China excluding the islands of Kinmen, Matsu, Penghu, Taiwan and Hong Kong, SAR
Marine Pollution Regulations
The following circular was issued by the International Group of P&I Clubs to its members regarding China’s first comprehensive system of marine pollution regulations which took effect from 1 March 2010.
Members should be guided accordingly. The Secretariat will continue to monitor the situation and will post updates as and when they are received.
“Regulations of the People’s Republic of China on the Prevention and Control of Marine Pollution from Ships
On 1 March 2010, the Regulations of the People's Republic of China (PRC) on the Prevention and Control of Marine Pollution from Ships ("the Regulations") (promulgated by the PRC State Council on 9 September) will take effect. The aim of the Regulations is to establish comprehensive rules governing oil pollution prevention, response and clean up within PRC waters.
The intention of this circular is to summarise the key provisions of the Regulations. The International Group (IG) understands that the PRC's Maritime Safety Agency (MSA) is drafting further implementing legislation to give effect to a number of the provisions contained in the Regulations; which includes the requirement to contract with approved pollution response companies and the requirement to maintain insurance or other financial security to cover liabilities arising from oil pollution damage. The IG will continue to engage with the MSA in this regard and, as appropriate, will issue further circulars.
The Regulations cover a wide range of issues, such as the discharge and reception of oil pollutants; dumping of waste and permissions for dumping; oil pollution response planning; oil spill clean-up arrangements, reporting and emergency handling of pollution incidents; investigation and compensation of pollution incidents; supervision of the loading, lightening and discharging of the polluting hazardous cargoes; and penalties for contravening any of the Regulations' requirements.
The Regulations also introduce into PRC law a compulsory insurance regime for all ships (except those that are less than 1,000 GT and not carrying oil cargoes) to cover claims arising from oil pollution damage. This would also seem to provide the necessary implementing legislation to give effect to the insurance provisions of the International Convention on Civil Liability for Bunker Oil Pollution Damage, 2001 (2001 Bunkers Convention) (which the PRC ratified at the end of 2008) and the 1992 International Convention on Civil Liability for Oil Pollution Damage (1992 CLC) (which the PRC ratified some years ago). The Regulations also make provision for the establishment of a domestic Ship Oil Pollution Compensation Fund, to be funded by contributions from receivers of persistent oil cargoes (or their agents) which have been transported by sea to a Chinese port.
Note: the PRC is not a State party to the 1992 International Convention on the Establishment of an International Fund for Compensation for Oil Pollution Damage (1992 IOPC Fund).
The MSA will be the designated authority for enforcing the Regulations and is therefore the responsible agency for the specific supervision and administration of prevention and control of marine pollution by ships and relevant ship operation activities. Overall responsibility will rest with the Beijing MSA, with regional MSAs having local authority (as required).
The Regulations cover any ship sourced pollution and any ship-related operation that causes or may cause pollution damage in the internal waters, territorial waters and the contiguous zones, exclusive economic zone and continental shelf of the PRC and all other sea areas under the jurisdiction of the PRC (wherever the pollution occurs).
Requirement to contract with an approved local clean up contractor
The Regulations require the operators of any ship carrying polluting and hazardous cargoes in bulk or of any other vessel above 10,000 GT to conclude a pollution clean up contract with an MSA approved pollution response company before entering a PRC port. "Operators" is not defined in the Regulation but the Group will seek clarification and advice from the MSA in this respect.
It is the International Group's understanding that these clean up contractors will bear responsibility for conducting clean up operations in the event of an incident, under the MSA's supervision, and with the intervention of the MSA if the capabilities of the contractor are exceeded. It is understood that there will be more than one contractor in each of the Chinese ports.
The MSA is currently approving contractors in the various Chinese ports and further legislation will be issued in the near future. This legislation will cover both the response contracts that will need to be concluded by operators and the contractors that have been approved by the MSA. The IG is engaged with the MSA in this regard and will provide a further update to Members pending any further clarification that is obtained.
The IG understands that four levels of contractors will be designated who will have the capability to respond to a spill depending on the size and extent of the spill itself. The additional implementing legislation will clarify which contractors, in terms of levels, operators will need to contract depending on their type of trade and size of vessel.
Although the MSA has undertaken to complete the inspection process of responders within 30 working days from the date of receiving their application for approval, this is likely to result in a very short time period within which operators can conclude such contracts prior to 1 March 2010. The Group understands that an extension may be given to the entry into force date of these provisions in the Regulations on concluding response contracts but, in the event that such an extension is not forthcoming, every effort will be made to ensure that Members are in compliance by 1 March 2010.
Generally, breach of the Regulations carries a series of possible fines, ranging from RMB 10,000 to RMB 300,000 depending on the facts and, logically, per breach.
Clean up costs
In respect of compensation for costs incurred in the event of an incident, the Regulations seem to provide that priority shall be given to the costs of response organised by the Government. Before commencing her next voyage, any vessel involved in an incident where response action has been taken by the MSA is required to pay the MSA's costs or provide a relevant financial guarantee. The form of the guarantee to be provided (e.g. IG Club letter or local PRC insurer/PRC bank guarantee) is still to be clarified. The Regulations also provide that the MSA may detain the vessel while investigating any such incident.
On board emergency response plans
The Regulations require shipowners, operators or managers to maintain emergency response plans for the prevention and control of marine pollution. It is understood that a MARPOL Shipboard Oil Pollution Emergency Plan (SOPEP) will be sufficient to meet this requirement.
Insurance and Liability Issues
The PRC is a State party to the 1992 CLC and the 2001 Bunkers Convention. The liability provisions in the Regulation largely mirror those contained in those Conventions, which provide for strict liability of the owner* for pollution damage arising from the carriage of persistent oil by sea (1992 CLC) and strict liability of the shipowner** for pollution damage caused by spills of bunker oil (2001 Bunkers Convention).
All vessels trading within PRC territorial waters, with the exception of those below 1,000 GT that are carrying non-oil cargoes, will be required to maintain insurance or other financial security cover to satisfy the requirements of the Chinese Maritime Code or the 1992 CLC and Bunkers Convention where applicable.
The MSA will determine and publish a list of competent insurance providers that will be qualified to provide the necessary insurance cover, in much the same manner as has been the case since 2007.
Any pollution arising from an incident, or likely to arise, within the territorial waters of the PRC or beyond the territorial waters of the PRC under the PRC's jurisdiction must be reported to the local MSA. The accident report must contain the following information:
- The ship's name, nationality, call sign or number;
- The name and address of the owners, operators or managers of the ship;
- The time, place, weather and sea condition of the accident;
- Preliminary determination of the cause of the accident;
- The type, quantity, stowage, location of the pollutant substance of the ship;
- The degree of the pollution;
- The pollution control, disposal measures adopted and to be adopted and the situation of the control of the pollution and the salvage requirements;
- Any other required information.
The International Group will continue to monitor both the implementation of the Regulations and the development of further legislation designed to give effect to a number of the Regulation provisions, and will continue to engage with the PRC MSA in this regard. A further update to Members will be provided in due course.
*Defined as the person or persons registered as the owner of the ship or, in the absence of registration, the person or persons owning the ship.
**Defined as including the registered owners, bareboat charterers, managers and operators.”
The following documents should be completed or presented during joint inspection on vessel's entry to all Chinese ports. According to customary practice, besides the various certificates, all documents are to be completed by the ship.
a) Report on articles restricted for use in port
b) Crew List
c) Passenger List - inward and/or transit passengers
d) List of specified articles, foreign currencies, gold/silver belonging to ship and/or member of crew
e) Maritime Declaration of Health
Papers Submitted APERS SUBMITTED FOR EXAMINATION
f) Certificate of Nationality
g) Tonnage Certificate
h) Navigation Certificate
i) Passenger Certificate (if passengers on board)
j) Loadline Certificate
k) Deratting or Deratting Exemption Certificate
l) Deck Log Book
m) Engine Log Book
o) Cargo Manifest/Cargo List
p) Stowage Plan
q) Dangerous Cargo List
Regular Callers to China
If a company want to operate a regular service to/from Chinese ports, it should submit to the Ministry of Communications of PRC through Agent the following documents:
1. Application to the Ministry of Communications
2. Application to the Agent
3. Introduction of the Company
4. Cerificate of the Company's Registration
5. Certificate of the Company's self-owned ships
6. Feasibility on the regular service
7. Agreement with the port authority and agent at each calling Chinese port
8. Tariff of the Company
9. Sailing Schedule
10. Sample of B/L
11. Ship's particulars (deployed in this service)
Shipowners trading to the Chinese ports of Beihai and Fangcheng have experienced difficulties as their vessels were not able to obtain outward customs clearance. Connections in China have provided the following background to the Chinese "Boundary Trade" policy which is the cause of these problems:
For the period from January to 15 May 1993, the Chinese Government introduced the so-called "Boundary Trade" cargo declaration. The decision was taken to assist the development of the province of Guanxi and her two ports (Beihai & Fangcheng) close to the border of Vietnam. This derived from the fact that they needed a gateway to import cargoes for the four inland major Southern provinces which are under development.
Boundary trade means that money paid by receivers as import tax is not forwarded to the central government at Beijing, but remains with the local provincial government. Boundary trade import tax funds are being collected by the provincial bureau established for this purpose and not by the customshouse which handles the normal and Barter Trade Cargoes Declaration. The port has nothing to do with cargo operation arrangements and customs has nothing to do with cargo declaration. This leaves the possibility for the payable tax to be less and the profit to the contractual parties and the individuals more.
As a result, a lot of receivers preferred to get their cargoes at the ports of Guanxi province (Fangcheng and Beihai). Consequently, these ports became over congested during the first period of boundary trade declaration - from January to September 1993. At both Beihai and Fangcheng, boundary trade cargoes are being discharged in the roads only.
The receiver declares cargo to the provincial bureau as "Boundary Trade" and then proceeds with the necessary paperwork and payment of import tax. It is understood that local individuals operate offices at Beihai and Fangcheng handling Boundary Trade Declaration Documentation on behalf of end users against a fee. As a result, neither the shippers nor the charterers, etc. know in advance if any cargo bound to Beihai and/or Fangcheng is to be under Boundary or normal/Special (Barter) Trade. It is up to the receivers' discretion how they declare their cargo, and they usually proceeded with the necessary declaration either a few days prior ship's arrival or even sometimes on/after arrival. When a cargo is under 'Boundary Trade' to Beihai or Fangcheng, Customs Officials do not make any arrangements and/or issue any documents for this imported cargo.
As the vessel is not given outward clearance, obvious problems will arise at the next port of call. Chinese customs procedures have been summarised as follows:
"When a vessel calling in one Chinese port for discharging part cargo then sails to call at another Chinese port to discharge the balance of the cargo, the following procedure is followed by Customs officials:
A sealed letter is delivered to the Master (Customs cover) addressed to the Custom Officials of the second port of call, in which is stated the exact quantity on board on ship's arrival, exact quantity discharged at Beihai and exact quantity remaining on board to be discharged at the next Chinese port of call;
When the ship calls at the next Chinese port of call, this envelope is delivered to the Custom Officials of this port and ship is formally accepted to discharge the balance of the cargo."
Since no Customs attendance/documentation is required for ships under Boundary cargo, every ship, in order to call at her next Chinese port of call after discharging her cargo at Beihai, should get a port clearance at Hong Kong or any intermediate non-Chinese port to avoid the above mentioned complications with Customs.
If she does not get intermediary port clearance, then the vessel will be liable to pay a high penalty (up to RMB 250,000/USD 45,000) if calling at a second port after discharging parcel cargo at Fangcheng or Beihai underBoundary Trade Declaration.
Hong Kong, SAR
Hong Kong is a Special Administrative Region of China.
The islands of Kinmen, Matsu, Penghu, Taiwan
Berth Reservation Regulations
BIMCO has received a summary of the berthing procedures for the ports on the islands of Kinmen, Matsu, Penghu, Taiwan, which we provide herebelow for guidance.
There is no official regulation named "berth reservation" on the islands. Berthing sequence is arranged on a "first come, first served basis".
At each port a berthing meeting is held by the Harbour Bureau. The Port Authority chairs the meeting and all vessel operators and/or agents with arriving vessels attend.
All commercial berths are displayed on a board, showing the vessels currently occupying the berths in port and estimated operation times. All arrived vessels requesting berths are also indicated on the board in their arrival sequence.
The first arrived vessel is given priority to request a suitable berth based on the different particulars (length, depth, storage area, etc.) and the different requirements of vessel/cargo operation.
This process continues in the sequence of the arrived vessels, usually resulting with a so-called "berthing arrangement" for the next 24-28 hours. Changes to the agreed berthing arrangement can only be made at subsequent berthing meetings.
Moist tropical. The winter monsoon (October-March) brings persistent NE winds with an average of 10-12 m/sec, but frequently reaching 18-20 m/sec. The summer monsoon winds (June-August) blow from SW with an average of 5 m/sec and seldom exceed 10 m/sec.
Tropical storms or typhoons may occur from April to December, with the greatest frequency during the months of July, August and September.