Thông tư 34/2015/TT-BGTVT

CIRCULAR

MARITIME ACCIDENT REPORTING AND INVESTIGATION

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

Pursuant to Code of International Standards and Recommended Practices for a Safety Investigation into a Marine Casualty or Marine Incident of International Maritime Organization (IMO)

Pursuant to the Government's Decree No. 107/2012/NĐ-CP dated December 20, 2012, defining the functions, tasks, entitlements and organizational structure of the Ministry of Transport;

At the request of Director of Vietnam Maritime Administration and Director of Traffic Safety Administration;

The Minister of Transport promulgates a Circular on maritime accident reporting and investigation,

Chapter I

GENERAL PROVISIONS

Article 1. Scope

This Circular provides for reporting and investigating maritime accidents

Article 2. Regulated entities

1. This Circular applies to agencies, organizations, and individuals involved in reporting and investigating maritime accidents in the following circumstances:

a) Any maritime accident that involves Vietnamese sea-going ships (hereinafter referred to as ships);

b) Any maritime accident that involves foreign ships operating in: port waters, internal waters and territorial sea of Vietnam; exclusive economic zones of Vietnam in case the accident involves Vietnamese ships, off-shore works and devices of Vietnam, or causes environmental pollution.

2. The provisions of this Circular also apply to investigation into accidents that involve public service ships, fishing ships, internal waterway vessels, seaplanes operating in port waters of Vietnam and internal waterway vessels class VR-SB operating within Vietnam’s sea.

Article 3. Interpretation of terms

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

1. Maritime accident means an accident that occurs because of collision or incidents related to the operation of a ship and results in dead, injured, missing people; damages goods, luggage, property on the ship, sea port, and other works and devices; causes damage, foundering, destruction, fire/explosion, grounding, immobility of the ship, or environmental pollution.

2. Maritime incident means an incident directly related to the operation of a ship other than the incidents mentioned in Clause 1 of this Article that causes danger or, if not properly handled, threatens the safety of the ship, humans, or the environment;

3. VR-SB vessels are internal waterway vessels operating along the coast as prescribed by the Ministry of Transport.

Article 4. Classification of maritime accidents

1. Extremely serious maritime accident is a maritime accident that:

a) results in dead or missing people; or

b) totally destroys the ship; or

c) spills 100 tonnes of oil or over, or 50 tonnes of toxic chemicals or over into the environment; or

d) blocks traffic on the navigable channel for 48 hours or longer.

2. Serious maritime accident is a maritime accident other than those mentioned in Clause 1 of this Article that:

a) causes conflagration, explosion of the ship, or causes the ship to go aground for 24 hours or longer, or damages the structure of the ship and affects its operation at sea;

b) spills less than 100 tonnes of oil less than 50 tonnes of toxic chemicals into the environment;

c) blocks traffic on the navigable channel from 24 hours to less than 48 hours.

3. Less serious maritime accident is a maritime accident other than those mentioned in Clause 1 and Clause 2 of this Article.

Article 5. Responsibility of the captain, ship owner, ship manager, ship operator, and organizations and individuals (hereinafter referred to as entities) involved in the maritime accident

1. The captain, ship owner, ship manager, ship operator, and entities involved in the maritime accident has the responsibility to report the maritime accident to the port authority or Vietnam Maritime Administration in a timely and accurate manner in accordance with this Circular.

2. The captain of the ship involved in the maritime accident has the responsibility to promptly and effectively organize the rescue depending on the safety conditions of the ship.

3. The captain and crewmembers of the ship involved in the maritime accident have the responsibility to protect the accident scene and tracking device at the time of accident, provide evidence about maritime accident to the investigating authority.

4. The captain and crewmembers of the ship and entities involved in the maritime accident has the responsibility to provide sufficient, truthful, and timely info to the investigation authority, and take the total responsibility for such information.

5. With regard to a maritime accident that causes loss of life, apart from the responsibility to report prescribed by this Circular, the captain, ship owner, employer has to notify the local labor inspection authority in the area where the employer’s headquarters are located in a timely and accurate manner.

Chapter II

REPORTING MARITIME ACCIDENTS

Article 6. Maritime accident reports

1. Maritime accident reports include urgent reports, detailed reports, and periodic reports according to Appendix 1, Appendix 2, and Appendix 3 to this Circular.

2. The content of every maritime accident report must be truthful, accurate, and timely.

Article 7. Urgent report

1. An urgent report is made as follows:

a) Where an accident occurs in the port waters and sea of Vietnam, the captain or the person having the highest responsibility on the ship has to immediately send an urgent report to the nearest port authority. In case such persons are not able to make the urgent report, the ship owner or shipping agency related to the incident shall make the report.

b) When receiving the urgent report or knowing the maritime accident, the port authority shall immediately send such urgent report or information to the following agencies and organizations: Vietnam Maritime Administration; Maritime Safety Organization if the accident damages or disables maritime assistance devices or affects maritime safety of ships; operators of works and/or devices procedures are damaged by the accident; the People’s Committee of the province if the accident causes or threatens to cause environmental pollution or damage aquatic resources.

2. In case the maritime accident involves a Vietnamese ship operating in the sea of another country, the captain or ship owner must report as requested by the foreign country where the accident occurs and immediately send an urgent report to Vietnam Maritime Administration. Where an extremely serious accident occurs, the captain or ship owner must send a report to a diplomatic mission of Vietnam in the foreign country where the accident occurs for assistance.

3. If the accident involves a Vietnamese ship operating offshore, the captain or ship owner must immediately send an urgent report to Vietnam Maritime Administration.

4. The urgent report may be sent directly or through appropriate means of communications.

5. With regard to extremely serious maritime accidents, Vietnam Maritime Administration must immediately report to the Ministry of Transport after receiving the urgent report.

6. Vietnam Maritime Administration shall notify the maritime authority of the country whose flag is raised by the ship in cases of maritime accidents mentioned in Point b Clause 1 Article 2 of this Circular.

Article 8. Detailed report

Following the urgent report, the captain or person having the highest responsibility on the ship must send a detailed report by the deadlines prescribed below:

1. If the maritime accident occurs within Vietnam’s port waters and internal waters, a detailed report must be sent to a local port authority within 24 hours from the occurrence of the accident.

2. If the maritime accident occurs within Vietnam’s territorial sea and exclusive economic zones according to Point b Clause 1 Article 2 of this Circular, after the accident occurs and the ship is anchored in Vietnam’s port waters, a detailed report must be sent to a local port authority within 24 hours since the ship is anchored as instructed. If the ship is not anchored in Vietnam’s port waters after the accident occurs, a detailed report must be sent to a local port authority within 48 hours since the ship or its crewmembers reaches the first port.

3. If the maritime accident involves a Vietnamese ship operating offshore or in another country’s sea, after the accident occurs and the ship is anchored in Vietnam’s port waters, a detailed report must be sent to a local port authority within 24 hours since the ship is anchored as instructed. If the ship is not anchored in Vietnam’s port waters after the accident occurs, a detailed report must be sent to a local port authority within 48 hours since the ship reaches the first port.

Article 9. Periodic report

1. Port authorities must make monthly, biannual, and annual reports on maritime accidents that occurred using the forms provided in Appendix 3 to this Circular and send them to Vietnam Maritime Administration.

2. Every month, every six month, and every year, Vietnam Maritime Administration must make written reports on maritime accidents using forms provided in Appendix 3 to this Circular and send them to the Ministry of Transport.

3. Deadline for reporting:

a) Monthly reports made by port authorities shall be sent by the 16^th of each month to; monthly reports made by Vietnam Maritime Administration shall be sent by the 20^th of each month;

b) Biannual reports made by port authorities shall be sent by June 16 of the year; biannual reports made by Vietnam Maritime Administration shall be sent by the June 20 of the year;

c) Annual reports shall made by port authorities shall be sent by the December 16  of the year; annual reports made by Vietnam Maritime Administration shall be sent by December 20 of the year.

Chapter III

MARITIME ACCIDENT INVESTIGATION

Article 10. Maritime accident investigation purpose and requirements

1. Maritime accident investigation means determination of conditions, circumstances, causes, or possible causes of a maritime accident in order to find effective solution for preventing similar accidents.

2. Maritime accident investigation does not attribute legal responsibility or liability to parties.

3. Every maritime accident must be investigated in a conformable, timely, comprehensive, and objective manner.

Article 11. Cases of maritime accident investigation

1. Every extremely serious maritime accident must be investigated.

2. Other maritime accidents may be investigated depending on the decision of the Director of the port authority. If an investigation is not conducted, the port authority shall send a report to Vietnam Maritime Administration.

Article 12. Organizing maritime accident investigation

1. The power to investigate maritime accidents.

a) The Director of the local port authority shall organize investigations into maritime accidents that occur within the port waters and other maritime accidents as assigned by Director of Vietnam Maritime Administration;

b) Where a maritime accident occurs in port waters and the ship involved in the accident is moved to an anchoring position in another port waters, Director of Vietnam Maritime Administration shall assign the port authority in charge of the port waters in which the accident occurs or the port waters in which the ship is anchored to organize the investigation.

c) The Director of Vietnam Maritime Administration shall assign an appropriate port authority to organize investigations into maritime accidents that occur outside Vietnam’s port waters.

2. After receiving information about a maritime accident that occurs in the port waters under its management, Director of the port authority must send capable persons to the scene to get on the ship, examine the scene and working positions and collect evidence serving the investigation. The performance of these tasks must be recorded in writing. The record must be certified by the person in charge of the ship. Such tasks must avoid affecting the safe operation of the ship. The persons sent to the scene will be member of the investigation team prescribed in Clause 3 of this Article.

3. The Director of port authority which organizes the maritime accident investigation shall issue a decision to establish an investigation team.

4. During the investigation, if crimes are suspected, Director of the port authority must notify a competent authority, transfer documents and evidence related to the maritime accident at the request of the investigating authority; photocopies or certified true copies of documents must be made before they are transferred to serve further investigation. The transfer of documents and evidence must be recorded in writing.

5. With regard to maritime accidents investigated by other agencies within their competence, the investigation shall still be conducted in accordance with this Circular.

6. Vietnam Maritime Administration shall notify maritime authorities of the countries whose flags are raised by the ships of the investigations into maritime accidents that involve foreign ships in accordance with Clause 1 Article 2 of this Circular.

7. Director of the port authority may seize a ship for up to 05 days to collect evidence serving the investigation. Longer seizure shall be decided by Director of Vietnam Maritime Administration at the request of Director of the port authority.

Article 13. Agreement on maritime accident investigation

Where necessary, Vietnam Maritime Administration shall reach an agreement on maritime accident investigation as follows:

1. With regard to a maritime accident that involves a foreign ship, Vietnam Maritime Administration shall reach an agreement on maritime accident investigation with the maritime authority of the country whose flag is raised by the ship in a way that is appropriate for the actual conditions, circumstances, and location of the accident.

2. With regard to a maritime accident that involves Vietnamese ship operating overseas, Vietnam Maritime Administration shall reach an agreement on maritime accident investigation with the maritime authority of the foreign country in a way that is appropriate for the actual conditions, circumstances, and location of the accident.

3. If such agreement cannot be reached, an independent investigation shall be conducted in accordance with this Circular.

Article 14. Investigation team and members thereof

1. Investigation team

a) An investigation team consists of at least 03 persons, including 01 team leader, 01 deputy, and member(s) appointed by Director of the port authority;

b) Where necessary, Director of Vietnam Maritime Administration shall appoint experts in relevant fields to join the investigation team. According to the appointment decision of Vietnam Maritime Administration, Director of the port authority shall establish the investigation team.

2. Members of investigation teams must have adequate professional capacity, skills, and legal knowledge, and have taken training courses in maritime accident investigation.

Article 15. Duties and entitlements of investigation team

1. Develop the investigation plan, and make cost estimates in accordance with this Circular and relevant regulations of law. The investigation plan is subject to approval by Director of the port authority. Submit written reports on the investigation process and result to Director of port authority who established the investigation team.

2. Send written notification to the captain or person holding the highest responsibility on the ship, ship owner, and shipping agency of the maritime accident investigation. The notification shall contain information about:

a) The maritime accident being investigated;

b) Time and location of the investigation;

c) Name and address of the investigation team;

d) Rights and obligations of parties to the maritime accident investigation.

3. Use necessary equipment and devices for the investigation.

4. Request the parties involved in the maritime accident must take measures to protect the scene and evidence according to maritime accident investigation requirements.

5. Request the persons involved in the maritime accident must make written reports of their knowledge, circumstances, developments of the accident, and entities involved in the accident. In case such persons have to be interrogated, they must be notified in advance of the time and location of interrogation.

6. Request the captain and responsible person shall provide copies of the ship logs, sea chart of the area in which the accident occurs, other records and documents about the ship and equipment thereon.

7. Request the organization in charge of technical monitoring of the ship, ship owner, shipping agency, maritime information organization, maritime search and rescue center, operation center in charge of nautical traffic monitoring and maritime safety system, maritime pilotage, and relevant entities to provide information necessary for the maritime accident investigation.

8. Examine, collect copies of documents about registration, inspection insurance of the ship, other relevant documents and certificates of crewmembers serving maritime accident investigation.

9. Make audio and video recordings, survey, request analysis, and perform other tasks that are deemed necessary for the maritime accident investigation.

10. Carry out verification, analysis, assessment, and propose conclusion about the cause of the maritime accident.

11. Make a report on the maritime accident investigation.

12. Retain documents and evidence related to the maritime accident as prescribed.

13. Make English translations of draft reports on accident investigation, reports on investigations into extremely serious maritime accidents and maritime accidents that involve ships raising foreign flags.

14. Organize re-investigation into maritime accidents in accordance with Article 20 of this Circular.

Article 16. Time limit for maritime accident investigation

1. Time limit for investigation into a maritime accident that occurs in Vietnam’s sea is 60 working days from the occurrence date.

2. If the case is complicated and the maritime accident investigation cannot be done within the time limit prescribed in Clause 1 of this Article, at the request of the investigation team leader, Director of the port authority must promptly send a written report to Director of Vietnam Maritime Administration for extension of the time limit.

Article 17. Procedures for maritime accident investigation

1. Establish an investigation team.

2. Develop a maritime accident investigation plan.

3. Make cost estimates.

4. Notify relevant parties.

5. Interview crewmembers and witnesses; consolidated collected information. Where necessary, additional investigation and interviews may be carried out to clarify questionable issues

6. Pursuant to maritime laws, analyze collected information, including conclusion about analyses of exhibits and traces related to the maritime accident.

7. Make a draft report on maritime accident investigation and send it to relevant parties for comments according to Article 18 of this Circular.

8. Publish the report on maritime accident investigation.

Article 18. Draft report on maritime accident investigation

1. After making a draft report on maritime accident investigation, the investigation team shall send a copy of the draft report to the ship owner, ship operator, Vietnam Inland Waterway Administration (if the accident involves internal waterway vessels) and Vietnam Maritime Administration for comments. After receiving the draft report, Vietnam Maritime Administration Vietnam Maritime shall send a copy of the draft report to the maritime authority of the country whose flag is raised by the ship for comments.

2. The maritime authority of the country whose flag is raised by the ship, ship owner, relevant ship operator must not publish or grant access to the draft report or any part of it without the consent of Vietnam Maritime Administration.

3. Within 30 days from the day on which the draft report is sent, the maritime authority of the country whose flag is raised by the ship, ship owner, relevant ship operator shall send comments about the draft reports. If no comments are received after the aforesaid time limit, the investigation team shall submit the report on maritime accident investigation to Director of port authority for signing and publishing.

Article 19. Report on maritime accident investigation

1. A report on maritime accident investigation shall contain the following information:

a) Summary of basic elements of the maritime accident, specific numbers of people who are dead, missing, injured, or seriousness of environmental pollution;

b) Information about the nationality, ship owner, managing/operating company according to safety certificate;

c) Primary specifications of the ship and its engine; information about working and rest time of crewmembers and works done before the maritime accident occurs;

d) Detailed description of the circumstances of the maritime accident;

dd) Analysis of elements that cause the maritime accident;

e) Proposed measures for preventing similar maritime accidents.

2. The report on maritime accident must be sent to the maritime authority of the country whose flag is raised by the ship, ship owner, relevant ship operator, and Vietnam Maritime Administration by the deadline for maritime accident investigation. Copies of the report on maritime accident investigation may be provided to other individuals or legal entities directly involved in the accident at the written request.

3. A set of photocopies of documents and two copies of the report on investigation into an extremely serious accident shall be sent to Vietnam Maritime Administration.

4. If the maritime accident is extremely serious, Vietnam Maritime Administration shall send the report to the Ministry of Transport and IMO.

5. The report on maritime accident investigation must be published on the website of Vietnam Maritime Administration.

Article 20. Re-investigation into maritime accident

If there is new evidence that fundamentally changes the causes of a maritime accident, Director of the port authority shall decide the re-investigation into such accident.

Article 21. Complaints, allegations, and settlement thereof

Any complaint and allegation about investigation into a maritime accident shall be settled in accordance with regulations of law on settlement of complaints and allegations.

Article 22. Funding for maritime accident investigation

Funding for maritime accident investigation shall be provided from irregular spending sources of the port authority.

Chapter IV

IMPLEMENTATION

Article 23. Effect

This Circular comes into force from September 15, 2015 and replaces Circular No. 27/2012/TT-BGTVT dated July 20, 2012 of the Minister of Transport on reporting and investigating maritime accidents.

Article 24. Implementation organization

1. Vietnam Maritime Administration has the responsibility to organize the implementation of this Circular.

2. Chief of Office, Chief Inspector, Directors of Departments, Director of Vietnam Maritime Administration, Director of Vietnam Inland Waterway Administration, heads of relevant agencies, organizations, and individuals are responsible for the implementation of this Circular./.