Maritime Law · 14.11.2024

MARITIME LAW LAWYER IN VIETNAM – UNILAW

MARITIME LAW LAWYER IN VIETNAM – UNILAW When a massive vessel collides with a wharf or a cargo ship sinks in Vietnamese waters, the legal storm that follows is often more dangerous than the physical one. Owners, charterers, and insurers suddenly find themselves trapped in a web o…

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By Lawyer Nguyen Nhu Hai – UniLaw LLC

MARITIME LAW LAWYER IN VIETNAM – UNILAW

When a massive vessel collides with a wharf or a cargo ship sinks in Vietnamese waters, the legal storm that follows is often more dangerous than the physical one. Owners, charterers, and insurers suddenly find themselves trapped in a web of local regulations, administrative investigations, and potential multi-million dollar claims. At Unilaw, we act as your admiralty and maritime lawyer to navigate these treacherous waters, ensuring that your rights are protected and your liability is minimized.

A Crisis at Cai Mep Wharf: Why You Need a Marine Lawyer Immediately

To understand the complexity of Vietnamese maritime law, consider a real case handled by our firm. A client of Unilaw, a Vietnamese shipping company, operated a vessel that experienced a severe accident on February 6, 2023. While maneuvering, the ship collided with the Interflour Cai Mep wharf, a major gateway for international trade. Immediately, the Vung Tau Maritime Administration stepped in, forming an investigation team and drafting a report that would determine who was at fault—and who would pay for the massive damages.

The draft investigation report initially suggested that the accident was caused by “human error” during the docking process. This might sound like a simple phrase, but for a maritime law lawyer in Vietnam, it is a legal red flag. Under current insurance terms, such as the P&I (Protection and Indemnity) clauses, if a “human error” is re-interpreted as “gross negligence” or an “intentional act” by the shipowner’s representatives, the insurance company might be legally allowed to refuse the payout.

In this specific case, the investigation focused on where the Captain was during the collision and whether he was directly controlling the ship. The maritime authorities scrutinized whether the Captain had issued proper orders to avoid the collision when the danger became clear, even while a pilot was on board. Without the intervention of an experienced marine lawyer, the shipowner risked losing their entire insurance coverage because of how the investigation report was worded.

The Captain’s Legal Burden Under the Vietnam Maritime Code

In the event of a collision or grounding, the first person the law looks to is the Captain. Under the Vietnam Maritime Code 2015, the Captain holds the highest command on the vessel. While many shipowners believe that having a local pilot on board shifts the responsibility to the pilot, the law says otherwise.

According to Article 252 of the Vietnam Maritime Code 2015, the Captain has the duty to accurately inform the pilot of the ship’s specific features and characteristics. More importantly, Article 249 clarifies that the maritime pilot is merely an “advisor” to the Captain. Even when a pilot is leading the ship through a mandatory pilotage zone, the Captain remains in command and is responsible for the ship’s safety.

For a shipowner, this means you are liable for the mistakes of the pilot as if they were the mistakes of your own crew. Article 252 (Clause 2) explicitly states that if a loss occurs due to a pilot’s error, the shipowner must compensate for that loss just as they would for an error made by a crew member. This is a harsh reality for many international maritime law firms to explain to their clients: the pilot may be at fault, but the owner pays the bill.

Furthermore, the Captain’s presence on the bridge is not optional. Article 21 of Decree 139/2021/NĐ-CP and Article 6.12 of Consolidated Document 01/VBHN-BGTVT 2023 mandate that the Captain must directly control the vessel when passing through dangerous areas. If an accident happens and the Captain was not at his post, this is viewed as a serious breach of duty. As your admiralty and maritime lawyer, Unilaw works to ensure that investigation reports accurately reflect the Captain’s efforts to maintain safety, preventing insurers from using “intentional neglect” as an excuse to deny claims.

The Role and Liability of Maritime Pilots

One of the most misunderstood areas of admiralty law firms’ practice in Vietnam is the civil liability of pilots. When a pilot makes a mistake that leads to a collision, like the one at Cai Mep, can you sue the pilot or the pilotage company for the millions in damages?

The answer, according to Article 253 of the Vietnam Maritime Code 2015, is generally no. The law states that maritime pilots only face administrative or criminal liability for their errors. They do not bear civil liability for the damages caused to the vessel or the wharf. This means you cannot recover the repair costs from the pilot personally or their employer.

This legal structure makes it vital to have a maritime law lawyer in Vietnam who can challenge the findings of a Maritime Administration’s investigation. If the investigation report places 100% of the blame on the Captain and crew while ignoring the pilot’s incorrect commands, the shipowner is left with no recourse. In our work for the client involved in the Cai Mep collision, we focused on highlighting that the pilot failed to warn the Captain about the speed or failed to accurately assess the collision risk. By documenting the pilot’s failures, we provide a more balanced view of the accident, which is crucial for subsequent negotiations with the wharf owners and insurers.

This is where the distinction between “negligence” and “gross negligence” becomes a battleground. In maritime insurance disputes, PTI (Post and Telecommunications Insurance) and other insurers often cite Clause 6.2.5 of the Institute Time Clauses – Hulls to exclude coverage. They argue that if the loss resulted from a lack of “due diligence” by the owner or managers, the policy is void. We argue that simple “errors in judgment” or “navigational mistakes” by a qualified crew do not constitute a lack of due diligence by the owner. Understanding these nuances is why choosing the right maritime law firms is the most important decision a shipowner can make after an accident.

The Battle of Evidence: Cargo Shortages and the “Said to Weigh” Trap

For many of our clients, especially those in the bulk commodity trade, cargo shortage claims are a persistent headache. In Vietnamese ports, the discrepancy between the figure on the Bill of Lading (B/L) and the figure from the port’s weighbridge or a draft survey can lead to massive financial disputes. As your marine lawyer, Unilaw often sees carriers held hostage by these numbers, but the law provides specific defenses that are often overlooked.

Consider the legal battle involving the vessel Giang Hai 11, which transported 10,000 tons of raw sugar from Thailand to Vietnam. Upon arrival, the receivers claimed a significant shortage of over 50 tons. The insurer, having paid the cargo owner, sued the carrier for compensation. However, the carrier successfully defended the claim by relying on a critical phrase in the Bill of Lading: “said to weigh.”

According to Article 148 of the Vietnam Maritime Code 2015, a Bill of Lading serves as evidence that the carrier has received the cargo in the quantity and condition described. However, if the carrier has no reasonable means of checking the weight provided by the shipper—as is common with bulk sugar or grain—they must note this on the B/L. In the Giang Hai 11 case, the court noted that the cargo was loaded in bulk and the vessel’s holds were sealed with intact lead seals (niêm phong kẹp chì) upon arrival.

The court applied Article 151 (Clause 2, Point r), which allows a carrier to be exempt from liability if they can prove the loss resulted from a cause without their fault or the fault of their agents. Because the seals remained unbroken, the court concluded that the carrier delivered exactly what was loaded, and any shortage was likely a result of the shipper’s inaccurate declaration or natural loss during discharge. For our clients, this means that the “Burden of Proof” shifts: the claimant must prove the carrier was negligent, which is nearly impossible if the seals are intact and the B/L is properly hedged with “said to weigh” or “shipper’s load and count” clauses.

The One-Year Clock: Statute of Limitations for Cargo Claims

One of the most tragic mistakes we see at maritime law firms is a client with a valid claim who waits too long to file. In Vietnam, the timeline for maritime disputes is significantly shorter than for general civil or commercial contracts.

Under Article 169 of the Vietnam Maritime Code 2015, the statute of limitations for filing a lawsuit regarding cargo damage or loss is strictly one year from the date the cargo was delivered or should have been delivered. This is a “hard” deadline. If you are negotiating with an insurer or a carrier for 11 months and fail to file a formal claim in court or at arbitration, your right to sue disappears on day 366. At Unilaw, we advise clients to issue a “Letter of Protest” or a formal notice of claim immediately upon discovering a shortage to preserve their rights while we prepare the case.

Trading Limits and the “Vùng Hạn Chế” Exclusion

When it comes to hull insurance, many shipowners do not realize that the technical certifications of their vessel are directly tied to their insurance coverage. In Vietnam, vessels are often restricted to specific “Trading Limits” (vùng hoạt động) based on their construction and safety equipment. A common restriction is “Vùng hạn chế II” (Restricted Area II), which generally permits the vessel to operate no more than 50 nautical miles from shore.

We represented an insurer in a complex case involving the vessel Binh Dinh River, which sank while voyaging to Brunei. The vessel was only certified for “Restricted Area II” (within 50 miles of shore), yet it attempted a deep-sea crossing. The court found that by sailing outside its certified zone, the owner breached a fundamental “warranty” of safety. Under Article 325 of the Maritime Code and the Institute Time Clauses (Hulls), insurers are exempt from liability for losses caused by the vessel being “unseaworthy” at the start of the voyage with the owner’s knowledge.

The court ruled that the owner knew the vessel was not equipped for that route, making the sinking a result of “intentional neglect” or “lack of due diligence”. This highlights why you need an admiralty and maritime lawyer to review your operational plans. We ensure your voyages stay within the “fine print” of your insurance policy, so a physical disaster doesn’t turn into a total financial loss.

Arresting a Vessel in Vietnam: A Tactical Weapon

If a foreign vessel damages your wharf or fails to pay for bunkering services, your best chance of recovery is arresting the vessel before it leaves Vietnamese waters. Vietnam is not a party to the 1952 or 1999 Arrest Conventions, but the 2015 Maritime Code provides a robust framework for ship arrests.

According to Article 139, a maritime claim arises from several situations, including damage to the environment, cargo loss, pilotage fees, or vessel collisions. To effect an arrest, the claimant must apply to the relevant Provincial People’s Court. Under Article 140, you must prove the claim is valid and, most importantly, provide “counter-security”—usually a bank guarantee—to protect the shipowner against a wrongful arrest.

This process is extremely fast. Once we file the petition, the court can issue an arrest order within 24 to 48 hours. In the Precious Sky case, a client used this “tactical weapon” to secure a claim for cargo shortage. The arrest forced the shipowner to provide a bank guarantee at a local bank, allowing the vessel to be released while the main trial proceeded. Without an admiralty law firm acting quickly, the ship would have sailed, and the claimant would have had to chase a foreign-registered company across the globe.

The Principle of Subrogation: Who Has the Right to Sue?

In many maritime disputes, the party filing the lawsuit is not the original cargo owner but their insurer. This is based on the principle of “Thế quyền” (Subrogation). According to Article 326 of the Vietnam Maritime Code 2015, once an insurer pays out a claim to the insured, they “step into the shoes” of the insured to recover the money from the party at fault.

We frequently encounter issues where the wrong entity attempts to sue. For example, if a local branch of an insurance company pays the claim, but the lawsuit is filed in the name of the parent corporation, the defendant might argue the plaintiff has no “standing” (tư cách khởi kiện). In one of our cases, the court clarified that if a branch (hạch toán phụ thuộc) has no legal personality of its own, the parent company is the correct plaintiff to perform all legal acts. As your marine lawyer, we meticulously verify the “Chain of Assignment” to ensure your lawsuit isn’t dismissed on a technicality before the merits are even heard.

Conclusion: Navigating the Storm with Unilaw

Maritime law in Vietnam is a high-stakes environment where a single misworded report or a missed deadline can cost millions of dollars. Whether you are dealing with a collision at Cai Mep, a shortage of corn in Hai Phong, or a complex insurance denial, the expertise of a specialized maritime law lawyer in Vietnam is indispensable.

At Unilaw, we combine a deep understanding of the Vietnam Maritime Code 2015 with practical experience in dealing with Maritime Administrations and local courts. We help you bridge the gap between “what the law says” and “how the court acts,” providing clear, actionable advice to protect your maritime assets. Don’t let a legal storm sink your business—contact Unilaw today for an expert consultation.