Progressive Agreement for Trans-Pacific Partnership | Transpacific Progress | |
DAP | Delivered at Place | Delivered at destination |
DDP | Delivered Duty Paid | Delivery Duty Paid |
DPU | Delivered at Place Unloaded | Delivered at unloading point |
FDI | Foreign Direct Investment | Foreign Direct Investment |
EU | European Union | European Union |
ICC | International Chamber of Commerce | International Chamber of Commerce |
Incoterms | ICC rules for the use of domestic and international trade terms | ICC Rules for the Use of International Trade Terms and inland |
IMO | International Maritime Organization | International Maritime Organization |
MTO | Multimodal Transport Operator | Multimodal transport operator method |
Hague Rules 1924 | International Convention for the Unification of Certain Rules of Law relating to Bills of Lading ("Hague Rules"), and Protocol of Signature | International Convention for the Unification of Certain Rules Relating to Bills of Lading, signed at Brussels on 25 August 1924 |
Hague-Visby Rules 1968 | Protocol to Amend the International Convention for the Unification of Certain Rules of Law Relating to Bills of Lading ("Visby Rules") | Protocol to amend the International Convention for the Unification of Certain Rules relating to Bills of Lading, 1968 |
Hamburg Rules 1978 | United Nations Convention on the Carriage of Goods by Sea ("Hamburg Rules") | United Nations Convention on the Carriage of Goods by Sea sea route 1978 |
Rotterdam Rules 2009 | United Nations Convention on Contracts for the International Carriage of | United Nations Convention on Contracts for the International Carriage of Goods whole journey or a |
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Goods Wholly or Partly by Sea | sea freight 2009 | |
UNCITRAL | United Nations Commission on International Trade Law | Committee on Commercial Law United Nations International |
UNCTAD | United Nations Conference on Trade and Development | Trade and Development Forum United Nations Development |
WTO | World Trade Organization | World Trade Organization |
LIST OF TABLES
Table 2.1. Comparison of differences between international conventions on cases of exemption of carrier's liability for contracts of carriage of goods by sea 46
Table 2.2. Comparison of obligations of seller and buyer under DDU, DDP Incoterms 2010 59
Table 3.1. Total import and export turnover of Vietnam in the period 2015-2020 66
Table 3.2. Export value of goods classified by economic sector 67
Table 3.3. Export value of goods according to the foreign trade standard classification table... 68 Table 3.4. Export turnover to regions in the period 2015-2020 69
Table 3.5. Foreign trade growth rate compared to previous year and base year 2010 69
Table 3.6. Value of goods exports in the period 2015-2020 by economic sector 70
Table 3.7. Volume of goods passing through seaports, inland waterway ports and airports in the period 2015-2020 74
Table 3.8. Volume of goods through seaports, inland waterway ports and airports divided by type of goods in the period 2015-2020 74
Table 4.1. List of international maritime conventions of which Vietnam is a member.. 129
LIST OF DRAWINGS
Figure 3.1. 10 largest export commodity groups in 2018 (Billion USD) 71
Figure 3.2. Statistics on the number of Vietnamese fleets in 2020 75
1. Urgency of the topic
INTRODUCTION
Since the 5th century BC, people have known how to take advantage of the sea and ocean as transportation routes to exchange between regions and countries in the world. Up to now, maritime transport has developed strongly and become a modern transport industry in the international transport system with outstanding advantages such as transporting most types of goods in international trade, maritime transport routes are mostly natural routes, the transport capacity of maritime transport is very large, the cost of maritime transport is low. Similarly in the world, maritime transport is the backbone of international trade and the globalization process, in Vietnam, the maritime transport industry plays an important role in promoting the country's export activities.
During the period 2011-2020, Vietnam's exports continued to achieve impressive growth, with export turnover in 2020 reaching 282.65 billion USD, up 7.0%, equivalent to an increase of 18.39 billion USD compared to 2019 (Pham Hong Nhung, 2020). Export growth contributes greatly to GDP growth, creating jobs, consuming goods for people and businesses, while increasing foreign exchange reserves, stabilizing exchange rates and stabilizing the macro economy. To export goods abroad, Vietnamese export enterprises mostly use sea transport and sign contracts to transport goods by sea. However, during the implementation of the contract, cases of violation of the carrier's obligations also increased (short delivery, late delivery, poor quality delivery, etc.) with both subjective and objective causes. However, in principle, the carrier must be responsible for the violation of the contract, specifically due to damage, loss, or loss of delivered goods.
So, in all cases of damaged, lost, or delayed goods, is the sea carrier responsible for compensating the owner of the goods? In reality, this is not the case, because according to the provisions of national and international law, to protect the rights of the sea carrier, the carrier is exempted from liability in many cases, including cases of exemption that are outside the usual principles, such as exemption from liability for ship control or management (also known as maritime fault 1 ). It can be said that the cases of exemption of the carrier are very diverse and complex, understanding and applying them is difficult and
1 Article 151, Clause 2 (a) of the 2015 Vietnam Maritime Code (adopted on November 25, 2015, effective from July 1, 2017) stipulates: “The carrier shall be completely exempted from liability if the loss of goods occurs in the following cases: a) Fault of the master, crew, maritime pilot or employee of the carrier in operating or managing the ship;”
more complicated. The problem is that if the exported goods are damaged due to the carrier but they are exempted from liability, what should Vietnamese exporting enterprises do to protect their rights and interests, minimize the cost of loss of exported goods, thereby increasing export revenue and promoting export activities. What problems do the practical import-export activities as well as the practical transportation of goods by sea pose for Vietnamese exporting enterprises when encountering this situation? How do the laws on transportation of goods by sea in general and Vietnamese laws in particular regulate cases of exemption of liability of the carrier? In export activities, what is the theoretical and practical significance of studying the issue of cases of exemption of the carrier for promoting the export activities of Vietnamese exporting enterprises? How does a good understanding of cases of exemption of the carrier affect the promotion of export activities of Vietnamese enterprises?
To have the right answers to the above questions, it is necessary to study the issue of the carrier's exemption cases in a specific, systematic and comprehensive manner. Recognizing the importance of studying the exemption cases of the carrier of goods by sea for the export activities of Vietnamese enterprises, the researcher chose the issue: "Research on the exemption cases of the carrier under the contract of carriage of goods by sea to promote the export activities of Vietnamese enterprises" as the topic for his LATS KT.
2. Research purpose and tasks
2.1. Research purpose
The purpose of the thesis is to analyze and clarify theoretical issues on the cases of exemption of the carrier under the contract of carriage of goods by sea and the relationship between the export activities of enterprises and the contract of carriage of goods by sea. The thesis analyzes the current state of understanding and difficulties for Vietnamese export enterprises when facing these cases of exemption and proposes solutions for Vietnamese export enterprises to increase the application of the cases of exemption of the carrier under the contract of carriage of goods by sea in order to promote the export activities of Vietnamese export enterprises in the coming time.
2.2. Research tasks:
To achieve the above research objectives, the thesis has the following specific tasks:
- Explain to clarify theoretical issues about cases of exemption of liability of the carrier of goods by sea according to the contract of carriage of goods by sea; the organic relationship between the export activities of the enterprise and the contract of carriage of goods by sea
in general and the cases of exemption of the carrier in particular, the concept, classification and the necessity to study the cases of exemption of the carrier under the contract of carriage of goods by sea as well as the consequences for the exporting enterprise when the goods are damaged and the carrier is entitled to the cases of exemption under the contract of carriage of goods by sea;
- Analyze to clarify the concept and characteristics of the contract of transporting goods by sea and the role of the contract of transporting goods by sea in the export activities of Vietnamese export enterprises;
- Research on the practical application of Vietnamese law provisions on cases of exemption of liability of carriers under contracts for the carriage of goods by sea and issues arising for Vietnamese export enterprises drawn from the above practices.
- Analyze some typical legal situations to draw lessons, highly practical comments and 05 groups of feasible solutions (group of solutions to build a suitable export strategy in the new period; group of solutions to amend and supplement the provisions of Vietnamese law on cases of exemption of cargo carriers by sea; group of solutions on signing and implementing export contracts, cargo transportation contracts by sea; group of solutions to respond when the carrier is exempted from liability under the cargo transportation contract by sea; group of solutions on training human resources for export enterprises).
- Explain the 05 groups of solutions mentioned in the thesis, so that Vietnamese export enterprises can promote export activities on the basis of increasing the application of the carrier's exemption cases according to the contract of transporting goods by sea.
3. Research object and scope
3.1. Research subjects:
From the perspective of the research subject being Vietnamese export enterprises, the research object of the thesis is issues related to the contract of carriage of goods by sea and the cases of exemption of liability of the carrier under the contract of carriage of goods by sea in the 2005 Vietnamese Code of Cargo, the 2015 Vietnamese Code of Cargo, the 1924 Hague Rules, the 1968 Hague-Visby Rules, the 1978 Hamburg Rules, the 2009 Rotterdam Rules and the relationship between understanding and correctly applying the cases of exemption of liability of the carrier under the contract of carriage of goods by sea with promoting the export activities of Vietnamese enterprises.
3.2. Research scope:
Within the framework of a LATS, due to limitations in capacity and time, the scope of the study is specifically limited as follows:
- Regarding the research content: According to the provisions of Article 151 of the 2015 Vietnamese Maritime Code, the carrier has many cases of exemption from liability as stipulated in Clauses 1, 2 and 3. However, LATS only studies the most important cases of exemption from liability, which are most often disputed in international maritime trade practice, stipulated in Clause 2. That is the case where the carrier is completely exempted from liability, if the loss of goods occurs in 17 cases stipulated from ar, including: a) Fault of the captain, crew, maritime pilot or employee of the carrier in controlling or managing the ship; b) Fire not caused by the carrier; c) Disaster or maritime accident at sea, in the port waters where the ship is permitted to operate; d) Natural disaster; e) War; e) Acts violating public order and safety that the carrier himself did not cause; g) Detention by persons or enforcement by a court or other competent state agency; h) Restrictions on epidemic prevention; i) Acts or omissions of the shipper, owner of the goods, their agents or representatives; k) Strikes or other similar actions of workers from any cause whatsoever resulting in total or partial stoppage of work; l) Riots or riots; m) Rescue of persons or property at sea; n) Wastage in volume, weight or other loss or damage to goods arising from quality, latent defect or other defect of the goods;
o) Goods not properly packaged; p) Goods not properly marked or coded or not suitable; q) Latent defects of the ship that are not discovered by responsible persons, despite the performance of their duties diligently; r) Any other cause occurring without the fault or intention of the carrier causing the loss or damage or without the fault of the carrier's servants or agents. In case a person is entitled to complete exemption from the carrier's liability according to the provisions of law or according to the agreement stated in the contract, that person must prove that the carrier was not at fault or did not intentionally cause the loss or damage or that the servants or agents of the carrier were also not at fault or did not intentionally cause the loss or damage.
Because import-export activities in international trade of Vietnamese enterprises include two types: export activities and import activities. Both of these activities have a close relationship with the contract of transporting goods by sea. However, within the framework of this thesis, we only analyze the impact of studying the cases of exemption of the carrier on the export activities of Vietnamese enterprises, not studying import activities. The thesis does not study import activities due to the current consistent and continuous policy of the Party and