nos 181-1821Apri/6, 20(9) registrars according to regulations. 3. Shipowners may select the name of a port for registration of their ships among seaports in the region managed by the regional ship registrar concerned. Article 11. Ship registration dossiers 1. Indefiniteregistration of ships A dossier for indefinite registration of a ship comprises; aJ The ship registration declaration, made according to the form inAppendixI to thisDecree (not printedherein); bI Theshipderegistration certificate orshippre acceptance test and handovcr minutes, for n newly built ship; cl The ship purchase and sale or building contract or other evidence of equivalent legal validity on ship ownership transfer; dI The ship tonnage certificate; el Photocopies of charge and fee payment receipts (accompanied with the originals for comparison): fl A photocopy of the ship classification certificate (accouipauicd will. the urlginal for comparison); gIA copyof thebusinessregistration certificate or permit for setting up a branch or representative office in V!etl1.am. If the shipowner is a Vietnamese individual, a copy ofhislberidentity cardor permanent residence certificate is required. 2.Time registration of ships A dossier for time registration of a ship comprises: a/ The papers specifiedat Points a. d, f and g, Clause 1 of thisArticle; bl The registration suspension certificate; cIA copy of the ship hire-purchase or bareboat charter contract. 3. Re-registration of ships Adossierfor re-registration of a shipcomprises [he papers specifiedat Points a, d, f and g, Clause I and Pointb,Clause I orPoint b. Clause2 of this Article. 4. Change registration aI Renaming of ships Adossier for registration of renaming of a ship comprises a document staring the reason for the renaming, and the ship registration certificate. bI Change of shipowner A dossier for registration of shipowner comprises the papersspecifiedat Points a, c, e and g, Clause 1of thisArticle. cl Change of structure and technicalparticulars A dossier forreglstrarion of structure and technical particulars comprises: A document stating the reason for change of ship SUUL:lun: am! technical particulars; Certificates of technical safety related to the change of ship structureand technical particulars which were issuedby a ship register. d/ Change of ship registrar A dossier for registration of change of ship registrar comprises a document stating the reason for change of regional ship registrar, and the ship registration certificate. eI Change of ship register A dossier for registration of change of ship register comprises: A document clearly stating the reason for Change of Ship register; ~ The papers specified at Pointsd and f, Clause 1 of thisArticle. Article 12. Dossiers for provisional ship e VIETNAM LAW & LEGAL FORUM Issue nos 06-07fAprif 2009 (GOng 8cio nos 18t· (82/Apri/6, 2fJ(J9J OFFICIAL GAZETTE 11 registration and dossiers for grant of permits for pruvisional sailing under Vietnamese nag 1. Provisional ship registration aJ In case charges and fees are not yet paid, a dossier for provisional ship registrationcomprises the papers specified at Points a, b, C, d, f and g. Clause 1,Article 11 of this Decree. hi In case charges and fees are not yet paid and the ship deregistration certificate is not yet issued, adossierforprovisionalshipregistration comprises thepapers specifiedatPointsa,c,d, f andg, Clause 1,Article 11 of this Decree. d In casea newlybuiltshipis tested orreceived for delivery to the registration place under a ship building contract, u dossier for provisional ship registrationcomprises thepapersspecifiedatPoints <1, c, d, f and g,Clause 1,Article II of thisDecree. Incase anewly builtshipisreceivedfordelivery to the registration place, the papers specified at Point b, Clause L Article 11 of this Decree are additionally required. 2. Permits for provisional sailing under Vietnamese flag: Theshipownershall complywith the provisions of Clause 1of thisArticle. ArticJe 13. Dossiers for registration of ships underconstruction A dossier for registration of a ship under construcuon comprtses: 1.Thepapers specified atPointsa andg,Clause L Article 11 of thisDecree, 2. The shipbuilding contract 3.Thewritten certification ofthe shipbackbone placementby the shipyard. Article 14. Dossiers for registration of small ships A dossier for registration of :l small s.hip comprises: 1.The papers specified at Points a, b, c, e and g. Clause 1, Article 11 of this Decree. 2. Ship technical safety inspectionbook. Article 15. Dossiers for ship registration suspension or deregistration A dossier for ship registration suspension or deregistration comprises: 1. The ship registration suspension or deregistration declaration, madeaccordtng theform in Appendix II to thisDecree (notprintedherein). 2. The certificate of Vietnam ship registration. If thecertificate is unavailable, the reason therefor must be specified 3. The written approval of ship .cegistration suspension or deregistration by the shipmortgagee underClause2, Article 19 ofVietnam'sMaritime Code. Article 16.Grantof shipregistrationcertificates 1. Regional ship registrars may grant the following certificates: aJ VietJianl ship registration certifittftes, made according to the forminAppendix ill to thisDecree (rwt p,ioft::d Iu::rein); bl Registration suspension O! de'fe.g\stratiQn certificates, made according to the form in Appendix Iv to this Decree (not prinwc herein); d Timeregistration certificates, madeaccording to the form in Appendix V to this Leeree (not printed herein); dJ Provisional registration certificates, made according to thefonninAppendix VIto thisDecree (not printed herein); eI Certificates of registration of ships under construction, made according to the farms in Appendix VII to this Decree(not printed herein). 2.Regional shipregistrars shallbasethemselves onthearchiveddossiers to re-grantshipregistration © VIETNAM LAW& LEGAL FORUM 12 OFFICIAL GAZETTE Issue nos06-07/ApriI2009 (Cong Bao nos181·1821Apri/6, 2000) certificates with the old registration numbers and note down the wmcl "re-gmnt", for Im:t, lorn or damaged certificates. 3.Regional shipregistrars shall grantcertificates specified in Clauses1and2 of thisArticlewithin 5 working days after receiving complete and valid dossiers. In case of refusal to grant a certificate, they shallnotify in writing shipowners thereof. Section 3. REGISTRATIONOF VIETNAM SHIPMORTGAGES Article 17. Places uf regisuaiion uf Vietnam ship mortgages Vietnam ship mortgages can be registered at regional ship registrars where the. ships concerned are registered, Article 18. Dossiers forregistration ofVietnam ship mortgages A dossier for registration of Vietnam ship mortgage comprises the following papers: 1. TIle ship mortgage registration declaration, made according to the fonn in Appendix VIII to thisDecree (not printed herein). 2. The ship mortgage contract. Article 19. Dossiers for deregistration of Vietnam ship mortgage A dossier for deregistration of Viemam ship mortgage comprises the following papers: 1.The shipmortgagederegistration declaration, made according to the form in Appendix. IX to this Decree (not printed herein). 2. The Vietnam ship mortgage registration certificate, made according to theform inAppendix Xto this Decree (not printed herein). 3.Theshipmortgagee's written approval ofship demortgage, Article 20. Grant of Vietnam ship mortgage registration certificates or Vietnam ship mortgage deregistration certificate" Regional ship registrars shall record in the Vietnam National Ships Registration Book the mortgage registration or the mortgage deregistration immediately afterreceiving complete andvaliddossiers.and shall, within 3working days, grant Vietnam ship mortgage registration certificates or Vietnam ship mortgage deregistration certificates, made according to the form in Appendix XI to this Decree (not printed herein). In case of refusal to grant a certificate, they shall notifyin writing shipowners thereat. Article 21. Registration of mortgage extension Registration of mortgage extension complies withArticles 17, 18, 19 and 20 of this Decree. Section 4. REGISTRATION OF ViETNAMESE ORGANIZATIONS' OR INDTVIDUALS' SHIPS FLYING FOREIGN FLAG Article 22. Registration of shipsflyingforeign flag 1. Ships owned by Vietnamese organizations or individuals can be registered for flying foreign flag in the following Ca8C:!: a/ Ships purchased or hire-purchased from foreign countries but ineligible for registration in the Vietnam National Ships Registration Book underArticle 16 of Vietnam's MaritimeCode and this Decree. bI Shipsoperated on the basis of ship bareboat chartercontracts or hire-purchase cornracts sigm:u betweenVietnamese organizations or individuals and foreign organizations or individuals for which ownership registration must be retained in the Vietnam National Ship Registration Book. 2. Procedures for registration for flyingforeign flag for Vietnamese ships atThe shipowner shall make ship registration e VIETNAM LAW &LEGAL FORUM '"UP not 06-07JApriI20Q9 (COng Bao{/()S 181-182JApfii 6, 2(09) OFI=ICIAL GAZETTE suspension or deregistratio» under Clauses 1 and 2,Article 15 of this Decree; bl The regional ship registrar shall carry out procedures for registration suspension or deregistratlou uf Ilyiug uf Vietuaiuese nag, withdraw theVietnam ship registration certificate and grant a new Vietnam ship registration certificate indicating the registration of ship ownership, Article 13. Procedures for registration of foreign ships purchased by Vietnamese organizations and individuals and registered for flying foreign flag 1. In case Vietnamese organizations or individuals onlyregisterfor flying foreign flag but do not register for ship ownership in foreign countries, they shall make ship ownership registration at regional ship registrars, 2.A dossier for registration of ship ownership compnses: aJ A written request fm: regbtrution of :'ihip ownership; hi Acopy of the ship registration certificate; cJA copy of tm.. ship [tl rrch", <:t' nnri sale l'Mtrfu't or lawful paperevidencing shipownership. 3. Within 5 working days after receiving complete andvaliddossiers, regional shipregistrars shall grant Vietnam ship registration certificates indicating ship ownership registration. In case of refusal, they shall notify in writing shipowners thereof. ChapterIII SHIPPURCHASE, S.t\LEANDBUILDING Article 24. Principles on ship purchase, sale and building 1.Shippurchase, sale andbuilding areaspecific investment activity. The orderand procedures for investment in ship purchase, sale and building comply with Vietnam's Maritime Code and this Decree. 2. Ship purchase, sale and building projects must comply with the sectoral development master plans and the national ship fleet: ensure conditions on maritime safety and security and environmental pollution prevertrion ann control in accordancewithVietnamese law and relevant treaties to which the Socialist Republic of Vietnamis a contracting party. Article 25. Ship purchase, sale and building projects Shippurchase, sale andbuilding projects shall beclassified by source of capital as follows: L Projects funded with 30% or mQl;e of slate capital, referred to as state-funded projects. 2.Projects funded withnon-state ca'prtal or less than 30% of state capital,referredto as non-state funded projects. Article 26. Forms of ship purchase, sale and building 1. For state-funded ship purchase and sale projects: af Shippurchase and salebetween Vietnamese and foreign organizations or individuals shall be conducted in the form of competitive offers in accordance withinternational practicesfrom atleast 3 (three) offerers such as shipowners or ship charterers, ship managers, ship operarozs, brokers and shipbuilding yards; bIShip purchase and sale between Vietnamese organizations and individuals shall be conducted in the form of auction or competitive offer in accordance with international practices. 2. State-funded shipbuilding projects shall be implemented with competitive offers fromat least 3 shipbuilding yards or theirrepresentatives. @ VIE.TNAM LAW & LE.GAL FORUM 14 OFFICIAL GAZETTE ~ue nos06-07/April 2009 (GOng Daonos1D1-182/Apri/6, 20(9) 3. For non-state-funded shippurchase, saleand building projects. concemer! orgl1ni7:ltions 110r! individuals shall decide on the form of ship purchase, sale and building. Artide 27. PrOCC:l:l of implementation of ship purchase, sale and building projects For state-funded ship purchase, sale and hiliIding projects. the following process must be complied with: 1. Selecting ships or ship purchasers and shipbuilding yards. 2.Elaborating and submitting forapproval ship purchase, sale andbuilding projects. 3. Deciding on ship purchase, salel10rlbuilding. Article 28. Competence to decide on ship purchase, sale and building 1. For state-funded ship purchase, sale and buildingprojects: atMinisters, headsofministerial-level agencies or government-attached agencies, presidents uf People's Committees of provinces and centrally run cities, boards of directors of state groups and corporations (set up by the Prime Minister) may decide oninvestment inprojectscapitalized atVND 75 billionor more. bl Directors of general departments or departments underministries or stare corporations (decidedby ministers) may decideon investment in projectscapitalized at underVND 75 billion. For projects not yet included in ~pproVf~rl sectoralmaster plans, investorsshall report them to relevant line ministries for investment decision. 2. Fornon-state-funded shippurchase, sale and building projects, concerned organizations and individuals shall makedecision. Article 29. Ship purchase, sale and building dossiers 1. A ship purchase dossiercomprises: aJ A report on ship purchase; bl The ship purchase project, indicating the necessity of investment, typeof ship,quantity and basictechnical specifications of the ship,estimated shipprice, fundingsourcefor ship purchase, form of "hip purchase, method of operation, economic benefits and othernecessary issues; d Acopy of the ship registration certificate; dJ The report on technical survey of the ship, madebyVietnamor foreign registerorinternational shipsurveyor designated by the shippurchaser and sellerand accredited by Vietnam register; eIThe ship's copies of certificates of maritime safety andenvironmental pollution prevention and control which are issuedby a competentregister; t/Ihe loanguarantee agreement, if so requested by the ship selleror loan provider. 2.A ship saledossiercomprises: aJA report on the ship sale proposal; bl A copy of the Vietnam ship registration certificate indicating the ship ownershipstatus; d The ship's copies of certificates of maritime safetyandenvironmental pollution prevention and control which are issuedby a competentregister; 3. A Ship buildingdossier comprises: aJ A reporton ship building; bl The ship purchase project, indicating the necessity of shipbuilding, projected Shipbuilding yard,timeofbuilding anddeliveryofthe ship,total investment, investment source structure; payment methodandschedule, basictechnical specifications ofthe ship, method ofoperation, economicbenefits and othernecessary issues; d The basicship designdossier; dI Principal provisions of the draft contract or © VIETNAM LAW &LEGAL FORUM Isouenot:06-Q7/ApriI2000 (Cong Bao nos 181-182/Apri/6. 2009) OFFICIAL GAZETTE 15 equivalentwritten agreement: e1The loan guaranteeagreement, ifsorequested by the shipseller or loan provider. 4. For non-state-funded ship putrha<:e, sale and building projects, concerned organizations and individuals shall decide on their dossiers, except forshippurchase projectswhichmustcomplywith Points c, d and e, Clause 1 of this Article. Article 30.Decisionon shippurchase, saleand building On thebasis of ship purchase, saleand building dossiers specified in Article 29 of this Decree, competent persons defined in Article 28 of this Decree may decide on ship purchase, sale and building. Article 31.Responsibilities and powersof ship purchasers, sellers ami builders 1. Ship purchasers, sellers and builders shall take responsibility for: aIThe truthfulness andlawfulness ofdocuments in the ship purchase, sale or building dossier submitted to the organization or individual competent to decide on ship purchase, sale Of building; hi Thegenuineness and technical qUality of the ship, ship purchase andsale or building cost and financial conditions of the shippurchase, saleand building project; cl The terms of the draft contract on ship purchase, sale orbuilding. Theymay officially sign the contract only after obtaining approval of the organization or individual competent to decideon ship purchase, sale or building. 2. Ship purchasers, sellers and builders have the following powers: a1'10 directly negotiateand signthe contracton ship purchase, sale or building. And carry out procedures for handover and receipt and import and export of ships in line with competent authorities' ship purchase, sale and building decisions; bl If finding it necessary, to hire project elaboration consultants or entrust others to carry outprocedures forhandover andreceiptand import and export of ships. Article 32. Ship importand export procedures On the basis of ship purchase, saleandbuilding decisions andcontracts, written records ofhandover and receipt of ships and Vietnam ~gister's certificates of the technical condition') of ships, customs offices shall carry out ship i~rt and export procedures. ChapterlV IMPLEMENTATION PROVISTONS Article 33.Effect 1. Tins Decree takes effect on June 1, 2009. and replaces the Government's Decree No. 491 2006!ND-CP ofMay 18,2006,onshipregistration, purchaseand sale. 2. This Decree is attachedwith 12 appendices [not printed herein). Article 34. Organization uf impkmemauOll 1. The Ministry of Finance shall specify the collection, remittanceand use of ship registration and mortgage fees. 2. Ministers, headsofministerial-level agencies, heads of government-attached agencies and presidents of provincial/municipal People's Committees shallhave to implementthis Decree On be1w1fof the Government Prime Minister NGUYEN TAN DUNG (S) VIEINAM LAW 6; LI:GAll-ORUM