Guidelines for entering ports
Rights and obligations of parties involved in transport relationships
Comment
Since the outbreak of the covid-19 pandemic in 2020, many countries have been affected by and had to impose restrictions to prevent the transmission of covid-19. During the past 18 months, the Chinese government has made great efforts to protect its people and it has rolled out a series of regulations and guidelines to prevent the transmission of covid-19 via imported sources brought in by transport such as international shipping vessels.
The COVID-19 Prevention and Control Guidelines for Ports And Front-line Workers were released on 10 April 2020 by the Ministry of Transport. Since then, the guidelines have been updated and revised to meet the evolving situation, with the latest (sixth) edition published on 21 May 2021. Vessels planning on entering Chinese ports need to pay attention to the following policies.
Vessels may need to report to the authorities, cooperate with their investigations and assist them with obtaining the following information:
- berthing and departure details for the 14 days preceding the vessel's arrival at a Chinese port;
- the crew's basic personal information, contact details, health condition and nucleic acid testing results;
- crew shifts;
- personnel boarding and disembarking details;
- material deliveries;
- ship quarantine procedures and epidemic prevention measures;
- details of any close contacts during berthing;
- operating information for domestic sewage and the ballast water management system; and
- details of any refrigerated containers and cold chain goods.
Vessels must comply with the regulations of non-contact operation management. Ships that run international voyages must undergo customs quarantine and obtain the relevant inspection and quarantine certificates. The shipping company or agent must then release a crew health statement before carrying out loading and unloading operations. In addition, vessels intending to switch from international routes to domestic routes may carry out operations at the entry port only after all crew members have a negative nucleic acid test result.
For vessels with crew members that must take nucleic acid tests, the stevedores or other relevant personnel may climb on board the vessel for their respective duties only after the crew members have provided negative nucleic acid testing results.
If the operating personnel for a container liner ship must get on board earlier due to schedule arrangements, they are not allowed to enter the crew's living area or the ship's hold. The personnel will then be isolated and must within the port until the crew has provided negative nucleic acid testing results.
Different ports can work out more detailed operation guidelines according to their particular situations. For example, the third edition of the COVID-19 Prevention and Control Guidelines for Shanghai Port and Its Front-line Workers, published by Shanghai Port, provides that if a vessel has infected cargo and all of its shipping company's vessels are in operation, or if a vessel fails to provide accurate information as regards the pandemic, the port pilotage institutions may take restrictive measures by postponing the vessel's pilotage order.
Rights and obligations of parties involved in transport relationships
Seaworthy obligation of carriers
In an epidemic situation more generally, carriers must carefully make the ship seaworthy. Although berthing in an area affected by an epidemic does not necessarily make the vessel unseaworthy, the vessel's environment may become unsuitable for receiving and carrying specific kinds of goods. For example, compulsory fumigation and disinfection of a vessel may cause fresh food and fruits to rot, making the vessel unseaworthy for such cargo.
On the other hand, even with some infected crew, the ship is not necessarily unseaworthy. However, if an epidemic infects an entire crew or a number of crew members such that the number of healthy crew is below the minimum requirement for safety manning rules, the ship would be considered unseaworthy.
Termination right of carrier and shipper
Before a shipment, if a carriage contract cannot be performed due to the following circumstances arising from an epidemic or epidemic prevention and control measures, the carrier or the shipper can terminate the contract and would not be liable for any compensation:
- the vessel is unable to be equipped with necessary crew and supplies within a reasonable period;
- the ship is unable to reach the loading port or discharge port;
- having entered the loading port or discharge port, the vessel cannot proceed with the following voyage or berthing;
- the cargo is temporarily prohibited from imports or exports by the country or region in which the loading port or discharge port is located;
- the shipper is unable to deliver the cargo at the loading port within a reasonable period due to the congestion of inland transport; or
- other factors which could not be attributed to the carrier or the shipper.
Carrier's right to unload cargo at a safe port or place near discharging port
In normal practice, the carrier should deliver the cargo to the discharge port agreed in the contract. If the carrier is unable to unload the cargo at the agreed port due to an epidemic or epidemic prevention and control measures, the carrier should promptly notify the cargo owners and negotiate. If such negotiations fail, unless there is a clear agreement provided for in the contract, the carrier is entitled to choose a safe port close to the original discharge port, after fully considering the interests of the shipper or the consignee, making proper arrangements for the storage of the cargo and notifying the relative parties.
Relevant obligations of forwarders
Under an onerous contract of mandate, if the mandator sustains any loss through the fault of the mandatary, the mandator may claim damages. Therefore, if the voyage is cancelled or changed, the freight forwarding company will not be liable unless there was a fault in the performance of the forwarding contract.
If a freight forwarding company books space in the shipper's name and the voyage is then cancelled or changed because of an epidemic or epidemic prevention measures, the shipper's claim against the forwarder for the relevant losses will not be supported. However, if the forwarder fails to fulfil its diligence and prudence obligations, such as promptly notifying the shipper of the voyage's cancellation or schedule change, or if the forwarder has issues cooperating with the shipper when handling the related follow-up matters, the claim against the freight forwarding company for the relevant losses may be supported.
Port operators must not randomly extend ships' berthing periods
The Ministry of Transport strictly prohibits port operators from randomly taking restriction measures such as prohibiting or restricting cargo vessels from entering ports, or mandating quarantine at anchorage for 14 days (generally, the isolation period in China for people suspected of being infected with covid-19 is 14 days).
In the absence of clear requirements from the maritime authorities where the port operating corporation is located, if the port operating company wilfully sets a berthing period for quarantine and isolation, the vessel's owner or operator could request that the port operator bear the relevant losses.
Under the guidance of the government, loading and unloading operations have been carried out in an orderly manner in relevant ports across mainland China throughout the covid-19 pandemic. In general, where there is an outbreak of an epidemic on a vessel or at a port, the government will take immediate and strict measures to block its transmission.
For further information on this topic please contact Jin Yu-Lai at KaiRong Law Firm by telephone (+86 21 5396 1065) or email ([email protected]). The KaiRong Law Firm website can be accessed at www.skrlf.com.