NOTICE ON INVITING COMMENTS ON THE IMPLEMENTING RULES FOR THE REGULATIONS OF THE PEOPLE’S REPUBLIC OF CHINA ON INTERNATIONAL MARITIME TRANSPORTATION
(Notice of the Department of General Affairs
of the Ministry of Communications of the People’s Republic of China issued on June 21, 2002)
For the purpose of
implementing the Regulations of the People’s Republic of China on International
Maritime Transportation, the Implementing Rules for the Regulations of the
People’s Republic of China on International Maritime Transportation (on comment)
are drafted and available for comments. The comments are welcomed from operators
in international maritime transportation and auxiliary business thereof
including shipping service companies, non-vessel-operating common carriers,
international shipping agency service operators as well as any organizations and
persons who are interested in Chinese maritime legislation.
The Chinese and English
versions of these Implementing Rules (on comment) are available for downloading
from the official website of the Ministry of Communications: http://www.moc.gov.cn/. The comments can be
either in Chinese or in English. Please send the comments in writing (by fax or
by email) to the Department of Water Transport of the Ministry of Communications
before July 15, 2002.
The address for the comments
is as follows:
11 Jian Guo Men Nei
Avenue
Department of Water
Transport
Ministry of
Communications
Beijing,
100736
P. R.
China
The fax number is
86-10-65292648. The email address is shipping@moc.gov.cn.
IMPLEMENTING RULES FOR THE
REGULATIONS OF THE PEOPLE’S REPUBLIC OF CHINA ON INTERNATIONAL MARITIME
TRANSPORTATION
(ON COMMENT)
These Implementing Rules are
formulated in accordance with the Regulations of the People’s Republic of China
on International Maritime Transportation.
These Implementing Rules are
applicable to the international maritime transportation business as well as the
auxiliary business operations as specified in Regulations of the People’s
Republic of China.
The Ministry of
Communications and the relevant communications departments of the local people’s
government shall, under the principles of fair competition, effective governance
and supervision and coordination and convenience administer the international
maritime transportation business and the auxiliary business operations in
accordance with these Implementing Rules.
CHAPTER
TWO
OPERATORS OF INTERNATIONAL
MARITIME TRANSPORTATION AND AUXILIARY BUSINESSES THEREOF
To be engaged in
international shipping services or to establish a company for international
shipping services in the Chinese territory in accordance with the Regulations of
the People’s Republic of China on International Maritime Transportation
(hereinafter referred to as RIMT), the applicants shall submit the following
documents to the communications department of the people’s government in the
province (municipality directly under the Central Government or autonomous
region) where the company is to be established for further submission to the
Ministry of Communications for approval by the such communications department
after its review:
(1) applications for
the engagement of the international shipping services or for the establishment
of a company for international shipping services; and
(2) the contract on
the establishment of the joint venture;
(3) the company’s
charter;
(4) the legal
document certifying the registration of the company; or
(5) financial
credibility documents for the main investors;
(6) other documents
as, the case my be, as required by the Ministry of
Communications.
The relevant communications
departments in the people’s government in the province (municipality directly
under the Central Government or autonomous region) shall, within 15 days from
the receipt of the qualified documents from the applicants, provide its comments
and convey the whole set of application to the Ministry of Communications. The
Ministry of Communications shall, within 15 days from the receipt of the
documents, make a decision of granting or not granting permission, and notify
the applicant through the relevant communications department of the local
people’s government.
In case that the permission
is granted by the Ministry of Communications, the applicant shall, settle the
registration procedure of the company at the company registration authority and
settle the related procedures at the taxation authority, the designated banks
for foreign currency transaction. The company shall also satisfy the conditions
as specified in Article 5 of the RIMT.
In case the company
satisfies the conditions as specified in Article 5, the applicant shall, in
accordance with the procedures specified in paragraph 1 of this Article, submit
the relevant documents certifying that all the conditions in Article 5 are
satisfied to the Ministry of Communications. The company cannot operate until he
obtains the Permit for Operation of International Shipping
Services.
To be engaged in
international shipping agency services or to establish a shipping agency service
company within the Chinese territory, the following documents shall be submitted
to the communications department in the people’s government in the province
(municipality directly under the Central Government or autonomous region) where
the services are to carried out:
(1) application for
the engagement of the international shipping agency services or establishment of
a international shipping agency service company;
(2) the contract on
the establishment of the joint venture;
(3) the company’s
charter;
(4) the photocopy of
the company’s business license; or
(5) financial
credibility documents of the main investors;
(6) the agreement of
establishing the joint venture or cooperative operation;
(7) the relevant
documents certifying that the conditions specified in paragraph 2 of Article 9
of the RIMT are satisfied and the staff hold the qualification certificate for
the operation issued by the Ministry of Communications.
(8) the related
documents certifying that company has the ability to have the electronic data
exchange with the ports and the customs authority;
(9) other documents
required by the Ministry of Communications.
The relevant communications
department shall, within 15 days from the receipt of the qualified documents
from the applicants, provide its comments and convey the whole set of
application documents to the Ministry of Communications.
The Ministry of
Communications shall make public the materials on the experience of the senior
executives for comments at the official website of the Ministry of
Communications for 10 days. During the period for public comments, in case there
is no disagreement from the public about the experience of such senior
executives, the Ministry of Communications shall proceed with the qualification
registration procedure and issue the certifying document with which the
applicant shall settle the registration of the company at the company
registration authority and other relevant procedures at the customs, the
taxation and the foreign currency authorities. After the all the procedures have
been completed, the applicant can obtain the Qualification Certificate for the
Engagement of the International Shipping Agency Services from the Ministry of
Communications.
The international shipping
agency companies and other investors are entitled to set up their branch or
international shipping agency company in the inland cities other than the port
cities in accordance with laws and regulations for the purpose of accepting the
entrustment from the ship owners, the ship charterers or the ship operators to
engage in part of the services listed in Article 29.
(1) signing bill of
lading or carriage contracts and accepting cargo space booking on behalf of the
carrier;
(2) undergoing
customs formalities for containers and shipments;
(3) canvassing
cargoes, arranging shipments and attending to procedures for shipments ands
transshipment of cargoes and containers;
(4) collecting
freight and settling payment on behalf of the principal;
(5) other pertinent
businesses.
In case of setting up branch
or international shipping agency company in the inland cities, the following
documents shall be submitted via the communications department of the people’s
government in the province (municipality directly under the Central Government
or autonomous region) to the Ministry of Communications for the qualification
registration:
(1) applications for
the setting up of the branch or the international shipping agency company;
(2) company’s
charter;
(3) financial
credibility document for the investors (not applicable to the cases where
branches are to be set up);
(4) the relevant
documents certifying that the condition specified in paragraph 2 of Article 9 of
the RIMT is satisfied.
The following
criteria shall be satisfied for the engagement in the business relating to
storage and warehousing of international shipments within Chinese
territory:
(1) having the fixed
place of business;
(2) having the
warehouse which meets the standards of safety and environment protection as
provided by the State;
(3) having at least
two senior executives among all with no less than three years’ experience in the
related business;
(4) other criteria
specified by the State laws and regulations.
The following criteria shall
be satisfied for the engagement in the business relating to international
maritime container freight station and container yard
services:
(1) having the fixed
place of business;
(2) having the
vehicles, handling equipment, storing yard, warehouse and the related facilities
appropriate to the business scope for the check of the containers;
(3) having at least
two senior executives among all with no less than three years’ experience in the
related business;
(4) other criteria
specified by the State laws and regulations.
In case of engagement in
international ship management business, businesses relating to storage and
warehousing of international shipments and international maritime container
freight station and container yard services by Chinese enterprises or
establishment of enterprises for the engagement of the above-mentioned
businesses, the following materials and documents shall be submitted to the
communications department of the people’s government in the province
(municipality directly under the Central Government or autonomous region ) where
the businesses are to be carried out:
(1) application;
(2) agreement
(contract) on joint investment or cooperative operation;
(3) charter of the
company;
(4) the registration
document of the company; or
(5) the financial
credibility documents of the main investors.
In case that the materials
and documents are complete and effective, the communications department of the
local people’s government in the province (municipality directly under the
Central Government or autonomous region) shall, within 15 days from the
acceptance of the application, complete the registration procedure and issue the
certifying document with which the applicant shall settle the registration of
the company at the company registration authority and other relevant procedures
at the customs, the taxation and the foreign currency authorities. The
conditions specified in article 11 of the RIMT, Article 7 and 8 of these
Implementing Rules shall be satisfied by the company.
In case that the applicant
satisfies the conditions specified in article 11 of the RIMT, Article 7 and 8 of
these Implementing Rules, the communications department of the people’s
government in the province (municipality directly under the Central Government
or autonomous region) shall issue the Qualification Certificate for the
Engagement of the International Maritime Transportation Auxiliary Services and
such issuance shall be filed with the Ministry of Communications by the
communications department. The applicant cannot operate until the qualification
certificate has been obtained.
The overseas international
shipping service company and the overseas non-vessel-operating common carrier
who engage in international container liner service at Chinese ports shall
nominate a point of contact within Chinese territory. The point of contact is
the point through which the communications department of the people’s government
may have contact with the overseas international shipping service company and
overseas non-vessel-operating common carrier. Such point of contact shall bear
the responsibility of contact related to the administrative and legal procedures
specified in the RIMT or these Implementing Rules.
The nominated point of
contact shall have a fixed place of business within Chinese territory.
The company is deemed to
have received the documents after the documents have been served to his
nominated point of contact for a reasonable period of
time.
While the overseas
international shipping service company or non-vessel-operating common carrier
applies for the qualification registration, he shall file with the Ministry of
Communications of the name, address and means of contact of such point of
contact as well as the copy of agreement between the company and the point of
contact or the letter of entrustment by the company to the point of contact. In
case of change of the point of contact or means of contact, such changes shall
be filed to the Ministry of Communications 15 days in
advance.
The materials and documents
specified in Article 17 of the RIMT shall be submitted for the application of
the engagement of the international liner service at Chinese ports and
registration for the relevant qualification. It is not allowed to engage in
international liner service unless the international liner service qualification
and Registration Certificate of the International Liner Service Qualification
has been obtained.
The above-mentioned
international liner service qualification shall mean that the operator has the
qualification to engage in international cargo liner service or passenger liner
service by means of soliciting cargo (passenger), accepting space booking,
publishing ship schedule, issuing bill of lading, collecting freight with his
owned or chartered vessel at the Chinese ports.
An overseas international
shipping service company cannot engage in international shipping service at
Chinese ports unless he acquires the qualification of a non-vessel-operating
common carrier in accordance with the provisions in Article 7 and Article 8 of
the RIMT, in case that although the vessels operated by the such overseas
international shipping service company do not call at Chinese ports, such
company engage in international cargo liner service at Chinese ports by means of
issuing bill of lading or the relevant transport document, soliciting cargo and
collecting freight.
The above-mentioned
provisions are especially applicable to the international shipping service
company who solicit cargo at Chinese ports and transport the cargo to overseas
ports for transshipment by means of space charter or feeder
service.
In case of applying for the
qualification for engagement in non-vessel-operating common carrier’s business
in China by a Chinese company, the application shall be submitted to the
communications department of the people’s government in the province
(municipality directly under the Central Government or autonomous region) where
the company is registered for further submission to the Ministry of
Communications. In case of applying for the qualification for engagement in
non-vessel-operating common carrier’s business in China by a oversea
non-vessel-operating common carrier, the application can be submitted for
further submission via his nominated point of contact to the communications
department of the people’s government in the province (municipality directly
under the Central Government or autonomous region) where his nominated point of
contact is situated. The application materials include the
following:
(1) application for
the engagement in non-vessel-operating common carrier’s business;
(2) photocopy of the
company registration document;
(3) original of the
notary document certifying that the photocopy of the company registration
document is authentic and effective;
(4) charter of the
company; and
(5) the sample of the
bill of lading; and
(6) having at least
two senior executives among all with no less than three years’ experience in
international maritime service;
(7) name, address and
means of contact of the point of contact as well as copy of letter of
entrustment ( applicable to overseas non-vessel-operating common carrier); and
(8) bank receipt for
the deposit in the designated bank account.
The relevant communications
department shall, within 15 days after the receipt of the above-mentioned
documents submit the document to the Ministry of Communications. In case that
the documents are complete and effective, the Qualification Registration
Certificate for the Engagement in Non-Vessel-Operating Common Carrier’s Business
shall be issued by the Ministry of Communications.
In case of establishment of
a company for engagement in non-vessel-operating common carrier’s business in
Chinese territory, the application shall be submitted to the Ministry of
Communications in accordance with the procedures specified in Article 13 of
these Implementing Rules. The application materials shall include the
following:
(1) application for
the engagement of non-vessel-operating common carrier; and
(2) agreement
(contract) on joint investment or cooperative operation;
(3) charter of the
company;
(4) the financial
credibility documents for the main investors;
(5) having at least
two senior executives among all with no less than three years’ experience in the
international maritime services.
The relevant communications
departments of the people’s government shall, within 8 days after the receipt of
the above-mentioned documents submit them to the Ministry of Communications. In
case the documents are complete and authentic, the Ministry of Communications
shall issue the certifying document with which the applicant shall settle the
registration of the company at the company registration authority and other
relevant procedures at the customs, the taxation and the foreign currency
authorities. The applicant shall pay the deposit at the designated bank account
by the Ministry of Communications and send the bank receipt of the bank deposit
together with the sample of bill of lading and the photocopy of the company’s
business license to the Ministry of Communications in accordance with the
procedures provided in Article 13 of these Implementing Rules to obtain the
Qualification Registration Certificate for the Engagement in
Non-Vessel-Operating Common Carrier’s Business.
The above-mentioned
procedures shall be followed in case of setting up branches by the
non-vessel-operating common carrier.
Article
15
After an overseas
non-vessel-operating common has obtained the qualification for the engagement in
the non-vessel-operating common carrier’s business in China, in case that the
Chinese-registered subsidiaries or joint ventures of such overseas
non-vessel-operating common carrier do not use their own bills of lading, such
subsidiaries or joint ventures can be registered for the qualification as such
overseas non-vessel-operating common carrier’s branches in
China.
After the Chinese company
has acquired the qualification for the engagement of the non-vessel-operating
common carrier’s business, if his subsidiaries or the companies in which he has
the majority shares do not use their own bills of lading, but only issue their
mother company’s bill of lading, his subsidiaries or companies in which he has
the majority shares can be registered as the branches of such a company for the
qualification.
In case that his
subsidiaries or such companies in which he has the majority shares use and issue
their own bills of lading, the above-mentioned provisions do not
apply.
The company who has acquired
the non-vessel-operating common carrier’s business qualification can accept the
entrustment from other non-vessel-operating common carriers to issue the bill of
lading on their behalf.
In case a company register
the qualification for non-vessel-operating common carrier’s business with at
least two kinds of trade names, the applicant shall provide documents to prove
that such trade names or bills of lading are owned or held by such company. If
the documents are authentic and effective, the applicant can register his
qualification with more than one trade names or bills of
lading.
The applicant for the
engagement in the non-vessel-operating common carrier’s business shall pay a
deposit in the non-vessel-operating common carrier business bank account which
are opened by a commercial bank entrusted by the Ministry of Communications. The
interest of the deposit shall be calculated on the basis of interest rate of
current bank account published by the People’s Bank of China.
Article
20
After the applicant has
registered his bill of lading, paid the deposit and acquired the qualification
for engagement in non-vessel-operating common carrier’s business, the Ministry
of Communications shall made know to the public the names as well as the samples
of the bills of lading of such non-vessel–operating common carriers at the
official website: http://www.moc.gov.cn/.
In case of
non-vessel-operating common carrier’s compensation arising from the
non-performance or inappropriate performance of the carrier’s obligation by the
legal authority or the arbitration organization, the legal authority shall
handle such compensation in accordance with the relevant laws. In case of a
penalty exercised by the communications department, the Ministry of
Communications shall deduct the amount of the penalty from the deposit bank
account.
In case the amount of
deposit in the bank account is not in compliance with the amount specified in
the RIMT, the deducted amount from the deposit of such non-vessel-operating
common carrier shall be made in full within 20 days. In case of failure of
making up, the Ministry of Communications shall deprive such
non-vessel-operating common carrier of his qualification certificate.
In case that the
non-vessel-operating common carrier is deprived of the qualification by the
Ministry of Communications in accordance with laws and regulations or the
non-vessel-operating common carrier applies for the termination of business or
the business is terminated for other reasons, the application can be submitted
to the Ministry of Communications for the refund of the deposit. The Ministry of
Communications shall make known to the public such application for 30 days on
the official website: http://www.moc.gov.cn/.
In case of no right of
compensation is lodged within the period of publication, the Ministry of
Communications shall, within 5 days after the publication, inform the bank with
whom the deposit bank account is opened to refund the applicant the deposit
together with the interests therefrom.
In case of setting up
representative office by foreign operators of maritime transportation and
auxiliary businesses thereof, the following documents shall be submitted to the
communications department of the people’s government in the province
(municipality directly under the Central Government or autonomous region) where
the representative office is to be set up:
(1) application to
set up the representative office, in which the name of the applicant, the place
of registration of such representative office, the term of service and the main
scope of operation etc., shall be specified;
(2) the photocopy of
the company’s commercial registration certificate;
(3) the original of
the notary document issued by the notary office at the state (region) of the
registration of the company certifying that the photocopy is authentic and
effective;
(4) the introduction
on the company, including the year of establishment, the scope of the main
business, the business achievement made in the previous few years, the number of
employees, the overseas organizations structure etc.;
(5) the name and
nationality of the chief representative and his (her) resume
etc.
The Ministry of
Communications will review the above-mentioned documents. In case the documents
are authentic and effective, the Approval Certificate for the Representative
Office by Traders from Foreign Country (Region) will be issued by the Ministry
of Communications.
The term of service by the
representative office will be from one to three years.
In case of the prolongation of the term of service of the representative office and the change of chief representative, the related procedures shall be gone through for the approval by the Ministry of Communications in accordance with the procedures provided in the previous paragraph.
In case the applicant for
the international shipping agency service or non-vessel-operating common
carrier’s business has one of the following circumstances, the Ministry of
Communications will not issue the qualification
certificate:
(1) the investor who
is a natural person has been convicted for criminal punishment for more than one
year’s imprisonment;
(2) the investor’s
business permit or registration of the company originally invested by the
applicant has been deprived for his violation of laws or the operation of the
company has been required for termination;
(3) the main
investors was given a warning or exercised a penalty of more serious nature by
the administrative authority in the past three consecutive years for his
violation of the State laws or regulations;
(4) the senior
executives referred to in the application have the circumstance specified in
paragraph 1, 2 and/or 3.
The applicant for the
engagement of the storage and warehousing of international shipments and
international maritime container freight station and container yard services
shall, against the production of the relevant qualification certificate issued
by the relevant communications departments of the people’s government in the
province (municipality directly under the Central Government or autonomous
region), settle the registration procedures at the customs authority who has the
jurisdiction before he can store the cargo and containers supervised by the
customs.
In case that the related
documents or materials are submitted for the application to engage in the
international maritime transportation and auxiliary businesses thereof as
specified in the RIMT by foreign traders, when the communications department
considers it necessary, notary document issued by the notary office or the law
firm at the state of the registration of the company certifying that the
documents and materials are authentic and effective shall be
submitted.
After the international
shipping service companies, non-vessel-operating common carriers, international
shipping agency companies, international ship management companies, companies
for storage and warehousing of international shipments service, companies for
international maritime container freight station and container yard service have
established in accordance with laws and regulations or have acquired the
qualification certificate, the following changes shall be filed with the
authority who issued the permit or qualification
certificate:
(1) change of the
company’s name;
(2) change of place
of business of the company;
(3) change of the
investor(s);
(4) suspension or
termination of operation;
(5) merging or
severance of the company.
In case of change of the
company’s name, the permit or qualification certificate shall be withdrawn for
new ones by the authority who issued the permit or qualification certificate. In
case of termination of operation, the permit or qualification certificate shall
be returned to the authority who issued the permit or qualification
certificate.
The approval shall be
obtained from the Ministry of Communications and the competent foreign trade and
economic cooperation authority in accordance with the provisions in this Chapter
for the engagement in the business operations of international maritime
transportation and auxiliary businesses thereof which are specified in the RIMT
and these Implementing Rules by establishment of foreign-invested enterprises as
provided in the RIMT.
In case of establishment of
foreign-invested enterprises for engagement in international shipping service
businesses, or international shipping agency service business, or
non-vessel-operating common carrier’s business, the application shall be
submitted to the communications department of the people’s government in the
province (municipality directly under the Central Government or autonomous
region) where such enterprise is to be established for further submission to the
Ministry of Communications. The documents specified in Article 4, 5 or 14 of
these Implementing Rules shall be submitted as well. In case the above-mentioned
application and the documents are reviewed as qualified, the Ministry of
Communications will issue the business approval document. The applicants shall,
against the production of the business approval document and the document
specified in Article 32 of these Implementing Rules, obtain the License for
Foreign-Invested Enterprise from the Ministry of Foreign Trade and Economic
Cooperation.
The applicant shall, after
having obtained the approval from the Ministry of Communications and the
Ministry of Foreign Trade and Economic Cooperation, against the production of
the document issued by the Ministry of Communications and the License for
Foreign-Invested Enterprise issued the Ministry of Foreign Trade and Economic
Cooperation, settle the company registration procedure at the company
registration authority, and other the relevant procedures at the customs
authority, the taxation authority as well as the foreign currency
authority.
After the foreign-invested
enterprise has established in accordance with Chinese laws, the applicant shall,
against the production of the company business license issued by the company
registration authority, apply for the relevant permit or qualification
certificate before he can start the operation.
Article
30
In case of establishment of
foreign-invested enterprises for engagement in international ship management, or
storage and warehousing of international shipments service, or international
maritime container freight station and container yard service, the documents
specified in Article 9 of these Implementing Rules shall be submitted to the
communications department of the people’s government in the province
(municipality directly under the Central Government or autonomous region) where
the company is proposed to be established for further submission to the Ministry
of Communications.
In case that the
above-mentioned application and documents are reviewed as qualified, the
Ministry of Communications shall issue the approval document to the applicant.
The applicant shall, against the production of the approval document issued by
the Ministry of Communications and the documents specified in Article 32 of
these Implementing Rules, obtain the License for Foreign-Invested Enterprise
from the department of foreign trade and economic cooperation of the people’s
government in the province (municipality directly under the Central Government
or autonomous region) where the company is proposed to be
established.
The Applicant shall, after
having obtained the approval document issued by the Ministry of Communications
and the License for Foreign-Invested Enterprise issued by the department of
foreign trade and economic cooperation of the people’s government in the
province (municipality directly under the Central Government or autonomous
region) where the enterprise is proposed to be established, settle the company
registration procedure at the company registration authority, and other relevant
procedures at the customs authority, the taxation authority and foreign currency
authority.
After establishment in
accordance with Chinese laws, foreign-invested enterprises shall, against
production of the business license issued by the company registration authority
and the relevant certifying documents provided in Article 11 of the RIMT or
Article 7 and 8 of these Implementing Rules, obtain the relevant qualification
certificate at the communications department of the people’s government in the
province (municipality directly under the Central Government or autonomous
region) before he can operate.
In case of applying for the
enlargement of business scope to include operations of international maritime
transportation and auxiliary business thereof by the foreign-invested
enterprises, the qualifications shall be obtained from the Ministry of
Communications or the communications department of the people’s government in
the province (municipality directly under the Central Government or autonomous
region) for engagement in international shipping services, non-vessel-operating
common carrier’s business, international shipping agency service, international
ship management, storage and warehousing of international shipments service, or
international maritime container freight station and container yard service.
After the qualifications have been obtained, the change of business scope
procedure shall be settled at the authority who issued the License for
Foreign-Invested Enterprise in accordance with the provisions in the relevant
State laws and regulations.
In the application for the
License for Foreign-Invested Enterprise from the department of foreign trade and
economic cooperation authority in accordance with the provisions of this
Chapter, the following document shall be submitted:
(1) application for
the establishment of the foreign-invested enterprise;
(2) contract or
agreement on joint investment or cooperation;
(3) charter of the
company;
(4) the financial
credibility documents for the main investors.
CHAPTER
FOUR
INTERNATIONAL MARITIME
TRANSPORTATION AND THE AUXILIARY BUSINESSES THEREOF
In case of new international
liner services, liner services under suspension, or any increase or decrease of
service frequency at Chinese ports, changes to ports of call in China by
international shipping service company who has acquired the liner service
qualification certificate, filing of the above-mentioned issues shall be made to
the Ministry of Communications in accordance with the provisions of the
RIMT.
In case of purchasing
vessels from abroad by a international shipping service company registered in
China, the application for registration shall be made to the Ministry of
Communications via the communications department of the people’s government in
the province (municipality directly under the Central Government or autonomous
region) where the company is registered. No vessels can be purchased from abroad
before the registration document can be obtained from the Ministry of
Communications.
In case of increase of
shipping capacity by a international shipping service company registered in
China, the name, nationality and tonnage of the vessel to be added shall be
filed with the Ministry of Communications via the communications department of
the people’s government in the province (municipality directly under the Central
Government or autonomous region) where the company is
registered.
The Ministry of
Communications shall, after the receipt of the application for filing, issue the
document certifying the filing. The international shipping service company
shall, against the production of the document certifying the filing, settle the
relevant procedures at the customs authority and the maritime safety supervision
authority before he can have the vessel in operation.
The business of a
non-vessel-operating common carrier shall include the
following:
(1) acceptance of
shipments as a carrier or conclusion of international shipment contracts; and
(2) issuance of the
bill of lading or the corresponding document of transportation; and
(3) booking of space
or ship cargo to the maritime carrier or the inland carrier;
and
(4) collection o
freight as well as other kinds of charges on the basis of the service contract;
and
(5) payment of
charges for the port to port service and the multimodal transport charges; and
(6) handling of
warehousing and vessel agency; and
(7) leasing of
containers, stuffing and destuffing; and
(8) other activities
related to non-vessel-operating common carrier’s business.
In case that the
non-vessel-operating common carrier needs to provide for the shipper or
consignee the international container consolidation and distribution service for
which he needs to engage in inland transport, cargo warehousing, international
freight station and container yard services, he shall apply to the relevant
authorities for the qualification in case that such services need the approval
from the authorities as specified in the relevant laws and
regulations.
Operators for maritime
storage and warehousing for international shipments service can engage in the
following kinds of services upon the entrustment from the shipping service
companies, non-vessel-operating common carriers, manufacturers or cargo
owners:
(1) to store and
maintain the cargo;
(2) to maintain the
stored cargo;
(3) to sort,
separate, pack and label the cargo;
(4) to distribute and
send cargo;
(5) other related
services.
Operators for international
maritime container freight station and container yard services can engage in the
following kinds of services upon the entrustment from the shipping service
companies, non-vessel-operating common carriers:
(1) to store,
maintain and transship containers;
(2) to clean, repair
and check containers;
(3) to store,
consolidate and distribute cargo in the containers;
(4) other related
services.
In case that an overseas
non-vessel-operating common carrier has no branch within the Chinese territory,
he shall entrust an operator in China who has the non-vessel-operating common
carrier’s business qualification to issue the bill of lading on his behalf. In
case a Chinese non-vessel-operating common carrier do his non-vessel-operating
common carrier’s business at places where he has no branches by means of
entrusting an agent to issue the bill of lading on his behalf, such agent shall
have the non-vessel-operating common carrier’s
qualification.
An operator who has no
non-vessel-operating common carrier’s qualification shall not accept other
qualified non-vessel-operating common carrier’s entrustment to issue the bill of
lading on behalf of such qualified non-vessel-operating common
carrier.
In case that an
international liner service operator, a non-vessel-operating common carrier, in
accordance with the provisions in the RIMT or these Implementing Rules, entrust
an international shipping agency service company, a non-vessel-operating common
carrier to issue the bill of lading or to collect freight on his behalf, the
name, address, place of registration and the means of contact for such entrusted
agent shall be made known to public on the website or by other means of
media.
The name of the website or
the media where the international liner service company or non-vessel-operating
common carrier publish the name list of his agents shall be filed with the
Ministry of Communications.
In case that an
international container liner service company concludes a service contract with
a non-vessel-operating common carrier or a cargo owner, such service contract
shall be in written form. The contract serial number shall be shown in the bill
of lading or other relevant documents.
In case that an
international container liner service operator needs to conclude with the
non-vessel-operating common carrier a service contract or accept his shipments,
the duplicate of the Qualification Certificate for the Engagement in the
Non-Vessel-Operating Common Carrier’s Business shall be required to be
produced.
When the international
container liner service operator accept the space booking or shipments from an
international freight forwarder, the cargo owner’s name shall be shown on the
bill of lading or the related document under the item of “shipper”. In case that
the international freight forwarder’s name is shown as the shipper, it shall be
confirmed that such freight forwarder has obtained the Qualification Certificate
for the Engagement in the Non-vessel-Operating Common Carrier’s Business in
accordance with the provisions in the RIMT.
In case a
non-vessel-operating common carrier is at the same time an international freight
forwarder, such operator can only has one of the two kinds of status for each
shipment he made to the international shipping service company.
In case that the RIMT-listed
agreements which are reached among the international shipping service companies
in the international liner service involve arrangement related to Chinese ports,
such agreements shall be filed with the Ministry of Communications both in
Chinese and English versions.
(1) kinds of
agreements made by the liner conference. They shall be filed by the
conference.
When the conference files
the agreements, the name lists of the conference members shall be
provided.
(2) kinds of
agreements concluded between non-conference members or conference members with
non-conference members. They shall be filed separately by the international
shipping service operators who took part in the
agreements.
In case of soliciting cargo
by the international shipping service operators who are engaged in international
liner service at ports or in regions where there no branches by such
international shipping service operators, the services as issuing of bill of
lading, the collection of freight and the signing of service contracts on behalf
of such international shipping service operators shall be entrusted to operators
who have the qualification to engage in international shipping agency
service.
In case there is an
acquisition or merging between Chinese international shipping service operators
or between Chinese international shipping operators and foreign international
shipping operators, the agreement of acquisition or merging shall be submitted
to the Ministry of Communications for review by the acquiring or merging
party.
The operators of
international maritime auxiliary services as international shipping agency,
international ship management, storage and warehousing for maritime shipments
and international maritime container freight station and container yard services
shall not have the following conducts:
(1) providing service
at charges other than normal and reasonable ones, thereby prejudicing fair
competition and the violation, by the international shipping agency service
companies, of the relevant State policies and regulations on
charges;
(2) offering secret
rebates to customers, not being reflected in the bookkeeping, for the purpose of
soliciting cargoes;
(3) arbitrarily
taking advantage of its dominant position to restrict the other party of the
transaction to choose the maritime auxiliary service providers freely, or to
attract the other party of transaction by means of the monopoly position in the
industry for the purpose to exclude other competitors;
(4) other unfair
competition activities.
When the interested parties,
in accordance with provisions in the RIMT, raise his request to the Ministry of
Communications to have the investigation, such request shall be made in written
form and the reasons for such request as well as the basic facts of the case to
be investigated shall be provided.
The Ministry of
Communications shall make a decision to launch the investigation or not to
launch after the necessary appraisal about the request to investigate by the
interested parties.
(1) In case the
Ministry of Communications believes that the request does not have enough
reasons or the evidence is not enough, he shall decide not to investigate and
inform the applicant of such decision. The interested parties may add reasons
for investigation or factual evidence before he can raise the request again.
(2) In case the
Ministry of Communications decides to investigate, the reasons for investigation
and the period of investigation shall be made known to the party to be
investigated and made known to public by means of notice as well.
Before the Ministry of
Communications decide to launch the investigation at its own discretion, he
shall listen to the comments from the industry and give though appraisal. After
he decided to have the investigation, the reasons of investigation, the period
of investigation shall be made known to the party to be investigated and made
known to public by means of notice.
When the investigatory
authority forms the investigation group, the expert from the enterprise who has
the competition with the party to be investigated shall not be
invited.
The formation of the
investigation group shall be informed to the party to be investigated by the
investigatory authority. The investigatory authority shall give full
consideration to the request for evasion of the party to be investigated. In
case the request is reasonable, the formation of the investigation group shall
be adjusted accordingly.
While the party to be
investigated is under investigation, he may tell the investigation group the
data, materials and documents which he needs to keep confidential. When it is
necessary, such request shall be recorded in written form for future
review.
The members of the
investigation group shall not disclose the items to be kept confidential as
requested by the party to be investigated to others or organizations other than
the investigatory authority. The investigatory authority shall not disclose
information to be kept confidential to non-governmental
organizations.
In case that the party to be
investigated finds that the member(s) of the investigation group disclose(s) the
confidential information, he has the right to complain to the investigatory
authority or seek legal protection.
Investigation includes
investigation on basic facts and investigation on the impairment to competition.
The following elements shall
be taken into consideration by the investigatory authority to decide the
standard of charges other than normal and reasonable ones:
(1) the freight rates
level of the main shipping companies who have the similar scale of business as
the party to be investigated at the same period of time;
(2) the reason of the
freight rate level determined by the party to be investigated, including the
control of costs, the level of management and the ability to make
profit;
(3) whether there is
a focus on certain competitor for the purpose of driving the competitor out of
the business.
The following elements shall
be considered by the investigatory authority to decide the case of prejudicing
fair competition:
(1) to constitute
obstacle to the free choice of carrier by the shippers or the consignors, or to
reduce the variety or flexibility of choice;
(2) to affect the
normal shipment of cargo;
(3) to solicit cargo
by offering secret rebate not being reflected by the book keeping, which
seriously distorts the market competition rules.
Before the investigatoy
authority makes a conclusion on the investigation, a meeting for consulting the
experts shall be held to evaluate the degree of impairment to fair market
competition.
The experts invited in the
meeting shall not be invited from the company which has the competition with the
party to be investigated.
After investigation is
completed, the investigatory authority shall make a conclusion on the
investigation and make such conclusion known to the public by
notice:
(1) if the basic
facts for the launching of the investigation are not clear or do not exist after
the investigation, the investigatory authority shall terminate the
investigation;
(2) if the basic
facts exist but do not constitute impairment to fair competition in the market
or the impairment is weak, the
investigatory authority shall not take any prohibitive or restrictive action
towards the party to be investigated;
(3) if the basic
facts are clear and constitute serious impairment to fair competition in the
market, the investigatory authority
shall take prohibitive or restrictive action towards the party to be
investigated
The Ministry of
Communications or its authorized communications department of the people’s
government in the province (municipality directly under the Central Government
or autonomous region) shall, at the request of the interested parties, conduct
investigation on the cases listed in Article 48.
In case there is violation
of paragraph 3 and 4 of Article 48 which constitute impairment to the other
transaction party or competitor in the industry, the relevant communications
department of the people’s government in the province (municipality directly
under the Central Government or autonomous region) may take the actions to
decrease the shares of the shareholder who is the interesting party, or to take
prohibitive or restrictive actions as the suspension of the business scope of
such party within certain period of time.
CHAPTER
SIX
SPECIAL PROVISIONS RELATING
TO REPORT OF INFORMATION
Chinese and overseas
shipping companies who engage in international container liner service at
Chinese ports shall, in accordance with the provisions in these Implementing
Rules, fill out the Form on Basic Information of International Shipping Service
Company, the Form on Outward Volume of Container Transportation of International
Shipping Service Company and Form on Inward Volume of Container Transportation
of International Shipping Service Company the truthfully. The filled out
above-mentioned forms shall be sent to the Ministry of Communications before
March 31st every year.
In case that an overseas
shipping company has established his wholly-owned shipping company within the
Chinese territory, such wholly-owned shipping company can report and send the
form on behalf of the overseas company to the Ministry of Communications. In
case there is no wholly-owned shipping company established by the overseas
shipping company, he shall entrust the point of contact within the Chinese
territory to report the information on his behalf.
International shipping
services companies, international shipping agency companies as well as the port
stevedoring companies who engage in international container handling and are
registered within Chinese territory shall, in accordance with the provisions of
these Implementing Rules, fill out the Form on Basic Information of
International Shipping Service Company, the Form on Information of International
shipping Agency Industry, or the Form on Information of International Container
Throughput at Ports truthfully. The filled out above-mentioned forms shall be
sent to the communications department of the people’s government in the province
(municipality directly under the Central Government or autonomous region) where
the company is registered before March 15th every year.
The relevant communications
department of the people’s government in the province (municipality directly
under the Central Government or autonomous region) shall send the
above-mentioned forms as well as the sorted information to the Ministry of
Communications before March 31st of the same
year.
The forms shall be made in
written form as well as in discs. The Ministry of Communications shall nominated
or entrust an organization to receive, save, sort and analysis the information
in the forms.
The method of sending the
forms and the organization responsible for the receiving of the forms shall be
made known to the public on the official website by the Ministry of
Communications: http://www.moc.gov.cn/.
Article
62
In case of
violation of these Implementing Rules for failure to file the point of contact
or the change of the point of contact, the Ministry of Communications shall
exercise a penalty for more than 10 thousand but no more than 30 thousand
yuan.
Article
63
In case of
violation of these Implementing Rules by international shipping service
companies or non-vessel-operating common carriers for failure to made known to
public the name list of their agents, the Ministry of Communications shall
exercise a penalty for more than 10 thousand but no more than 30 thousand
yuan.
Article
64
A warning shall
be given to the international shipping service operator by the Ministry of
Communications or its authorized communications department of the people’s
government in the province (municipality directly under the Central Government
or autonomous region) and a penalty of more than 20 thousand but no more than
100 thousand yuan shall be exercised for each service contract made in case the
international shipping service operators conclude a service contract with a
non-vessel-operating common carrier who fails to register his bill of lading and
pay the deposit.
Article
65
In case of
engagement in the non-vessel-operating common carrier without registering his
bill of lading and paying the deposit and when the penalty is exercised in
accordance with Article 43 of the RIMT, the illegal income shall be calculated
on the basis of the numbers of the service contracts. A violation shall be
counted for each conclusion of service contract or each issuance of the bill of
lading.
Article
66
If the service
contracts concluded by the international shipping service companies who engage
in international container liner service with non-vessel-operating common
carriers are not in written form and the serial number of the service contracts
are not shown on the bill of lading or the related documents, the Ministry of
Communications shall ask for the rectification and a penalty of more than 10
thousand but no more than 30 thousand yuan shall be
exercised.
Article
67
In case a
non-vessel-operating common carrier accept the entrustment to provide the agency
service as issuing the bill of lading of a non-vessel-operating common carrier
who fails to register his bill of lading and pay the deposit, the Ministry of
Communications shall ask for the rectification and a penalty of more than 10
thousand but no more than 30 thousand yuan shall be
exercised.
If the non–vessel-operating
common carrier entrust an operator who does not have the non-vessel-operating
common carrier’s qualification to issue the bill of lading or the related
documents on his behalf, the Ministry of Communications shall ask for the
rectification and exercise a penalty of more than 10 thousand but no more than
30 thousand yuan.
In case of failure to file
the agreements with the Ministry of Communications on time, a penalty will be
exercised on each of the international shipping service operators who conclude
the agreements in accordance with Article 48 of the RIMT.
If international shipping
service operators solicit cargo at ports or regions where they have no branches
by means of entrusting operators other than international shipping agency
companies to issue the bill of lading, settle the payment of freight, conclude
service contracts etc., on their behalf, the Ministry of Communications or its
authorized communications department of the people’s government in the province
(municipality directly under the Central Government or autonomous region) shall
ask for the rectification and a penalty of more than 10 thousand but no more
than 30 thousand yuan shall be exercised.
If there are violations
against Article 48 of these Implementing Rules, the relevant communications
department of the people’s government in the province (municipality directly
under the Central Government or autonomous region) shall ask for the
rectification and exercise a penalty of more than 10 thousand but no more than
30 thousand yuan.
In case the member of
investigation group violates the regulations and discloses the confidential
information of the party to be investigated, the executive penalty shall be
exercised. In case the consequence is severe and against the criminal law, the
criminal punishment shall be exercised.
In case of failure to report the information and send the forms timely as specified by these Implementing Rules, or untruthfulness of the information reported, the Ministry of Communications or the relevant communications department of people’s government in the province (municipality directly under the Central Government or autonomous region) shall ask for the rectification and give a warning or exercise a penalty of more than 10 thousand but no more than 20 thousand yuan.
CHAPTER
EIGHT
SUPPLEMENTARY
PROVISIONS
Article
74
The scope of application of certain parts of the RIMT shall mean the following:
(1) Chapter Two shall be applicable to the international shipping service companies, international shipping agency companies and international ship management companies registered within Chinese territory as well as the engagement of non-vessel-operating common carrier’s business;
(2) Article 23 of Chapter Three shall be applicable to the international shipping service companies registered within Chinese territory and other related companies;
(3) Article 25 of Chapter Three shall be applicable to the international shipping service companies, international shipping agency companies and non-vessel-operating common carriers when they are registered in China.
Article
75
The engagement in the maritime passenger and cargo transportation across Taiwan Strait between Chinese mainland and Taiwan region and the engagement in the maritime transportation across Taiwan Strait between Chinese mainland and Taiwan region via a third place shall be approved by the Ministry of Communications in accordance with the State laws and regulations.
Article 76
In case of engagement in maritime passenger and cargo transportation between ports open to foreign trade in Chinese mainland in the province (municipality directly under the Central Government or autonomous region) where the company is registered and Hong Kong Special Administrative Region, or Macao Special Administrative Region by means of using Chinese flagged vessels by a international shipping service company registered in Chinese mainland who have not acquired the Permit for Operation of International Shipping Services, application shall be submitted to the communications department of the people’s government in the province (municipality directly under the Central Government or autonomous region) where the service is to be carried out and the approval needs to be obtained from such communications department.
In case of engagement in maritime passenger and cargo transportation between ports open to foreign trade in more than two different administrative regions (provinces, municipalities, autonomous regions) of Chinese mainland and Hong Kong Special Administrative Region, or Macao Special Administrative Region by an international shipping service company registered in Chinese mainland who have not acquired the Permit for Operation of International Shipping Services, application shall be submitted to the Ministry of Communications for approval via the communications department of the people’s government in the province (municipality directly under the Central Government or autonomous region) where the company is registered.
In the above-mentioned applications, the following
items shall be specified and the relevant documents shall be attached:
(1) name of the company and the place of registration of the company;
(2) name(s) of the vessel(s), the nationality and the tonnage of the vessel(s);
(3) seaworthiness certificates of the vessel(s);
(4) names of ports of call;
(5) term of operation;
(6) name of the shipping agency companies.
Article
77
In case of the following circumstances, for the engagement in liner or tramp passenger and cargo transportation service between Chinese mainland and Hong Kong Special Administrative Region or Macao Special Administrative Region, the operators shall, by themselves or by entrustment of agencies submit the application for approval to the Ministry of Communications:
(1) usage of foreign flagged vessel(s) by international shipping service operators registered in Chinese mainland;
(2) usage of foreign flagged vessel(s) by internationals shipping service operators registered in Hong Kong or Macao Special Administrative Region;
(3) operation by foreign international shipping service operators.
The relevant provisions on liner service in the RIMT and these Implementing Rules shall be followed for the operation of liner service.
For the above-mentioned issue, the following items shall be specified and the relevant documents shall be attached:
(1) name of the shipping service operator and the place of registration of such operator;
(2) name, nationality and tonnage of vessel(s);
(3) vessel(s) nationality certificates;
(4) names of ports of call;
(5) term of operation;
(6) name of the shipping agency company.
Article
78
The shipping service along the international rivers, boundary rivers as well as the short sea international shipping service serving the frontier trade shall be administered by the relevant communications department of the people’s government in the province (municipality directly under the Central Government or autonomous region) in accordance with the applicable rules made by such communications department which have been approved by the Ministry of Communications.
Article
79
The relevant communications department of the people’s government in the province (municipality directly under the Central Government or autonomous region) shall carry out an annual check over the international shipping service companies, non-vessel-operating common carriers, international shipping agency companies, international ship management companies, operators in storage and warehousing of international maritime shipments business, operators in international maritime container freight station and container yards business, foreign-trader-established representative offices registered in those provinces, municipalities or autonomous regions. The main content for annual check are as follows:
(1) whether the qualification specified in the RIMT and these Implementing Rules is maintained by the operators;
(2) whether there is any unlawful acts or violation of the RIMT and these Implementing Rules;
(3) the change of the items related to the qualification at the time of the registration;
(4) the performance of the obligations specified by the RIMT and these Implementing Rules.
In case of failure to maintain the qualification at the time of the registration of the company, the qualification shall be withdrawn by the authority who issue the permits or certificates in accordance with the provisions of the RIMT.
Article
80
The communications departments in Dalian, Qingdao, Xiamen, Ningbo and Shenzhen can accept for further submission the applications related to the permit, registration and filing as provided by these Implementing Rules from the their respective cities in case it is provided that the applications can be accepted for further submission by the relevant communications department of the people’s government in the province (municipality directly under the Central Government or autonomous region).
Article
81
The rules related to freight filing and the rules governing the qualification of the persons in the international maritime transportation and the auxiliary services thereof shall be formulated by the Ministry of Communications.
Article
82
The filed information, the format of the documents to be filed, the point of contact filed and the means of contact thereof as provided in the RIMT and these Implementing Rules can be looked up by the filers at the website of the Ministry of Communications: http://www.moc.gov.cn/.
Article
83
These Implementing Rules shall come into effect on , 2002. The Management Method on International Shipping Service issued on April 11th, 1985, the Regulations Governing International Shipping Agency Service issued on March 2nd, 1990, the Rules on International Liner Service issued on June 20th, 1990, the Implementing Rules on International Container Transportation at Sea of the People’s Republic of China issued on July 1st, 1992, the Rules on Administration on Representative Offices established by Foreign Water Transport Enterprise issued on October 16th, 1997 by the Ministry Of Communications shall at the same time be null and void and of no effect.