PRC Ports Law

(Adopted at the 3rd Session of the Standing Committee of the 10th National People's Congress, promulgated on June 28 2003 and effective as of January 1 2004.)

Translation provided by Freshfields Bruckhaus Deringer

PART ONE: GENERAL PROVISIONS

Article 1: This Law is formulated for the purposes of strengthening port administration, maintaining safety and operational order within ports, protecting the lawful rights and interests of the parties concerned and promoting construction and development of ports.

Article 2: This Law is applicable to the planning, construction, maintenance, operation and management of ports, and other relevant activities.

Article 3: "Ports" as referred to in this Law means regions composed of certain areas of water and land with adequate wharf facilities and such functions as the passage, anchorage and moorage of vessels, boarding and disembarking of passengers, and handling, lighterage and storage of cargo, etc.

A port may consist of one or more port areas.

Article 4: The State Council and the relevant local people's governments at or above the county level shall include development and planning requirements of ports in their plans for national economic and social development, and shall protect and reasonably exploit port resources according to law.

Article 5: The State encourages domestic and foreign economic organizations and individuals to invest in the construction and operation of ports according to law, and protects the lawful rights and interests of such investors.

Article 6: The competent State Council department in charge of transportation shall be in charge of port affairs nationwide.

The administration of ports carried out by the local people's governments within their respective administrative regions shall be determined according to the State Council provisions on the administrative system for ports.

Based on the administrative system for ports referred to in the preceding paragraph, the local people's government at the municipal or county level shall designate a department to carry out specific administrative management of ports that are to be administered by the municipal or county level people's government at the locality of such ports. The people's government of the provinces, autonomous regions or municipalities directly under the central government shall each designate a department to carry out specific administrative management of ports that are to be administered by the people's government of said provinces, autonomous regions or municipalities directly under the central government.

The departments designated in accordance with the preceding paragraph to carry out specific administrative management of ports shall hereinafter be referred to as the port administrative departments.

PART TWO: PLANNING AND CONSTRUCTION OF PORTS

Article 7: Port planning shall be formulated according to the requirements of national economic and social development as well as the requirements of the development of national defence, embody the principle of rational exploitation of coastal resources, conform to the planning for urban and township systems, and be compatible with overall planning for land use exploitation, overall urban planning, river area planning, flood prevention planning, functional division of sea areas, planning for the development of waterway transportation, planning for the development of other means of transportation, and other relevant planning schemes specified by laws and administrative statutes.

During the process of formulating port plans, debates among relevant experts shall be organized, and an environmental impact assessment shall be conducted according to law.

Article 8: Port planning shall consist of planning for the geographical distribution of ports and general port planning.

Planning for the geographical distribution of ports refers to the planning of the geographical location of ports, including planning for geographical distribution of ports nationwide and planning for geographical distribution of ports within provinces, autonomous regions and municipalities directly under the central government.

General port planning refers to the specific planning of an individual port within a certain period of time, including the water and land areas of the port, division of the port areas, throughput and classes of potentially calling vessels, nature and functions of the port, utilization of the water and land areas, use of shorelines for the construction of port facilities, configuration of construction land, and the phases of construction, etc.

General port planning shall conform to plans for the geographical distribution of ports.

Article 9: Planning for the geographical distribution of ports nationwide shall be prepared by the competent State Council department in charge of transportation after soliciting comments from the relevant departments of the State Council and the relevant military organs, and shall be ratified by the State Council before promulgation and implementation.

Planning for geographical distribution of ports within the provinces, autonomous regions and municipalities directly under the central government shall be formulated with the coordination of the people's governments of the respective provinces, autonomous regions and municipalities directly under the central government according to the planning for the geographical distribution of ports nationwide, and shall be submitted to the competent State Council department in charge of transportation for comments. If the competent State Council department in charge of transportation fails to provide any comments for amendments within 30 days after its receipt of the materials for solicitation of comments, such planning for geographical distribution of ports may be promulgated for implementation by the people's government of the concerned province, autonomous region and municipality directly under the central government. If the competent State Council department in charge of transportation is of the opinion that the planning submitted is not in compliance with the planning for geographical distribution of ports nationwide, comments for amendments shall be provided within 30 days after receipt of the materials for solicitation of comments. If the people's government of a province, autonomous region or municipality directly under the central government has a dissenting view on the comments for amendments, a petition may be submitted to the State Council for a decision.

Article 10: General port planning shall be formulated by the relevant port administrative department after soliciting comments from the relevant departments and the relevant military organs.

Article 11: The general planning of principal ports with important geographical locations, large freight handling capacity and extensive influence on economic development shall be promulgated for implementation by the competent State Council department in charge of transportation after soliciting comments from the relevant departments of the State Council and the relevant military organs, and after jointly approving such planning with the people's government of the concerned province, autonomous region or municipality directly under the central government. A directory of principal ports shall be determined and promulgated by the competent State Council department in charge of transportation after soliciting comments from other relevant departments of the State Council.

The people's government of the provinces, autonomous regions and municipalities directly under the central government shall determine the important ports within their respective administrative regions after soliciting comments from the competent State Council department in charge of transportation. The general planning of such important ports shall be approved for promulgation and implementation by the people's government of the relevant provinces, autonomous regions and municipalities directly under the central government after soliciting comments from the competent State Council department in charge of transportation.

The general planning of ports other than those specified in the above-mentioned two paragraphs shall be implemented subsequent to being approved by the local people's government at the municipal or county level at the location of such ports, and shall also be filed for the record with the people's government of the relevant province, autonomous region or municipality directly under the central government.

Where the general planning of ports that fall within the scope of ports specified in the first and second paragraphs of this article is formulated by the port administrative departments of the people's government at the municipal or county level, such planning shall be reviewed and approved by the people's government at the same level before submission for examination and approval.

Article 12: The modification of port plans shall be handled according to the procedures for the formulation of port planning.

Article 13: The construction of port facilities exploiting deep-water shorelines within areas specified in the general planning of ports shall be jointly approved by the competent State Council department in charge of transportation together with the State Council department in charge of comprehensive macro-economic control. Construction of port facilities that do not exploit deep-water shorelines shall be approved by the port administrative departments. However, the use of port shorelines by projects to be constructed with the approval from the State Council or the State Council department in charge of comprehensive macro-economic control does not require a separate approval procedure for the exploitation of port shorelines.

The competent State Council department in charge of transportation shall formulate standards for deep-water shorelines of ports.

Article 14: Port construction shall be in compliance with port planning; no port facilities shall be constructed in violation of port planning.

Article 15: Port construction projects requiring approval from the relevant authorities according to State provisions shall go through examination and approval procedures in compliance with the relevant provisions of the State, and shall conform to the relevant State standards and technological norms.

Environmental impact assessment for port construction projects shall be conducted according to law.

The safety facilities and environmental protection facilities for port construction projects shall be designed, constructed and put into use concurrently with the principal engineering works of the project.

Article 16: The use of land and water areas for port construction shall be handled in accordance with the provisions of the laws and administrative statutes concerning land administration, administration for the use of sea areas, watercourse administration, navigation administration, and the administration of protection of military facilities, as well as other relevant laws and administrative statutes.

Article 17: The areas of ports where dangerous cargoes are processed and where sanitary and insecticide treatment are performed shall meet the requirements of general port planning and the requirements of the State regarding work safety, fire control, inspection, quarantine and environmental protection. The distance of these areas from densely populated areas and port passenger facilities shall conform to the provisions of the relevant departments of the State Council. Construction may be commenced only upon completion of relevant procedures according to law and approval by the port administrative department.

Article 18: Navigation markers and other accessory facilities shall be constructed concurrently with the port construction, and efforts shall be made to ensure that such facilities shall be put into use according to schedule.

The construction within the port of office facilities for the relevant administrative authorities shall conform to the general port planning. The construction expenses shall not be passed on to port operators.

Article 19: Construction projects for port facilities may be put into use only after being examined and accepted upon their completion in accordance with the relevant State provisions.

The ownership of port facilities shall be determined according to the provisions of relevant laws.

Article 20: The relevant people's government at or above county level shall ensure the injection of necessary funds for the construction and maintenance of the public port infrastructure such as navigation channels, flood prevention walls and anchoring sites. The State Council shall prescribe specific measures in this regard.

Article 21: The relevant people's government at or above the county level shall take measures for organizing and constructing such accessory facilities for ports as navigation channels, railways, highways, water supply and drainage, power supply and communication facilities.

PART THREE: PORT OPERATION

Article 22: Those who engage in port operations shall make written application to the port administrative department for an operating licence, and process registration with the administration for industry and commerce according to law.

The port administrative department shall abide by the principles of openness, impartiality and fairness in issuing port operating licences.

Port operation shall include the operation of wharves and other port facilities, operation of passenger transportation services within ports, operations of handling, lighterage and storage of cargoes within port areas and the operation of tugboats in ports.

Article 23: Those who obtain port operating licences shall have fixed business sites with facilities, equipment, professional and technical staff and management personnel corresponding to their business operations, as well as other conditions prescribed by laws and statutes.

Article 24: The port administrative department shall make decisions according to law on whether or not to grant port operating licences within 30 days after its receipt of the written application referred to in the first paragraph of Article 22 of this Law. If a licence is granted, a certificate of licence for port operations shall be issued. If an application for licence is denied, the applicant shall be notified in writing of the reasons for such denial.

Article 25: Operators of port tally businesses shall obtain licences according to relevant provisions. The issuance of the operating licences for port tally businesses shall abide by the principles of openness, impartiality and fairness. Specific measures shall be formulated by the competent State Council department in charge of transportation.

Operators of port tally businesses shall fairly and accurately transact their tally business and shall not concurrently engage in the business operations of cargo handling services or storage services referred to in the third paragraph of Article 22 of this Law.

Article 26: Port operators engaging in operating activities shall abide by relevant laws and statutes as well as the provisions of the competent State Council department in charge of transportation regarding port operating rules, perform contractual obligations according to law and provide customers with fair, good-quality services.

Operators undertaking passenger transportation services within ports shall adopt effective measures to guarantee the safety of passengers, provide passengers with expedient and convenient services, and maintain a good environment in waiting areas.

Port operators shall adopt effective measures to prevent and treat pollution and harm inflicted on the environment according to the relevant laws and statutes on environmental protection.

Article 27: Port operators shall give priority to handling supplies for rescue missions and disaster relief, and supplies urgently required for the development of national defence.

Article 28: Port operators shall publicize at their business premises a list of chargeable service items and the standards for the charges; charges not included on this publicized list may not be implemented.

Where the operating charges for port services are directed or determined by the government according to law, port operators shall comply with the relevant provisions.

Article 29: The State encourages and protects fair competition in port operation activities.

Port operators shall not carry out any monopolistic acts or acts of unfair competition, and shall not use any means whatsoever to force others to accept their port services.

Article 30: Port operators shall truthfully provide statistical information requested by port administrative departments based on the provisions of the PRC Statistics Law and related administrative statutes.

Port administrative departments shall, according to the relevant provisions of the State, promptly submit the statistical data provided by port operators to higher authorities, and preserve the trade secrets of port operators.

Article 31: The lawful rights and interests of port operators are protected by law. No work unit or individual shall pass charges onto or illegally collect charges from port operators, or illegally interfere with the operational autonomy of port operators.

PART FOUR: SAFETY AND SUPERVISORY ADMINISTRATION OF PORTS

Article 32: Port operators shall strengthen the administration of production safety, establish sound rules and systems relating to the responsibility system for work safety, perfect work safety conditions, adopt effective measures to safeguard work safety, and ensure work safety according to the provisions of the PRC Work Safety Law and other relevant laws and statutes as well as the provisions of the competent State Council department in charge of transportation on operating rules for port safety.

Port operators shall formulate their emergency plans for dealing with accidents involving dangerous cargoes, plans for emergency evacuation and rescue of passengers during major production accidents, and plans for prevention of natural disasters according to law, and shall ensure the implementation of such.

Article 33: Port administrative departments shall formulate emergency plans for dealing with accidents involving dangerous cargoes that could jeopardize the public interests of society, plans for emergency evacuation and rescue of passengers during major production accidents and plans for prevention of natural disasters according to law, and shall establish complete emergency rescue systems for dealing with major production accidents within their ports.

Article 34: Vessels entering or exiting ports shall report to the maritime administrative authority according to the provisions of laws and administrative statutes regarding marine traffic safety. Upon receipt of such report, the maritime administrative authority shall promptly notify the port administrative department.

Those who transport dangerous cargoes into or away from a port by vessel shall report the names, properties, packaging and the time of entry to or exit from the relevant ports to the maritime administrative authority according to the provisions of the competent State Council department in charge of transportation. After receiving such report, the maritime administrative authority shall decide as to whether or not to approve such activity within the time limit prescribed by the competent State Council department in charge of transportation, notify the party making such report and also notify the port administrative department. However, vessels operating on fixed schedules, on fixed navigation lines, and carrying fixed varieties of cargoes may file their reports periodically.

Article 35: Those who handle and transfer dangerous cargoes within ports shall report the names, properties, packaging and time and venue of operation to the port administrative department according to provisions of the competent State Council department in charge of transportation. After receiving such report, the port administrative department shall decide as to whether or not to approve such activity within the time limit prescribed by the competent State Council department in charge of transportation, notify the party making such report, and also notify the maritime administrative authority.

Article 36: The port administrative department shall carry out supervision and inspection of the work safety of the ports according to law, and conduct key inspection on the wharfs where passenger flow is concentrated, volume of cargo handled is large, or special purpose operations are conducted. If any hidden danger is discovered during inspection, the inspected party shall be ordered to eliminate such danger immediately or within a specified time limit.

The departments responsible for the supervision and administration of work safety and other related departments shall carry out supervision and administration over work safety within ports within the scopes of their respective duties according to the provision of laws and statutes.

Article 37: Cultivation and plantation activities shall be prohibited within the water areas of ports.

Excavation or blasting activities within port areas that could threaten the safety of ports are prohibited. If such activities are necessary for construction projects, corresponding safety measures shall be adopted and reported to the port administrative department for prior approval. Activities required by provisions of laws to be reported to the maritime administrative authority for approval shall also be so reported to the maritime administrative authority.

Dumping of soil or sand into the water areas of ports and discharging poisonous or harmful substances in amounts exceeding prescribed standards in violation of laws and statutes on environmental protection shall be prohibited.

Article 38: Departments in charge of the approval of such projects as the construction of bridges, under-water tunnels and hydroelectric power stations that may affect the hydrological conditions of ports shall solicit comments from the concerned port administrative departments before making the approval decision.

Article 39: Any vessel that requires piloting services to enter or leave a port pursuant to provisions of laws and administrative statutes on marine transportation safety shall apply for piloting services at the relevant piloting authority. Specific measures on piloting shall be determined by the competent State Council department in charge of transportation.

Article 40: In the event of port congestion due to delay of passengers and accumulation of cargo, the port administrative department shall promptly adopt effective measures to clear the port. The local people's government of the municipality or county at the location of the port may directly adopt measures to clear the port if it deems such action necessary.

Article 41: Port administrative departments shall coordinate preparation of articles of association for the ports under their administration and announce these articles publicly.

The articles of a port shall include descriptions of the geological location of the port, conditions of channels for navigation, depth of the port pool, machinery facilities, and handling capacity, as well as specific measures for the ports to implement the laws and statutes on port administration and the relevant provisions of the competent State Council department in charge of transportation.

Article 42: In accordance with their official duties, port administrative departments shall supervise and inspect the implementation of this Law.

In the course of lawfully carrying out supervision and inspection, the inspectors of port administrative departments shall be authorized to direct inquiries about relevant circumstances toward the inspected work units and the relevant persons, and may review and make copies of relevant materials.

Inspectors shall keep confidential any trade secrets that come to their attention in the course of inspection.

Inspectors shall display their law enforcement certificates in the course of inspection and supervision.

Article 43: Inspectors shall keep a written record of inspection time, place, content, problems found and status of resolution, which shall be signed by the inspectors and the personnel in charge of the inspected work unit. In the event that the personnel in charge of the inspected work unit refuse to sign on such records, the inspectors shall make a note of this fact and report the event to the port administrative department.

Article 44: Inspected work units and relevant personnel shall accept the inspection and supervision carried out according to law by the port administrative departments, and truthfully disclose the relevant circumstances and materials. They shall not refuse to be inspected and shall not conceal or fraudulently report the relevant circumstances and materials.

PART FIVE: LEGAL LIABILITY

Article 45: In any of the following cases, the people's government at or above county level or the port administrative department shall order that correction be made within specific time limits. If no correction has been made, the authority making such order may apply to the people's court to have the facilities constructed in violation of law dismantled by force. A fine of maximum Rmb50,000 be imposed for:

(1) construction of ports, wharfs or other port facilities in violation of port planning; or

(2) construction of port facilities and use of port shorelines without approval.

If the examination and approval authority for the construction project has granted approval for a project constructed in violation of port planning, the chief personnel directly responsible for such approval and other personnel with direct responsibility shall be assessed an administrative penalty.

Article 46: If port areas dedicated to the processing of dangerous cargoes or to the performance of sanitary and insecticide treatment are constructed within ports without approval according to law, or if the distance from port areas dedicated to the processing of dangerous cargoes or to the performance of sanitary and insecticide treatment to densely populated areas or port passenger transportation facilities is not in compliance with the provisions of relevant departments of the State Council, the port administrative department may order that construction or use of such facilities be halted and that corrections be made within a specific time limit. A fine of maximum Rmb50,000 may be imposed.

Article 47: If wharfs, port handling facilities or passenger transportation facilities are put into use without authorization before they pass examination and are accepted, the port administrative department may order that the use of such facilities be halted and that corrections be made within a specific time limit. A fine of maximum Rmb50,000 may be imposed.

Article 48: Port administrative departments may order those who commit any of the following acts to cease their illegal operations and confiscate their illegal income; if the illegal income reaches or exceeds Rmb100,000, a fine of not less than twice but not more than five times the illegal income may also be imposed; if the illegal income is less than Rmb100,000, a fine not less than Rmb50,000 and not more than Rmb200,000 may be imposed:

(1) undertaking port operations without obtaining a port operating licence according to law;

(2) undertaking port tally business without being licensed according to law; or

(3) simultaneously undertaking port tally businesses and cargo handling or warehousing services.

Where the commission of any act specified in Item (3) of the preceding paragraph entails serious circumstances, the relevant competent authority may revoke the licence for port tally business.

Article 49: If a port operator does not give priority to handling supplies for rescue missions or disaster relief, or supplies urgently required for the development of national defence, the port administrative department shall order that correction be made. Its port operating licence may be revoked if the circumstances are serious.

Article 50: If a port operator commits any monopolistic acts or acts of unfair competition in the course of its business in violation of relevant laws and administrative statutes, it shall bear legal liabilities according to the provisions of the relevant laws and administrative statutes.

Article 51: Where a port operator is in violation of the provisions on work safety provided in Article 32 of this Law, the port administrative department or other departments charged by law with the duty of supervising and administering work safety may impose penalties according to law. If the circumstances are serious, the port administrative department may revoke its port operating licence and impose penalties on its major personnel in charge according to law. If a crime is constituted, criminal liability shall be pursued according to law.

Article 52: If a vessel entering or exiting a port fails to report to the maritime administrative authority according to the provisions of Article 34 of this Law, the maritime administrative authority shall punish the offenders according to the laws and administrative statutes regarding marine transportation safety.

Article 53: Where dangerous cargo is handled and transferred between vessels in a port without reporting to and obtaining approval from the port administrative department according to law, the port administrative department may order that such operations be halted, and that a fine of not less than Rmb5,000 but not more than Rmb50,000 be imposed.

Article 54: In the case of cultivation and plantation activities in water areas of ports, the maritime administrative authority may order that correction be made within a specific time limit. If no correction has been made subsequent to such order, the cultivation and plantation facilities may be forcibly dismantled, with the expenses thereof to be borne by the offender. A fine of maximum Rmb10,000 may also be imposed.

Article 55: In the case of excavation and blasting activities within port areas that could threaten port safety, or the dumping of soil or sand into the water areas of ports, the port administrative department shall order that such illegal acts be halted and that any hidden dangers arising therefrom be eliminated within a specified time limit. If any dangers are not eliminated within the time limit, such dangers shall be forcibly eliminated and the expenses thereof shall be borne by the offender, and an additional fine of not less than Rmb5,000 but not more than Rmb50,000 may also be imposed. Where provisions of laws and administrative statutes regarding marine transportation safety provide that the maritime administrative authority is responsible for administering penalties, such provisions shall be abided by. If a crime is constituted, criminal liability shall be pursued according to law.

Article 56: If the competent departments in charge of transportation, port administrative departments or the maritime administrative authority fail to perform their duties prescribed by law and commit one of the following acts, the chief personnel directly responsible and other personnel with direct responsibility shall be given administrative penalties according to law. If a crime is constituted, criminal liability shall be pursued according to law:

(1) approval for construction of port facilities and use of port shorelines in violation of law, approval for construction of port areas dedicated to the processing of dangerous cargoes or to the performance of sanitary and insecticide treatment in violation of law, or approval for entry to or exit from a port of vessels carrying dangerous cargoes in violation of law, or approval for handling dangerous cargoes or for transferring such cargoes between vessels in a port in violation of law;

(2) granting port operating licences or port tally business licences to applicants who do not meet statutory requirements;

(3) not revoking a licence in a timely manner after finding that port operators or port tally business operators with operating licences no longer meet statutory requirements;

(4) failure to perform their duties of supervision and inspection according to law by failing to lawfully investigate and impose penalties on the construction of any port, wharf or other port facilities in violation of law, or on any port operations or port tally businesses conducted in violation of law, or any acts not in compliance with provisions on work safety, or any acts that endanger port operational safety or any other acts in violation of this Law.

Article 57: If an administrative authority illegally infringes the rights of autonomous operations of port operators, the superior administrative or supervisory authority of said authority shall order it to make corrections. If property is passed on to or demanded of port operators or if any illegal charges are imposed on port operators, the money and property shall be ordered returned. If the circumstances are serious the chief personnel directly responsible and other personnel with direct responsibility shall be given administrative penalties according to law.

PART SIX: SUPPLEMENTARY PROVISIONS

Article 58: The opening of a port to vessels that navigate international shipping routes shall be submitted to the State Council for approval after the people's government of the relevant province, autonomous region or municipality directly under the central government has solicited comments from the relevant departments under the State Council and the relevant military organs, and has obtained their consent, according to the relevant provisions of the State.

Article 59: The competent department in charge of fisheries under the people's government at or above the county level shall be responsible for the administration of fishery ports. The State Council shall provide specific administrative procedures.

Fishery ports as referred to in the preceding paragraph mean artificial ports or natural harbours designated for fishery production, providing moorage and wind shelter for fishery vessels, places for handling fish catches and places for supplementary fishery materials, including special fishery docks, special fishery water areas and special anchorage sites for fishery vessels within comprehensive ports.

Article 60: Procedures for the construction and administration of military ports shall be formulated by the State Council and the Military Commission of the Central Committee of the Communist Party of China.

Article 61: This Law shall become effective as of January 1 2004.