Thông tư 27/2012/TT-BGTVT

CIRCULAR

REGULATIONS ON REPORTING AND INVESTIGATION OF MARINE ACCIDENTS

Pursuant to the Vietnam Maritime Code of June 14, 2005;

Pursuant to Decree No. 51/2008/ND-CP of April 22, 2008 of the Government stipulating the functions, tasks, powers and organizational structure of the Ministry of Transport;

Pursuant to the Code on standards and international recommendations for activities of investigations of marine accidents or incidents 2008 of the International Maritime Organization (IMO).

At the proposal of the Director of the Vietnam Maritime Administration and the Director of Traffic Safety Department,

Minister of Transport issues the Circular stipulating the reporting and investigation of marine accidents.

Chapter I

GENERAL PROVISIONS

Article 1. Scope of adjustment

This Circular stipulates the reporting and investigation of marine accidents.

Article 2. Subjects of application

This Circular applies to the agencies and organizations and individuals related to the reporting and investigation of marine accidents.

1. Marine accident is related to the Vietnamese ship.

2. Marine accident is related to foreign ship upon operation in:

a) Seaport waters, internal waters and territorial sea of Vietnam;

b) Vietnam's exclusive economic zone in case that accident is related to Vietnamese boats, offshore works and equipment or causes environmental pollution.

3. Accident to the public-duty vessel, fishing vessel, inland waterway means of transportation, seaplane affecting the safety, security and environmental pollution at the seaport waters of Vietnam.

Article 3. Explanation of terms

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

1. Marine accident is accident due to collision or other incidents related to ship causing consequence of death, missing, injury or damage to goods, luggage and property on vessel, seaport andworks and other equipment making the ship damaged, sunk, destroyed, burned, stranded or causing environmental pollution.

2. Boats including public-duty vessel, fishing vessel, inland waterway means of transportation, seaplane and other waterway means of transportation.

3. Marine incident is the happening directly related to the operation of ship and cause danger or if not remedied, can cause danger for the safety of ship, people or the environment.

4. Parties concerned are organizations or individuals that have legitimate interests related to the results of the investigation of marine accidents.

Article 4. Classification of level of marine accidents

1. Particularly serious marine accident is the marine accident causing one of the following damages:

a) Killing or missing people;

b) Causing entire loss for ship;

c) Spilling oil into the sea from 100 tons of oil or more, or 50 tons of toxic chemicals or more;

d) Blocking navigable channels from 48 hours or more;

2. Serious marine accident is marine accident not in the above cases and shall be one of the following cases:

a) Ship is burned, exploded and stranded from 24 hours or more, damaging its structure and affecting its navigation capacity;

b) Spilling oil into the sea less than 100 tons of oil or more, or less than 50 tons of toxic chemicals;

c) Blocking navigable channels from 24 to 48 hours;

3. Less serious marine accident is marine accident or marine accident happened in the absence of provisions in Clause 1 and 2 of this Article.

Article 5. Responsibility of captains, ship owners, ship operators and managers and organizations and individuals related to maritime accidents

1. The captain, ship owner, ship operator and manager and organizations and individuals related to marine accidents must make report on marine accident to the Marine Port Authority or Vietnam Maritime Administration quicky and accurately as prescribed in this Circular.

2. Captain must conduct quick, timely and efficient rescue work in accordance with the safety of ships.

3. Captain and crew members shall protect the scene of accident and navigation data recording device at the time of marine accidents and provide evidence related to marine accidents to investigation agencies.

4. Captain and crew members and organizations and individuals related to the marine accidents mut provide the investigation agencies with complete, honest and timely information and shall take responsibilities before law for the provided information.

Chapter II

REPORT ON MARINE ACCIDENTS

Article 6. Report on marine accident

1. Report on marine accident including urgent report, detailed report, periodic report as prescribed in Annex I, II and III of this Circular.

2. Contents of report on marine accidents must be honest, correct and timely.

Article 7. Urgent report

1. Urgent report shall be implemented as follows:

a) In case the marine accident occurs in the seaport waters and sea areas of Vietnam, the Captain or the highest responsible person on the ship must immediately send an urgent report to the nearest Marine Port authorities. If these people fail to make an urgent report, the ship owner or marine agent of the ship in distress shall make report instead

b) The Marine Port Authority upon receiving the urgent report or know about the occurrence of marine accident shall immediately transfer urgent reports or other information to the the following agencies and organizations:

- Vietnam Maritime Administration;

- Ensuring the marine safety, if accident causes damage and counteracts the marine assistance devices or affects the marine safety of the ship;

-Organizations and individuals managing or exploiting the works and equipment if the accident causes damage to these works and equipment.

- People’s Committee of cities and provinces if the accident causes or likely to cause environmental pollution or damage to the aquatic resources.

2. In case the marine accidents related to the Vietnamese ship operating in the waters of other countries, the captain or ship owner must report at the request of the coastal nation where the the ship is in distress and send an urgent report Vietnam Maritime Administration within 24 hours after the accident. If the accident is particularly serious, the captain or the ship owner shall report to the Vietnamese diplomatic in the coastal nation where the ship is in distress for assistance in solving the case.

3. Marine accidents related to the Vietnamese vessel when operating in the high seas, the captain or ship owner must send urgent report to the Vietnam Maritime Administration within 24 hours after the accident.

4. The urgent report can be directly transferred of sent by the appropriate communication methods.

5. For particularly serious maritime accidents, after receiving an urgent report, the Vietnam Maritime Administration must immediately report to the Ministry of Transport.

6. Vietnam Maritime Administration shall notify the flag State for marine accident occuring in the cases specified at Point a, Clause 2, Article 2 of this Circular.

Article 8. Detailed report

Following an urgent report, the captain must send detailed report within the time limit set out below:

1. In case the marine accident occurs in the seaport waters and internal waters, the detailed report must be sent to Marine Port Authority in that area within 24 hours after the accident.

2. In case the marine accidents occur in the territorial waters and exclusive economic zone as defined in Clause 2, Article 2 of this Circular, after the accident, the ship anchors in seaport waters of Vietnam. The detailed report must be sent to the Marine Port Authority in that area within 24 hours after the ship anchors at the location specified. In case after the accident, the ship is not anchored in the seaport waters of Vietnam, the detailed report must be sent to the Vietnam Maritime Administration within 48 hours after the ship or its crew of the ship in distress comes to first port of call.

3. In case the marine accident is related to Vietnamese ship operating at high sea and the waters of the other countries, after the accident, the ship anchors in the seaport waters of Vietnam, the detailed report must be sent to the Marine Port Authority in that area within 24 hours after the vessel anchors at the location specified. In case after the accident, the ship is not anchored in the seaport waters of Vietnam, the detailed report must be sent to the Vietnam Maritime Administration within 48 hours from the time the ship comes to the first port of call.

Article 9. Periodical report

The periodical report shall be carried out as follows:

1. Monthly and yearly, the Marine Port Authority shall make written report and send it to Vietnam Maritime Administration on the occurrence of marine accidents under the form prescribed in Annex III of this Circular.

2. Monthly, every 6 months and yearly, the Vietnam Maritime Administration shall make written report and send it to Vietnam Maritime Administration on the occurrence of marine accidents under the form prescribed in Annex III of this Circular by the time limit specified as follows:

a) The time limit for submitting monthly report: on the 20th date of every month at the latest.

b) The time limit for submitting 6-month report: on the 20th date of June yearly at the latest.

c) The time limit for submitting yearly report: on the 20th date of December yearly at the latest.

Chapter III

MARINE ACCIDENT INVESTIGATION

Article 10. Purpose and requirement for marine accident investigation

1. Marine accident investigation is to determine the conditions, circumstances, causes or possible causes of marine accidents to take effective measures to prevent and limit similar accidents.

2. Marine accident investigation is not for determining the responsibilities or legal obligations

3. Marine accidents must be investigated properly, promptly, comprehensively and objectively.

Article 11. Cases of marine accident investigation

1. Particularly serious marine accidents must be investigated.

2. Other marine accidents can be investigated or not shall be decided by the director of the marine port authority. In case of non-investigation, the Marine Port Authority shall make report to Vietnam Maritime Administration.

Article 12. Competence for marine accident investigation

1. Vietnam Maritime Administration is the hub agency orgnizing maritime accident investigation as prescribed in this Circular.

2. Director of the Marine Port Authority is responsible for the marine accident investigation occurred in seaport waters and other marine accidents assigned by the director of the Vietnam Maritime Affairs Department.

3. Upon receiving information about marine accident in the seaport waters of under the management area, the director of the Marine Port Authority must appoint a person with professional skill to come to the scene of marine accident and get on board to check the scene, look at the working locations and collect physical evidence necessary for the investigation. When carrying out this work, the record must be made and witnessed and certified by the competent person on the ship and avoid affecting the safe operation of the ship. The person sent to the scene shall be the member of the team of maritime accident investigation provided for in Clause 5 of this Article.

4. The Director of Vietnam Maritime Administration shall decide to conduct the investigation of marine accidents occurring outside the Vietnamese seaport waters; In necessary case, decide to organize the investigation of marine accident occurring in seaport waters of Vietnam.

5. The agency organizing the investigation of marine accident shall decide to set up a team of maritime accident investigation.

6. During the investigation of marine accidents, if detected signs of a crime, the Director of the Marine Port Authority or the Director of the Vietnam Maritime Administration shall notify the competent investigating agency and transfer records, documents and exhibits related to marine accidents as required by the competent investigating agency; prior to transfer, the records and documents must be duplicated or photocopied for retention to serve the marine accident investigation; the transfer of records, documents and exhibits must be made with the record as prescribed.

7. For marine accidents of which the other agencies have done their investigation under the competence, the maritime accident investigation is still carried out under the provisions of this Circular.

8. Vietnam Maritime Administration shall notify the flag State of the marine accident investigation to foreign vessels specified in Clause 2, Article 2.

9. Director of the Marine Port Authority has the right to detain the ship of no more than 05 working days to collect the evidence for the investigation. The detention over the above time limit will be decided by the director of the Vietnam Maritime Administration on the basis of the proposal of the Director of the Marine Port Authority.

Article 13. Agreeement on marine accident investigation

In necessary case, the Vietnam Maritime Administration shall make agreement on marine accident investigation as follows:

1. For the marine accidents related to foreign ship, the Vietnam Maritime Administration shall agree with the maritime authorities of the flag State on the marine accident investigation in accordance with the actual conditions and situation and location of maritime accident occurrence.

2. For the marine accidents related to Vietnamese ship, the Vietnam Maritime Administration shall agree with the maritime authorities of the coastal nation on the marine accident investigation in accordance with the actual conditions and situation and location of maritime accident occurrence.

3. Where no agreement is reached with the maritime authorities of the flag State, the coastal nation, the marine accident shall be investigated independently by the provisions of this Circular.

Article 14. Team of marine accident investigation and member of Team of marine accident investigation

1. The team of marine accident investigation must have at least 03 persons operated by a team leader with the help of leader assistant and members decided by Director of the Marine Port Authority or the Director of Vietnam Maritime Administration.

2. The members of the team of marine accident investigation must be the ones with qualification and necessary professional and legal skills and are trained by the courses of professional training for marine accident investigation.

Article 15. Duties and rights of the team of marine accident investigation

1. Making plan for investigation and preparation of cost estimates for marine accident investigation under the provisions of this Circular and other relevant provisions of law. The plan for investigation must be aproved by the Director of the Marine Port Authority or the Director of Vietnam Maritime Administration. Reporting in writing on the process of investigation and result of marine accident investigation to the competent agency establishing the marine accident investigation team.

2. Notifying in writing to the captain and ship owner and ship owner agent of the of marine accident investigation. The message content includes the following major information:

a) Marine accident investigated;

b) Time and location of of the investigation started;

c) Name and contact address of investigation Team;

d) Rights and obligations of the parties for marine accident investigation.

3. Using necessary equipment to serve the marine accident investigation.

4. Requiring the parties involved in marine accidents to take measures to keep the scene intact and protect the relevant evidence on the requirement of the marine accident investigation.

5. Requiring the persons related to marine accidents to make report in writing what they know about the conditions and circumstances and happening of the marine accidents and subjects related to marine accidents. When necessary to question these persons, they must be informed of the time and place of conducting interrogations. When necessary, the ship owner, manager and operator to arrange interpreter for the work of interview.

6. Requiring the captain and relevant responsible persons to supply a copy of the ship's log, chart of area where the ship is in distress and records, other necessary documents with respect to the ship and equipment on board.

7. Requiring the hierarchical organization and technical monitoring of the ship, the ship owner, agent, maritime information organization, Center for coordination of maritime Search and Rescue, the traffic monitoring system operating center of boats, maritime safety guarantee, maritime pilot and agencies, organizations, and other relevant persons to provide necessary information to serve the maritime accident investigation.

8. Inspecting and collecting copies of the papers of registration, inspection and insurance of the ship, other relevant necessary documents and professional certificates of crew members to serve the marine accident investigation.

9. Audibly recording, photographing, visually recording, surveying, appraising and perform other tasks as needed for the marine accident investigation.

10. Synthezing, verifying, analyzing, evaluating and proposing the conclusion of the cause of marine accidents.

11. Making report on marine accident investigation.

12. Keeping and preserving records, documents and other exhibits relating to marine accidents as prescribed.

Article 16. Time limit of marine accident investigation.

1. For marine accidents occurring in Vietnamese waters, the time limit shall not exceed 60 working days from the date of occurrence of maritime accident.

2. In the complex case, if the maritime accident investigation can not be completed within the time limit specified in Clause 1 of this Article, on the basis of recommendation by the leader of marine accident investigation team, the director of the Marine port authority shall promptly report in writing to the Director of the Vietnam Maritime Administration for review and approval to extend the time of of marine accident investigation.

Article 17. Order to implement marine accident investigation

1. Establishing the marine accident investigation team;

2. Making plan for marine accident investigation;

3. Estimating cost of marine accident investigation;

4. Notifying parties concerned of the investigation;

5. Interviewing crew members and witnesses; synthesizing the collected information. If necessary, the checking and additional interview may be conducted to clarify the issues in question;

6. Based on the provisions of the law on maritime safety, analyzing the information collected, including the conclusions of sample and trace assessment related to the marine accidents;

7. Drafting Report of marine accident investigation sent to parties concerned for opinion contribution as prescribed in Article 18 of this Circular;

8. Publishing Report of marine accident investigation

Article 18. Drafting Report of marine accident investigation

1. After making the draft of Report of marine accident investigation, the investigation team shall send a draft to the flaf State, ship owner, manager and operator concerned and Vietnam Maritime Department for opinion contribution on the draft of report.

2. The marine accident investigation team only applies the Clause 1 of this Article if the flag State, ship owners, manager and operator concerned make commitment of not disseminating and publishing or permitting the access to the draft of report or any part of the report without the consent of the investigation team.

3. Within 30 days from the date of sending the draft, flag State, shipowners, ship owner, manager and operator concerned shall have their opinions about the draft. Exceeding the above time limit, if the opinions have not received yet, the investigation Team shall make the final report on marine accident investigation.

Article 19. Report on marine accident investigation

1. Report on marine accident investigation includes the following information

a) Summarizing the basic elements of maritime accidents and specifying the number of dead, missing, injured or state of environmental pollution;

b) Information on the ship nationality, ship owner, management/ operation company stated in the certificate of safety management and hierarchical organization;

c) The main parameters of the ship, the ship's engines; information on working and rest time of the crew members and the work done before the marine accident;

d) Describing in detail of the circumstance of marine accident;

dd) Analyzing, arguing and proving the factors leading to the causes of marine accident;

e) Measures of administrative handling under the competence of the Director of the Marine Port Authority or recommending remedial measures to the competent authorities for consideration and decision for the acts of violation beyond the competence of the Director of Marine Port authority;

g) Proposing the application of measures to prevent similar marine accidents.

2. Marine accident investigation report shall be sent each party concerned latest on the completion date of the marine accident investigation. The copy marine accident investigation report may be issued to individuals or other entities directly related to the accident, if requested in writing.

3. A copy of the records relating to the investigation of particularly serious accidents shall be sent to Vietnam Maritime Administration.

4. For particularly serious marine accident, the marine accident investigation report must be translated into English by the investigation team translated into English; The Vietnam Marine Administration shall send it to the Ministry of Transport and International Maritime Organization (IMO).

5. The marine accident investigation report shall be published by Vietnam Marine Administration.

Article 20. Marine accident investigation

In case there are new evidences provided or collected and these evidences shall basically change the causes of marine accidents, the Director of the Vietnam Maritime Administration shall make a decision on re-investigating that incident.

Article 21. Complaint and denunciation and settlement of complaint and denunciation

Complaint and denunciation (if any) related to the marine accident investigation shall be handled as prescribed by the law on handling of complaint and denunciation.

Article 22. Fund for marine accident investigation

Funds for marine accidents investigation are used from the irregular expenditure source of the maritime port authority.

Chapter IV

IMPLEMENTATION PROVISION

Article 23. Effect

This Circular takes effect on September 15, 2012 and replaces the Circular No. 17/2009/TT-BGTVT dated August 11, 2009 of the Minister of Transport on reporting and investigating marine accident.

Article 24. Implementation organization

1.The Vietnam Maritime Administration shall take responsibility to organize the implementationof this Circular.

2. The Chief of Ministry Office, the Chief Inspector, the Director of the relevant departments of the Ministry of Transport, Director of Vietnam Maritime Administration, Heads of agencies, units and individuals concerned are responsible for the implementation of this Circular. /.