Nghị định 57/2010/NĐ-CP hướng dẫn thi hành Pháp lệnh thủ tục bắt giữ tàu biển

DECREE

DETAILING AND GUIDING THE IMPLEMENTATION OF THE ORDINANCE ON PROCEDURES FOR THE ARREST OF SEAGOING SHIPS

THE GOVERNMENT

Pursuant to the December 25, 2001 Law on Organization of the Government;
Pursuant to the August 27, 2008 Ordinance on Procedures for the Arrest of Seagoing Ships;
At the proposal of the Minister of Transport, DECREES:

Chapter I

GENERAL PROVISIONS

Article 1. Scope of regulation

This Decree stipulates the jurisdiction, order and procedures for the arrest of seagoing ships under court decisions to secure the settlement of maritime claims or application of provisional urgent measures, to enforce civil judgments or under judicial mandate given by foreign courts or decisions on release of seagoing ships from arrest; the handling of seagoing ships abandoned by their owners and the auction of arrested seagoing ships and other related matters.

Article 2. Subjects of application

This Decree applies to Vietnamese and foreign agencies, organizations and individuals related to seagoing ships arrested in Vietnam.

Article 3. Interpretation of terms

In this Decree, the terms below are construed as follows:

1. Arrest of seagoing ship means forbidding a seagoing ship to move or subjecting it to restricted movement under a competent court's decision to ensure the settlement of a maritime claim or the application of a provisional urgent measure, at the request of a civil judgment enforcement body or under judicial mandate given by a foreign court;

2. Release of seagoing ship means permitting a seagoing ship to move upon the expiration of the period of arrest, the cancellation of the decision on its arrest or the issuance of a court decision on its release;

3. Decision on arrest of seagoing ship means a competent court's decision on arrest of a seagoing ship to secure settlement of a maritime claim or the application of a provisional urgent measure, at the request of a civil judgment enforcement body or under judicial mandate given by a foreign court;

4. Decision on release of seagoing ship means a competent court's decision on release of a seagoing ship from arrest;

5. Port authority means the authority of a maritime port or regional inland waterway port at which a seagoing ship subject to an arrest

application conducts its maritime operation;

6. Auction of arrested seagoing ship under a competent court's judgment or decision means the sale of an arrested seagoing ship through an auction;

7. Pursuit means the deployment of appropriate functional or professional force(s) to pursue a seagoing ship which is subject to a court decision on arrest but fails to abide by that decision and departs from the port without permission or has departed from the port by the time of issuance of that decision or receipt of that decision by the port authority director.

Chapter II

ARREST OF SEAGOING SHIPS OR RELEASE OF SEAGOING SHIPS FROM ARREST

Section I. COMPETENCE TO ARREST SEAGOING SHIPS OR RELEASE SEAGOING SHIPS FROM ARREST

Article 4. Responsibilities and powers of a port authority director

1. A port authority director shall implement decisions on arrest of seagoing ships and decisions on release of seagoing ships from arrest under this Decree and relevant laws. He/she may authorize any of his/her deputies or the port authority chief or deputy chief representative to implement decisions on arrest of seagoing ships and decisions on release of seagoing ships from arrest. The authorization must be made in writing.

2. When implementing a decision on arrest of a seagoing ship or a decision on release of a seagoing ship from arrest, a port authority director has the following responsibilities and powers:

a/ To assume the prime responsibility for. and direct the port authority's coordination with concerned state management agencies in, arresting a seagoing ship or releasing a seagoing ship from arrest under a court decision;

b/ To designate a mooring or anchoring position for. and make requests for restricted operation or movement of. the arrested seagoing ship; to withdraw the port departure permit already granted to the seagoing ship;

c/ To coordinate with the border guards, waterway traffic police and other state management agencies in regularly inspecting and supervising the seagoing ship during the period of arrest:

d/ To decide on pursuit of the seagoing ship and request the border guards, marine police and waterway traffic police to pursue the seagoing ship subject to an arrest decision which has departed from the port or left the designated position without permission;

e/ To coordinate with the border guards, marine police and waterway traffic police in pursuing the seagoing ship.

3. The port authority director may refuse to arrest a seagoing ship under a court decision in case the seagoing ship subject to the court decision has left the area under the port authority's management.

Article 5. Responsibilities and powers of the border guards, marine police, waterway traffic police and other organizations and state management agencies

1. The border guards and regional waterway traffic police departments shall:

a/ Supervise seagoing ships during the period of arrest at designated mooring or anchoring positions within the scope of their operations at the request of port authority directors:

b/ Detect, prevent and promptly notify port authorities of seagoing ships' movement without permission or failure to comply with requests for restricted movement during the period of arrest.

2. The border guards, marine police and regional waterway traffic police departments shall organize the pursuit of seagoing ships under arrest under Article 9 of this Decree at the request of port authority directors.

3. State management agencies in charge of maritime, security, quarantine, customs, taxation, culture and information, fire and explosion prevention and fighting, environmental protection, pilotage organization and other concerned agencies and organizations shall coordinate with one another in implementing decisions on arrest of seagoing ships and decisions on release of seagoing ships from arrest at the request of port authority directors and submit to administration by port authority directors in coordinated implementation of these decisions.

Article 6. Responsibilities of masters of arrested or released seagoing ships

1. To abide by court decisions on arrest of seagoing ships and court decisions on release of seagoing ships from arrest.

2. To notify, upon receiving decisions on arrest of seagoing ships or decisions on release of seagoing ships from arrest, ship owners, charterers, operators and parties with related lawful rights and interests of the arrest or release of seagoing ships.

3. To maintain the operation of seagoing ships, preserve seagoing ships and assets and cargoes on board these ships under law.

4. To comply with requests of port authorities for restricted operation or movement of ships during the period of arrest.

Section 2. ORDER AND PROCEDURES FOR IMPLEMENTING DECISIONS ON ARREST OF SEAGOING SHIPS

Article 7. Order and procedures for implementing decisions on arrest of seagoing ships

1. Upon receiving a court decision on arrest of a seagoing ship, a port authority director shall issue a formal notice of implementation of the decision and appoint a port authority official to implement it. Formal notices of implementation of decisions on arrest of seagoing ships shall be made according to a form provided in Appendix I to this Decree (not primed herein).

2. Right after being appointed, the port authority official must be present on board the seagoing ship to announce and hand over the decision on arrest of seagoing ship and the formal notice of implementation of the decision to the shipmaster for compliance. In case the shipmaster is absent, the decision and formal notice may be handed to the shipmaster's first deputy or deck shift-watching officer. In case there is nobody on board to sign the receipt of the decision on arrest of seagoing ship, the port authority official shall make a minutes bearing the signature of a witness (if any) and stick the decision and formal notice at the main deck aisle by the ramp to the ship.

3. The port authority official shall withdraw the port departure permit already granted to the seagoing ship.

4. The announcement, handover and receipt of a decision on arrest of seagoing ship and the formal notice of implementation of the decision and withdrawal of the port departure permit (if any) must be recorded in minutes made according to a form provided in Appendix III to this Decree (not printed herein).

5. In force majeure circumstances in which the port authority official cannot be present on board the seagoing ship to perform the jobs specified in Clause 2 of this Article, the port authority shall promptly notify such, by appropriate methods, to the court, the shipmaster or the ship owner or his/her agent and concerned agencies and organizations at the port, and concurrently apply appropriate measures to promptly announce and hand over the decision on arrest of seagoing ship.

6. Upon finishing the implementation of the decision on arrest of seagoing ship, the port authority director shall notify in writing the court, the Vietnam Maritime Administration or the Vietnam Inland Waterway Administration and concerned slate administrations at the port of the implementation of the decision.

Article 8. Seagoing ships departing from ports when decisions on arrest are issued

1. In case a port authority receives a decision on arrest of a seagoing ship after the ship departs from the port or its mooring or anchoring area, the port authority shall promptly contact and notify the shipmaster or the ship owner or his/ her agent of the court decision on arrest of the seagoing ship, requesting the shipmaster to moor or anchor the ship in the position designated by the port authority for implementing the decision.

2. When it is impossible to contact the shipmaster, the ship owner or his/her agent or when the shipmaster fails to moor or anchor the ship in the position designated by the port authority or moves the ship from that position without permission after receiving a decision on arrest of the seagoing ship, the port authority shall request the border guards, marine police and waterway traffic police to pursue the seagoing ship.

Article 9. Coordination in pursuit of seagoing ships subject to court decisions on arrest

1. When necessary to pursue a seagoing ship subject to a court decision on arrest, based on practical conditions and the situation and location of the seagoing ship's operation and scope of operation of forces able to join the pursuit, the port authority director may request the regional marine police or the border guard command or the waterway traffic police of the province or centrally run city where the ship is operating to assume the prime responsibility for, or coordinate with the port authority in, pursuing the seagoing ship. Requests for pursuit of seagoing ships must be made in writing.

2. Written requests for pursuit of seagoing ships must be sent as most urgent telegrams, by facsimile or otherwise electronically transmitted. Such a request must clearly indicate the name, nationality. IMO number, port of registration and identification features of the ship; the serial number and date of signing of the decision on arrest of seagoing ship, the decision-issuing court and the reason for arrest, the time of departure from the port, current position, planned route and the port of destination (if any) of the ship.

3. Upon receiving a written request for pursuit from the port authority director, the chief of the regional marine police or the border guard command or waterway traffic police requested to assume the prime responsibility for the pursuit shall mobilize forces and special-use vessels under his/her powers for pursuing the seagoing ship subject to the court decision on arrest, and concurrently notify such to the port authority. In case the pursuit cannot be organized, the reason must be clearly indicated. While in pursuit, the force assuming the prime responsibility for the pursuit may request other forces' coordination when necessary.

4. In the course of pursuing a seagoing ship subject to a court decision on arrest, the pursuing force shall regularly contact and report on the pursuit to the port authority for coordination.

5. After arresting the ship, the pursuing force shall escort it to the designated mooring or anchoring position and hand over it to the force supervising the seagoing ship under arrest defined in Clause 1. Article 5 of this Decree and notify the arrest to the port authority for implementation of the court decision on arrest under regulations.

In case it is impossible to contact the ship or the pursuit cannot be carried out or is unsuccessful, the port authority director shall promptly notify such in writing and through electronic media to the court and concerned agencies. The notice must clearly indicate the time of the ship's departure from the port and expected port of arrival, measures applied by the port authority and concerned administrations and organizations to contact and pursue the ship.

7. The port authority shall assume the prime responsibility for. and coordinate with the regional marine police, the border guard command and the waterway traffic police of the province or centrally run city in. promulgating regulations on coordination in pursuit of seagoing ships subject to court decisions on arrest in the area under the port authority's management.

Article 10. Expenses for the arrest of seagoing ships

1. Expenses for the arrest of a seagoing ship include expenses for arresting the seagoing ship under a court decision, expenses for supervising the seagoing ship during the period of arrest and expenses for pursuing the seagoing ship (if any).

2. Expenses for arresting a seagoing ship shall be paid on the following principles:

a/ The ship owner shall pay these expenses if the application for seagoing ship arrest is grounded;

b/ The seagoing ship arrest applicant shall pay these expenses if his/her application is groundless;

c/ These expenses shall be covered by proceeds from the auction of the seagoing ship in case the ship owner abandons his/her ship;

d/ The state budget covers these expenses in the following cases:

- The pursuit of the seagoing ship is unsuccessful and the application for seagoing ship arrest is grounded;

- Other special cases as decided by the Ministry of Transport.

The Ministry of Finance shall guide in detail the payment of expenses for the arrest of seagoing ships from the state budget as specified at Point d of this Clause.

Article 11. Expenses for maintaining operations of seagoing ships during the period of arrest

1. Ship owners or operators shall pay expenses for maintaining operations of their arrested seagoing ships.

2. In case ship owners or operators fail to pay or are no longer able to pay expenses for maintaining operations of their arrested seagoing ships, shipmasters or ship owners' agents shall apply necessary measures to maintain operations of these ships.

3. In case organizations and individuals defined in Clauses 1 and 2 of this Article are no longer able to finance operations of arrested seagoing ships, port authorities having carried out the seagoing ship arrest shall finance necessary operations of these ships.

4. All expenses for maintaining operations of a seagoing ship during the period of arrest shall be paid according to the agreement between involved parties or under a court decision on the following principles:

a/ The ship owner shall pay expenses if the application for seagoing ship arrest is grounded:

b/ The seagoing ship arrest applicant shall pay expenses if his/her application is groundless:

c/ In case the ship owner abandons the ship, these expenses shall be paid with proceeds from the auction of the ship:

d/ The state budget shall pay these expenses in other cases. The Ministry of Finance shall assume the prime responsibility for. and coordinate with the Ministry of Transport in, stipulating and guiding the payment of expenses necessary for maintaining safe operations of seagoing ships in cases these expenses are covered by the state budget.

Section .3. ORDER AND PROCEDURES FOR RELEASING SEAGOING SHIPS FROM ARREST

Article 12. Order and procedures for implementing court decisions on release of seagoing ships from arrest

1. Upon receiving a court decision on release of a seagoing ship from arrest, a port authority director shall issue a formal notice of implementation of the decision and appoint a port authority official to implement it. Such a formal notice shall be made according to a form provided in Appendix II to this Decree (not printed herein).

2. Right after being appointed, the port authority official must be present on board the ship to announce and hand over the decision on release of the seagoing ship from arrest and the formal notice of implementation of this decision to the shipmaster for compliance. In case the shipmaster is absent, the decision and formal notice shall be handed over to the shipmaster's first deputy or the deck shift-watching officer. If there is nobody on board to sign the receipt of the decision, the port authority officer shall make a minutes bearing the signature of a witness (if any) and stick the court decision and formal notice of implementation of this decision at the main deck aisle by the ramp to the ship.

3. The announcement, handover and receipt of decisions on release of seagoing ships from arrest and notification of implementation of these decisions shall be recorded in minutes made according to (he form provided in Appendix III to this Decree (not printed herein).

4. In force majeure circumstances in which the port authority official cannot be present on board the seagoing ship to perform the jobs specified in Clause 2 of this Article, the port authority shall promptly notify such, by appropriate methods, to the court, the shipmaster or the ship owner or his/her agent, the ship operator and concerned agencies and organizations at the port, and concurrently seek measures to promptly to implement the decision whenever it is possible.

5. Upon finishing the implementation of the decision on release of the seagoing ship, the port authority director shall notify in writing the court, the Vietnam Maritime Administration or the Vietnam Inland Waterway Administration and concerned state administrations at the port of the implementation of the decision, and concurrently grant a port departure permit to the seagoing ship under law.

Article 13. Order and procedures for releasing seagoing ships when court decisions on arrest of these seagoing ships are revoked

The order and procedures for releasing seagoing ships when court decisions on arrest of these seagoing ships arc revoked comply with Article 12 of this Decree.

Article 14. Order and procedures for releasing seagoing ships upon the expiration of the period of arrest under court decisions

Upon the expiration of the period of arrest of a seagoing ship under a court decision, if receiving no written request or decision on continued seizure of the seagoing ship from the court, the port authority director shall grant a port departure permit to the seagoing ship under law and concurrently notify in writing to the court, the Vietnam Maritime Administration or the Vietnam Inland Waterway Administration and concerned state administrations at the port of the grant of the port departure permit.

Chapter III

HANDLING OF SEAGOING SHIPS IN CASE SHIP OWNERS ABANDON THEIR SHIPS AND AUCTION OF SEAGOING SHIPS

Article 15. Abandonment of arrested seagoing ships by their owners Arrested seagoing ships shall be regarded as abandoned by their owners in the following cases:

1. The ship owners declare in writing the abandonment of their arrested seagoing ships without transferring the rights and obligations related to these ships to lawful insurers or authorizing other organizations and individuals. Written declarations of ship abandonment of ship owners shall be sent to courts that have issued seagoing ship arrest decisions and to port authorities implementing these decisions;

2. The ship owners actually abandon their ships at their own will and, 30 days after the date port authorities send written notices to them and make 3 consecutive announcements in the central and local mass media on the responsibility of the ship owners for arrested ships, fail to contact the notifying authorities.

Article 16. Abandonment by seagoing ships' owners of their ships arrested under decisions on arrest of seagoing ships to secure settlement of maritime claims

Cases of abandonment by seagoing ships' owners of their ships arrested under court decisions to secure settlement of maritime claims shall be handled as follows:

1. In case the seagoing ship arrest applicant institutes a lawsuit at court for settlement of the dispute and the court accepts the case, the handling of the seagoing ship shall be decided by the court based on the court judgment or decision;

2. In case the seagoing ship arrest applicant does not institute a lawsuit at court or institutes a lawsuit but the court rejects the law suit petition, the seagoing ship shall be auctioned and proceeds there from shall be remitted into the state budget.

Article 17. Abandonment by seagoing ships' owners of their ships arrested under decisions on a provisional urgent measure to arrest seagoing ships

Cases of abandonment by seagoing ships' owners of their ships arrested under decisions on a provisional urgent measure, the handling of arrested seagoing ships shall be decided by courts that have issued the decisions on application of a provisional urgent measure through their judgments or decisions.

Article 18. Abandonment by seagoing ships' owners of their ships arrested under decisions on arrest of seagoing ships to secure judgment enforcement

Cases of abandonment by seagoing ships' owners of their ships arrested to secure judgment enforcement, civil judgment enforcement bodies shall auction these ships under court judgments or -decision for enforcement thereof. In case the judgment enforcement obligation requires the return of seagoing ships to judgment enforcement creditors, judgment enforcement bodies shall hand over these ships to judgment enforcement creditors.

Article 19. Abandonment by seagoing ships' owners of their ships arrested under decisions on arrest of seagoing ships under judicial mandate given by foreign courts

Cases of abandonment by seagoing ships' owners of their ships arrested under decisions on arrest of seagoing ships under judicial mandate given by foreign courts shall be handled as follows:

1. Courts that have issued decisions on arrest of seagoing ships under judicial mandate given b\ foreign courts shall base themselves on judgments, decisions or requests of foreign courts that have given judicial mandate for the arrest of seagoing ships to handle arrested seagoing ships;

2. Upon the expiration of the period of arrest, if there is no request of foreign courts that have given judicial mandate for the arrest of seagoing ships, these ships shall be auctioned and auction proceeds shall be remitted into the state budget.

Article 20. Auction of arrested seagoing ships

1. The auction of arrested seagoing ships shall be conducted under court judgments or decisions.

2. The order and procedures for auctioning arrested seagoing ships comply with the law on property auction.

Article 21. Principles of payment of charges, fees and expenses for arresting seagoing ships and debts with proceeds from the auction of arrested seagoing ships

Proceeds from the auction of arrested seagoing ships shall be used to pay charges, fees and expenses for arresting these ships and debts in the following priority order:

1. Charges and fees for judgment enforcement, expenses for arresting seagoing ships and expenses for auctioning arrested seagoing ships and expenses for maintaining operations of ships during the period of arrest:

2. Maintenance, wage, labor remuneration, severance, job-loss allowance, working capacity loss allowance: compensations for death or injuries and other spiritual damage of crewmembers working on board arrested ships;

3. Court charge and fee;

4. Maritime dues and fees;

5. Other debts under court judgments or decisions.

Charges, fees and debts specified in this Article shall be paid within 10 days after proceeds from the auction of seagoing ships are collected.

Chapter IV

IMPLEMENTATION PROVISIONS

Article 22. Effect

This Decree takes effect on July 9, 2010.

Article 23. Organization of implementation

1. The Minister of Transport shall organize the implementation of this Decree.

2. Ministers, heads of ministerial-level agencies, heads of government-attached agencies, and chairpersons of provincial-level People’s Committees shall implement this Decree.-

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