Maritime code to be overhauled
The current Maritime Code of Vietnam
was passed on June 30, 1990 by the VIIIth National Assembly
of the Socialist Republic of Vietnam. Over the past
fourteen years’ implementation, the Code has created
favorable conditions for the maritime sector to discharge
its task of serving the domestic flow of goods, contributing
to boosting export and import as well as economic growth.
Yet, the Code has also revealed a number
of limitations and shortcomings which need to be overcome
in order to better serve the country in the period of
industrialization and modernization and international
I. CONTEXT OF THE COMING INTO
BEING OF THE CODE
1. The 1990 Maritime Code of Vietnam
was drafted and passed at a time when the Communist
Party of Vietnam embarked on the implementation of the
renewal (doi moi) policy. By then, when the notion of
a market economy remained unclear, the private economic
sector was already permitted to do business in sea transport
though still with a restricted scope of operating seagoing
ships, especially along overseas routes. These restrictions
can be seen in the Code.
Moreover, under the Code, only permanent
Vietnamese residents, not overseas Vietnamese, have
been allowed to register their ships in the country.
2. The Code was drafted and passed
at a time when Vietnam’s legal system was incomplete.
Since the passage of the Code, the first economic law
in Vietnam, over 100 codes, laws and ordinances, including
the Civil Code, the Labor Code, the Environmental Protection
Law, the Insurance Business Law… have been promulgated.
Besides, in those days, other law branches remained
undeveloped while private international law was not
yet formed in Vietnam.
3. The Code was compiled at a time
when Vietnam’s maritime transport was not yet strongly
developed. The study of international maritime conventions,
such as those of the United Nations, the International
Maritime Organization (IMO) and the Comite Maritime
International (CMI), was not comprehensive and thorough,
resulting in the inclusion of some unenforceable provisions
in the Code. This has caused not a few difficulties
to Vietnamese shipping enterprises, cargo owners as
well as law enforcement bodies. Besides, since 1990,
many international conventions have been constantly
revised or newly adopted, constituting a considerable
source of international maritime law.
4. The Code was formulated at a time
when maritime terms were not yet fully studied or were
differently interpreted, so it could not give the definitions
of many maritime terms.
5. By the end of 1992, only State-owned
seaport enterprises had operated in Vietnam, including
ports managed by the Transport Ministry and localities,
and special-use ports managed by other ministries and
branches. Meanwhile, foreign cooperation and investment
in the port domain was minimal. In that period, the
view on clear separation between State management and
business was already accepted, so port authorities were
separated from port enterprises. However, due to an
incomplete perception of the model of port authorities,
the Code has only provided for State authorities in
charge of managing maritime activities in seaport waters.
It contains no provisions on authorities performing
State management over maritime activities in seaport
6. The Code was drafted at a time when
multimodal transport, an advanced transport mode, was
not yet strongly developed in Vietnam. For this reason,
multimodal transport is not mentioned in the Code.
II. BASIC CONTENTS OF THE CODE
The current Code comprises 18 chapters
with 244 articles. Each chapter constitutes a separate
institution regulating legal relations arising in a
specific domain of maritime activity, such as seagoing
ships, shipcrew, maritime services, cargo and passenger
carriage. The Code also covers the resolution of maritime
disputes and arrest of ships and lays down principles
on the selection of applicable laws in case of law conflicts.
For it has been formulated on the basis of the provisions
of relevant international conventions and international
maritime practices, the contents of the Code are of
a high international character, creating a legal corridor
for maritime activities, helping Vietnamese and foreign
enterprises self-regulate their business activities
in compliance with laws.
1. On the use of seagoing ships:
Chapters I, II, III, V and VI of the
Code all contain provisions on the use of seagoing ships,
covering from seagoing ships, crewmen working onboard
seagoing ships, cargo and passenger carriage contracts,
ship charter parties to the prevention of pollution
from ships, with the following basic contents:
a/ Provisions on seagoing ships:
- The concept of shipowner, seagoing
ship registration conditions, deletion of seagoing ship
registration in Vietnam, conditions for seagoing ships
owned by Vietnamese organizations or individuals to
be registered abroad.
- The mechanism of protection of Vietnamese
seagoing ships in the transport of cargoes between Vietnamese
seaports, a mechanism applied by all maritime states
- Measures to ensure maritime safety
and responsibility for preventing and controlling marine
pollution, for ships operating in the sea, especially
oil and hazardous cargo carriers.
- Requirements for seagoing ships in
the prevention of collusion.
- Seagoing ship capacity certificates
and other papers of ships.
- Rights to ownership of seagoing ships,
such as the rights to transfer, pledge, mortgage, maritime
lien of seagoing ships, arrest of ships, and the courts’
jurisdiction over the arrest of seagoing ships.
- Seagoing ship business: general principles
on bare-boat charter and time charter.
b/ Provisions on shipcrew: Criteria
and duties of crewmen, working regime of crewmen, responsibilities
of shipowners for crewmen, rights and responsibilities
of captains with regard to ships and cargoes carried
- Working regimes for Vietnamese crewmen
working onboard foreign seagoing ships and foreign crewmen
working onboard Vietnamese seagoing ships.
c/ Provisions on cargo carriage by
- Contracts on cargo carriage by sea,
rights and responsibilities of carriers in the process
of carrying cargoes from loading places to unloading
places, rights and responsibilities of shippers, bills
of lading and cargo carriage documents; statute of limitations
for making claims about the performance of carriage
contracts, and about loss of cargoes carried under bills
- Liabilities of shipowners in the
cargo carriage, such as compensation for cargo loss,
compensation levels, cases of liability exemption, right
to seize cargoes, compensation for general average,
limitation of shipowners’ liability for cargo claims.
2. On seaports:
In the Code, the provisions on seaports
and seaport management are included in Chapter IV on
Seaports and Port Authorities. This chapter provides
- The concepts of seaport, seaport
land areas; seaport waters and navigable zones.
- Authorities performing the State
management over maritime shipping: competence and responsibilities
of port authorities, serving as the basis for State
management over maritime activities in seaports over
the past time.
- Competence to publicize seaports,
impose temporary bans on the ships’ entry into or exit
from ports, and competence to promulgate regulations
on maritime activities in seaport waters or navigable
3. On maritime services:
The Code has governed in various chapters
legal relations arising from maritime services, such
as maritime agency and brokerage (Chapter VIII), maritime
pilotage (Chapter IX), towage of ships on sea (Chapter
X), maritime salvage (Chapter XI), recovery of sunken
property (Chapter XII), and maritime insurance (Chapter
4. On the resolution of maritime
Provisions on the resolution of maritime
disputes include those on the principles of selection
of applicable laws in case of law conflicts (Chapter
I), statute of limitations for lodging claims (in relevant
chapters), courts’ jurisdiction over the resolution
of maritime disputes (Chapter XVII) and over the arrest
of ships (Chapter II).
So, it can be said that, with the above-said
major contents, the Code has governed most of legal
relations in maritime activities.
III. POSITIVE IMPACTS OF THE
1. The Code has established the principles
for the application of other laws in the cases not yet
specified in the Code, permitting the application of
international maritime practices and the selection of
applicable laws in case of law conflicts, such as:
a/ The principle on mutual agreement,
unless restricted by the Code (Clause 1, Article 4);
b/ The principle on mutual agreement
on the application of foreign laws or international
maritime practices in maritime contractual relations
involving at least one party being a foreign organization
or individual and on the selection of arbitration or
a court in either of the two countries or in a third
country for the resolution of maritime disputes (Clause
2, Article 4);
c/ The principle on the application
of international agreements which Vietnam has signed
or acceded to in cases where such agreements contain
provisions different from those of the Code (Article
d/ The principle on mutual agreement
on the application of foreign laws, provided that such
laws are not contrary to Vietnamese laws (Article 7);
e/ The principle on the selection of
applicable laws in case of law conflicts.
The above-said preeminent principles have enabled the
parties to contractual maritime relations to take initiative
in selecting applicable laws over the past years when
Vietnam’s legal system remains incomplete. These principles
have been and will still be suitable to Vietnam’s maritime
activities in the process of international economic
2. The Code has institutionalized many
provisions of international conventions, which have
been acceded to, or widely recognized, by many countries,
such as those of IMO, CMI and the United Nations Conference
on Trade and Development (UNCTAD) on cargo carriage
by sea, shipowners’ civil liabilities, general average,
collisions, shipcrew, seagoing ships, maritime insurance,
etc. The Code has also included references to the maritime
laws of such countries as the former Soviet union, Poland,
Germany, Bulgaria, India… This has created favorable
conditions for maritime activities in Vietnam.
3. Since the effective date of the
Code, nearly 70 sub-law documents have been promulgated,
guiding the implementation of the Code. Together with
the Code, these documents have formed a basic legal
framework for maritime shipping, regulating legal relations
arising in maritime activities related to seagoing ships.
4. The Code has created a legal corridor
for maritime activities, helping domestic and foreign
enterprises freely operate within the prescribed framework,
making their shipping activities to comply with law
5. The Code has served as a legal basis
for the performance of the State management over maritime
shipping, the discharge of the responsibilities of a
coastal state and a port state (for checking ships’
activities in seaports), the responsibilities of a flag
state (for issuing certificates to ships and professional
certificates to crewmen), contributing to ensuring marine
safety, security and order. It has also created a legal
framework for the protection of the marine environment.
6. As most provisions of the Code are
compliant with the maritime laws of other countries
and international practices, the Code has been easily
accepted by countries having their ships entering and
leaving Vietnam’s seaports.
7. The Code has contributed to boosting
the development of Vietnam’s transport sector
in particular and its economy in general.
IV. LIMITATIONS OF THE CODE
Over the past years, big changes have
been observed in Vietnam’s economic as well as maritime
activities, such as increasing volumes of goods exported
and imported by sea. New requirements have arisen as
the country is accelerating its international economic
integration process. At the same time, the relevant
international conventions have also undergone new developments.
As a result, many provisions of the Code are no longer
suitable while others need to be supplemented. Specifically:
1. Scope of application and subjects
of regulation: The Code has only applied to Vietnamese
seagoing ships and, only in specific cases, to foreign
ones. This has caused a difficulty in the enforcement,
for instance, in the arrest of foreign ships in Vietnam.
As the Code only provides for the arrest of Vietnamese
ships, Vietnamese courts cannot order the arrest of
foreign ships in Vietnam. In this case, the courts must
resort to civil procedures. Besides, the concept of
seagoing ships is not specific enough, failing to clearly
distinguish seagoing ships from other kinds of ships
such as fishing ships, inland waterway means…
2. Terminology: Maritime terms have
not yet been fully interpreted and used in a uniform
way while many others are not yet included in the Code.
3. Resolution of maritime disputes:
Many provisions on the resolution of maritime
disputes are unclear, even contradictory to those of
the economic and civil procedure legislation, especially
when it comes to the application of the statute of limitations
for lawsuit initiation. This has caused difficulties
to the concerned parties and adjudicating bodies as
4. The provisions on the use of the
French gold franc for calculation of loss compensation
and civil liabilities of shipowners are infeasible,
for, in reality, Vietnamese banks cannot convert this
currency into Vietnam dong. At present, only the special
drawing rights (SDRs) is used by the International Monetary
Fund, which can be converted in US dollar, then into
5. Sea transport:
a/ Provisions on seagoing ships: The
provisions concerning seagoing ships and the use and
operation of seagoing ships are insufficient, unclear,
inappropriate or unable to govern all legal relations
arising from reality. Some provisions are even contradictory.
Following are some examples:
- Shipowner, as defined in the Code,
is the owner of a seagoing ship. This concept is incomplete
because in Vietnam seagoing ships of State-owned enterprises
are State-owned assets assigned to such enterprises
for management. They do not come under the ownership
of the enterprises. So, in the registration of ships
of State-owned enterprises, the determination of enterprises
as shipowners is not compliant with the definition of
- The Code’s Chapter on shipowners’
civil liability contains many contradictory and infeasible
points, such as:
+ The currency used for compensation
is also the French gold franc, which is no longer used
+ The responsibility to prove one’s
fault: It is prescribed in the Code that shipowners
are obliged to prove that they are not at fault. This
provision is not consonant with Vietnam’s procedural
legislation according to which the complainants must
prove that losses are caused due to the shipowners’
faults if they want to claim damages from the shipowners.
+ The provision on the establishment
of a compensation fund when the compensated amount exceeds
the liability limit is irrational because the shipowner
concerned is only required to establish a compensation
fund which does not exceed the sum to which the shipowner’s
liability is limited for the release of his/her ship.
Besides, civil liabilities of ship charterers and ship
operators have not yet been clearly specified.
- Provisions on the rights to maritime
lien: The Code has no definition of maritime lien, thus
resulting in different interpretations. The Code also
fails to designate an agency to issue regulations on
the order and procedures for exercising the rights to
maritime lien. Moreover, it has not provided for the
statute of limitations for initiation of lawsuits related
to maritime lien.
- The definitions of pledge and mortgage
are not consistent with the Civil Code.
- Provisions on the arrest of seagoing
ships are incompliant with international maritime practices.
The Code has provided that courts may arrest ships only
after they have accepted the cases. This has caused
hurdles to organizations or individuals in arresting
ships, particularly foreign ones, in Vietnam. In order
to issue a ship arrest warrant, the court must accept
the case, which would take some time, while the arrest
of a ship must be conducted quickly and secretly. References
to international conventions on the arrest of seagoing
ships and maritime laws of many countries show that
ships may be arrested even in the cases where the courts
receive claimants’ requests for ship arrest.
Besides, the Code has not designated
an agency to issue regulations on the order and procedures
for arresting seagoing ships in Vietnam. Until now there
is still no legal document to this effect.
- Provisions on maritime safety and
prevention of marine pollution are insufficient. Maritime
security, an issue of concern to the international maritime
community, has not yet been addressed. Legal grounds
are also insufficient for the promulgation of sub-law
documents on this issue.
- Policies on development of ship fleets:
The Code has not yet laid down principles on development
investment (purchase and sale of ships), the autonomy
right of various economic sectors in the development
and commercial operation of ships.
b/ Provisions on shipcrew: The Code
lacks specific provisions on the working regime for
crewmen, which has not yet been prescribed in the Labor
Code, such as specific regulations on labor contracts
signed with crewmen, contracts on the hire of crewmen,
export of crewmen, working regime for crewmen, and so
c/ Provisions on contracts on cargo
carriage by sea are either unclear, insufficient or
unsuitable to the development of the relevant international
conventions, such as:
- There still lack many definitions,
like those of contractual carrier and de facto carrier.
- Provisions on cargo carriage under
bills of lading and cargo carriage under shipment contracts
- Provisions on the responsibilities
of carriers and shipowners are contradictory.
- Provisions on bills of lading, right
to cargo lien… are vague.
- Provisions on multimodal transport,
including sea transport mode, are insufficient.
- A number of provisions are no longer
suitable to the present reality, incompliant with other
laws and relevant international conventions, such as
those on shipowners’ civil liabilities for maritime
claims, the currency or the responsibility to prove
In the context of international economic
integration and when Vietnamese fleets have been only
able to transport about 15% of the export and import
volume, the limits of civil liability of shipowners
for maritime claims should be raised in order to protect
the interests of Vietnamese exporters and importers
and gain prestige for Vietnamese fleets.
6. On maritime services:
Many provisions on maritime services
are no longer suitable, being infeasible and incompliant
with the relevant international agreements, including:
+ Provisions on the liabilities of
shipowners, rights of recoverers of sunken property
and parties related to sunken property; the time limit
related to recovery of sunken property, regime of payments
for salvage efforts, maritime insurance….
+ Some new services in Vietnam, such
as multimodal transport, logistics … have not yet been
stipulated in the Code.
+ Lack of provisions on search and
7. On seaports:
The Code has no provisions on:
+ State management over maritime shipping
and business activities conducted in seaports’ land
+ Provisions on investment in the development
of seaport infrastructure, management and lease of the
commercial operation of seaport infrastructure, management
of loading and unloading and storage services…
General principles on the resolution
of maritime disputes (in Chapter XVII) have been laid
down in the Code but they are unclear, difficult to
understand, thus leading to difficult and irrational
application of the Code and resolution of maritime disputes
Generally speaking, though the Maritime
Code of Vietnam has formed a legal framework for maritime
activities in the country’s initial period of renewal
and integration, it has revealed many inadequacies which
need to be urgently addressed in order to facilitate
the development of Vietnam’s national economy in general
and its maritime sector in particular.
V. PROPOSED AMENDMENTS and
1. Principles for amendment and supplementation:
The Code should be revised on the following
a/ Taking the existing Code as the
main basis, amending and supplementing insufficient
or unsuitable provisions, striving to embrace all relations
established in current and future maritime activities
but not those already governed by other laws.
b/ Compliance with the provisions of
Vietnam’s legal system and international agreements
which Vietnam has signed or acceded to, or widely recognized
international maritime practices. As part of Vietnam’s
legal system, the Code must be consistent with the provisions
of the current legal system of Vietnam. Moreover, taking
into consideration the high international character
of maritime activities as well as the requirements of
the international economic integration process, the
revision of the Code must ensure compliance with international
agreements which Vietnam has signed or acceded to and
with widely-recognized international maritime practices.
c/ Assurance that the Code is open
and stable, meeting all requirements of actual maritime
activities as well as the development of Vietnam’s maritime
sector along the direction of industrialization and
2. Revision orientations:
a/ On the name of the Code:
For the immediate future, the new Code
should be called Vietnam Maritime Code (amended). If
it has many contents amended and supplemented this time,
then, when promulgated, it should be named Vietnam Maritime
Code plus the year of promulgation, like the names of
the amended constitutions.
b/ On structure:
The Code’s latest draft comprises the
preamble and 19 chapters. Compared with the 1990 Code,
the draft has 253 articles, of which:
- The number of articles unchanged:
- The number of articles amended: 176
- The number of new articles: 54 (21.34%).
c/ On amended contents:
The amended and supplemented contents
can be seen mostly in three major areas: relations arising
in the use of seagoing ships in sea transport, relations
arising in the management and commercial operation of
seaports, and relations arising from maritime services.
These changes are included in the following chapters:
Chapter I: Sea transport
1. Provisions on seagoing ships: To
ensure a clear and complete legal framework for seagoing
+ To amend the concept of seagoing
ship, which should not include fishing ships and inland
+ To amend the concept of shipowner
to comply with the State Enterprise Law and suit the
responsibilities of shipowners, ship operators and ship
charterers in the chapters on civil liabilities of shipowners,
recovery of sunken property.
+ Ownership rights: To include only
those provisions specific to seagoing ships in the Code,
avoid general provisions already existing in the Civil
Code. To add such concepts as maritime lien, ship arrest,
seagoing ship business (lease, purchase and sale…).
+ Maritime safety and prevention of
environmental pollution: To add provisions on these
matters in compliance with current international regulations.
These provisions should be used as principles for the
promulgation of sub-law documents.
2. Crew: To supplement those provisions
specific to Vietnamese crewmen, their obligations, crew
complement, responsibilities and powers of captains,
obligations of organizations and individuals in the
employment of crewmen, responsibilities of shipowners
for arranging crews, ensuring the working regime and
living conditions for crewmen working onboard seagoing
3. Cargo carriage by sea: To redress
the constraints already analyzed above, including:
+ Changing the names of the chapters
to suit their contents.
+ Supplementing concepts and definitions:
carrier, de facto carrier, responsibilities of carriers,
including journeys before and after the voyage, in line
with the common trends of international conventions.
+ Clearly specifying cargo carriage
under bills of lading and cargo carriage under voyage
+ Adding provisions on bills of lading,
cargo carriage documents…
+ modifying provisions on the responsibility
to prove one’s fault for cargo losses, on the
currency used for loss compensation, from the French
gold franc to SDRs…
+ Adding provisions on multimodal transport,
basic principles on multimodal transport contracts,
obligations and powers of multimodal transporters and
4. Passenger carriage by sea: To amend
provisions in the spirit of the 1974 Athens Convention
on the Carriage of Passengers and Their Luggage by Sea
and supplementary protocols of 1976, 1990…
- On seaports: To add the following
provisions, pending the availability of a separate law
+ Provisions on seaports, their functions,
classification of seaports.
+ Principles for the planning and development
of the seaport system, investment, building and commercial
operation of seaports.
+ Provisions on the opening and closure
of seaports, maritime safety, maritime security and
prevention of environmental pollution in seaports.
+ Provisions on the functions and tasks
of the authorities performing the specialized State
management over maritime activities in seaports, principles
for coordination of activities of specialized State
management bodies in seaports.
+ To remove inappropriate concepts
like “navigable zone.”
- On maritime services: To revise provisions
on other maritime services such as those on pilotage,
shipping agency, salvage and recovery of sunken property,
maritime insurance. Specifically:
+ Provisions on the concept of shipping
agency, maritime brokerage, activities of shipping agents;
agency contracts and shipping agency service charges,
responsibilities and obligations of maritime brokers.
+ Provisions on the compulsory maritime
piloting regime and compulsory pilotage zones; national
maritime pilots’ association, responsibilities of captains
of piloted ships…
+ Provisions on towage on sea, support
towage in seaports; towage command; liability to pay
compensation for losses occurring in the towage process…
+ Provisions on salvage contracts;
responsibilities of the involved parties to maritime
salvage contracts; special charges for salvage related
to environmental protection; the right to arrest ships
and keep recovered sunken property…
+ Provisions on the obligations to
recover sunken property; classification of sunken property,
time limit for handling of sunken property….
+ Provisions on the applicable subjects;
statute of limitations for initiating lawsuits related
to collision accidents; joint responsibilities for making
compensation for loss of human life, injuries or health
+ Provisions on damages not included
in general average; right to declare general average,
+ The responsibility limitation should
change from complying with the 1957 Convention on the
Limitation of Liability of Owners of Seagoing Ships
to complying with the 1976 Convention on the Limitation
of Liability for Maritime Claims (LLMC 1976).
+ Provisions on maritime insurance
contracts; subjects eligible for maritime insurance;
maritime risks and insured interests…
Besides, the concept “maritime dispute’
should be revised and the principle on the resolution
of maritime disputes involving foreign elements should
Nguyen Thi Nhu Mai
Deputy Director, Legal Department
Vietnam National Maritime Bureau
Vietnam Law & Legal Forum