Does the carrier have the right to auction the retained cargo in Vietnam?

Hello, Lawnet would like to answer as follows:

1. Does the carrier have the right to retain cargo in Vietnam?

According to the provisions of Article 4 of Decree 169/2016/ND-CP, a carrier shall have the right to retain cargo in the following cases:

- The consignee does not come to get the cargo or refuses to receive the cargo.

- The consignee postpones the receipt of cargo and the time agreed in the contract for cargo transport by sea has exceeded.

- Multiple persons present bills of lading, through bills of lading, sea waybills and other valuable transport documents to receive the same consignment.

- The consigner and the consignee fail to pay fully the debts specified in the transport contract or offer necessary guarantee.

Thus, a carrier shall have the right to retain cargo when the consignee does not come to get the cargo or refuses to receive the cargo; the consignee postpones the receipt of cargo and the time agreed in the contract for cargo transport by sea has exceeded; multiple persons present bills of lading, through bills of lading, sea waybills and other valuable transport documents to receive the same consignment.

2. Does the carrier have to notify the consignee that the cargo is retained in Vietnam?

According to Article 7of Decree 169/2016/ND-CP, the notification of retained cargo is stipulated as follows:

Step 1. Within 03 days from the retention date, the carrier shall send the consigner and the consignee a written notification of the retention of cargo and the plan on sale of retained cargo to collect the debts; the notification shall contain at least the following information:

- Name, type, quantity and weight of cargo and time for unloading cargo to retain; place of retention;

- Estimated expenses and loss to be paid by the consignee;

- Planned time of auction (if any).

Step 2. After 15 days from the day on which the notification specified in Step 1 is sent, if the carrier does not receive a response from the consigner and/or the consignee or the debts are not fully paid to the carrier, then the carrier shall announce the retention of cargo on at least one of daily newspapers or on means of mass media of central government or governments of central-affiliated cities and provinces of the place where the cargo is retained for 3 consecutive issues.

Time limit for publication of notification may be extended for not exceeding 30 days from the date of notification to the consigner.

Thus, the carrier must notify the shipper and consignee of the retained goods in writing. At the same time, notification of the retention of cargo and the plan on sale of retained cargo to collect the debts must be published in at least one of the daily newspapers or by means of mass media of the central government or governments of centrally affiliated cities and provinces of the place where the cargo is retained for three consecutive issues.

3. Does the carrier have the right to auction the retained cargo in Vietnam?

Article 6 of Decree 169/2016/ND-CP stipulates the general principles of handling of cargo retained by carriers at seaports as follows:

- When exercising the right to retain cargo according to regulations in Article 4 of this Decree, the carrier shall enter into a contract for retention of cargo with the retainer to unload cargo from the vessel and send it to safe places according to law.

The contents of the contract for retention of cargo shall comply with law regarding contracts on property retention and include the agreements on the receipt of cargo before the regular date, rights and responsibilities of retainers in the transfer of cargo to consignees.

- Within 60 days from the day on which the vessel arrives at the port for delivery, if there is no consignee or the consignee fails to fully pay the debts or fails to offer necessary guarantees, then the carrier may sell such cargo at auction to collect the debts. (*)

- If the consignee comes to get the cargo within 60 days as prescribed in (*), the retainer may handle such cargo on the basis of the contract for property retention with the carrier according to law.

When cargo has been lawfully transferred to the consignee according to the notification of the carrier, the retainer shall send a written notification enclosed with the minute of the delivery from the retainer and the consignee and other relevant invoices (if any) to the carrier.

Thus, according to the above regulations, the carrier has the right to auction the retained cargo to collect the debts if, within 60 days, there is no recipient or the recipient does not pay all debts or does not provide the necessary guarantees regarding the goods.

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Key word: cargo | goods | in Vietnam | retained cargo | consignee |

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