Shipping in Romanian jurisdiction
Shipping regulations in general in Romania
Port State Control in Romania;
Ship registration and mortgages;
Newbuilding and repairs contracts;
Towage and pilotage;
Labour on board the vessel. Crewing agents.
Limitation of liability;
Collision, salvage, wreck removal and pollution;
Judicial sale of vessels and distribution of funds;
Carriage of goods by sea/bills of lading/applicability of carriage conventions in Romania.
Limitation periods for liability;
Jurisdiction and dispute resolutions in maritime matters;
Maritime and inland waterways transport in Romania is regulated by Ordinance no. 42/1997 on maritime and inland waterways transport. This ordinance establishes specific rules applicable to maritime and inland waterways transport, the organization of the institutional system in this area and the bodies forming part of the system, specific rules for the safe development of navigation as well as specific rules for ships, their staff and staff conducting shipping activities, related and support activities.
The ordinance shall apply to shipping activities, related and support activities, occurring in national navigable waters and Romanian ports, to ships flying the Romanian flag, foreign flag vessels sailing in the national navigable waters of Romania, and to Roman seafarers.
The inspection and control of ships, crew and activities that occur in navigable waters and ports are carried out by the Romanian Naval Authority and Port Master.
Ships, irrespective of the flag they fly, when located in the national navigable waters of Romania and Romanian ports, have the obligation to comply with the directives of the Romanian Naval Authority, Port Master and port and / or inland waterways administrations on the entrance / departure and navigation to/from same, their stays and operations in ports.
The Romanian Naval Authority, through the Port Masters, issues the ship mooring permit on the basis of the acceptance of ships’ entry in ports issued by the port administration, and the ships’ departure permit in ports.
The Romanian Naval Authority controls the ships flying the flag of other states, located in the Romanian national navigable waters and ports or operating on or above the continental shelf, in terms of compliance with international agreements and conventions to which Romania is a party.
The Romanian Naval Authority may order ship’s detention and fines, stopping the loading / discharging operations until the remedy of deficiencies identified or may approve the remedy of technical deficiencies in a shipyard chosen by the shipowner. Similarly, it shall notify the competent authority of the state which entitled that ship to fly its flag and / or, as the case may be, the recognized organization that issued the class certificate to that particular ship, on the deficiencies that led to the detention of the ship, under the law.
The Romanian Naval Authority may authorize the departure of the ship to another port in the event that the remedy of the deficiencies found cannot be done in the port of detention, unless she can sail safely and if that port is in another state, it shall properly notify the competent authorities of that state.
The procedure of the port state control in order to guarantee the safety on board the vessel is governed by the Paris Memorandum of Understanding on Port State Control.
The Ministry of Transport, through the Romanian Naval Authority, grants, suspends or withdraws the right to fly the Romanian flag.
The right to fly the Romanian flag is granted to:
Ships owned by Romanian natural or legal entities;
Ships owned by natural entities having the nationality of a Member State of the European Union or belonging to the European Economic Area or legal entities based in the European Union or the European Economic Area;
Ships owned by foreign natural entities domiciled or resident in Romania or subsidiaries of foreign legal entities in Romania, other than those mentioned under b);
Ships owned legal or natural entities, other than Romanian ones, leased by bare-boat contracts or leasing, for periods larger than one year, by Romanian or foreign legal or natural entities.
After granting the right to fly the Romanian flag, Port Masters register the ship in the port records and issue the ship’s Nationality Certificate, which certifies that right.
A vessel under construction will be registered in the Romanian Ship Construction Registry. Port Master will deliver the Ship Building Authorisation according to the request of the owner.
Mortgagees on the vessel are registered in the ship registers of the Port Master and on the Nationality Certificate of the vessel.
In accordance with the requirements of the Ministry of Transport of Romania, sea-going ships flying the Romanian flag and performing international voyages must have a class certificate issued by one of the recognized organizations.
The recognized organizations in Romania are:
American Bureau of Shipping (ABS), Bureau Veritas(BV), China Classification Society (CCS), Det Norske Veritas (DNV), Germanischer Lloyd (GL), Korean Register of Shipping (KR), Lloyd’s Register of Shipping (LR), Nippon Kaiji Kyokai (NK), Registro Italiano Navale (RINA), Russian Maritime Register of Shipping (RS), Hellenic Register of Shipping (HRS), Registro International Naval SA (RINAVE), Polish Register of Shipping (PRS).
Romania applies Directive no. 2009/15/EC of the European Parliament and of the Council of 23 April 2009, Regulation (EC) no. 391/2009 of the European Parliament and of the Council of 23 April 2009, the European Commission Decision no. 2009/491/CE of 16 June 2009.
Recognized organizations authorized in Romania, namely those having concluded a special mandate authorized by the Romanian Naval Authority are GERMANISCHER LLOYD , BUREAU VERITAS, RUSSIAN MARITIME REGISTER OF SHIPPING (RS), KOREAN REGISTER OF SHIPPING (KR), Lloyd’s Register of Shipping (LR), Nippon Kaiji Kyokai (NK), Registro Italiano Navale (RINA), Russian Maritime Register of Shipping (RS), Hellenic Register of Shipping (HRS), Registro International Naval SA (RINAVE), Polish Register of Shipping (PRS).
Parties are free to provide conditions when and where the title in the ship will pass to the owner.
After the completion of the ship’s construction, the provisional acceptance shall take place upon the termination of the work, according to the law, followed by the final acceptance. All risks shall pass to the shipowner upon the provisional acceptance by the termination of the work.
Once the shipowner received the notification that the shipyard informs him that the vessel is completed, he shall be bound, within a reasonable time, to check her and, if she meets the conditions set by contract, to accept the ship.
Time bar limitation for apparent defects begins to run from the final acceptance of the ship or, as appropriate, from the time limit given to the shipyard through the final acceptance minutes for defect removal.
The shipowner has the possibility of formulating a court action against the shipyard for the design works defects found.
Claims initiated by the shipowner against the shipbuilder as a result of defects and damage of the ship will be based on contractual liability. The same will apply in case of repairs on a ship.
Towage of ships in ports is considered as a safety service in Romania and is performed under state control for all ships, regardless of their flag, without discrimination on length, quality and prices.
During usage of tugs, the master and his crew become subordinate to the master of the towed ship and fully comply with all orders received from the latter.
Pilotage of sea-going ships in ports and inland waterways is a safety service and is performed under state control for all ships irrespective of the flag they fly, without discrimination on length, quality and prices.
The pilot is not part of the ship’s crew and does not substitute the master, who has the entire responsibility for ship navigation and manoeuvres under his command.
In case the information provided by the pilot was incorrect or was knowingly erroneously sent, the responsibility for the accident or event occurred devolves on the pilot. In this case, the port or waterways administration, the economic operator or professional association to which the pilot belongs is liable for the damage caused.
The pilot must hold a valid certificate for the navigation area for which ship pilotage is provided, issued by Romanian Naval Authority.
The recruitment, training and development, granting, suspension and withdrawal of the pilot certificate are approved by the minister of transport and infrastructure.
Seafarer means all persons, regardless of citizenship, possessing a license or a certificate of competency entitling them to carry out duties on board ships.
Ships flying the Romanian flag must have a minimum safety crew on board. This is established in relation to the type and destination of the ship, her size, the degree of automation of the ship, and the ship’s condition, i.e. marching or staying.
Romanian seafarers may also go aboard ships flying the flag of other countries, on their own or through seafarer supplying companies.
In order to be able to perform their activities, the agencies supplying seafarers, Romanian legal entities, must be authorized by law and are bound to:
comply with the provisions of all international conventions to which Romania is a party, on the crew issue;
provide security in order to meet the payment of money not paid on time and repatriation costs for crew members, if the ship owner or operator fails to fulfil these obligations.
Seafarer supplying agencies of the member states of the European Union, authorized or approved in the European Union, are exempt from authorization provided in Romania.
Romania has ratified the 1976 Convention on Limitation for Maritime Claims and the 1996 Protocol to the Convention.
The claims mentioned by the Convention can be limited in accordance with the provisions of the Convention and its Protocol.
In case of a direct claim against the insurer, the insurer will be entitled to the benefits of the limitation to the same extent as the assured himself.
Romanian law will govern the rules concerning the constitution and distribution of a limitation fund in case the fund will be constituted in Romania.
Romania is a contracting state to both the Brussels Convention of 1910 on Collision and of 1952 on Civil Jurisdiction in case of Collision.
Assistance and rescue of ships in distress at sea or in national navigable waters, of property, cargo and persons on board, shall be governed by the provisions of national legislation and international agreements and conventions to which Romania is a party.
Assistance and salvage of a ship, cargo and / or property onboard the ship, are made according to the agreement with the ship’s master or the owner or operator thereof. The agreement may be written or transmitted by any means of communication, and recorded in the logbook. Lloyd’s standard form of salvage agreement is acceptable in Romania, if agreed by parties.
If the ship is in danger in the national navigable waters and the ship’s master, owner or operator unduly delay a deal for her assistance and salvage and the port master in whose jurisdiction the ship is in danger deems that the ship in discussion is a real danger for the safety of navigation, the environment or the surrounding population, it may have specialized institutions or economic operators or other ships available begin a salvage intervention. In this case, the ship’s owner or operator or, if applicable, the owner of the salvaged goods shall bear the costs of the intervention ordered by the Port Master. The orders of the Port Master are mandatory for all ships, irrespective of the flag they fly. In this case, the Port Master shall prepare a writ of execution, which will be approved by the Romanian Naval Authority, for salvage reward due to each participant in the ship’s salvage operation.
In the event that a ship fails or sinks in the national navigable waters, the ship owner or operator is required to get the ship afloat or salvage her and clean the bed. The Port Master in whose jurisdiction occurred the event shall notify the ship owner or operator on the deadline for the commencement of such operations. In relation to the actual circumstances, that period will be between 10 and 60 days from the notification date. In case of failure to get the ship afloat or salvage her, the Port Master shall require the port administration to conduct these operations on the account and expense of the ship owner or operator, directly or through a specialized economic agent.
Romania has ratified the International Convention on Civil Liability for Oil Pollution Damage 1992, the International Convention on Civil Liability for Bunkers Oil Pollution Damage 2001, The London 1992 Convention, MARPOL 73/78.
The EU regulations concerning the protection of the marine environment are in force.
Conditions imposed by Romanian law:
a) Indicate and provide evidences to the Court that plaintiffs have commenced the main legal action (Court action or arbitration proceedings according to the provisions of the C/P or B/L) against the defendant. The evidence should be a letter from a Court, apostilled according to Hague Convention 1961 or a letter from the arbitrator appointed showing that arbitration has started. In accordance with the provisions of the new Civil Procedural Code it is possible in urgent cases to arrest the vessel and provide evidences to the Court that substantive Court proceedings have been commenced in 20 days commencing with the date the vessel has been arrested in Romanian jurisdiction ;
b) Indicate and provide evidences to the Court that the defendant in the main proceedings is the owner of the vessel;
c) Provide a bank letter of guarantee to the Court as a percentage of the claimed amount (the amount will be fixed by the Court but in most of the cases is 10%). In accordance with the new Civil Procedural Code which entered into force on 15th of February 2013, the amount of the guarantee should be placed in cash and is limited at 20% of the claimed amount. The main purpose of such bank letter of guarantee is to compensate the losses of the defendant owner if finally the claim of the plaintiff will be found ungrounded by the Court.
In case the matter is very urgent, vessels can be provisionally arrested through the Port Master, paying a tax of Euro 400 (Saturdays and Sundays Euro 800).
A notice of arrest will be notified to the Port Master.
Port Master will place the order of arrest to the vessel’s file and will not interrupt in any way vessel’s operations. Notice of arrest will become effective when the vessel will finalize operations and vessel’s agent will attend Port Master to receive vessel’s permit to leave outside. Starting with the hour when vessel’s agent will ask for the Permit to leave, Port Master will count 24 hours (Saturdays and Sundays are not included within this hours anyway) and the vessel will be arrested for 24 hours. During these 24 hours, plaintiff will need to apply to the Court asking for the arrest of the vessel. Courts are judging these cases on an urgent basis and normally are issuing the decision within 24 hrs. There is no need for the time being to place the counter-security which will be requested by the Court at a later stage.
Romania has acceded to the International Convention for the unification of rules about the arrest of vessels, signed in Brussels on May 10th 1952, on November 8th 1995. .
Article 8, paragraph 1 of the Convention provides that its provisions are applicable in any contracting state to any vessel that carries the flag of a contracting state. Paragraph 2 of the same article concedes the possibility that vessel that carries the flag of a non-contracting state may be arrested in one of the contracting states according to one of the claims listed in Article 1, or according to any other claim that permits the arrest according to the laws of that state. Romanian Courts are applying this principle when are taking into consideration the arrest of one vessel in Romanian jurisdiction.
There are no alternatives available such as saisie conservatoire or freezing order.
A ship can be arrested in Romania for one or more of the claims listed in article 1.1 of the 1952 Arrest Convention. Ships may be arrested in Romania also for one or more of the claims listed by the 1926 maritime liens and mortgages Convention.
Paragraph 2 of the article 8 of 1952 Arrest Convention mentions the possibility that vessels that carry the flag of a non-contracting state may be arrested in one of the contracting states according to one of the claims listed in Article 1, or according to any other claim that permits the arrest according to the laws of that state.
Sister ships may be arrested in Romania, following the provisions of the articles 951-952, 959-968 of Romanian Civil Procedural Code. Romanian Courts are reluctant to order the arrest of sister ships, although this is possible. Ships in associated ownership cannot be arrested in Romania.
Following a correct interpretation of article 3 of the 1952 Arrest Convention, a vessel which, at the time of the arrest is not more in the ownership of the person responsible for the maritime claim, cannot be arrested in Romania. Two important decisions of Constanta Court of Appeal reversed this principle and made possible in Romania in the last period of time the arrest of the vessel sold. Bareboat and Time-Chartered vessels cannot be arrested in Romania for the claims against the Bareboat and/or Time-Charterer.
Court will order to provide a bank letter of guarantee to the Court as a percentage of the claimed amount (the amount will be fixed by the Court but in most of the cases is 1 0 % ). In accordance with the provisions of the new Civil Procedural Code the amount of the guarantee may be increased up to 20% of the claimed amount and needs to be placed in cash at the disposal of the Court.
Arrest of a ship for a maritime claim will be done according to the procedure established by the 1952 Arrest Convention also in case of arrest of a ship for a maritime lien mentioned by the 1926 maritime liens and mortgages Convention.
Romania recognizes maritime liens according to 1926 maritime liens and mortgages Convention. Romania is not a party to the 1993 mortgages Convention.
There is no need to provide original documents to the Court, only copies mentioned to be true copies will be provided to the Court, on the understanding that originals will be kept by the law office. It is necessary to be provided with originals of the documents in order to translate them into Romanian and present legalised translations to the Court, taking into consideration that Public Notaries will not legalise translations without being provided with the originals of the documents. The evidence that main claim proceedings has been instituted should be a letter from a Court, apostilled according to Hague Convention 1961 or a letter from the arbitrator appointed showing that arbitration has started.
Romanian Courts would not accept jurisdiction over the substantive claim once a vessel has been arrested.
Arrest cannot be requested if legal action on the merits has not yet started prior to the application to the Court. According to the new Civil Procedural Code ,it will be possible that, in urgent cases, arrest of the vessel to be permitted without the need to commence substantive claim proceedings in advance. In such a case, substantive claim proceedings has to be commenced in 20 days from the date the arrest application has been admitted by the Court.
Romanian Courts acknowledge wrongful arrest but in practice it is very difficult to prove such a claim.
Romanian Courts do not acknowledge the piercing and lifting of the corporate veil.
It is not possible to have a ship sold pendente lite.
Romania is a signatory to the 1926 International Convention on Maritime Liens and Mortgages. Romania has not yet ratified the 1993 International Convention on Maritime Liens and Mortgages.
In accordance with the new Civil Procedural Code which entered into force on 15th of February 2013, the rules concerning the judicial sale of vessels and distribution of funds are regulated entirely by the new Civil Procedural Code.
A vessel can be sold only in case the creditor holds an executional title against the owner. Only the creditor can apply for the judicial sale of vessel in case the vessel is within the Romanian jurisdiction.
The competent authority who is authorised to sell the vessel and distribute the funds obtained among the creditors is the Court Bailiff.
The judicial sale will extinguish all prior liens and encumbrances on the vessel and will grant the purchaser a clean title to the vessel.
A judicial sale of a vessel in a foreign jurisdiction will be recognised in Romania in accordance with Romanian international private law procedural rules.
Romania has ratified Hamburg Rules 1978 and dennounced Hague Rules 1924. Romania has not ratified, accepted or approved Rotterdam Rules.
The lawful holder of the bill of lading including the party subrogated into the rights of the legal holder has title to sue the carrier.
Romanian Courts ruled that a jurisdiction clause contained in a bill of lading is binding the holder who accepted delivery of the goods.
In principle, a jurisdiction or arbitration clause in a charter party, incorporated in a bill of lading will bind the third-party holder or endorsee of the bill of lading.
In accordance with Romanian Civil Procedural Code, the creditor of the bill of lading holder can arrest cargo on board the vessel. In such a case, the creditor will need to request discharge of the cargo from the vessel.
For cargo claims under transportation contract, including transportation on sea, road or air, the time bar limitation is one year from the date on which the cause of action accrued.
The time bar limitation is three years in case of combined transportation.
For claims in tort the time bar limitation is three years.
For any carriage which falls under the Hamburg Rules 1978 Convention, the time bar limitation is 2 years in accordance with the provisions of Convention.
Usually, the Courts in Constanta and Galati together with the Constanta and Galati Courts of Appeal are handling maritime matters.
In what concerns arrest of the vessels, the competent Court is the Court of the place where the vessel arrived.
Maritime arbitration awards and foreign Court decisions are recognised in Romania in accordance with Civil Procedural Code. The internal arbitral institution is the Arbitration Committee acting within the Romanian Chamber of Commerce in Bucharest.